The Criminal Lawyer

Try this on for size:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes:

(1) a scheme or artifice by a government official whereby the government official’s position is used for the private gain of any person or entity; or

(2) a scheme or artifice by an officer of a corporation, partnership, nonprofit organization or labor union, whereby the officer’s position is used for the private gain of any person or entity and not for the benefit of the officer’s shareholders or members.

If Congress had half a brain, this is what 18 U.S.C. § 1346 would look like. The whole point of the section is to prevent official corruption. A politician or bureaucrat who steers a contract to a buddy, or a corporate CEO who enriches himself instead of his shareholders, or a union boss who mismanages the pension fund — basically anyone who breaches a trust to act on behalf of those he represents.

But instead, Congress wrote this nonsense:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

For one thing, anyone can commit this crime, not just people who owe a duty to a constituency. Moreover, instead of a straightforward definition, this is hopelessly vague. Nobody knows what “the intangible right of honest services” means. Does it include an employee who’s playing solitaire instead of reviewing a file? Does it include a politician making promises he can’t keep?

Nobody knows.

And that’s just how federal prosecutors like it. Actual corruption charges, like bribery and extortion, are notoriously difficult to prove. But a mail/wire fraud charge, based on deprivation of “honest services” — that could mean anything, and so anything they can prove could count. Actions that don’t fit any particular category get to be called “fraud.”

Unethical behavior is now criminal. Contractual breaches, especially in the employment arena, also seem to count.

The courts have had a hard time applying this statute, differing widely on what counts and on how to instruct juries. Earlier this term, the Justices on the Supreme Court sounded like they have real problems with the statute. They seem even to wonder whether it’s void for vagueness. Criminal laws have to be specific enough to put you on notice that certain conduct could land you in jail, and a law where nobody even knows what it means certainly could be unconstitutionally vague. The Court hasn’t decided those open cases yet, presumably because they were waiting for one more to be argued.

And that gets us to today’s Supreme Court arguments in the case of Enron’s former CEO, Jeff Skilling.

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Enron was the nation’s 7th-largest company in 2001, when it suddenly came to light that its net worth was zilch. Bright people who had no clue what they were doing had created a bizarre house of cards that came tumbling down in an instant. The city of Houston, Enron’s headquarters, was devastated for years to come. Some people had clearly done wrong — CFO Andy Fastow and friends had profited hugely from schemes that broke the rules. It was less clear, however, whether CEO Jeff Skilling had acted improperly, or whether he even knew of any shenanigans. It was hard to say that he or the directors misrepresented anything to investors, as the company’s activities were pretty well documented. (For an excellent account of what happened and didn’t happen, see Kurt Eichenwald’s definitive “Conspiracy of Fools.” Malcolm Gladwell did an excellent piece in the New Yorker, as well, called “The Talent Myth,” about the culture there, and another one called “Open Secrets,” about the paradox of too much disclosure.)

Jeff Skilling was convicted in 2006 by a federal jury in Houston. The main charge against him was that he committed wire fraud in order to deprive the shareholders of his “honest services.” He got 24 years.

Skilling’s case is now before the Supreme Court on two grounds. The first is whether he was deprived of a fair trial by not moving the case somewhere other than Houston. The second is whether “honest services fraud” is constitutional.

Skilling’s merits brief says it’s unconstitutional, because it’s so vague that even the courts can’t define it. The DOJ responded that the law is perfectly fine, that the lower court rulings follow a general three-pronged rule: “a breach of the duty of loyalty, intent to deceive, and materiality.” Artificially increasing Enron’s stock price was his way of getting “additional personal benefits at the expense of stockholders.”

Leaving aside the paradox of screwing shareholders by increasing the value of their shares, the government’s argument makes academic sense. We like it when an underlying policy can be found that explains a disparate variety of court decisions. It helps us figure out what the next court decision will probably be, and why. Maybe even help us influence that decision.

But still, there is no denying that the honest services statute has been roundly criticized from the get-go. And we mustn’t forget that Congress passed it in the first place, back in 1988, in response to the Supreme Court’s ruling in McNally v. U.S., expressly rejecting the idea that one could defraud others, not just of money, but also of this intangible “right.”

“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” asked Judge Jacobs of the Second Circuit, in his 2003 dissent in U.S. v. Rybicki.

And back in December, during oral arguments in the cases of Conrad Black and Bruce Weyhrauch, the Supreme Court justices seemed to be unanimous in their dislike of the statute. We all knew Scalia despises the law, previously writing that it “invites abuses by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs. It seems to me quite irresponsible to let the current chaos prevail.” During the December arguments, he called it “mush,” and the other justices joined in. Breyer and Roberts went so far as to suggest from the bench that the law might be unconstitutional, it’s so vague. The justices pretty much ignored the underlying facts of the cases, and just talked about whether the law itself was any good. None of them suggested that it was.

So it’s hardly surprising that Skilling’s case got advanced on the calendar, so it could be included in the set of opinions to come down on this issue.

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At oral argument this afternoon, the justices repeated their seemingly unanimous disapproval of the statute.

Roberts started off by throwing Skilling’s lawyer a softball question: “Skilling owed the Enron shareholders honest services. He acted dishonestly in a way that harmed them. I don’t understand the difficulty.” Given Roberts’ known difficulties with the statute, this was obviously a cue for counsel to explain exactly why there is a problem here. It took the lawyer a little hemming and hawing to get around to it, but soon he was on a roll, and the justices let him go for a good long time without interruption. They didn’t challenge him once on his explanations of why the statute is overbroad, or why it is unconstitutionally vague.

When the government’s lawyer got up, however, they jumped all over him. First about the voir dire/venue issue, and then right into this one (after a snarky segue by the Chief). Kennedy got the ball rolling with “the point is that the courts shouldn’t rewrite the statute; that’s for the Congress to do.”

Scalia picked up on his own language from the December 9 oral arguments and said “Well, suppose you have a statute that makes it criminal to do any bad thing, okay? Now, it’s clear that murder would be covered. All right? Nobody would say that murder is not covered by that. Does that make the statute non-vague? Just because you can pick something that everybody would agree comes within a denial of honest services, doesn’t mean that when you say nothing but honest services, you are saying something that has sufficient content to support a criminal prosecution.”

The government replied that “honest services” has become a term of art. But Roberts stepped in, saying that’s nonsense, because a term of art is shorthand for something that has a defined meaning, and this phrase has anything but a well-defined meaning. The case law on point is “fuzzy.” If people have to wait for the definition to evolve by common-law judicial opinions, then “it kind of puts the prospective defendant in an awfully difficult position. Two cases the government wins, one it loses, and he’s supposed to keep track of that. That doesn’t sound like fair notice of what’s criminal.”

Justice Ginsberg asked what the jury was instructed in this particular case, and the government lawyer had to agree with Scalia that its definition was “a little circular.”

When given a hypothetical situation of an employee using a company computer for personal use, the government said it wouldn’t count, because there’s no fiduciary duty. This got a reaction from several of the justices. This was a new interpretation of the rule, and Scalia asked where it came from, and the government lamely replied “I think it’s inherent.” Kennedy asked “what authority do I look to, to see that some employees are fiduciaries and others are not?” The government said it would come out of agency law.

Alito wondered how there could be a situation where there’s a fraud, when the benefit is in the form of a fully-disclosed compensation. The government admitted that this is a “logical extension” of its position, and “the Court can evaluate” whether it counts here.

Then things got silly for a bit. Sotomayor said, hold on a moment, suppose “I’m a councilperson in a jurisdiction that is considering a tax increase or a tax break, and I vote for the tax break, and I happen to have property that qualifies. Is that a breach of the statute?” The government said it may well be criminal. It depends on whether the government can prove intent to screw the voters. The prosecution would have to have evidence that this was an intentional thing, before it could press charges. “That doesn’t give me a whole lot of comfort,” replied Scalia.

Scalia pointed out that you could satisfy all of the government’s prongs, and still only have a contract violation. “So I know I am liable to have the contract terminated, and maybe for damages for the contract. And you say: And also, by the way, you know, you can go to jail for a number of years, because, oh, yeah, it’s very vague, but you intended to deceive and that’s all, that’s all you need to know.”

Breyer pointed out a contradiction between the government’s position here, and its position in December: “You said intent to deceive, intent to violate the law. I believe in another case you are saying they don’t have to have an intent to violate the law because there was no State law that prohibited whatever was at issue.” This is “a big difference.” In response to the government’s reply, Breyer said that people would now need “to carry around with them an agency treatise” to figure out if they’re committing a crime or not. The problem is, people won’t know what’s unlawful.

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This has to be very heartening for Mr. Skilling. We like to call cases ahead of time here, so we’re going to go out on a limb — though probably not all that far out, really — and predict that Mr. Skilling is going to be getting a new trial.

The Fourth Amendment says the police can’t go into your home or other private place without a warrant. Over the years, we’ve come up with a lot of exceptions to the warrant requirement. So many, in fact, that getting a warrant has become the exception, and the exceptions have become the norm.

That’s because privacy isn’t the only interest society has here. The various exceptions to the warrant requirement allow the police to go in when other important interests outweigh the privacy interest.

One common exception to the warrant requirement is the Emergency exception. Under the emergency rule, the police can go in when there is good reason to believe there’s someone inside who needs help right away — either they’re seriously hurt, or they’re in danger.

In New York, that rule was formalized by the Mitchell case in 1976. The Mitchell rule has two objective conditions, and one subjective condition. If all three are met, then the police would be allowed to enter under the emergency rule. The objective conditions require that a reasonably prudent officer would first have thought there was an emergency, and second would have had probable cause to believe the emergency was inside the place to be searched. The subjective condition was that the police had to actually be going inside to help someone — the emergency couldn’t be a pretext for some other ulterior motive such as looking for evidence.

