Posts Tagged ‘Policy’

Crime and Punishment

Monday, October 12th, 2015

Over at Vox.com, Dara Lind has posted the shocking “One chart that puts mass incarceration in historical context.” Lind painstakingly sifted through Bureau of Justice Statistics reports to create a graph of U.S. prisoners per 100,000 of population, from 1880 to 2013.

Focusing on those sentenced to prison (i.e., for more than 1 year) is an appropriate measure. As Lind points out, the data for jails (less than 1 year) is inconsistent. But more than that, if we are concerned with the long-term incarceration of our people, then prison’s where you find it. These are the people who have been locked away. The people whom we’ve decided deserve to have a chunk of their lives taken away, in retaliation for something they did.

The chart is stunning:

spike450

 

Imprisonment is relatively rare until the Great Depression, when it nearly doubles. The new rate stays fairly consistent through the Roosevelt, Truman, and Eisenhower years. Not sure about JFK, but under Johnson and Nixon it dips slightly. It goes back to Ike levels again under Carter. Then it jumps like mad under Reagan, Bush, and Clinton, spiking more than 600% from 1980 to 2000. It seems to have leveled off a bit under Bush II and Obama, but it’s now staggeringly higher than it ever was before.

Before getting into the reasons for it, for what’s going on here, I rummaged through the data to see whether there’s been a similar spike in crime — or perhaps whether the incarceration has lowered crime by keeping the criminals off the streets. Here’s what I’ve found:

crimerate450

So we’ve got property crime (stealing stuff, mostly) driving the majority of offenses. Violent crimes (murders, rapes, assaults, etc.) aren’t really changing the shape of the curve, though they do amplify it.

Let’s see how this matches with the imprisonment rate (I also used BJS data, but a different raw data set than Dara used, that had different values in some places. Where Dara’s BJS data differed, I relied on Dara’s set for consistency. Any BJS data folks are more than welcome to offer corrections):

Here’s the prison rate by itself:

Prison rate 450

And here it is superimposed on the crime rates for the same years:

crime and prison rates 450

Well, it’s hard to see any correlation between crime and imprisonment here. Crime seems to have gone up and down regardless of what imprisonment was doing. Shooting up during the slight dip and recovery from 1960 through 1979. Plummeting for about 5 years of gently rising imprisonment rates. Rising sharply again almost to the 1979 high over the next 8 years, while the imprisonment rate shot up even faster. Then dropping fairly steadily ever since 1992, while imprisonment continued to shoot up and finally stabilize.

I’m sure some of the incarceration may well have led to some of the drop in crime for a variety of reasons, but the relationship just can’t be as tight as one might hope. (Hoping, of course, that we haven’t been as crazy and unjust a society as this makes us look.)

But heck, I left something out. Drug crimes, right? That’s the ticket! The war on drugs must be what drove this!

Here’s the graph for drug crime during the imprisonment spike (coincidentally the only years for which I could find raw data):

drug crime 450

Well, hell. Incarceration’s not driving that down, for sure. And it’s not rising nearly enough to counter the drop in other crimes. In fact, prisoners incarcerated for drug-related crimes have been going down steadily since they peaked at 22% of the prison population way back in 1990. It is not the war on drugs that’s driving this.

It’s clear that it’s not rising crime that’s causing rising prison populations.

Could it be that prison population is going up because people are being incarcerated for longer periods of time? In other words, those who go away stay away, and the few new people each year just make the numbers go up? Sort of like Antarctica gets almost zero precipitation, but what it gets sticks around, which explains its super-deep snow pack?

Let’s see:

box

Crap, I don’t have enough data to make a meaningful graph. The last time the BJS ran the numbers, it was 1996. The average felony prison sentence in state courts was 62 months (a hair over 5 years) and in federal court it was 78 months (6 and a half years). The national average was 63 months (because the vast majority of crimes are prosecuted at the local level, very few federally).

If we say that the sentencing numbers haven’t changed significantly since then (a reasonable supposition, by the way), then the antarctic snowpack theory just cannot explain the rising prison population. The vast majority of prisoners don’t get locked away for more than a few years.

So if crime isn’t going up, and sentences aren’t going up, then how the hell do we get so many people in prison?

An interesting take on this was posted over at Slate last year. In an interview titled “Why Are So Many Americans in Prison: A Provocative New Theory,” Fordham law professor John Pfaff says it’s the prosecutors who are to blame. Fewer people are getting arrested, but prosecutors are sending more of those who do get arrested to prison than ever before.

