Posts Tagged ‘criminal policy’

Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers

Wednesday, December 14th, 2011

One of our bugbears here at The Criminal Lawyer is the excessive number of federal crimes — particularly those that are created by regulators rather than by elected legislators. We’re not alone in this concern, and over the past several months we’ve noticed what can only be called a growing movement for reform.

A particular concern of ours has been the fact that an astonishing number of federal crimes lack any mens rea component. In other words, one can face prison even though their act was perfectly innocent — there was no intent to break the law whatsoever.

Mens rea is an essential part of American criminal justice. We don’t punish people simply because the committed some act or other, or even just because they harmed someone. Even if that harm was grievous. No, before we punish someone, there has to have been some culpability on their part. And culpability is defined by their mental state when they committed the act. There is a spectrum ranging from intentional through accidental, and the closer one was to the intentional end, the more severely we punish them. (If you want to be pedantic about it, there are a couple of other spectra of mental state as well — one’s ability to tell right from wrong, and one’s level of depravity — imagine them as the Y- and Z-axes to the X-axis of mens rea, if you like. But only mens rea is a component of crime itself — the others apply as defenses and as sentencing concerns.)

When defining a crime, here’s how it’s supposed to work: You specify what act you are forbidding, and you specify the mental state required to make it criminal — so bad that it deserves punishment. For example, if you plot to kill your neighbor, and succeed in killing him, then you are going to be punished far more harshly than a careless teenager who kills a family of four when he mistakenly runs a red light. Your act was more intentional, and thus more evil, than that of the teenager. Even though he did far more harm, you are more culpable, and thus your act is more criminal. And a man who accidentally trips on the sidewalk, knocking a little old lady into an oncoming bus? His act isn’t criminal at all. It was purely accidental, and unlike the teen driver he did not deviate from the normal standard of care to any extent that society would punish.

It is true that, as American jurisprudence evolved, there did arise certain “strict liability” crimes that have no mens rea requirement. Things like statutory rape. But those are exceptions to the rule, in the first place. And in the second place, the lack of mens rea is not really applicable — it usually has to do with elements of the crime that your own mental state could not affect one way or the other. For example, in the case of statutory rape, the issue is not whether you knew the girl was under the age of consent, but whether you had sex with someone without their consent — and someone under the age of consent, as a matter of law, cannot have consented to have sex with you. Your mens rea has nothing to do with whether or not she consented. It does not matter whether you knew she was underage, what matters is that she was underage, and thus you had sex with someone without their consent.

But though there were strict liability crimes, they were exceedingly rare.

Until regulators got involved.

Bureaucracy has a way of growing, and of expanding its own authority. Give an agency power to regulate, say, the mouse-pad industry, and they will start writing rules and procedures based on how mouse pads are actually produced and sold. Then they will start writing rules based on how the bureaucrats think mouse pads ought to be produced and sold, perhaps involving idealistic notions or academic fads. Meanwhile, they’ll busily craft tons and tons of rules and procedures micromanaging every aspect of how the main regulations are to be complied with. The number of regulations out there that Americans are expected to follow are uncountable, and nobody knows what’s in all of them. It’s beyond the capacity of the human brain to know what all the rules are.

And all of these rules have the force of law. Even though no elected official ever enacted them. The regulations are imposed, not by elected representatives who speak for (and must answer to) the citizenry, but by unelected government employees answerable to nobody.

That’s all well and good, when (more…)

Falling Economy, Falling Crime

Tuesday, October 4th, 2011

Endless Origami: Crime Rates

Or maybe not…

For some reason, common wisdom would have it that crime should go up when the economy is going down. Violent crime in particular. Apparently, the thinking is that less prosperity leads to increased frustration and desperation, leading to more beatings killings muggings and rapes. As if the people who otherwise would commit such crimes are less likely to do so when banks are lending and people are investing in new and bigger business ventures.

Of course, common wisdom is frequently wrong. Which is good, because as we’ve pointed out before, the economy is going to continue to suck. Europe is facing massive uncertainty in the face of its Mediterranean peoples voting themselves the treasury. Here in the U.S., the Obama administration, elected on a platform of “hope,” is doing everything in its power to kill off any hope that investment in growth would be worth the risk. Instead of ensuring the stability and predictability necessary for economic growth, the governments of Europe and the U.S. are only spreading uncertainty and worry. It is now pretty much a certainty that a double-dip recession is upon us.