For about 15 years, now, the U.S. Supreme Court has been rejecting subjective rules like that. So far as federal law is concerned, the Supremes don’t care if the police had some ulterior motive or pretext. So long as there was a legitimate basis for the police conduct, they don’t care what the police were actually thinking.

So in 2006, in the Brigham City case, the Supreme Court specifically addressed the three-part Mitchell rule, and said New York’s subjective condition is not required under federal law. All federal law requires is that the police had an objectively reasonable basis to believe that there was an emergency, and probable cause to believe that the emergency was inside the place to be searched.

That’s only the federal rule, however. Federal law only provides a minimum of protections, a base line of individual rights. The states can’t give less protection, but they can certainly grant greater protections. So New York remains free to adopt the Brigham City rule, or keep the Mitchell rule, or come up with a new one. (New York could even get rid of the emergency exception altogether, though that would be a silly result — nobody wants the police to be forced to watch helpless from the sidewalk while someone is being beaten to death on the other side of a window.)

But to date, New York’s courts have neither adopted nor rejected the Brigham City rule. It’s still up in the air whether the subjective prong will continue to be part of the rule in New York. This uncertainty has been going on for nearly four years now, and that’s bad for all concerned. It’s certainly high time to settle the issue.

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The other day, we were asked for a solution. We were arguing an appeal here in New York last week, which dealt only with the objective prongs of the rule. The People were appealing from a suppression ruling, and they were claiming that the search was good under the emergency doctrine of Brigham City. The hearing court never applied the subjective prong of the Mitchell rule, so its validity was not really at issue in the case.

So imagine our surprise when the court asked us what New York’s rule ought to be now, whether the state should keep or abandon Mitchell’s subjective prong. We were surprised, but not unprepared of course. We proposed that there does need to be a subjective part of the rule, but not the pretext rule of old.

There needs to be a subjective belief on the part of the police that their search was lawful. They had to have some justification for their search at the time, whether it was an emergency or some other exception to the warrant requirement. Nobody wants a rule that gives the police an incentive to commit a bad search, knowing it’s bad, in the hope that some clever prosecutor down the road can think up some objective justification after the fact.

So what would our proposed rule look like? Let’s take a crack at writing it out in plain English.

Under the Emergency exception, the police may conduct a warrantless search when:

1) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have believed that a person was in danger of serious physical injury or death;

2) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have thought it more likely than not that the emergency was inside the place to be searched; and

3) Before commencing the search, the searching officer actually and reasonably believed the search to be justified by this or some other exception to the warrant requirement.

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This seems to be nothing more than good common sense.

Unlike previous language, we go out of our way here to specify that the objective basis has to be based on facts known to the officers at the time. They can’t justify their search with facts that they only learned about later — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search just because they happened to find an injured person there. Similarly, they can’t justify their search with baseless suppositions that have no foundation in what they knew at the time — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search after the fact with a hypothetical scenario they clearly hadn’t considered at the time. (And if you think this should go without saying, you should read the People’s brief in the case we just argued.)

We also go out of our way to replace legalese with its plain language definition. So “basis approximating probable cause,” for example, becomes “more likely than not.” This makes the rule more comprehensible, and thus more easy for police to follow and courts to enforce. We’re a big fan of plain language.

Most importantly, of course, we changed the pretext language of Mitchell to a more reasonable requirement that the police at least think they have some lawful basis for their intrusion. And that they have some reasonable basis to think so. They don’t have to have subjectively thought there was an emergency at hand, but they had to have subjectively thought their search wasn’t unlawful.

Any other rule, we think, would send precisely the wrong message to the police. The cops would have an incentive to go ahead and commit searches they know to be bad, on the off chance that some clever prosecutor can think up a justification after the fact (which is precisely what happened in the case we just argued, if you’re wondering).

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We could be wrong, however. So we invite suggestions on what the New York rule ought to be. What do you think?

Yesterday, we were talking with a colleague about whether we’d ever take a terrorism client. We frankly don’t have any more qualms about defending that type of case than about any other type. But the conversation turned to whether such cases ought to be brought in the courts in the first place. And we just don’t think terrorism should be fought in the courts.

In the years before 9/11, the U.S. dealt with terrorism as a criminal matter. Conceptually, it was no different from any other multiple homicide: the bad thing would happen, law enforcement would try to find out whodunit, and if the suspect was still alive and could be arrested then he’d get prosecuted.

This didn’t work so well. Some people eventually got punished, but the system didn’t stop or deter any future attacks. The criminal justice system can’t do that, after all. It’s purely an after-the-fact thing. Its job is to punish people after the crime is already committed. The courts can’t act proactively to prevent crimes that haven’t been committed yet — punishing people before they’ve done anything would be outrageous. No, proactive national defense is the job of the armed forces.

More than that, our criminal justice system is flatly contrary to the goals of counterterrorism. Preventing terrorist acts requires intel. Any client of mine is going to shut up the second I’m retained, if not sooner. And law enforcement isn’t allowed to arrest people before they’ve done anything wrong. Nor can they coerce confessions, or get wiretaps or search warrants on mere suspicion alone — which is all you’ve got during most investigations. So much for your intel. The White House says we can get intel as part of a plea, but as Mike Mukasey points out in today’s WSJ, any plea is going to take place years after the information would have been of any use.

Law enforcement is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

So it’s hardly surprising that our reliance on the courts and law enforcement alone didn’t get the job done. Because it’s not their job. In the terrorism cases before 9/11, the criminal justice system did its job about as well as can be expected, but it failed abysmally at the task of counterterrorism. It will continue to fail, if we decide that’s how we’re going to fight it.

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On January 25, 1993, Mir Aimal Kansi got out of his car during a red light at an intersection near CIA headquarters, and with an AK-47 shot every male in sight. He drove off and wasn’t pursued. (He actually took a wrong turn into our parents’ cul-de-sac nearby, and our mother watched him trying to find his way, but she thought nothing of it afterwards because the police announcements described a completely different car.) Surprised at the ease of his escape, Kansi caught a flight to Pakistan the next morning. Eventually, his roommate reported him missing and the police found the AK-47 under Kansi’s bed. By that time, he was long gone, being sheltered by a Pashtun tribe in the Afghan border regions (sound familiar?). There was no extradition treaty with Pakistan, so the U.S. didn’t bother with the extradition process. Four years later, they just went in and kidnapped him after luring him out with a smuggling ruse. He was eventually tried in Virginia state court, which sentenced him to death. Kansi was executed at the end of 2002, after many more terrorist attacks had taken place. His body was sent back to Pakistan, and his funeral was attended by province’s entire leadership, the army commander, and the nation’s ambassador to the U.S. It’s safe to say that our criminal justice system didn’t do much here to combat terrorism, or even deter it, though it did eventually punish the culprit.

One month after the CIA shooting, on February 26, 1993, Al-Qaeda terrorists set off a powerful truck bomb under the World Trade Center, hoping to topple Tower One into Tower Two. Ramzi Yousef masterminded it, drove the van an lit the fuse. The project was financed by his uncle Khaled Sheikh Mohammed, and several others took part. It didn’t go exactly as planned, but six people were killed and more than a thousand were injured. Law enforcement didn’t know how it had happened, but the NYPD and FBI began looking for clues. The VIN number on a piece of axle eventually led to Abdul Yasin, the Iraqi who had constructed the bomb. Yasin was taken to FBI headquarters in Newark, questioned briefly, and released. Yasin caught a plane back to Iraq the next day, and his whereabouts are now unknown. Ramzi Yousef’s apartment was then searched, where the police found bomb-making stuff and the business card of Al-Qaeda’s chief bomb-maker and money-launderer Mohammed Khalifa. Ramzi Yousef was not captured, and escaped to fight another day. Khalifa was arrested in 1994 for his role in the bombing, as he was preparing to leave for the Philippines, but the U.S. simply deported him to Jordan. Jordan let him go, and he continued to prosper until he was assassinated in 2007. A few of the henchmen were tried in 1994, and got life sentences. Subsequent events show how abysmally the criminal justice system failed here.

In 1995, anti-government radical Timothy McVeigh copied the truck-bomb idea to retaliate against recent atrocities committed by the feds at Waco and Ruby Ridge. He succeeded in blowing up the federal building in Oklahoma City, killing and injuring hundreds, including the children in the day care center. McVeigh walked away, but his Darwin-Award stupidity got him arrested and ultimately convicted. He got pulled over 90 minutes after the bombing for driving without a license plate, resulting in his arrest for a concealed weapon. He wasn’t suspected of the bombing yet, but he copied the 1993 bombing so well that he gave the feds a road map that eventually led them right to him: he also rented a Ryder truck, the VIN on a part of the axle identified the truck, which was recognized by the motel workers where he’d checked in under his own name. A couple of days later, after he was released on his gun charge in state court, the feds took him into custody. His accomplice Terry Nichols turned himself in that same day, and a search of Nichols’ home turned up all the bomb-making stuff and plans. McVeigh’s own sister would testify against him. Thousands of law-enforcement personnel took part in the investigation, 28,000 interviews were conducted, literally tons of evidence were amassed, millions were spent, and after a massive trial in 1997 McVeigh was sentenced to death. On June 11, 2001, he was executed. The system did its job here, but that’s all it did.

