Dissenting in the recent case of Nieves v. Bartlett, on the First Amendment handling of arrests motivated in part by retaliation for protected speech, Justice Neil Gorsuch wrote that criminal law in U.S. has expanded to a point where “almost anyone can be arrested for something.” And the implications? [Ilya Somin] Earlier on Nieves and the retaliatory-arrest case that preceded it last year, Lozman v. Riviera Beach, and more on the Nieves outcome from Tim Cushing at TechDirt.
5 widely circulated myths about prisons:
* U.S. prisons are full of nonviolent drug offenders;
* private prisons drive mass incarceration;
* long sentences are causing our prison population to age;
* recidivists and career criminals are pretty much the same group;
* not sending someone to prison saves $35,000 a year.
“A proposal before the D.C. Council would allow up to 80 regular citizens, 10 in each ward, to issue tickets to vehicles parked where they aren’t allowed — blocking crosswalks, in bike lanes, in front of bus stops.” What could go wrong? [Luz Lazo, Washington Post, also Laredo Morning Times]
Still, others say most people would prefer enforcement be left to trained, public employees.
“Public officials may be far from perfect .?.?. but there is that extra layer that at least you can train them and they are likely to have the time on the job that allows them to build up their expertise,” said Walter Olson, a senior fellow at the Cato Institute. They also have protocols to follow — and a job at stake.
“The cellphone evidence can go a long way, but it still doesn’t always tell the whole story,” he said. “A lot of times you are going to have people who are genuinely guilty and you will be enforcing the law as it was intended to be enforced. But traffic enforcement does have a lot of judgment calls.”
But Olson says he can see why the practice would be attractive to cities.
“The city gets more revenue without having to pay salaries,” he said. “The potential increase in ticket revenue would get their interest right away.”
I’ve got a new piece at Real Clear Policy on the push to constitutionalize crime victims’ rights (“Marsy’s Law”). Excerpt:
Unfortunately, most versions of Marsy’s Law so far impinge on legitimate rights of criminal defendants, constitutionalize issues better left to resolution by judges or lawmakers, and create ongoing tension with the presumption of innocence. …
Interests of evenhanded justice counsel against letting patterns of conviction and punishment depend too much on whether the complainant in any particular case is angry, energetic, articulate, or for that matter present at all. The function of criminal prosecution cannot be to validate the victim’s suffering. It must instead be to ascertain the truth as best as possible and impartially carry out the legal consequences on the guilty.
In short, there are very good reasons why the Framers included in the Constitution and Bill of Rights many protections for criminal defendants, but relatively few for victims. We forget that wisdom at our peril.
My new piece at Cato, citing Carissa Byrne Hessick and Benjamin Levin at Slate, discusses Sen. Elizabeth Warren’s proposal to lower the standard for criminal culpability in many white-collar prosecutions to simple negligence. It begins:
Presidential candidate and Sen. Elizabeth Warren (D-Massachusetts) wants to see more business people behind bars, and she’s not fussy about how to make that happen. In a Washington Post op-ed last week she unveiled a new Corporate Executive Accountability Act, which in her words would expand “criminal liability to any corporate executive who negligently oversees a giant company causing severe harm to U.S. families.” She says she wants top executives to know that they can be (again in her own words) “hauled out in handcuffs for failing to reasonably oversee the companies they run.”
The civil courts already hear many thousands of cases seeking damages over claims that serious harm arose from industry conduct that falls short of being reckless or deliberately wrongful. Not infrequently – as with claims over supposed “sudden acceleration” in cars, cancer from Roundup, and autoimmune disease from silicone breast implants – large sums get paid even when science finds no basis for concluding the products caused the harms alleged, such is our legal system’s tendency to tilt against business defendants as unsympathetic. Under the Warren standard, complaints that driverless cars have gotten into avoidable accidents or vaccines have caused side effects – maybe even that cheeseburgers, supersize sodas, and margaritas have worsened the harms of obesity – will put business people at risk for long prison terms. To her backers, will this count as a bug? Or a feature?