But the economy just isn’t that strong an influence on crime. During the prosperous 1950s and 1980s, violent crime went through the roof. During the Great Depression and the recent Crappy Recession, violent crime plummeted. The influence of economic hardship on crime is just not that strong. It is certainly not cause-and-effect — any effect is likely limited to exacerbating the effect of those things that actually do drive up crime. And right now, those things aren’t driving crime up.

So what are those things? What factors do drive violent crime? And are they going to come back any (more…)

Economics and Rising Crime Rates

Saturday, July 9th, 2011

Looks like there’s going to be more work for defense lawyers, and that’s a real shame.

Hey, we like working as much as the next guy, but we’d rather have a lower crime rate.  After Obama’s little press conference yesterday, though, we can’t help but think that the crime rate is going to go up.  Because the economy is going to continue to suck.

Of course there’s a whole lot more to crime rates than just the economy.  The gang crimes of the crack epidemic flourished during boom years, after all, driven not by poverty but by the turf battles and growing pains of an exciting new industry, like a dot-com bubble with guns instead of IPOs.  While wages were rising in the 50s, the crime rate was rising twice as fast.  And a tanking economy does not always coincide with rising crime rates — they dropped about a third during the Great Depression.

Demographics are a much larger factor, especially in violent crimes, which surge and recede with the unmarried young male population.  That population is responsible for about half of all crimes that get committed.  Cultural attitudes also play a big role — different communities of our wonderfully heterogeneous country can have markedly different views of what is right and wrong, and what is tolerable in others — so that population shifts and evolving community attitudes bring about noticeable drops or rises in local crime rates.

But although the economy is not the biggest factor, it still does have an effect on crime rates.  Financial crimes seem to bloom in downturns, partly out of reckless desperation, and partly because frauds are easier to conceal when everything is going up.  It also affects violent crimes committed by people other than the young-male demographic, for whom economic stress can lead to domestic strife.  For some of those feeling the lack of opportunity the most, opportunistic crimes lose some stigma and are more likely to be seen as options.

It would be foolish to claim any cause and effect between a down economy and the crime rate.  But a down economy — especially a long-term downturn — certainly amplifies the effects of more direct factors like demographics.

Well, the at-risk demographics have been swelling for a few years now, and we’re starting to see an effect on the statistics.  It’s likely that critical mass has been reached, or will be fairly soon.  Cultural shifts work in both directions, but in recent years they’ve been balancing out in favor of less, not more, homogeneity.  (It’s not that particular communities are more or less likely to commit crimes; it’s just that greater cultural diversity correlates strongly with deviation from the singular norm of the law.)  The amplifying effect of a long-term crap economy is most likely to be significant in precisely these circumstances.

-=-=-=-=-

So why do we think the economy’s going to stay down for a while?  Because it’s the message the Obama administration has been sending lately.  What the president said after yesterday’s gloomy jobs report only solidified this impression.

The news was (more…)

Prisons Crowded? Don’t Build More, Says Court. Just Release the Inmates.

Tuesday, February 10th, 2009

overcrowded.png

A panel of three federal judges yesterday essentially ordered the State of California to reduce its prison population by as much as 57,000 people, because crowding is causing violations of prisoner rights. This doesn’t mean that wardens will be releasing thousands of hardened criminals back onto the streets, but it does raise questions of how to do it. In its ruling, the court accepted certain possible solutions, but rejected the one obvious solution of building more prison space.

The panel was made up of U.S. District Court judges Thelton Henderson and Lawrence Karlton, as well as Stephen Reinhardt of the Ninth Circuit. These judges are known for their left-leaning policies, so it’s hardly surprising, perhaps, that they accepted and rejected the solutions that they did. Increasing prisons is not widely regarded as a liberal position.

Although the panel only issued a “tentative ruling” in Coleman v. Schwarzenegger (link from the L.A. Times), this is probably going to be the final ruling, which is why they were confident enough to issue it formally. Unless it’s overturned on appeal, California is going to have to think up and enact some creative methods of carrying out the order, so the judges wanted to give the state time “to allow them to plan accordingly.”

The case, actually two cases, were brought by prisoners who alleged that crowding — not overcrowding, just crowding — was causing violations of their constitutional rights. These aren’t new cases — one has been in the remedy stage since 1995, and the other since 2002.

The dispute now was not over whether crowding exists, or whether care is unconstitutionally inadequate. Gov. Schwarzenegger issued a state of emergency in 2006, still in effect today, because overcrowding was putting prisoners’ and guards’ health and safety at risk. So the fact of crowding couldn’t be in dispute. Also not in dispute is a previous court ruling that the prisons were not providing constitutionally adequate medical and psychological care.