Soon after their 1993 bombing, Al-Qaeda compatriots Ramzi Yousef, Khalid Sheikh Mohammed and Mohammed Khalifa popped up again. Yousef had kept busy in the meantime, first trying to bomb Pakistan’s prime minister a few months after the WTC bombing, and then killing and injuring hundreds in the bombing of the Imam Reza shrine in Iran. Now in 1994 they planned to kill the Pope while he visited the Philippines the following year, and then during the distraction they’d blow up 12 airliners in the air crossing the Pacific from Asia to the U.S., killing 4,000 people. The next phase would involve hijacking planes and flying them into landmark buildings. For the bombings, their idea was to plant small explosives on the planes during the first leg of a two-leg flight, concealing the bombs in childrens’ toys, and then get off the plane so as not to be blown up with it. First, they needed a trial run to see if that would work. So on December 11, 1994, Ramzi Yousef got on a Philippine Airlines 747 en route to Tokyo, went into the lavatory to assemble the explosive, and set it under seat 26K, which in older 747s would have been directly over the center fuel tank. He got off the plane at Cebu, and the bomb went off during the leg to Tokyo. It wasn’t over the fuel tank, so the plane didn’t blow up, but the bomb killed the man sitting in the seat. Also, it had been aligned up-and-down instead of side-to-side, so the wall of the plane wasn’t punctured. Still, those were easy details to correct, and the team started working on a dozen more bombs in Manila. Fortunately, a fire in Yousef’s apartment led to suspicions. The Manila police raided the apartment, had a wild rooftop chase, and ultimately seized a laptop containing all the plans. A later raid turned up the plans for flying planes into buildings. Yousef escaped to Pakistan. He was turned in by one of his recruits in return for a $2 million bounty, and brought back to the U.S. to stand trial for the conspiracy to blow up the flights to the U.S. (We watched that trial while interning with the Southern District’s terrorism and organized crime unit, it wasn’t bad.) He was convicted after a long trial in 1996, and got a life sentence. He was later convicted in 1997 of masterminding the 1993 bombing, and got another life sentence. He was convicted again for conspiring in the 1993 bombing (a complete waste of the system’s resources by this point), and got another life sentence. He’s doing his time in solitary at the Supermax in Colorado. Sure, the system punished the culprit, but as we now know it didn’t do a damn thing to prevent future terrorism.

In July 1996, Eric Rudolph decided to protest against abortion and the “global socialist” Olympics. He did so by setting off a bomb during the games in Atlanta. One person was killed, and over a hundred were hurt. Rudolph put three pipe bombs in an army pack, filled the pack with nails, wedged a steel plate in to direct the blast like a claymore, and hid it under a bench. He called 911 to issue his warning, and meanwhile a security guard had already noticed the pack and was clearing the area so the bomb squad could check it out. Before the bomb squad arrived, the bomb went off, and nails flew everywhere. The security guard, Richard Jewell, was at first praised as a hero, but then the feds started investigating him as a potential suspect. The media had a field day with the idea of a failed police officer who planted a bomb so he could be a hero, but in October the U.S. Attorney formally cleared him of suspicion. The feds then admitted that there were no other suspects, and the case went cold. Rudolph probably would have gotten away with it, but like other similar offenders he was emboldened to try it again. He used similar bombs in 1997 to attack an abortion clinic and a lesbian nightclub in Atlanta. The feds were able to figure out they were all made by the same person. Another bomb at an abortion clinic in Birmingham gave them the last clues they needed, including part of a license plate, to tie it all to Rudolph. They tipped their hand, however, allowing Rudolph to flee into the Appalachians. He remained a fugitive for more than five years. He was arrested by accident: while scavenging for food in a garbage can, a rookie cop suspected him of trying to commit a burglary. Five months later, in October 2003, the feds charged him with the four bombings. Time passed. Then in April 2005, Rudolph took a plea to a life sentence, avoiding the death penalty. He’s with Yousef at the Supermax now.

In February 1997, a Palestinian named Ali Hassan Abu Kamal went to the observation deck of the Empire State Building to carry out a suicide attack. He’d left Ramallah in December, and entered the U.S. on Christmas Eve. He bought a gun in Florida, then went up to New York. On the evening of his attack, he went to the observation deck, pulled out his gun, and started shooting into the crowd. One tourist was killed and six others were injured. Then he put the gun to his head and shot himself. Under orders from Yasser Arafat’s regime, the gunman’s family gave a false story that he was suicidal after a failed business venture, but in 2007 the family revealed that it had been a politically-motivated attack on the U.S. for its support of Israel. Law enforcement wasn’t able to piece together his sudden entry from a place known for its suicide bombers, his purchase of a firearm, and travel to a landmark population center. Nor should that have been law enforcement’s job. But others could have.

In September 2001, a lot of bad things happened. Al-Qaeda did it, masterminded by Khalid Sheikh Mohammed again, using a barely-tweaked version of his and Ramzi Yousef’s Phase II plans from Manila. A lot of finger-pointing went on afterwards, because although U.S. intelligence agencies knew a lot, and were expecting “something very, very, very big,” and in August the president’s CIA brief even said Al-Qaeda was determined to strike inside the U.S., the intelligence community didn’t — indeed, believed that they couldn’t — share this information with domestic law enforcement. CIA had minimal capacity to conduct paramilitary operations of its own, and the military was completely uninvolved in countering Al-Qaeda. The FBI had almost no capabilities that could have prevented the attacks, even though it had significantly ramped up its counterterrorism efforts after the 1993 WTC bombing. But as with any other law enforcement agency, its focus was exclusively after-the-fact and case-specific. The FBI’s ability to gather intel was limited, there was no sharing of intel from other agencies, and the FBI didn’t have the training or resources to do anything about it even if they did get anything useful.

But that was because the FBI is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

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Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

Timothy McVeigh wasn’t sent by some foreign opponent, though. Does that make his acts a crime as opposed to war? Yes, and more: They are treason, as well as crime. Article III Section 3 defines treason, and puts it within the realm of the federal courts: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Congress duly adopted that definition of the offense in 18 U.S.C. §2381, which allows a sentence of death.

What about Eric Rudolph? Yes, that sort of terrorism counts as crime. If he was trying to force a political decision by violence, then it was terrorism, but he wasn’t trying to attack America, so it stays at the level of a crime. And his attack on the lesbian bar wasn’t so much political as a hate crime, really. Not all mass-murder is war, nor is it treason.

So who should be prosecuted in the criminal courts? Not terrorists directed from abroad. Not combatants captured during war, whether declared or not. It should be limited to offenders like Eric Rudolph.

On Sunday, the Philadelphia Inquirer published a lengthy article on that city’s abysmal conviction rate for violent crimes. For every three violent-crime arrests in Philadelphia, only one results in a conviction. There are a lot of worse-sounding statistics in that article, but they’re completely meaningless, as they refer only to convictions of the top count, ignoring the reality of plea bargaining. Still, this meaningful stat, the one-in-three conviction rate, is appalling.

Worse than that, about ten thousand violent arrestees walked, no conviction at all, in 2006 and 2007. Only 8% of that number were found “not guilty” after trial. The remaining 92% walked after their cases were dropped or dismissed.

At the same time, FBI stats show that Philadelphia has the highest violent-crime rate of all the big cities.

Coincidence? Of course not.

Violent-crime defendants aren’t getting convicted, and violent crimes are through the roof. There is causation there.

Conviction rates matter. A low conviction rate means the system is broken. If it was working, the rate would be 70% or higher. 33% = broken. Broken means people are being prosecuted for crimes when they shouldn’t have been charged in the first place. Broken means people aren’t getting punished for their violent crimes. And society suffers both ways.

We blame the prosecutors. More on that in a bit.

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The Philadelphia courts have created a public perception that violent crime will not be punished. The odds of getting convicted are minor, and the odds of taking a felony are even lower. It doesn’t take too long for people to figure that out. And the bulk of crimes are committed by people who have frequent contacts with the criminal justice system. This critical demographic repeatedly experiences that the odds are in their favor. The system keeps reinforcing this perception that, if you commit a violent crime, you’ll probably get away with it.

Perception is everything in this system. In order to prevent crimes from happening, our system relies heavily on the deterrent effect of punishment. Deterrence is important. It doesn’t affect crimes of passion in the heat of the moment, but most crimes involve some planning or forethought, and those are the ones we want to make people think twice before committing. Whether they think twice or not depends on what they think might happen.

If people generally believe that a criminal act will probably result in punishment, then they will generally avoid that behavior. This would be true even if such acts were never actually punished (think of the budget savings, increased productivity, and human value society could preserve if we could devise such a system!). And the converse is true — if every criminal act got punished, but nobody realized it, then all that punishment would have zero deterrent effect.

In general, our system tends to fall somewhere between the two extremes. There is an amorphous sense that people can get caught, and that most of those who do get caught wind up getting punished. This perception results in a general background level of deterrence that’s meaningful.

Most law-abiding folks add a huge layer of deterrence on top of that, arising from the morals and ethics ingrained during their socialization and upbringing. But those folks aren’t the ones the criminal law really cares about. The law isn’t designed to deter them; it’s designed to deter those who would gladly commit such crimes if they didn’t they’d get punished.

Such people come from all walks of life. Sure, there are plenty of thugs from anarchic streets, who couldn’t care less about their victims or the rules. But there are also the spoiled suits who are just the same, caring nothing for their victims and thinking the rules don’t apply to them. For every crime, there are opportunists of every stripe.

And if the system fails to create the right perceptions, opportunists are going to take advantage of the perceived opportunities… obviously.

And that’s what’s happening in Philadelphia, it seems.

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How did it happen? The Inquirer has 6 ideas. We think one or two might even be worth considering.

1) First, the Inquirer says that witness intimidation is working. Witnesses and their families are known to get killed in that city. That scares potential witnesses, who decline to come forward. So cases can’t be proven, and get dismissed or result in minimal plea bargains.

The way we see it, the number of such instances is vanishingly small, but the visceral significance of such instances is dramatic, and so the statistics have a lot more weight than they perhaps deserve.

Regardless, we still have a major problem with this explanation: What are the prosecutors thinking? If you don’t have your witnesses lined up, if you are not in a position to prove your case at trial, you have no business filing charges in the first place. You investigate before charging someone with a crime, not after. It is this blog’s position that any prosecutor who files charges before being able to prove them beyond a reasonable doubt is committing misconduct. The better prosecutors’ offices don’t allow such behavior.