Aside from the propriety of criminalizing simple negligence, the issue is not so much that individuals as such are the wrong target for white-collar prosecution — as Stephen Bainbridge has argued, holding them personally culpable will often make more sense than prosecuting the corporate entity — as that notions of collective guilt must not be used to impute criminal culpability to others within an organization not proved to have committed wrong acts or acted with wrong mind. While the Warren proposal would march off in the wrong direction, in the Cato Handbook for Policymakers two years ago,
I contributed a chapter on white-collar prosecution with the following recommendations:
Congress and state lawmakers (and where appropriate, the president and executive branch law enforcement officials) should
- review existing law with an eye toward rolling back overcriminalization and replacing criminal penalties with civil sanctions where feasible;
- enact reforms such as the model Criminal Intent Protection Act to bolster recognition of mens rea (punishment should ordinarily require a guilty state of mind, not inadvertent noncompliance) as well as the related mistake of law defense in criminal law;
- codify the common law rule of lenity (ambiguity in law should be resolved against finding guilt), as Texas joined other states in doing in 2015;
- devise safe harbor provisions that enable economic actors to avoid criminal liability by behaving reasonably and in intended compliance with the law;
- limit agency discretion to create new crimes without an act of the legislature;
- enact guidelines to strengthen judicial oversight of deferred prosecution agreements and nonprosecution agreements (explicit court approval, not the unilateral say-so of government prosecutors, should be required for appointment of corporate monitors or the extension of time under supervision);
- enact asset forfeiture reforms such as Rep. Jim Sensenbrenner’s (R-WI) Due Process Act, including requiring that conviction be a prerequisite for forfeiture; review and, where appropriate, reduce or coordinate per offense fines and sanctions to avoid levying penalties disproportionate to the gravity of misconduct;
- prohibit, as a proposed New Mexico law would do, the allocation of settlement moneys (cy pres) to charities, nonprofits, or advocacy groups not themselves injured;
- assign penalties, forfeitures, and settlement proceeds to the public treasury or, where appropriate in certain cases, to private parties who can show specific individual injury from the offense (penalties should not fund particular government agencies in ways that incentivize zealous enforcement or insulate the agencies from appropriations oversight);
- prohibit the payment of public lawyers and forensics experts on contingency, that is, in ways dependent on case outcome or the magnitude of penalties (this principle should apply alike to career prosecutors, other staff public lawyers, experts, and outside law firms); existing contingency arrangements should be terminated; and
- impose transparent principles of selection and payment on outside contracting for legal services.
- Bloodstain analysis convinced a jury Julie Rea killed her 10-year-old son. It took four years for her to be acquitted on retrial, and another four to be exonerated. Has anything been learned? [Pamela Colloff, ProPublica] Forensics’ alternative-facts problem [Radley Balko] The chemists and the coverup: inside the Massachusetts drug lab scandal [Shawn Musgrave, Reason, earlier here, here, here, etc.]
- “I would say, you know, as a parting gift, if you’d like to throw in some iPhones every year, we would be super jazzed about that…. So, you know, a hundred, 200 a year.” A window on the unusual business of prison-phone service [Ben Conarck, Florida Times-Union, state Department of Corrections]
- Should juries be forbidden to hear any evidence or argument about their power of conscientious acquittal? [Jay Schweikert on Cato amicus in case of U.S. v. Manzano, Second Circuit; related, David Boaz on 1960s-era jury nullification of sodomy charges]
- This hardly ever happens: prosecutor disbarred for misconduct [Matt Sledge, Baton Rouge Advocate; Louisiana high court revokes license of Sal Perricone following anonymous-commenting scandal]
- “Cultural impact assessments”: Canadian courts weighing whether race should play role in sentencing minority offenders [Dakshana Bascaramurty, Globe and Mail]
- “The Threat of Creeping Overcriminalization” [Cato Daily Podcast with Shon Hopwood and Caleb Brown] “Tammie Hedges and the Overcriminalization of America” [James Copland and Rafael Mangual, National Review]
“A better reason to reject the governor’s proposal is that the constitutional guarantee of a free press extends to all people. Professional journalists don’t deserve special treatment, and no self-respecting one wants it.” [David Andreatta, Rochester Democrat & Chronicle]
For the FBI to videotape the interviews it conducts would presumably allow an improvement in accuracy over note-taking, an important issue when statements can lead to criminal conviction (either on underlying charges or on charges of lying to the government). They would also permit improved oversight of how well the FBI does its work. So why did FBI guidelines forbid the practice until 2014, and even now establish a presumption of recording only for custodial interviews? [Alex Tabarrok citing Michael Rappaport, Law and Liberty and Harvey Silverglate 2011]
President Trump has signed into law, Congress having passed by wide margins, the First Step Act, which will make substantial changes to incarceration practices at the federal level and lesser but still significant changes to sentencing practices. Joe Luppino-Esposito of the Due Process Institute responds to five criticisms that some conservatives have leveled against the bill in its later stages. Jonathan Blanks has more. Families Against Mandatory Minimums has a FAQ. And Caleb Brown interviews Shon Hopwood about the law for the Cato Daily Podcast.
This fall the Cato Institute held a policy forum on plea bargaining featuring Clark Neily, vice president for criminal justice at Cato, Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the National Association of Criminal Defense Lawyers, and Somil Trivedi of the ACLU. Description:
Supreme Court Justice Anthony Kennedy has observed that “criminal justice today is for the most part a system of pleas, not a system of trials.”
Although nowhere mentioned in the text of the Constitution, plea bargaining has become the default mechanism for resolving criminal charges in the United States. Indeed, some 95 percent of criminal convictions today are obtained through plea bargains, which raises a number of serious concerns, including why so few people choose to exercise their hallowed and hard-won right to a jury trial. When one considers the many tools available to prosecutors to encourage defendants to accept plea offers, together with the incentive to resolve as many cases as efficiently as possible, one cannot help but ask how many plea agreements are truly voluntary and how many are the result of irresistible coercion. Are there constitutional or ethical limits on coercive plea bargaining, and if so, are they being properly enforced? And what should we make of an institution that has practically eliminated the criminal jury trial and with it the Framers’ painstaking efforts to ensure citizen participation in the administration of justice?