The issue here was whether the crowding was the main reason for the failure to provide adequate medical and psychological care. And if so, then what to do about it.

The court found that there aren’t enough clinical facilities, resources or personnel to accommodate all the inmates who needed them. The risk of the spread of infectious disease is also enhanced by bunking prisoners in gyms and other spaces not intended to be used for housing. Lots of experts testified that crowding was the primary cause of the problems.

That being decided, California wanted a chance to fix the problem without decreasing the prison population. California showed that, under monitoring by a receiver and special master during the past 11 years, the Department of Corrections and Rehabilitation had already made significant improvements in conditions. So they asked for more time to fix these particular problems.

The court said no. They’ve had 11 years, and haven’t fixed the problem yet, so the court didn’t trust the monitors to fix it now. And anyway, “many of their achievements have succumbed to the inexorably rising tide of population.” Furthermore, California has no money to spare for new facilities, resources and personnel. Remedies for these cases have been tried since 1995, for 14 years now, and any future efforts of the receiver and special master could take many more years to have effect. The court felt that any further continuation of the already lengthy deprivation of constitutional rights would be wrong.

The court couldn’t think of any other relief that would work, other than reducing the prison population. Because scores of remedial orders had so far failed, “we are at a loss to imagine what other relief short of a prisoner release order a court could grant.”

So back to the question of how to do it. The court suggested various methods, such as “parole reform,” which we guess would mean changing parole rules, so that violators don’t necessarily go back to prison. Or “good time credits,” which could include both granting greater time off for good behavior, and letting more bad behavior count as good behavior. Or “evidence-based programming intended to reduce recidivism,” which simply means implementing services that are scientifically proven to actually reduce subsequent criminal behavior, as opposed to trying things that just sound good.

The court felt that building more prison space, the one obvious solution, was not something the court could order California to do, because it “may not be within the court’s general powers under the PLRA.” The PLRA, 18 U.S.C. §3626(g)(4) defines a “prisoner release order” as anything that has the effect of reducing or limiting the prison population. So the examples above would work. But one that merely reduces crowding — the problem to be solved here — doesn’t count, because it doesn’t reduce the number of prisoners.

We think that’s probably wrong. Building more prison space would solve the problem complained of. It may not be within the scope of the PLRA, but that’s not the sole authority that the court has. It has equitable power to order the state to do whatever works to stop the constitutional violations.

The court went on to say that California’s inmate population was about 200% of intended capacity, but reducing that population to about 120% to 145% would be sufficient. The court felt that this was the proper balance between concerns of public safety and prisoner rights.

The state immediately announced that it will appeal, of course. This will be one to watch, as pretty much every state is operating prisons beyond their design capacity, and fixes need to start happening soon. What happens here will influence how other states deal with the problem.

We’re Not Alone

Wednesday, January 28th, 2009

 

Yesterday, we observed that there have been a lot of Ponzi schemes coming down lately, and asked what gives? Today, the Wall Street Journal made the same observation, and asked the same question.

Here are some points from the article:

* In 2007, the SEC had brought civil actions from 15 alleged Ponzi schemes. In 2008, they brought 23 such cases. So far this month, they’ve already brought 9. And that doesn’t include all the state-level fraud cases that have come down.

* On the criminal side, there have already been 6 multimillion-dollar fraud cases brought this month.

* Experts say these schemes are being discovered now because of the economic downturn. Investors try to cash out their investments, only to learn that the money’s gone. There’s also less money out there being invested, so the source of cash for these schemes dries up, and the house of cards comes crashing down.

The New York Times also had some similar observations:

* “What is causing them to surface now appears to be a combination of a deteriorating economy and heightened skepticism about outsize returns after the revelations about [Bernie Madoff]. That can scare off new clients and cause longtime investors to demand their money back, which brings the charade tumbling down.”

* The Commodities Futures Trading Association has also experienced a doubling of reported Ponzi schemes in the last year.

* On Thursday last week, Senators Chuck Schumer and Richard Shelby introduced a bill to hire 500 new FBI agents, 50 new AUSAs, and 100 new SEC officials to crack down on these crimes.

Yet Another Massive Ponzi Scheme Alleged. What’s that tell you?

Tuesday, January 27th, 2009

Agape World screenshot

Nick Cosmo, the 37-year-old head of Agape World Inc. and Agape Merchant Advance, was arraigned today on charges that he ran a Ponzi scheme that cheated investors out of $370 million since 2006.