But if the Philly prosecutors are having to get rid of cases because they couldn’t round up any witnesses, that means they were charging these cases prematurely and unethically.

So this “witness intimidation” excuse is really nothing more than a symptom of a deeper problem — that the Philly prosecutors are jumping the gun, and then having to deal with the consequences. And the result of their behavior is a public perception that violent criminals can get away with it. Well done, that DA.

2) The caseload is too high. The judges are too busy, says the Inquirer, so they “put a premium on disposing cases” rather than going to trial.

That’s just nonsense, of course. The vast majority of cases everywhere are disposed of before trial. It’s not the judges who make it happen, either. Defendants agree to plea bargains that cut their losses. Prosecutors agree to plea bargains that result in a fair sentence. And both sides avoid the enormous uncertainty, expense and risks of going to trial.

Plea bargaining does not begin to explain how two-thirds of violent arrestees don’t wind up getting convicted, nor does it explain a public perception that violent criminals are probably going to get away with it.

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

4) The Inquirer says the DA’s office doesn’t track how well or how poorly its cases fare, and as a result cannot prioritize the work of its 300 prosecutors.

That’s sort of irrelevant, really. 300 prosecutors is plenty. The Manhattan DA handles way more cases, and better, with not many more ADAs.

And prioritizing who’s working on what isn’t really something the stats ought to affect. A significant number of losses and dismissals are an indicator that a particular prosecutor might need to be reassigned, but wins and losses don’t affect where you focus your manpower. It’s really just a supply-and-demand thing — put the bodies where they’re needed, that’s all.

5) Philadelphia’s courts are uncoordinated. The basic logistics of getting the parties and witnesses together for trial becomes a disorganized fustercluck of delay. Eventually, cases just collapse because they can never be brought to trial. Defense attorneys know this, and take advantage of it.

We can’t speak to how things work in Philly, having never practiced there. But this doesn’t sound too much different from state court in New York. Unlike federal court, where your trial date is your trial date, NY state courts just set date after date until by lucky chance everyone is ready to go at the same time. It’s pointless and inefficient as hell, but it doesn’t seem to be a huge problem. Most cases get there sooner or later. (Our magic number is usually 5 — if we’ve answered ready four times, it’ll usually go on the fifth. YMMV.)

Getting the cops to show up is a hassle for state prosecutors everywhere. Cops think they’re job is done when they made the arrest, court keeps them from making more arrests, and they don’t like being cross-examined any more than the next fellow. But that’s a simple fact of life everywhere, and doesn’t explain why Philly’s any different. Ditto for herding cats and witnesses. And ditto for defense attorneys who take advantage of the government’s inability to get its act together. It happens everywhere. It’s really irrelevant here.

6) Finally, the Inquirer says the courts aren’t enforcing bail. “Defendants skip courts with impunity,” so that there are nearly 47,000 fugitives in that town. “Impunity” means they never forfeit their bail. The city courts estimate “a staggering $1 billion” in supposedly forfeited bail remains uncollected. Fugitives don’t get convicted, because they’re not in court.

That is appalling. The whole point of bail is to ensure a defendant comes back to court, by holding his money hostage. The defendant puts up his cash or gets a loan from a bondsman. If the defendant doesn’t show up when he’s supposed to, he loses his cash or the collateral for the bond.

But if the defendant never forfeits his bail, then bail serves no purpose.

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Whatever the reason, the conviction rate in Philly is so low as to be counterproductive. The DA’s office is acting in ways that increase, rather than decrease, the incentives to commit crimes.

People are being chewed up by the criminal justice machine when they never should have been charged in the first place. Not all of them got dismissed or acquitted. Who knows how many more went through it and went to jail? And criminals are committing more crimes with impunity. Everyone suffers.

This low conviction rate is merely a symptom of a deeper illness. The DA’s office is charging people when it shouldn’t be. It’s either jumping the gun before enough evidence is in, or it’s abusing its discretion and taking on every single arrest, or it’s trying to extort pleas. From the evidence in this article, it looks like the DA’s office is the disease at the root of it all.

There’s going to be a new DA there in January. We’ll see if he does anything about it. In the meantime, on the whole, we’d rather not be in Philadelphia.

The AP’s Sam Hananel has a nifty piece on Law.com today, called “Drug Courts Successful for Few Who Get In.” He sums up the situation fairly well. The short version is “drug court works, and with more funding it would work even more.”

A lot of crime is the result of drug addiction. Addicts deal drugs, rob, steal, burglarize and hurt people just to feed their addiction. Other crimes would never have happened but for that addiction. And addicts tend to keep committing these crimes over and over again. The damage to society is great, and the public cost of dealing with it is enormous.

So if we could somehow stop the addiction, the thinking goes, then we could prevent a large amount of future crimes and save ourselves a lot of resources. That’s where drug court comes in. If selected for drug court, addicts get treatment and counseling. And if they succeed, their case gets dismissed or reduced in the interests of justice.

That’s the carrot. There’s a stick, as well. Before entering the program, the offender has to take a plea. No judgment is entered, however. If the offender completes the program successfully, then they get their plea back. If they fail, however, then that plea can be enforced, and they face jail.

But a drug program that’s going to work is also going to be very hard to endure. Lots of offenders would rather just do the time, frankly. Because it’s not just about kicking the habit. Quitting is the easy part. Look at any population of inmates who can’t afford to maintain their drug habit while incarcerated, if you want to see “cold turkey” in action. The problem is, when they get out, they go right back into the same neighborhoods, with the same temptations, the same social pressures, and the same inability to just say “no.” They never rejoin lawful society.

So a decent drug program is going to hammer home, not only the ability to say “no” and keep pissing clean, but also the skills one needs to survive in law-abiding society. How to get a job, and keep it. How to take care of oneself, one’s family, and even put some savings aside. How to get that high school equivalency, or vocational certificate that can make all the difference in the world. It’s damn hard.

But it works. For those who graduate these programs, a mind-boggling 75% stay out of trouble. They’re cured. It worked.

Of course, a large reason why the success rates are so high is that candidates are cherry-picked by DA’s offices. Sources cited in the AP article complain about this selectivity, but in a world where the number of addicts vastly outweighs the resources available for treatment, it is hardly surprising that the government would focus its resources on those addicts most likely to respond to treatment. Accepting someone who’s probably going to fail is doubly unjust — it wastes tax dollars that could have helped another equally-needy addict, and it sets up the failer for the big stick punishment.

That big stick punishment is another complaint we’ve heard, and it pops up in the AP article, too. It’s not fair, they say, to require defendants to take a plea before they go into treatment. But these critics fail to recognize that it is a crucial part of the equation. Without the plea first, there is no incentive not to backslide. We’re talking about people who have already exercised poor judgment, poor impulse control, and a general tendency to take the easy way out. And again, this is a difficult process. Offering a risk-free escape route would set the whole system up for failure. It would be unjust, and a huge waste.

On top of that, the system would have to resuscitate each case one by one as people dropped out of the programs. DA’s offices would never be able to close a case, really. It would only increase their uncertainty and their workload. What possible incentive would they have to recommend our clients for treatment in such a situation? Time to be realistic, people.

So screw the naysayers. When we were narcotics prosecutors, we liked it. Now that we’re on the side of the angels, we love it. It makes a difference. It works. Keep both the carrot and the stick, if you want it to keep working. And if you want less cherry-picking, cough up more taxes so there are enough spots for all the good candidates, and then cough up some more to pay for the long shots.

In the meantime, let’s keep working to make it work.

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

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It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

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Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

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Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

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So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.

Way back in May 1964, in the very small town of Meadville, Mississippi, two black teenagers were hitchhiking down the road when James Ford Seale drove up. Seale, a member of the KKK, told them he was a revenooer looking for moonshiners, and told the boys to get in his car. He then drove them off into the forest. A bunch of other Klansmen met up with them.

Seale pointed a sawed-off shotgun at the boys, while the other Klansmen tied them to a tree. Then the boys were whipped to within an inch of their lives with “bean sticks.” The bloodied boys were hauled to a farm nearby, where Seale bound and gagged them with duct tape. The boys were wrapped in a tarp, shoved into a Klansman’s trunk, and driven 100 miles to a secluded riverbank.

While the boys were still alive, they were chained to the engine block of an old Jeep, and to pieces of railroad track. Then the Klansmen dumped the boys in the river, where they drowned. One of the Klansmen later reported that Seale “would have shot them first, but didn’t want to get blood all over the boat.”

The boys were killed because they were black, and because Seale thought they might have been civil-rights workers.

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In June 1964, three civil rights workers went to Longdale, Mississippi, to investigate the burning of a Methodist Church that had been a civil-rights meeting place. A sheriff’s deputy, also a KKK member, recognized their car and locked all three up. The men were held incognito until an ambush could be prepared, and then were told to get out of the county. The deputy followed them to the edge of town, then pulled them over again. A KKK gang showed up, and the three workers were taken to an isolated place to be brutally beaten and shot to death. Their car was burned in a swamp, and their bodies were buried in a dam.

Their disappearance got national attention, and search parties went out.

In July, one of the search parties found the drowned bodies of the two boys Seale had killed in May.

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Seale and several others were investigated for the murders, appearing before a House subcommittee on Un-American Activities in 1966. The Klansmen were asked about a number of kidnappings and murders, but nothing ever came of it. Seale just sat there smoking a cigar, and took the Fifth.

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About forty years went by. The murders of Charles Moore and Henry Dee were forgotten.

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Then a Canadian filmmaker saw some old CBC footage of the boys’ bodies being hauled out of the river, with the narration “it was the wrong body. The finding of a negro male was noted and forgotten. The search was not for him. The search was for two white youths and their negro friend.”

