In Dotterweich v. U.S., a 1943 case that established a persistent and troublesome doctrine in criminal law, the U.S. Supreme Court agreed that a pharmaceutical company manager could appropriately be convicted over the misdeeds of an underling without having to show that he knew of the violation, participated in it, intended it, or was negligent in failing to prevent it. My new Cato post summarizes new research by Craig Lerner on Dotterweich’s trial, in which the court seemed to struggle with the idea of imposing vicarious guilt without mens rea (a guilty state of mind). I also link to the chapter I wrote on white-collar prosecution in this year’s new edition of the Cato Handbook for Policymakers.
Posts Tagged ‘crime and punishment’
“Remembering the Murder You Didn’t Commit”
“DNA evidence exonerated six convicted killers. So why do some of them recall the crime so clearly?” [Rachel Aviv, The New Yorker]
“Back the Blue Act”
“The Back the Blue Act would make any assault on an officer a federal crime with a mandatory minimum sentence. But here’s the thing: assaulting a police officer is already a crime in every state and already carries strict penalties set by local legislatures.” The placing of persons under arrest inevitably generates some ambiguous or factually uncertain instances of the closely related offenses of resisting arrest and assault on a police officer, and the concept of assault itself is independent of any infliction of actual injury. Pulling broad swaths of this law, and then subjecting the whole thing to mandatory minimums, is unlikely to improve matters. (The bill has other provisions too.) [Neill Franklin, The Hill] More: Scott Shackford.
UPS didn’t ask questions about volume shipments from Indian reservations
“A federal judge on Thursday ordered delivery giant UPS Inc. to pay New York City and the state nearly $247 million in damages and penalties for illegally shipping cigarettes” to New York buyers from Indian reservations. “UPS argued it followed the rules and can only do so much to police what its 1.6 million daily shippers send in sealed packages.” The delivery service says the shipments accounted for about $1 million in revenue. [AP/New York Post]
Virginia mom arrested, charged over $1 gag-gift alarm clock
Daphne Page, 52, says she bought the “sticks of dynamite” novelty alarm clock for $1 at a garage sale and was going to give it to her daughter as a gag gift. After she left it in the back seat of her car at a grocery store, someone noticed it and raised an alarm which drew emergency fire and police response. “Page was charged with the manufacture, possession or use of explosives — a statute that includes the manufacture and possession of hoax devices.” [Ned Oliver, Richmond Times-Dispatch]
For one possibility as to what the clock might have looked like, there is a “bomb-like alarm clock” listed at Amazon Canada though not currently for sale (h/t Claudia C.). In the Virginia incident, assuming that Ms. Page’s account is accurate, the item would presumably not have been powered and turned on, and would thus not have been displaying any time numbers, blinking lights or the like. A similar object may have been involved in this Sonoma County, California incident last year in which emergency crews responding to what turned out to be unrelated fires at a mobile home complex ordered an evacuation after seeing the item in a bedroom.
While it is easy to see why lawmakers might seek to attach criminal penalties to pretend-bombs in some circumstances, it is less clear that charges are appropriate where there is no evidence of intent to use them to panic or threaten people. Posts on toy guns, including proposals for bans and for manufacturer liability, are here.
Great moments in privacy
After a Saturday evening incident in which 40 to 60 teenagers invaded an Oakland, Calif. rapid transit station, robbing and beating riders, a spokesman for BART (Bay Area Rapid Transit) says surveillance videos of the flash-mob robbery will not be made public because people committing crimes appear to be minors. [Demian Bulwa and Michael Cabanatuan, San Francisco Chronicle via Ann Althouse]
“FBI Arrests Hacker Who Hacked No One”
Can the feds make conspiracy/aiding and abetting charges stick against software maker Taylor Huddleston, creator of a software tool that can be used by both bad and good players? “Because NanoCore has both legal and illegal uses, establishing that Huddleston wrote it for criminals is crucial for prosecutors. ‘It’s a dual-use technology case,’ says [Cornell law prof James] Grimmelman. ‘And you typically don’t get criminal liability in dual-use technology cases unless there’s a pretty clear intent to promote the criminal use instead of the legitimate ones.'” [Kevin Poulsen, The Daily Beast]
Child care, the most expensive way
“In many states, parents are billed for their children’s incarceration — even if a child is later proved innocent.” [Marshall Project]
Crime and punishment roundup
- December Cato conference on criminal justice (Ken White, Harvey Silverglate, Hon. Shira Scheindlin, Kevin Ring, too many others to list) now online (earlier);
- Justice Scalia and criminal law: Federalist Society National Lawyers Convention panel with Rachel Barkow, Stephanos Bibas, Orin Kerr, Paul Larkin, Jr., and Hon. Stephen Markman (Michigan SC), moderated by Hon. David Stras (Minnesota SC).
- Nominee Neil Gorsuch and the criminal law [Andrew Fleischman/Fault Lines, William Patrick/Florida Watchdog, Kevin Ring, Eugene Volokh]
- Are you sure you want to prosecute drug overdoses as murders? [Scott Greenfield]
- “Three anonymous allegations of criminal activity within the past year” can result in eviction threat under NYC’s no-fault nuisance eviction law [Allie Howell, Economics 21]
- Think lawmaking was more rational in the old days? How panic in Congress brought us the 1986 drug law [Radley Balko]
- If your mission is truth-finding or criminal justice, “Start By Believing” is wrong approach [Eugene Volokh on campaign by Arizona Governor’s Commission to Prevent Violence Against Women] Two ethicists propose demoting standard of proof in U.K. rape prosecutions from beyond a reasonable doubt to preponderance of the evidence [Aeon via Community of the Wrongly Accused, which takes a different view]
Overcriminalization in the states
The Manhattan Institute’s overcriminalization project, run by MI’s Jim Copland and Rafael Mangual, has issued five state-by-state reports so far on the issue. Check them out: Oklahoma, Minnesota, South Carolina, Michigan, and North Carolina [last link fixed now].