The feds allege that about 1,500 investors were promised annual returns of as much as 80%. These huge profits were to come from short-term loans to businesses. Instead of coming from actual profits, however, the complaint states that returns paid to investors actually came from the outlays of subsequent investors.

Investor money went mostly to pay other investors, in a rob-Peter-to-pay-Paul setup similar to the Bernie Madoff and seemingly countless other Ponzi schemes hitting the news these days. About $55 million went to pay brokers who brought in the investors. A bunch of cash was allegedly spent on expensive luxuries for Cosmo himself, as well as to pay the restitution ordered in a previous mail fraud conviction. Only about $10 million actually went to the loans that were supposed to be the core investment. The firm also transferred $100 million since 2003 into Cosmo’s futures-trading accounts, of which $80 million was lost. As of last Thursday, said prosecutors, Cosmo’s firms had less than $750,000 in the bank.

Agape World was listed as #73 in Entrepreneur Magazine’s Hot 100 fastest-growing businesses in America. (See its listing, screenshotted above.)

This is just one more in a series of prosecutions that have been coming down lately. Prosecutors are clearly ramping up their focus on financial crimes in the wake of the Bear Stearns meltdown — it’s definitely the sexy crime of the moment, where the press is throwing a lot of ink, where reputations stand to be made. Of course, crime is only found where it’s looked for, and right now this is a hot (and relatively easy) crime to prosecute. So it makes sense that this is where prosecutors are focusing lots of assets.

But apart from that, what does it mean about the rest of us? Almost all of these Ponzi schemes promised investors stupid-high returns. Wasn’t it obvious to the investors what was going on? Were they just blinded by the go-go stock market, while it was hot? Were they desperate for a winning number after the market soured? Lots of the alleged victims out there were sophisticated investors — one would think they at least would have known the meaning of “too good to be true.” We’d like to hear what you think is going on.

We guess people’s common sense just gets blinded by the prospect of easy gains. And it happens often enough, to enough people who ought to know better, that this crime continues to proliferate nearly a hundred years after it became part of the common lingo.

Oh well, more work for us defense attorneys.

“Not With Me, They Don’t” – Race Not a Factor in Sentence, Says Judge

Thursday, January 22nd, 2009

 

District Court Judge Percy Anderson sentenced Jeanetta Standefor to more than 12 years in prison on Tuesday, for running an $18 million Ponzi scheme that preyed on middle-class black investors.

Standefor, who is also black, solicited investments from 650 people around Pasadena who thought the money would go to buying properties about to go into foreclosure. To maintain the illusion of profits, Standefor transferred $14 million of the invested money to early investors. She also spent about a million per year on herself, according to AUSA Stephanie Yonekura-McCaffery. The operation was run through her company Accelerated Funding Group — a name that is practically probable cause in itself.

At the sentencing hearing in the Central District of California, victims told Judge Anderson how they had trusted Standefor with their savings, often their life savings, after she first befriended them. Investors were told that they could make 50% profits in the first month.

Standefor’s attorney, federal defender Charles Brown, argued for leniency. “She is not a serial killer,” he said. “She is not a drug dealer. This is not a person who needs to be thrown in jail and locked up to learn her lesson.” He added that she was a foster child “who worked her entire life to prove her worth. . . [but] she took shortcuts, and started taking from Peter to pay Paul, and that’s how we got here.”

Judge Anderson disagreed with the defense attorney’s characterization, telling Standefor that even if this was just a white-collar crime, she was just as guilty “as if you’d taken a gun out and held it to the victims’ heads.”

Judge Anderson then ruled on sentence. Shortly before he imposed the sentence, however, Brown made one last attempt for leniency. Urging the judge to reconsider, Brown pointed out that the sentence was not consistent with those for similar cases around the country. Brown argued that it seemed to him that blacks get harsher sentences, even when they are convicted of white-collar crimes.

“Not with me, they don’t,” interrupted the judge, who is also black. “This isn’t about being black.”

Standefor was then sentenced to 151 months in prison and almost $9 million in restitution.

Justices Miss the Point of the Exclusionary Rule

Thursday, January 15th, 2009

supreme-court.png

The Bill of Rights, notably Amendments 4-6, protects accused individuals from improper action by the police. The typical remedy for police violation of these rights is suppression of the evidence that would not have been gathered but for the violation. This Exclusionary Rule protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence. Police officers and departments are not punished for violations, because that would create an incentive to avoid borderline situations where evidence could have been obtained lawfully. Rather than do that, the Exclusionary Rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get.

The Exclusionary Rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time.