The filmmaker, David Ridgen, began working on what would become the documentary “Mississippi Cold Case.” He tracked down the brother of one of the victims, a retired 30-year Army veteran named Thomas Moore, who helped work on the film.

The press had been told that Seale had died in the meantime. But it was discovered that he still lived, and his family had lied to protect him. Ridgen and Moore went to the local U.S. Attorney, who promised to re-open the case.

In early 2007, Seale was indicted on two counts of kidnapping and one count of conspiracy. A fellow Klansman, after being given immunity, told the whole story. Seale was convicted of kidnapping after a jury trial in June 2007.

In August 2007, Seale was given three life sentences.

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Seale appealed to the Fifth Circuit. He argued that the statute of limitations for kidnapping had run out. At the time of the crime, there was no limitations period; but in 1972 it changed to a 5-year period.

That’s a pretty damn good argument. It was a capital kidnapping in 1964, which had no statute of limitations. But then in 1972 we got rid of capital punishment. So it reverted to an ordinary 5-year period.

The government pointed out that in 1994, after Furman v. Georgia, we brought back the death penalty. It was constitutional again. So this was a capital kidnapping again. And he was prosecuted and sentenced after it had been deemed a capital kidnapping again. So there was no statute of limitations.

The Fifth Circuit agreed with Seale, and reversed his conviction in September 2008.

The prosecution requested a rehearing en banc. The full panel vacated the appellate decision, so that it could reconsider the issue. They sort of have to do that.

The full panel then duly reconsidered the issue, and split evenly down the middle in June 2009. The effect was to leave the trial court’s conviction and sentence intact. The original Fifth Circuit decision had been vacated.

So now there was no appellate decision at all! And Seale was left with no more avenues to fight his conviction.

Almost.

Seale took it to the Supreme Court. It wasn’t a petition for certiorari, but the almost-forgotten “certified question.”

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How that works is, the Circuit “certifies” a question that it wants the Supremes to help out with. The Supreme Court is asked to instruct the Circuit court on how it ought to rule in the case.

That’s permitted by Rule 19 of the Supreme Court rules, but it only happens once in a blue moon. The last time it happened was in 1981, when the Second Circuit asked for help with the President’s authority to say claims before the Iran-U.S. Claims Tribunal had no legal effect in U.S. courts (the Supremes said he can do it). There was another certified question in the 1970s on whether a retired judge gets to vote on whether to hear a case en banc (no). Before that, there was one in 1964 on whether there is a right to a jury in a criminal contempt case (no). And the only other one in living memory was in 1946, where the Supremes said the Circuit can’t review by mandamus a district court’s remand back to the state court after the case had been removed to the district court.

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So here was a historic opportunity for the Supreme Court to not only decide a rare certified question, but also to decide an issue of great importance to a variety of civil-rights-era cases that are still kicking around the federal courts.

And the Court refused.

This isn’t the first time the Roberts Court has punted on issues that it really ought to have decided. And the did it again here.

This is an issue that may seem hyper-technical, but it is critically important! There are a lot of old cases kicking around that were capital cases at the time, then weren’t and now are again. There’s lots of aging Klansmen out there, not to mention the number of cold-case murders being resuscitated by DNA evidence. Whether the feds can even prosecute these cases any more is at stake!

Not to mention the fact that Seale, horrible as his crimes were, seems now to have been denied due process. He can’t appeal any more? Just because the Circuit (singular) split, and the Supreme Court punted? His legal argument is going to go undecided? How is that remotely right?

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The Court doesn’t write opinions from a denial of a certified question. But they sure got a dissenting opinion today, in United States v. James Ford Seale, by the strangest of bedfellows: Justices Stevens and Scalia.

The two, usually diametrically opposed in their jurisprudence and judicial philosophy, agreed wholeheartedly that the Court should have decided this case.

This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U.S.C. §1201 commenced in 2007 for a kidnapping offense that occurred in 1964.

* * *

In 1964, a violation of §1201 was a capital offense [if] the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnapping results in the loss of life. But for more than two decades in between, Seale’s crime was not punishable by death.

* * *

The question is narrow, debatable, and important. … I see no benefit, and significant cost, to postponing the question’s resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted.

We couldn’t have said it better ourselves.

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.

-=-=-=-=-

This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.

-=-=-=-=-

But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.

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Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.

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Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.

-=-=-=-=-

Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

““`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-

“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.

But the oral arguments convinced us thoroughly: Both sides are stupid.

-=-=-=-=-

The case involves custodial interrogation, and whether and when it can be started again after someone has asked for a lawyer.

When someone is in custody, and they ask for a lawyer, interrogation is supposed to stop. If the police keep questioning anyway, then the defendant’s answers cannot be used to prove the case against him.

So even if someone confesses to the crime at that point, the confession cannot be used to prove he did it. Even if there is no evidence of duress, and there is every reason to believe that the confession is perfectly reliable, it cannot be used.

The underlying policy is that our criminal justice system puts a greater value on not overriding someone’s free will. We don’t want people to be forced to hang themselves. Getting into someone’s mind, and making them testify against themselves, against their will, is abhorrent to us. It reeks of torture, the Inquisition and Star Chamber.

That explains why custodial interrogation gets the Miranda rights, but there is no similar concern with taking non-testimonial evidence from someone against their will. A breathalyzer, a blood test, a voice exemplar, a vial of spit — we don’t really care whether you want to provide the evidence or not. The evidence exists independently of your free will. But a confession during interrogation is solely a matter of free will.

And confessions are dramatic evidence, to be sure. Once evidence of a confession comes in at trial, it’s nigh impossible for a jury to think the defendant didn’t do it. It’s a game-ending bit of evidence, in most cases.

Police custody, in and of itself, is such an extreme and distressing situation that the law just presumes it to be coercive. If an objectively reasonable person would not have thought he was free to leave, then he’s being compelled to sit there and deal with the cops. There’s compulsion, because the cops can keep questioning you until you break, and confess. Maybe it’s a true confession, and maybe you’re just saying it to make it all stop, but either way your free will was overridden.

And so we have the Miranda rule, which says that defendants must be informed of their right to remain silent and the right to have a lawyer present during any custodial questioning. If someone’s questioned in custody without being given these warnings — even if they’re a respected jurist who already knew them — then his answers cannot be used against him. And if he is given the warnings, and exercises his right to remain silent or his right to counsel, but the police keep questioning him, then his answers cannot be used against him.

If the defendant says he won’t talk without a lawyer present, then allquestioning must cease. This is a per se exclusion, period. The police cannot re-start questioning unless the defendant himself initiates further discussion. Unlike the right to silence, which can be waived down the road after new Mirandawarnings, the right to a lawyer once asserted can never be waived again, no matter how many times the police re-Mirandize him. It can only be waived if the attorney is actually present at the time. That’s the principal rule of Edwards.

(Note that asking for a lawyer here is the same as saying you won’t talk without a lawyer present. Unlike the Sixth Amendment right to counsel, where once you’ve actually been charged with a crime you’re entitled to have a lawyer provided, this is the Fifth Amendment right to counsel. The cops don’t have to get you a lawyer, they just have to stop questioning you until you get one.)

This is a bright-line rule. Our jurisprudence likes bright-line rules here. We don’t want the cops to have to think about what they can and cannot do; we want them to know. We don’t want a balancing test of competing principles, because that means the courts would have to get involved and decide what can and cannot be done. It would have to be decided after the fact, on a case-by-case basis. Without a bright-line rule, the police would probably engage in more improper interrogations than otherwise, because who knows what some judge down the road might think was okay? And who knows whether the case would even get that far?

So bright-line rules here protect defendants’ interests, police interests, and the courts’ interests. And Edwards is nothing if not a bright-line rule.

The problem with bright-line rules is that they are absolute, they have no exceptions, and so unless they are narrowly-tailored they can have absurd results.

And that is why this week the Supreme Court heard the case of Maryland v. Shatzer.

-=-=-=-=-

Six years ago, Michael Shatzer was in state prison, serving a lengthy sentence. Meanwhile, a social worker got a report that Shatzer had (before going to prison, obviously) forced his then-three-year-old son to perform fellatio on him. The social worker told the cops, and an officer came to the prison to talk to Shatzer about it.

Shatzer was taken to an interrogation room, and was given his Miranda rights. Shatzer asked for a lawyer, and the officer ended the interrogation. The officer went away, and Shatzer was taken out of the interrogation room and returned to his regular custody. The investigation was eventually closed.

Nearly three years passed. Shatzer remained in prison.

Now his son was a few years older, and was able to give more details about what had happened to him. The police began a new investigation, which was assigned to a new police officer.

The new officer went to the prison, Shatzer was taken to the interrogation room, and the officer Mirandized him.

This time, Shatzer waived his rights, and agreed to speak with the officer. He flatly denied the allegations that he had forced his son to perform fellatio on him. But he did admit to having masturbated in front of his little boy.

A few days later, the questioning continued. Shatzer was Mirandized again, and he again waived his rights. He took a polygraph test and failed it. Then he started crying and said “I didn’t force him. I didn’t force him.”

At this point, he finally asked for a lawyer, and the questioning ended.

Shatzer was prosecuted for sexually abusing his son. He tried to suppress his statements, on the grounds that he should never have been questioned the second time, under the Edwards rule. He’d asked for a lawyer, and that per se prohibition never evaporated.

The trial court said no, the statements could come in, because the intervening three years constituted a “break in custody” that ended the Edwards prohibition on further questioning. Custody had ended, so the compulsory situation had gone away. The new questioning was a new custodial interrogation justifying a new Miranda warning that was properly waived.