This makes sense to me. I’m not thrilled with his political explanation of the phenomenon — that DAs want to get reelected, so they want to look tough on crime and charge more things as felonies. I don’t think that can possibly be all of the explanation.

It is absolutely true that DA’s offices get their budgets from politicians, and politicians base those budgets not on the effectiveness of the office as measured by a drop in crime, but rather on the more readily-counted number of felony indictments and convictions. So there is absolutely a base (in all senses of the word) drive to get indictments to justify the prosecutor’s offices’ own existence. Plus, to some extent perhaps, the drive of the guy on top to get re-elected.

But those higher-level policy considerations aren’t doing the prosecuting. That’s the young line Assistant DAs taking the cases and making the decision of what to do with them. Guided (often directed) by their managing chiefs, none of whom are elected officials. These are lawyers, not politicians, making the decisions.

At the individual prosecutor level, ADAs are deciding to prosecute cases they wouldn’t have bothered to take years ago. Where prosecutors once exercised their discretion and good judgment, they now are more likely to prosecute a case simply because they can.

Also at the individual prosecutor level, ADAs are deciding to prosecute cases as felonies that they previously would have let go as misdemeanors. This may well be due to the requirements of their higher-ups, wanting to inflate their numbers. But there is also a personal incentive here, as well. With crime falling, there are fewer and fewer chances to try big cases — the stuff that prosecutors (for the most part) want to do. It’s where the fun is, the challenge, the hard work. It’s where it all happens. In many jurisdictions, it’s the path to advancement, as well. If you’re not trying felony cases, there’s a sense that you’re not really doing your job.

So when there aren’t enough felonies to go around, there’s a strong incentive — politically and personally — to make enough.

Where Pfaff sees little hope in reform at the political level to get elected DAs who’ll lower the indictment numbers, the real reform is in reducing headcount among the line assistants. Keep the supply relative to the demand. If there’s not enough crime to go around, instead of manufacturing some way to justify their existence, offices should just get leaner. It’s hard to do, but a lot easier than changing who’s getting elected on a county-by-county basis.

That said, although I think Pfaff’s idea is noteworthy and brilliantly insightful, I haven’t given it enough consideration to tell if he’s right or not. One thing I do not have is data to back it up one way or another. All I have is my own prior experience as a prosecutor for almost 10 years, and my anecdotal discussions with my friends who are now bureau chiefs and such, and with others at leadership levels in prosecutors’ offices around the country (all of whom shall of course remain nameless). Until I have some data, I’m just going to call this one a good theory, and leave it at that.

But what do you think? Give us your ideas in the comments.

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

Tuesday, July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
and
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
therefore
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?

-=-=-=-=-

It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.

-=-=-=-=-

First things first: It is (more…)

Understanding the law

Friday, March 8th, 2013

A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is just as true of corporate taxation as of advanced constitutional law. A law student could outline those courses with nothing more than a flowchart and do okay on the exam.

Knowing the formula is important. It’s specialized knowledge that you usually have to go to law school to get. But it’s only knowledge. It’s not understanding.

It’s like baking a cake. If you know the recipe, you can go step by step through the process and get a decent cake on the other side. If you don’t know the recipe, you’re likely to wind up with a big mess. But knowing a recipe that works isn’t the same as knowing why it works. It’s not going to help you if your ingredients suddenly change, or something new is added into the mix, or you have to use an oven with a very different temperature. In that case, if you want to make a cake, you’re going to have to understand the chemistry of what’s going on, the effect that the ingredients and how they are combined and the heat and the time have on the final result.

Knowledge is the what. Understanding is the why.

Most students can demonstrate their knowledge on an exam, and they’re lumped together in the curve. It’s the rare students who demonstrate their understanding who get the outlier As, however.

In fact, there are professors out there who will announce to the class that the final exam is going to cover things that never came up in class. Topics that were never discussed. Issues that aren’t in any of the books. The students will have to say, based on their understanding of why the law is the way it is, what the answer in that unfamiliar area ought to be.

These are awesome professors. If you ever get one, cherish the experience. Because you’ve lucked into someone who teaches the why, as well as the what. And you are going to be so much better equipped to deal with the law as it changes.

The law does change. Whatever field you practice in, the law is going to change during your career. If you know where the law is coming from, you’ll have a pretty good idea of where it’s going. And more importantly, whichever way it goes, you’ll get why. You’ll understand it better. You’ll be able to use it better, advise your clients better, persuade a court better.

So how does get this understanding?