So it was no surprise to see plenty of misunderstanding of the Exclusionary Rule in yesterday’s Supreme Court decision in Herring v. United States (No. 07-513). Split 5-4 (and with delightful sniping in the footnotes), the justices on either side of the ruling tried to clarify what the Exclusionary Rule means, but only demonstrated that they’re missing the point. All of them. In their attempt to clarify the rule, all they did was muddy the waters.

That’s right, we just said that we understand the Exclusionary Rule better than the Supreme Court. Modesty is not our strong suit.

The Herring case arose in Coffee County, Alabama. Bennie Dean Herring was someone who’d had his share of run-ins with law enforcement over the years. His truck was impounded, and he went to the Sheriff’s Department to get something out of it. When one of the Sheriff’s investigators found out, he had the Coffee County warrant clerk check to see if Herring had any outstanding warrants. There weren’t any in Coffee County. Then they called neighboring Dale County to check. The Dale County computers showed an active arrest warrant for failing to show up in court on a felony charge. Based on that information, the Coffee County officer pulled Herring over as he left the impound lot, arrested him, and recovered methamphetamines and an illegal gun.

In the meantime, the Dale County warrant clerk went to get a copy of the warrant, to send to the Coffee County officer. But there wasn’t one in the file. So the clerk checked with the court, and found out that the warrant had been recalled. For whatever reason, the information never got from the Dale County court to the Dale County warrant database. The warrant clerk called the Coffee County warrant clerk immediately, and the warrant clerk immediately called the officer, but the arrest and search had already taken place.

At trial, Herring moved to suppress the evidence on the ground that the arrest was illegal, as the warrant it was based on no longer existed. The trial court said the evidence was admissible, because the officer did nothing wrong, and acted in good faith on information that the warrant was still outstanding.

On appeal, the Eleventh Circuit agreed that the Coffee County officer did nothing wrong. Any error was independent of that officer. The error was the result of negligence on someone else’s part, and was moreover a negligent inaction rather than some government action. The Circuit therefore held that the negligence was so attenuated from the officer’s actions that any benefit to be gained by suppression, and so the evidence was admissible under the “good faith” rule of U.S. v. Leon, 468 U.S. 897 (1984).

Writing for the majority, Chief Justice Roberts pointed out that, even if the search or arrest was unreasonable, the Exclusionary Rule doesn’t always apply. It’s a last resort only. He reiterated that exclusion is not a right of the individual, but is instead a deterrent. The benefits of a deterrent must be weighed against its costs.

Thus, when police have acted in “objectively reasonable” reliance on a warrant that was later held to be invalid, or on a statute that was later declared unconstitutional, or on a court (not police) database that mistakenly stated that an arrest warrant was outstanding, the Supreme Court has held that the evidence was admissible under the “good faith” rule. The Court had held that evidence should be suppressed only when the officer knew or should have known that the search was unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).

“Objectively reasonable” (or “good faith”) means “a reasonably well-trained officer would have known that the search was illegal, in light of all the circumstances.” It’s not a subjective test of what the officer actually intended, but rather a test of what he should have known. Here, there was no reason to believe that the Coffee County officer wasn’t being objectively reasonable in relying on the information from Dale County’s warrant clerk. So the officer did nothing requiring suppression.

The underlying error didn’t require suppression, either. Here, the clerical error wasn’t the result of a recklessly-maintained system. Nor was it the result of the police planting false information for the purpose of justifying false arrests later on. The kind of clerical error here is not something that the Exclusionary Rule could affect or deter meaningfully.

Roberts concluded by saying “we conclude that when police mistakes are the result of negligence such as that described here, rather than a systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ In such a case, the criminal should not ‘go free because the constable has blundered.’”

In this opinion, Roberts’ reasoning was certainly sound. However, he amplified the erroneous viewpoint that the proper policy purpose of the Exclusionary Rule is to deter future misconduct. The policy is categorically not to deter. Deterrence is a purpose of punishment, and this is not a rule of punishment. Deterrence gives the police an incentive not to approach the line of impermissibility. That is precisely what the Rule is designed to avoid.

The Exclusionary Rule is not a rule of deterrence or of punishment, but is instead a rule of balancing — balancing individual rights with society’s interests in law enforcement. Roberts does get the concept, as in his discussions of balancing marginal utility against cost. But his repetition of the “deterrence” fallacy just confuses an otherwise clear argument.

Justice Ginsberg similarly the Exclusionary Rule in her dissent (joined by Justices Stevens, Souter and Breyer). Like Roberts, Ginsberg says the purpose is deterrence. But she goes even further to say that the Rule should be used to deter practically all police error.