After Shatzer got convicted, the Maryland Court of Appeals reversed. The appellate court held that the passage of time cannot constitute a break in custody. The court held that, if there is a break-in-custody exception to Edwards, it first of all would have to mean something different than the break-in-custody exception for the right to remain silent, and secondly it wouldn’t have existed here anyway when Shatzer had remained in prison the whole time.

The state appealed to the Supreme Court, arguing that the Edwards prohibition must evaporate over time, so that a substantial lapse of time between interrogations would allow the cops to re-Mirandize and try again. The point of Edwards is to prevent the cops from “badgering” a defendant into answering questions without a lawyer, the state said. (At the end of its brief, Maryland even suggested that the bright-line rule ought to be overturned.)

Shatzer’s brief argued that the bright-line rule had to be maintained, to ensure that defendants aren’t coerced into making confessions. If a defendant asks for a lawyer, and all he gets is another reading of his rights, he’s hardly going to expect a second request for a lawyer to be effective, and so he might as well speak. It would undermine the whole point. And if a “break in custody” is all it takes to restart the Edwards rule, then all the cops would have to do is release, rearrest and repeat until the defendant finally gave in.

-=-=-=-=-

Both merits briefs seemed eminently reasonable.

But the oral arguments were frankly idiotic. Both sides made absolutely unreasonable claims that could only undermine their arguments.

For example, Chief Justice Roberts let Maryland’s A.G. get three sentences out before cutting to the point: “A break in custody of one day, do you think that should be enough?” Maryland’s response: Yes.

Roberts pressed on: “So what if it’s repeatedly done? You know, you bring him in, you give him his Miranda rights, he says ‘I don’t want to talk,’ you let him go. You bring him in, give him his Miranda rights, he says ‘I don’t want to talk.” You know, just sort of catch-and-release, until he finally breaks down and says ‘all right, I’ll talk.” Maryland’s response: “We would suggest that the break of custody would be the end of the Edwards irrebuttable presumption.”

Shatzer’s position was even worse, if you can believe it.

The Public Defender opened her mouth to speak, and Justice Alito jumped down her throat. Her first words were that the Court couldn’t create any exceptions to the rule. Alito said, hold on, let’s say “someone is taken into custody in Maryland in 1999 and questioned for joy riding, [invokes his right to counsel, is] released from custody, and then in 2009 is taken into custody and questioned for murder in Montana…. Now does the Edwards rule apply to the second interrogation?” The lawyer’s response: “Yes it does, Justice Alito.”

As one might expect, the justices went to town on the lawyers. Scalia, as usual, got in some good laugh lines at their expense. We’ll leave the entire oral argument to your own reading enjoyment (you can read it here), but these opening exchanges sum it up pretty well.

Maryland’s position is idiotic. They want a bright-line rule that any break in custody ends the Edwards prohibition. It would allow precisely the catch-and-release badgering that Roberts suggested. They argued that, during the release period, if the defendant didn’t go out and get a lawyer, then they’ve essentially revoked the request to have an attorney present at any future questioning.

Shatzer’s position is equally idiotic, if not more so. He wants a bright-line rule that any invocation of the right to counsel essentially immunizes a defendant from any further police questioning in any subsequent action anywhere, for the rest of his life, whether or not the police could have even known about his prior invocation of the right. A police officer in Alaska would have to ascertain whether a suspect had ever been interrogated by police anywhere else in the country at any time in the suspect’s life, and whether the suspect had asked for a lawyer then. That’s flatly impossible and unrealistic.

Both of the parties claim that the existing bright-line rule might create absurdities in theory. To prevent them, they each propose reductio ad absurdum rules at the extreme ends of the spectrum, guaranteed to create absurdities in practice. Well done, folks.

(The lawyer for the United States, as amicus, did make an important point — that the whole purpose is to make sure people aren’t being compelled to incriminate themselves against their will — but the rest of his time was eaten up by nonsense about how long a break in custody would count as enough of a break to evaporate an assertion of the right to counsel.)

-=-=-=-=-

So what should the rule actually be? Seriously, this is not rocket surgery here. The answer seems perfectly obvious:

1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…

4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)

The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.

This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case.

For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.

Last year, for reasons we’re not entirely clear on, Hamas-led Palestinians started firing rockets and mortars at civilian populations in Israel. Israel put up with it for a while, but then after Christmas it finally responded with a bunch of air strikes on targets in the Hams-controlled Gaza region, and blocked shipping into the area.

As usual, there was a U.N. outcry against Israel’s actions, and a commission was formed. Last week, after several months of review, the commission came out with its report. Although it did say that Hamas shouldn’t have fired rockets at civilians, it came down hardest on Israel, concluding that Israel had committed major violations of international law, probably war crimes, and its actions did not count as self defense.

There have been the usual cries of unfairness all around, what one would expect in any such matter. The whole matter seems to be just par for the course, and we admit to not paying all that much attention to any of these goings-on.

But this morning, a piece in the WSJ by notable criminal law scholar Paul H. Robinson caught our eye. In his article, “Israel and the Trouble With International Law,” Mr. Robinson argues that, although the U.N.’s report might strike many as “a bit unsettling or even bizarre,” in nonetheless is probably correct, in terms of international law.

Mr. Robinson argues that the rules of international law forbid the kind of self defense that American criminal law would allow. Under international law, he says, if a gang of thugs is openly preparing to rob your store and kill your security guards, and is assembling in the parking lot across the street, and there are no police, you still cannot act in self defense until they actually start their attack. But under American criminal law you would be allowed to use such force as is “immediately necessary” to prevent the attack from happening, without waiting to be attacked first.

Similarly, he says, if a neighbor was letting thugs use his house, from which they regularly attacked your family, and there are no police, then international law would forbid you from using force against the thugs and the house they’re taking sanctuary in. But American criminal law would let you do it.

And as a third example, he says that international law only allows force against those thugs when they’re presently in the act of attacking your family, and not during the periods in between attacks, even though it’s an ongoing series.

So, he concludes, by going after the source and trying to prevent further acts of violence against its civilian population, Israel probably did violate international law here. The rules only let it use force to stop the individual attacks, and only while they’re actually happening.

-=-=-=-=-

We admire Mr. Robinson very much, but he’s not precisely correct here. He focuses on Article 51, but that’s not the only source of law here. The law on pre-emptive self defense is a non-Charter use of force, but which is nonetheless permitted by customary international law.

Article 51 of the U.N. Charter says that nothing in the Charter is to be construed so as to impair the “inherent right” (meaning it pre-existed the U.N.) of nations to use self defense against armed attack.

“Armed attack” does seem pretty limiting. Not every act of aggression counts as an attack, after all. Merely threatening force doesn’t count. The enemy may in fact be involved in a use of force, and it may even be an illegal use of force, but it still might not be an armed attack.

So Robinson cites the Nicaragua case, where the Sandinistas in Nicaragua were unlawfully supplying arms and sanctuary to insurgents trying to topple El Salvador’s government. Even though this was an illegal use of force, El Salvador had no right under international law to use force itself in order to stop Nicaragua’s violations of its sovereignty.

But an armed attack can be taking place if the enemy is massing across the border. Like his example with the thugs across the street, who are just waiting for night to fall before they attack your store. If that massing of troops is just an exercise, well then you’re not allowed to attack them.

But if it truly is preliminary to an imminent attack, then by all means strike them. Read on to see why it’s okay to do so.

Remember, though, you need to immediately report to the Security Council that you are under armed attack. And you need to promptly report your response actions to the Security Council.

The main things to keep in mind are that your force must be necessary, and it must be proportional.

-=-=-=-=-

The most famous case in international law, The Caroline (1906), deals with the hot-button issue of preemptive self defense. This one predates Article 51, and it is certainly part of customary international law.

The United States had a bunch of nasty battles with Canada during the War of 1812. There was a lot of bad blood, and the two countries remained hostile for many years thereafter. Unlike now, Canada was the major power, and the U.S. was the little guy. Nevertheless, the U.S. kept trying to take bits of Canada, and the border between Lake Erie and Lake Ontario was heavily militarized. Sound familiar?

The Canadians learned that the U.S. was planning a military incursion across the border into Canadian territory. Before the U.S. began its attack, however, the Canadians struck first.

The Canadians crossed the border first, grabbed the U.S. ship The Caroline, and killed everyone on board. Then they set the ship on fire. Then they launched it over Niagara Falls.

The U.S. Secretary of State at the time was Daniel Webster. He and his British counterpart Lord Ashburton began writing back and forth about what constituted proper self defense. It resulted in a letter from Webster saying:

The President sees with pleasure that your Lordship fully admits those great principles of public law, applicable to cases of this kind, which this government has expressed; and that on your part, as on ours, respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. And while it is admitted on both sides that there are exceptions to this rule, he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’

The law arising from this case is that, for pre-emptive self defense to be lawful:

1) The necessity must be immediate;

2) The necessity must be overwhelming;

3) There must be no other choice;

4) There must be no time to deliberate; and

5) It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and sending it over the falls was found not to have been proportional.)

The Caroline keeps coming up again and again whenever the question of anticipatory self-defense is proper. These five criteria are the ones that get cited by pretty much everyone.

The Nazis, for example, when they invaded Poland, went out of their way to make it look like Poland had started it, so as to justify their invasion. They even dressed up Polish prisoners in German uniforms, shot them and filmed it, and blamed it on Poland. They were trying to make the facts appear to fit the requirements of The Caroline. The Nuremburg tribunal, however, did not buy it.

In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-defense, but merely a quarantine of Cuba on the high seas to keep the missiles out. A blockade certainly is a kind of use of force, but it is less intrusive than other kinds. The United States proposed this theory in the U.N., and it was representatives from Ghana (who, unlike ours, had been well-educated in international law) who stood up and cited The Caroline case, asking “is this emergency instant, overwhelming, leaving no choice of means, and no moment for deliberation?”