What you’re looking for is policy. An underlying philosophy or purpose that explains the statutes and cases. What were the lawmakers and judges trying to do? What was the point of view that drove how they did it?

You’d think this would be easy — just look at the legislative record to see all the arguments for and against, the court opinions spelling out in excruciating detail precisely where they were coming from.

But if you try doing that, you’ll soon learn it’s not easy at all. The stated reasons for statutes, regulations and caselaw are inconsistent as hell. They’re all over the map. And what’s more, people are only human. The reasons we give for our actions are rarely the same as our true, unstated motives. We may not even be fully aware ourselves of the actual policies we’re acting on — most of the time because we haven’t reflected enough to actually know what they are, and so they remain unconscious, subliminal. And our brains are wonderfully adept at justifying after the fact.

So it’s a puzzle. The narrators are not telling you the truth. They’re not lying to you, but they’re not telling you the truth. The trick is to pick out the clues from what they say, from the situations they’re reacting to, from the problems they’re trying to solve, and from (most importantly) what they actually do. It takes a fair amount of insight into one’s fellow human beings to solve this puzzle.

And this is what sets apart the merely adequate law professor from the superstar. The adequate professor makes sure you understand what the various disparate laws happen to be. The superstar gives you an insight that explains them all (or most of them, anyway).

Which way would you prefer to learn them all?

Now, there are lots of ways to explain what’s going on. How do you know which theories are best?

As with any other field of study, the simplest theory that explains the most data is best.

So for example, you might have a ton of cases that seem to be all over the place, if you just take the judges at their word. They seem to be espousing a given principle, but their decisions keep pushing the law in a different direction. That tells you that the real reason isn’t the one they’re saying. Maybe it’s emotion. Maybe it’s a desire for a certain outcome no matter what. Maybe it’s just pandering to a perceived public opinion. Maybe it’s just a backroom deal.

And those surface reasons give you a clue to the unspoken philosophy behind them. In a criminal case where the court is performing some impressive legal gymnastics, it could simply be that the desire to punish this guy is more important than any protections the law might have given him. (That’s the opposite of the rule of law, by the way. A good example of saying one thing but doing another.)

You can also watch as repeated reliance on the spoken, but incorrect, principles leads to bizarre outcomes. The exclusionary rule is a good example, where the courts keep saying it’s about deterring the police from violating your rights, when in reality it does nothing of the sort. The rule is intended not to make the police think twice but instead to ensure that violations of your rights don’t get used against you. And you can see how repeated insistence on its deterrent purpose erodes the rule — because in situation after situation the court recognizes that there is no significant deterrent effect, and so says exclusion wouldn’t matter here.

This kind of thing goes on in almost every field of the law.

The trick to understanding is actually formulaic: 1) Look at the facts and the outcome; 2) Look at the stated justifications; 3) Note any disconnects; 4) Apply your own understanding of human nature, various philosophies, history, culture, etc., determine likely explanations for the disconnects; 5) Select the explanation that explains the most data with the least complexity.

Go on, try it!

When Incarceration Shot Up and Crime Plummeted

Tuesday, January 24th, 2012

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

-=-=-=-=-

Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was (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…)

What Would Plato Do?

Tuesday, September 20th, 2011

Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this: (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…)

Is New York City’s Gun Law Unconstitutional?

Thursday, December 23rd, 2010

The short answer is yes.  Yes, it is.

One of the lovely ironies of criminal defense is that most of the things we fight for are conservative values — individual liberties, constitutional rights, defending actual people from the insane might of the State — even though the defense attorneys themselves tend to be fairly liberal.

Needless to say, gun control is a wedge issue on which conservatives and liberals in this country tend to have strong, and strongly divergent, views.  Our own personal position on gun control is that it’s best to use two hands when aiming, take your time, and hold your breath while smoothly squeezing the trigger.  But only a fool would claim that public safety is not a legitimate governmental concern.  If anything, it is the number-one job of government at every level.  And only a fool would claim that guns do not affect public safety.  There is certainly some legitimate scope of governmental involvement in who gets to own a gun, and how you’re allowed to use it.

But New York State, and the City of New York, do it wrong.  And in light of the recent Second Amendment decisions by the U.S. Supreme Court, it is now clear that their restrictions are unconstitutional.

We’ve got a case pending where this has become the key issue.  As always, briefing it for the court really forced us to go deep into the competing policies and laws, the history and precedent that got us here.  It’s one of the things that we absolutely love about being a lawyer.  We’re not going to go into any of that here, however.  Instead, we’re just going to focus on the basics.