This is a much more expansive purpose for the Exclusionary Rule (or as Ginsberg puts it, “a more majestic conception”). She goes so far as to say that any arrest based on carelessly-maintained database information would be unlawful, and would require suppression.

If the Rule were to be used as a deterrent, Ginsberg does make an argument that its marginal utility even in cases of carelessness, like this one, is sufficient to justify its use. Suppressing evidence could very well lead to reforms in the data management, to ensure that the same mistake doesn’t happen again. But exclusion is not the only means to that end, and is not even a very suitable means, as there is no actual pressure on the record-keepers to change their ways. The more effective means would be pressure from police leadership and political superiors to fix the process. Also, exclusion of evidence in County A is hardly likely to influence behavior in County B.

Justice Breyer issued his own dissent, joined by Justice Souter. In it, he makes the same error of ascribing deterrent purposes to the Exclusionary Rule, rather than the purpose of balancing interests. And as a result, he falls into the same trap of reasoning as Ginsberg.

Breyer wants a bright-line rule. Because of his focus on deterrence, he would draw the line between the police and the courts — if the error was made by court personnel, then they are not going to be deterred by suppression, so the Exclusionary Rule should not apply. But if the error was made by any police personnel, then the Rule should apply. Breyer fails to explain, however, how police database clerics are in any way deterred from negligent error by the suppression of evidence seized as a result of such error. He similarly fails to explain how court clerks are somehow different, so that they could not have been so deterred by suppression.

Ginsberg and Breyer’s arguments fall apart because they’re looking at suppression as a punishment, a deterrent, rather than as the result of a balancing of competing interests. Roberts gets it, but he too makes the same mistake to some degree. This decision seems to have muddied the waters, instead of clarifying the rule.

Oh well, better luck next time guys!

Supreme Court: Failure to Surrender ≠ Escape

Tuesday, January 13th, 2009

supreme-court.png

This morning, the Supreme Court returned from its long break to issue a unanimous ruling in Chambers v. United States (No. 06-1120, Jan. 13, 2009). At issue was the crime of failure to report to jail, and whether that crime is a “violent felony” for the purposes of the Armed Career Criminal Act.

ACCA imposes a mandatory 15-year sentence for a felon who unlawfully possessed a firearm, and who also has three prior convictions for either drug crimes or violent felonies. A “violent felony” is defined by 18 U.S.C. § 924(e) as one that (among other things) “involves conduct that presents a serious potential risk of physical injury to another.”

The government wanted Chambers sentenced to the mandatory 15 years, based on prior convictions that included an Illinois crime of failing to report for weekend confinement.

Chambers said that the Illinois crime was not a violent felony for the purposes of ACCA. The government disagreed, arguing that the crime demonstrates a “special, strong aversion to penal custody,” and therefore was akin to a prison break. And prison escapes by their nature involve conduct that presents a serious potential risk of physical injury to another.

The Court didn’t buy that argument. Unlike a prison break, which is an active crime, failing to report is merely a crime of inaction, the Court said. The Court added that, sure, the defendant must have been doing *something* during his absence from jail, but there is no reason to believe that it was something risky to others. On the contrary, he’s probably less likely to draw attention to his whereabouts by “engaging in additional violent and unlawful conduct.” Aversion to penal custody, no matter how “special, is beside the point.”

The Court added that, of 160 cases involving a failure to report in a 2-year study by the Sentencing Guidelines Commission, “none at all involved violence — not during the commission of the offense itself, not during the offender’s later apprehension.” The government itself could only find three examples in 30 years.

Because of this, the Court held that this particular crime does not count as a violent felony for ACCA purposes, reversed, and remanded.

Stop the Presses! Threat of Punishment Might Work!

Thursday, December 4th, 2008

spanking.png

The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to LiveScience.com, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]

Update: New York Investigating CDS Brokers

Thursday, November 13th, 2008

Update: New York Investigating CDS Brokers

As we reported yesterday, the New York Attorney General and the Southern District of New York have teamed up to investigate allegations of wrongdoing with respect to credit-default swaps. The AG’s office is now reported to have subpoenaed trading data and communications from several interdealer brokers, small firms that facilitated the swaps and other trades.

A CDS is a form of insurance, though contractual in nature and not regulated. Essentially, the CDS buyer wants to protect a debt investment or asset. In return for fees from the buyer, the CDS seller agrees to make a payment if the underlying debtor defaults or goes bankrupt.