When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium), that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. Of course, the act had already been done by then.

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So if one reads the U.N. report more closely, one finds that it goes out of its way to find Israel’s strikes to have been disproportionate to the threat, primarily by including the blockade of shipping. The reasoning goes that the blockade punished the entire population, and wasn’t necessary to self defense.

We’re not particular fans of Israel, but that simply doesn’t wash. Gaza doesn’t produce its own rockets and mortars. Hamas gets them from Iran, Syria or other sources. So a blockade to prevent the ongoing attackers seems perfectly proportionate and necessary here.

Going through the five factors, what do we have?

1) Was the necessity immediate? Certainly. Israel had been under ongoing attack for months, with no sign of it letting up.

2) Was the necessity overwhelming? Sure. Civilians were being targeted for strikes by military weapons, and sovereignty was at stake as well.

3) Was there no other choice? It sure looked like it. Negotiations and diplomacy seemed only to be encouraging further attacks, as they always seem to do in that part of the world.

4) Was there no time to deliberate? Hmm. On the one hand, the Israelis seem to have been deliberating for months already, but if that precludes them from eventually saying enough is enough, then such a rule would encourage less deliberation, not more. Their population was under attack, and there was reason to believe it was going to happen again immediately, so it seems justifiable to call this as being no time to deliberate.

5) Was the response proportionate? The blockade was, to the extent it was focused at preventing Hamas from making further attacks. The air strikes targeted Hamas command, control and munitions, using precision-guided weapons to minimize collateral damage. It sure seems to have been proportional within the meaning of the law. Although many non-Hamas civilians were killed or wounded by the strikes, that does not change the fact of their limited purpose and execution.

So yes, if one only has the U.N. Charter to go by, Israel would seem to have violated international law. But there’s more to international law than just the U.N. charter. And under customary international law, it looks like Israel’s use of force was a lawful act of pre-emptive self defense.

We love Alan Dershowitz. And we love Justice Scalia. So at first we were intrigued to hear that Dersh had challenged Scalia to a debate over his recent dissent in Davis. (See our post on it here.)

But it turns out that Dersh is just being disingenuous. Pity.

Quick recap: Davis was convicted of a murder. Since then, several witnesses have recanted. He filed a habeas petition directly with the Supreme Court. Justice Stevens, writing for the majority, passed it on to the District Court to decide whether Davis really is innocent. Justice Scalia dissented, saying that the District Court doesn’t have the power to do anything, even if it does find him innocent.

The reason why Scalia said that — and he really does have a point — is because the law in question only lets the District Court act if there is well-settled Supreme Court precedent allowing it. Scalia pointed out the simple fact, known to any death penalty scholar, that there is zero Supreme Court precedent on this issue. And that is because the Supreme Court has gone out of its way to avoid ever deciding one way or the other whether there is a constitutional claim of actual innocence.

Here’s what Scalia said:

This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.

That clearly means nothing more nor less than that the Supreme Court simply hasn’t decided the issue yet.

Now of course there have been plenty of bloggers out there who have mischaracterized and misinterpreted this to mean that Scalia thinks it’s constitutional to execute someone who is actually innocent, so long as their trial wasn’t otherwise defective. That’s not what he said, but there are many who find it easy to believe that he did say that. And there are many more who just don’t get the concept. That’s fine, because those bloggers aren’t highly respected constitutional scholars.

But Dersh is a highly respected constitutional scholar. He has no excuse for misinterpreting what Scalia said. And yet that is exactly what Dersh did in his blog post today on The Daily Beast.

Dersh said he never thought he would see the day when a Justice of the Supreme Court would write an opinion containing the quotation above. Then he explained what he says Scalia meant:

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

That is absolutely not what Scalia was saying, and Dershowitz ought to know that. He created a straw man, then spent an entire blog post arguing against it.

That was bad enough. But then Dersh made it worse, by challenging Scalia to debate him on it. Dershowitz pointed out that Scalia has publicly promised that, if the Constitution ever compels him to act in violation of the mandates of his Catholic faith, he will resign as a Justice instead. And Scalia has also stated that he could not authorize an execution if he believed it would be immoral.

So Dershowitz says the stakes of their debate would be high: If Scalia loses, he’d either have to change his jurisprudence, or he’d have to resign from the Supreme Court.

But Dersh challenges Scalia to defend a position that Scalia has never taken, that “his constitutional views [permit] the execution of factually innocent defendants.”

And though Dersh imposes high stakes on the man he challenges, he imposes none on himself. If he loses, he loses nothing.

So our favorite constitutional scholar has challenged someone to defend a position he never took, with extreme penalties for losing, and at no risk to himself? Badly done, Dersh. Bad form.

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And by the by, the majority in Davis has tried to force the issue. Whichever way the District Court goes on this, it’s coming back to the Supreme Court, so they may well have to decide once and for all whether there is a constitutional claim of actual innocence. They may not, because this isn’t the strongest case of innocence — it’s a he-said-he-said situation with witnesses who merely recanted testimony — and so they may have other grounds to avoid the issue.

But if they do decide the issue, we have no trouble predicting that Scalia would opine that the our law does provide for a claim of actual innocence. He’d probably refer to the fact that English courts going back to the Middle Ages widely accepted the principle that innocence trumps other considerations. He’d probably quote Fortescue and Blackstone. He could well throw in the maxims of tutius semper est errare in acquietando quam in puniendo, ex parte misericordiae, quam ex parte justiae, and of prestat reum nocentum absolve, quam ex prohibitis indiciis & illegitima probatione condemnari. Heck, if he’s feeling mischievous, he might even cite the rules of Star Chamber (such as In Camera Stellata, 29 April 1607, in Court of Star Chamber, Les Reportes del Cases in Camera Stellata 1593 to 1620).

We wouldn’t be a bit surprised. And Dersh shouldn’t be, either.

We’ve asked it before, but what the heck is going on with some of these federal prosecutors nowadays? There was the whole Ted Stevens fiasco over the winter, when the feds actively withheld exculpatory evidence and witnesses in their rush to convict the former Senator. Then the 7th Circuit directed an acquittal after the feds blatantly misrepresented the facts in a food labeling case. The W.R. Grace case was screwed by federal prosecutors who withheld exculpatory evidence and gave the judge reason to say he has “no faith in anything the Government says” any more.

And now we get yet another case of the feds blatantly misrepresenting the facts. This time, the 9th Circuit reversed and ordered a new trial, though it’s doubtful that there will be another one.

The case is U.S. v. Reyes, decided this morning. This was one of those options backdating cases that were all over the news for a while back in ‘06 and ‘07. (”Backdating” is when a company retroactively picks an effective date for stock options, so as to maximize the potential value of those options. It’s a crime when the extra value isn’t accounted for as an expense, because then the books give investors a false image of the company’s finances.)

Gregory Reyes was the CEO of Brocade Communication Systems. In August 2006, Reyes was charged with securities fraud and related crimes for backdating options without properly accounting for them. At trial, his defense was that he had no intent to deceive. He just signed off on the options in good-faith reliance on his company’s Finance Department.

High-ranking Finance Department employees had given statements to the FBI, describing how they knew all about the backdating scheme. But they didn’t testify at trial. Instead, the prosecution called a Finance Department employee who said she didn’t know about the backdating.

The prosecutor was well aware of the fact that others in the department knew all about it. But during closing arguments, he told the jury that the Finance Department employees “don’t have any idea” that backdating was going on.

After several days of jury deliberations, Reyes was convicted. He was sentenced to 21 months in prison with $15 million in fines. That was stayed pending appeal.

This morning, in an opinion byJudge Schroeder, the 9th Circuit held that this was prosecutorial misconduct, and reversed the conviction, ordering a new trial. Reyes argued that he didn’t know the Financial Department wasn’t accounting properly for the backdating, and the feds argued that the Financial Department didn’t know about the backdating. So that was a key question for the jury to decide. And the feds had lied to the jury.

And this wasn’t just a simple little throwaway line, either. The prosecutor did not even limit his argument to the testimony of the witness he’d cherry-picked to give the false impression that nobody in the Finance Department knew about it (which might actually have been permissible). No, the prosecutor:

asserted as fact a proposition that he knew was contradicted by evidence not presented to the jury. In direct contravention of the statements given to the FBI by Finance Department executives that they did know about the backdating, the prosecutor asserted to the jury in closing that the entire Finance Department did not know about the backdating, and further that the government’s theory of the case was that “finance did not know anything.”

“Our theory is that those people didn’t know anything. . . . [The cherry-picked witness] says finance didn’t know. Did you need everybody in the Finance Department to come and tell you that they didn’t know?”

The government even displayed for the jury a diagram explaining the prosecutor’s position that the Finance Department did not know of the backdating. The prosecutor asked the jury to assume other employees of the Finance Department would testify that they did not know about Reyes’ backdating procedure, when the prosecutor knew they did.

Federal prosecutors have “a special duty not to impede the truth.” As the 9th Circuit pointed out today, there is good reason to hold prosecutors to a higher standard: Their words carry the weight and imprimatur of the government itself, which can be very persuasive to a jury.

The 9th Circuit didn’t go so far as to direct an acquittal or dismiss the indictment, because the defense had also played it pretty aggressively. Instead, they ordered a new trial. It is anyone’s guess whether the feds will be up to the task of trying the case all over again, years after the fact. But we’ll go out on a limb and predict that this case will never see a jury again.

For crying out loud, feds! And for shame.

In a series of predawn raids this morning, the FBI arrested the boss of New York City’s carpenters’ union and nine other men. The 29-count indictment alleges a scam whereby construction contractors paid bribes to union officials, in return for which they were allowed to use cheaper non-union labor. The Genovese crime family is mentioned. (If you’re looking for some light reading, here’s a copy of the 90-page Carpenters Union Indictment.)