First of all, gun possession is presumptively illegal here.  There are only narrow exceptions where someone might get a license to own one.  Just applying for the license is prohibitively expensive and takes a very long time.  The licensing decision is purely at the discretion of a bureaucrat, who also has complete discretion to revoke the license later.  A statistically insignificant number of licenses actually get granted.  Of the few licenses that are granted, the vast majority are extremely limited in scope.  And even with a license, one’s gun must be kept disassembled or locked up, with any ammunition stored separately.  Except when  the weapon is actually in one’s grasp, it must be rendered inoperable.  There’s also a presumptive ban on ammunition.

These laws effectively ban gun possession for all but a few people and the police.  To date, New York’s courts have justified this by saying it’s only a privilege to bear arms, and not a right.  So the licensing scheme is perfectly within the state’s authority.  And any review of decisions made by licensing authorities is limited to an arbitrary-and-capricious, abuse-of-discretion analysis.  In other words, you can’t have a gun, and there’s nothing you can do about it.

At the end of the ’08 term, the Supremes issued their decision in (more…)

Upset by this week’s Miranda decision? Get over it.

Wednesday, June 2nd, 2010

miranda

So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you).  Merely remaining silent isn’t the same as invoking the right.

This, of course, got all kinds of clever responses in the media, along the lines of “to invoke your right to remain silent, speak up!”  Very witty, we agree.

But we have to say, this decision is not that big a deal.

Our immediate reaction on reading the slip opinion, right when it came out, was “yeah, that sounds about right.”

We headed over to court for a case later that morning, and while we were sitting in chambers with some other defense lawyers and prosecutors, we summed up the Court’s decision.  The immediate reaction of literally everyone in the room was “yeah, that sounds about right.”  The judge’s law secretary added “isn’t that already how we do it here in New York?”

Later in the day, we discussed the case with some defense types who are fairly well-known for their pit-bull approach to the law.  Their immediate reaction was “yeah, that sounds about right.”

-=-=-=-=-

Here’s how we see it, in a nutshell: (more…)

Be Very Afraid: “New Era” of White-Collar Prosecution at the DOJ

Wednesday, May 26th, 2010

corporate crime

Lanny Breuer, the DOJ’s Assistant Attorney General for the Criminal Division, gave a speech today announcing a “new era of heightened white-collar crime enforcement — an era marked by increased resources, increased information-sharing, increased cooperation and coordination, and tough penalties for corporations and individuals alike.”

You can read his prepared remarks here.  We did, and we find them very troubling.

This is, of course, part of a larger trend back towards more white-collar enforcement. For much of the post-WWII era, through the early 1990s, white-collar cases didn’t get much attention. They were hard to spot in the first place, taking place behind closed doors in boardrooms and offices, not really part of any policeman’s beat. And allegations were challenging to investigate, and ever harder to prove to a jury. Agents and prosecutors lacked the knowhow and the tools to do the job.

And white-collar crime just wasn’t worth the effort — the law classified these crimes at the less-serious end of the spectrum. This wasn’t murder, it was just money. The crooks weren’t burglars or muggers, they were college-educated productive members of the community, involved in charities and otherwise living “normal” lives. Their crimes weren’t violent; they were almost administrative. Victims weren’t in your face, with visceral injuries and tangible losses; they were anonymous and diffuse. Devoting a lot of resources to prove minor offenses you didn’t really understand, with hard-to-identify-with victims, with easy-to-identify-with defendants, just wasn’t a big priority.

This all started to change in the mid-90s. By then, we’d gone through the junk-bond crisis and S&L meltdown of the (more…)

Federal Sentencing: A Long Way to Go

Tuesday, May 25th, 2010

guidelines

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

“Cruel and Unusual” to Sentence Juveniles to Life without Parole

Monday, May 17th, 2010

 

The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)

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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional (more…)

Dear HuffPo: Here’s why we have statutes of limitation

Friday, April 23rd, 2010

 

So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”

That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.

What we found instead was a totally inane article on the Huffington Post, leading off with the following lines: (more…)

It’s the Culture, Not the Caseloads

Tuesday, April 13th, 2010

overworked

The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.

The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.

One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.

But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.

So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.

So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.

Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.

The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.

So the trick is to get better, not more, prosecutors. How do you do that?

You don’t really need to pay them more. It’s a government job, so it (more…)

Pre-emptive Self Defense and International Law

Tuesday, September 22nd, 2009

sherman tank

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.

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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.

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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.