CDS contracts enabled the securitization of subprime mortgages into tranches that could be rated as investment-grade. If underlying asset values dropped, the CDS payment would still net a profit. Presuming, of course, that the CDS seller actually had the wherewithal to make the necessary payment.

Interdealer brokers earned fees from facilitating CDS deals between financial institutions. Buyers and sellers need to keep their bargaining positions secret from each other, which makes direct negotiation difficult. For a fee, an interdealer broker puts buyers and sellers together, while keeping the identities of the parties a secret from each other.

Law enforcement is now investigating whether interdealer brokers were breaking the rules, and disclosing information that they existed for the purpose of keeping secret. Also under investigation is the possibility that interdealer brokers were giving out false information, so as to manipulate CDS prices. These CDS prices in turn had a huge effect on the share values and bond prices of major financial institutions.

Antitrust Division Cuts Flat-Screen Prices, Just in Time for the Holidays

Thursday, November 13th, 2008

Antitrust Division gets guilty pleas in TV price-fixing conspiracy

Three major flat-screen TV and monitor manufacturers have pled guilty to price fixing, in a case brought by the DOJ’s Antitrust Division.

Sharp, LG Display and Chunghwa will pay $585 million in fines, pursuant to their plea. The DOJ alleged that, as a result of the price-fixing conspiracies, consumers paid inflated prices for products with LCD screens. Affected products ranged from flat-screen TVs to computer monitors, laptops, iPods and cell phones.

Division chief Thomas O. Barnett stated that these were international conspiracies that “affected millions of American consumers who use computers, cell phones and numerous other household electronics every day.” Without calculating how much extra the consumers wound up paying, he predicted that this plea would now result in lower prices.

The Wall Street Journal reports that the world’s largest LCD maker, Samsung, had cooperated with the Antitrust Division and was not named in the plea announcement. AAG Barnett declined to comment on whether Samsung had received legal immunity. Federal law provides that the first company to give evidence of a criminal conspiracy can receive immunity. When the investigation first became public in 2006, Samsung stated that it had “pledged its full and continuing cooperation” with law enforcement.

Public Defenders Refusing to Take New Cases

Tuesday, November 11th, 2008

Overworked public defenders

The New York Times reports on a trend of public defenders refusing to take on new cases, on the grounds that their workload is so high that they cannot effectively defend their clients. With budget cuts coming at the same time as caseloads are rising, government-appointed lawyers claim to be reaching “the breaking point.”

Right now, a lot of public defenders are starting to stand up and say, “No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

Similarly, many capable attorneys decline to volunteer for indigent-defense panels (representing those for whom the public defender’s office might have a conflict of interest), because the government-funded compensation is too low — in New York only a quarter or less of typical private rates. Fewer volunteers means more work for each.

There may be something to the argument that much of this work is routine, and not particularly time-consuming. But there are only so many hours in the day, and once you get past a certain volume of cases, things are going to have to slide.

For these public defenders, time is a valuable commodity. Most of it goes to priorities like trials, hearings and court appearances, which are huge time sinks. What is left mostly goes to cranking out canned suppression motions and picking up new cases. There isn’t much time for original research, much less a thorough investigation of any given case. Potential witnesses go unidentified, or uninterviewed. Evidence goes undiscovered or unexamined.

Plea bargains, the usual result for most cases, also suffer. Prosecutors make their offers based on what they think a case is worth, which in turn is based on what the prosecutor knows about the case. Unless a defense attorney can present new evidence, or a new way of looking at the evidence, the defense attorney is going to have a hard time changing the prosecutor’s mind. But without time to develop such evidence or new ways of looking at it, the public defender can be left with few tools beyond whining and begging, which are rarely effective. The upshot is that a defendant must settle for a worse deal, because there wasn’t time to negotiate a better one.

It’s not as though prosecutors don’t share the same high caseload, and suffer the same budgetary constraints. Prosecutors also have much more work to do for a given case, as they must investigate and assess the evidence, prepare and present witnesses to grand juries, and prepare and present witnesses at hearings and trial, in addition to making the necessary court appearances, responding to the motions, etc. If both sides are under similar burdens, perhaps the injustices balance out. Or perhaps the injustices are magnified, as time-starved prosecutors similarly miss out on the chance to develop evidence or insights that would better serve the defendant.

The underlying concern is whether defendants’ interests can be adequately protected by public defenders with barely sufficient resources to go through the motions for most cases. Perhaps, and perhaps not.

It is difficult to see, however, how refusing to represent defendants at all can possibly help them. This ploy seems intended to serve nobody’s interests but those of the public defenders themselves.