Like all federal racketeering indictments, this one looks awful at first glance. It’s 90 freaking pages long! It talks about conspiracies, and schemes, and bribes, and fraud. It says they used code words to conceal the true nature of their actions. Someone said so-and-so would never rat them out, but if he did, “we’d fuckin’ have to kill him.” How in God’s name can one defend a case like that?

Well, it can certainly be done. There are several potential weak spots in any investigation case, which of course law enforcement tries to shore up as best they can. But a good defense attorney knows where the case is likely to be weakest. If there are wiretaps, he knows how to challenge that evidence. (Check out our CLE course on how to do this here.) If there are conclusions, matters of interpretation, he knows how to undercut them. By making the prosecution work harder to prove its case, by finding flaws and weaknesses, he can advocate for better plea bargains and less punishment — or even stand a chance to fight it at trial.

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This is something we actually have some experience with. The last big case like this involved the roofers’ union. We investigated and prosecuted that case, back in the days before we came over to the side of the angels. That investigation involved something like a year and a half of wiretaps on dozens of phones, “debriefings” of too many individuals to count, analyzing a warehouse-full of seized documents, and a six-month grand jury presentation. That’s just the stuff before anyone got arrested. By the time the case was over, we saw the first New York conviction of a labor union, as well as convictions of all the union leadership and the Genovese guys controlling them. So this case sounds pretty familiar.

In a nutshell, what happens is this: Let’s say you’re a contractor doing some work on a project. It’s a union project, which in this part of the world means you can’t put anybody on the job unless they’re a dues-paying member of a labor union. And your company has to be a union shop, complying with the collective-bargaining agreement. (State laws like prevailing-wage laws and the like actually force this kind of situation.) But you don’t like union workers. Their wages are too high. You have to pay more for their union benefits. The union collective-barganing agreements make you use manpower-intensive, inefficient labor techniques (to maximize union revenue). You have to hire more workers than you’d otherwise need, to comply with the union rules. And to top it all off, in your experience, union workers around here just aren’t as competent or skilled as the non-union guys.

So what do you do? You do what your father did, and what his father did. When you get a union job, one of the union officials meets with you, and you give him an envelope of cash. In return, the union looks the other way, and doesn’t enforce its collective-bargaining agreement with you. You get to higher fewer, cheaper and better workers, and you wind up making more profits off the job. The union bosses get extra cash. And the union guys get to sit in the union hall, wondering why there’s no work today.

And if you don’t pay up? Well, it’s no secret that there might be some people who might take it amiss if you did not do so. Everybody knows this, right? Don’t you watch movies? But did anyone actually say that to you… well, no. Did anyone ever actually threaten you? Not exactly. It’s just something you understood.

So maybe you’re a victim of extortion — pay up and make extra profits or else. Or maybe you’re a willing participant — it’s just the way things are done around here, might as well play along.

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Of course, this whole setup is wholly created by the law itself. In states like New York, the law gives huge power to labor unions, compels union work more often than not, and essentially requires union labor in government contracts. And there is no way to opt out. This is not a right-to-work state. And when the law prohibits the economically-rational decision, basic economics dictates that a black market will arise. And so you get a black market in labor.

It’s costly. The law raises the cost of doing business for the law-abiding, while creating profits for those who flout it. Higher costs mean higher prices and rents for the average Joe. And we pay more taxes to cover the expensive investigations, prosecutions and monitoring of those who would take advantage of the distorted incentives.

It’s not surprising that organized crime always seems to be involved. The mantra of organized labor — thou shalt not compete — just happens to be the mantra of organized crime. O.C. types enforce the lack of competition, and resulting extra costs, in return for a piece. And O.C. types are perfectly placed to take advantage of any black market created by foolish government policies.

So if anyone is ultimately to blame here, we’d say it’s the politicians. The idealists who create rules that would only work if the world didn’t happen to work differently. Rules that create incentives for honest people to do the economically-rational thing. Which creates a market for people — union officials who look the other way, others who protect the arrangement — who can fill that rational need. So long as these foolish laws continue to artificially warp the supply and demand curves for labor around here, we’re going to keep seeing these kinds of cases again and again.

The D.C. Circuit weighed in today on an important issue that has split the circuits evenly: whether a sentencing court can give extra time in prison, to increase the opportunity for rehabilitation of the prisoner. Some circuits say it’s fine, some say it’s prohibited by law.

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18 U.S.C. § 3553 says there are four purposes of criminal punishment:
(1) “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;” [retribution]
(2) “to afford adequate deterrence to criminal conduct;” [deterrence]
(3) “to protect the public from further crimes of the defendant;” [removal]
(4) “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” [rehabilitation]

18 U.S.C. § 3582 says that a sentencing court has to consider those four purposes of punishment in deciding whether to impose a prison sentence, and in deciding how long a prison sentence should be. However, it adds that the court must recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

In other words, the law implicitly recognizes that prison, in and of itself, doesn’t rehabilitate people. Departments of “Corrections” have nothing to do with correcting people’s behavior. (It’s Orwellian, isn’t it? And so is the concept of incarcerating people for the purpose of re-education.)

This comes as no surprise to anyone with any experience with the criminal justice system. Imprisonment does not make people stop committing crimes. Studies have shown that roughly 83% of people who get arrested will never get in trouble again after that one single encounter with the system. Either they’re scared straight, or their behavior was a one-off exception to an otherwise blameless life. This is why we have consent decrees, adjournments in contemplation of dismissal, and the like. Most people, if given a second chance, will never get in trouble again. Incarceration is completely unnecessary to “rehabilitate” these people.

The other 17% or so? They keep coming back. Incarceration does not stop them from getting in trouble again once they get out. It is stupidly obvious that prison does not rehabilitate repeat offenders.

Rehabilitation is not so much an aspect of punishment, so much as it is an opportunity incidental to it. There certainly are life-altering programs, typically long-term programs, that can get people out of drug dependencies or ways of life conducive to criminal behavior. But these are exceptions, not the rule. They change circumstances, not behavior. And they can sometimes be best administered in an incarcerated setting — but often they are just as effective in a non-jail setting.

Meanwhile, the circuits are split on just what § 3582 means when it says “the court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall . . . [recognize] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Some circuits — like the Fifth, Sixth, Eighth and Ninth Circuits — say that the court should not decide whether to impose prison based on considerations of rehabilitation, but it is okay to increase a prison sentence for the purposes of rehabilitation. Other circuits — like the Second, Third, Tenth and Eleventh Circuits — say that courts shouldn’t increase prison sentences, either.

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Today, the D.C. Circuit joined the Second and Third Circuits in saying that § 3582 prohibits courts from increasing a prison sentence for the purpose of rehabilitation.

In re: Sealed Case*http://pacer.cadc.uscourts.gov/common/opinions/200907/08-3029-1198396.pdf*, No. 08-3029 (July 28, 2009) dealt with an older defendant with a long rap sheet and a drug addiction. His name is sealed because at one time he had tried to cooperate with the feds, albeit unsuccessfully. The defendant pled guilty to selling less than five grams of heroin. Ordinarily, with his criminal history category and acceptance of responsibility, this would have given him a sentencing range of 24 to 30 months. However, what with his felony record and all, his Guidelines range wound up being 151 to 188 months (12.5 – 15.5 years).

This is only advisory, of course, and the court then weighed the various § 3553 factors to figure out what sentence to actually impose. The judge said his recidivism was due to his drug addiction, and the case only involved a small amount of drugs. The judge added that the defendant could benefit from some of the programs available in prison, and that these “would actually be more available and more useful for the defendant over a somewhat longer period of time than it would over a very short period of time.”

In the end, the judge went down to a sentence of 132 months (11 years), along with a recommendation that the defendant be admitted to the prison’s “500-hour” drug treatment program.

The defendant appealed, saying that the judge would have given him a shorter sentence, but increased the sentence for the purposes of rehabilitation, and that was improper. It urged the Circuit to adopt the rule of the Second and Third Circuits.

The government, on the other hand, said they should adopt the Ninth Circuit’s rule instead, permitting increases in sentencing for the purpose of rehabilitation.

In its 2-1 ruling today, the D.C. Circuit said that the plain language of the statute bars courts from seeking to achieve rehabilitation through imprisonment. A defendant can be imprisoned for other purposes, and then take advantage of rehabilitative programs while in jail, but those programs cannot be the reason for incarceration.

The government argued that this only prohibits choosing jail over a non-jail sentence based on such considerations. Once the sentencing court has decided to incarcerate, § 3553 requires courts to consider rehabilitation, so it must be a reason for determining the length of the sentence.

The Circuit said this made no sense. “If, as the government concedes, imprisonment is not an appropriate means of promoting rehabilitation, how can more imprisonment serve as an appropriate means of promoting rehabilitation?”

The court went on to find that the sentencing judge’s comments indicate that the defendant probably got extra time so as to give him more opportunities for rehabilitation. It was reasonably likely that his sentence would have been shorter, otherwise.

Maybe not a dramatically shorter sentence — after all, the judge did say that selling heroin is serious, and that the defendant had a lifelong pattern of recidivism. But that’s not the point. The point is that the defendant might have gotten a shorter sentence.

Any unwarranted extra time in prison is unfair. It’s not what our system is supposed to permit. So the Circuit vacated the sentence, and remanded for new sentencing.

The defendant might wind up getting the same sentence at the end of the day. But the sentencing court is going to have to explain that the reasons for the length of the sentence do not include the extra opportunity for rehabilitation from extra months in jail.

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This exacerbates the split among the circuits. And the issue is an important one, involving the deprivation of liberty and freedoms for the purposes of social engineering.

We wouldn’t be surprised to see the Supreme Court take up this issue in the near future. Perhaps even with this case.