Child Porn Sentencing At Issue

Thursday, October 23rd, 2008

 

The Wall Street Journal today reports on a developing issue in sentencing law: are child porn consumers being sentenced disproportionately high?

Justice Department data, referred to somewhat inaptly by the Journal, lumps viewers of child porn with those who distribute it. In the group of those convicted of possessing, receiving or distributing child porn, the average sentence now is 80 months in prison. In 1997, the average sentence was about 25 months.

The rise in sentences has been matched by a huge increase in the number of child porn and other child-exploitation cases. Internet crime itself has vastly grown as the Internet has become more ubiquitous worldwide, and so has awareness of the crimes being committed. Child porn itself has only been a crime since 1990.

Some see an unfair disparity in the U.S. Sentencing Guidelines recommended sentences for those who view child porn and online predators who seek to engage in sex with children encountered in chat rooms. Of course, these are commonly the same people. But those who have not engaged in predatory behavior routinely receive enhanced sentences because of the sheer quantity of child porn materials they possess — it is commonplace for defendants to have huge collections of images and videos depicting sex acts being performed on children.

Sharing and receiving child porn is easier to catch, of course, than predatory behavior. Predators are typically caught after they try to go after a victim who turns out to have been an undercover agent. Not every chat room has an undercover, and not every predator picks out the undercover in the room. Subpoenas and data analysis, however, can lead to web sites and fserve locations where vast collections of child porn are stored and distributed. Monitoring the traffic of those sites can provide the IP addresses of those who downloaded or uploaded files. That leads to search warrants on homes, offices and computers, turning up the usually sizeable collections ultimately charged.

Not all images are going to be slam-dunk child porn. The prosecution must prove that an image really is pornographic, that it is a real photo or video and not simply PhotoShopped, and that it really depicts a child as opposed to someone who merely looks young. So prosecutors tend to bring cases against offenders with large quantities of photos, to make it easier to cull out a number of clear examples of child porn. Those with fewer photos, who thus don’t merit a sentence enhancement, are less likely to be charged in the first place, as prosecutors focus their resources on the strongest cases.

So it is unclear that there is an unfair disparity in sentencing. Mere possession may only have a base sentence of 5 years, as opposed to 10 years for the predator. But those most likely to be caught, and those most likely to be prosecuted, are the ones who are beyond the pale and for whom the Guidelines require enhanced sentences.

Readers are invited to comment.

Will SCOTUS Reopen Question of Discriminatory Application of the Death Penalty?

Tuesday, October 21st, 2008

racial disparity

Richard Dieter, executive director of the Death Penalty Information Center, has suggested to the Washington Post that the Supreme Court may be getting ready to review “whether the death penalty is applied in a discriminatory discriminatory way, an issue the Court has not taken up for two decades.”

Dieter drew this conclusion from the Supreme Court’s denial of cert. yesterday in the capital punishment case Walker v. Georgia. As we pointed out recently, the Supreme Court has taken to using denials of cert. for raising questions on capital punishment.

The issue here is how thorough a court’s proportionality review must be, to ensure that a death sentence is not based on arbitrariness or discrimination. Justices Stevens and Thomas concurred with the denial of cert., but gave strongly opposed written opinions.

Stevens, the more liberal of the two, stated that Walker’s case was “troubling,” because it involved a black killer and a white victim. Numerous studies over the years have shown that black defendants are much more likely than whites to be charged with capital crimes, regardless of the race of the victim, but that capital crimes are also much more likely to be charged when the victim is white, regardless of the race of the killer.

Stevens felt that the Georgia Supreme Court wholly ignored its job, and only performed a perfunctory review of proportionality. It merely cited 21 similar death sentences and said that was good enough. The court didn’t describe or compare the facts of those cases, which differed in heinousness.

Thomas, on the other hand, said that Stevens was “simply wrong.” “There is nothing constitutionally defective about the Georgia Supreme Court’s determination. Proportionality review is not constitutionally required in any form.” Georgia has chosen to do some kind of proportionality review, and that’s fine, but the Supreme Court has never required that it do so. If Georgia wants to administer its own additional rule in its own way, that’s up to Georgia.

Thomas, the more conservative of the two, pointed out that the Court already looked at all of the arguments Stevens raised, and rejected them in McCleskey v. Kemp, 481 U.S. 279 (1987).

The fact that these arguments are being raised in written cert. opinions, however, is certainly giving some folks reason to believe that the Court may be interested in looking at them again, should the right case come its way.