DSK and the Pernicious ‘Perp Walk’
My column at the Washington Examiner (and Reason.com) this week uses the collapse of the Dominique Strauss-Kahn case to argue against the “perp walk,” which has become a form of pretrial punishment and a way for spotlight-hungry prosecutors to grab attention—whether the ‘perp’ turns out to be guilty or not:
Back in May, when New York law enforcement paraded DSK before the cameras, hands cuffed behind his back, the French were outraged. “Incredibly brutal, violent and cruel,” France’s former justice minister gasped.
Irritating as it might be to admit it, the French have a point. The “perp walk”—in which suspects are ritually displayed to the media, trussed up like a hunter’s kill—has become common practice among prosecutors. But it’s a practice any country devoted to the rule of law should reject.
Of course, DSK isn’t the most sympathetic victim of the perp walk ever, nor, given paramilitary policing and “no knock” raids, is the perp walk the most abusive police/prosecutorial practice out there. But it’s at best a pointless indignity, and at worst a threat to due process—which is why it should be reined in. For Cato work on police tactics and misconduct, go here; and also see Reason’s recent “criminal justice” issue.
Reforming Indigent Defense
The Wall Street Journal law blog has a piece up on how the budget crisis is impacting public defenders:
Funding constraints have prompted states and counties to lay off public defenders, hold the line on salaries, and reduce the amount defenders can spend case investigators and staff training, the WSJ reports.
Public defenders maintain that they should be insulated from budget cuts for two reasons, the first being that they were sorely underfunded before the recession came along. Secondly, they point to the fact that states have a duty, enshrined in Gideon v. Wainwright, to provide indigent criminal defendants with the right to counsel.
Stephen J. Schulhofer and David Friedman recently published a Cato Policy Analysis, Reforming Indigent Defense that proposes a free market solution: use vouchers instead of public defenders. This would eliminate the overhead of keeping defense attorneys on the public payroll and improve the quality of representation. As they put it in a related op-ed:
Vouchers would greatly improve the quality of defense representation, because attorneys hoping to attract business would have to serve their clients well. Better representation will, in turn, produce at least three benefits for society. First, improving defense services will reduce the potential for mistakes. It will be less likely that innocent persons will be wrongfully convicted and less likely that the actual perpetrators will remain free to repeat their offenses.
Second, improving defense services will minimize adverse consequences even for those who would be acquitted under current systems of indigent defense. A better defense makes it more likely that the innocent will be released from custody sooner, with less disruption to their lives and less expense for the jails that hold them.
Third, improving indigent defense will bring better information to the sentencing process — making it more likely that appropriate, cost-effective punishments will be imposed on those who are guilty.
My colleague Tim Lynch will speaking on Capitol Hill today at a related event, The Last Sacred Cow: How Congress Can Cut Criminal Justice Spending Without Compromising Public Safety.
Miranda Ain’t Broke
The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.
Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.
As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:
In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.
After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.
The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.
Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.
So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.
Brian Aitken’s Sentence Commuted
New Jersey Governor Chris Christie has commuted the seven-year sentence of Brian Aitken, the man wrongfully convicted on firearms charges under that state’s draconian gun laws. Good.
While a full pardon seems more appropriate – the judge in this case should have given the jury instructions on the “moving exception” that protected Aitken – this is at least recognition of an injustice and relief for one man and his family.
The New Jersey state judicial system’s webpage describes the grand jury’s function as “a screening mechanism to protect citizens from unfounded charges.” That didn’t happen in this case. For more on this phenomenon, read this Cato Policy Analysis, “A Grand Façade: How the Grand Jury Was Captured by the Government.”
For more Cato work on criminal justice, check out Tim Lynch’s excellent book, In the Name of Justice.
Will Governor Christie Pardon Brian Aitken?
Brian Aitken, a finance student at NYU and economic scholar at the Foundation of Economic Education, ran afoul of New Jersey’s draconian gun laws when he was arrested while transporting two handguns unloaded and locked in the trunk of his car.
After separating from his wife in 2008, Aitken moved from Colorado to his native home of New Jersey the end of that year, to be closer to his son.
Shortly thereafter, in January 2009, Aitken – according to one account – “became distraught, muttered something to his mother, and left his parents’ home in Mount Laurel, NJ,” after his ex-wife canceled a visit with their son.
At that point, his mother, who is a trained social worker, called the police out of concern. That’s when things went downhill for Aitken. After the police caught up with him, they determined he wasn’t a threat to his or anyone else’s safety, but proceeded to search his car anyway. Upon finding the guns, police pressed weapons charges against Aitken.
New Jersey law makes it nearly impossible to get a concealed carry license, and you can’t otherwise take a gun out of your home unless it is in connection with several enumerated exceptions. Moving from one residence to another is one of the exceptions. Aitken was in the process of moving; it took police over two hours to remove all of his possessions from the car before they found the two guns in the trunk.
The jury never heard about the moving exception, virtually guaranteeing Brian’s conviction.
Yet Judge Morley wouldn’t allow Aitken to claim the exemption for transporting guns between residences. He wouldn’t even let the jury know about it. During deliberations, the jurors asked three times about exceptions to the law, which suggests they weren’t comfortable convicting Aitken. Morley refused to answer them all three times. Gilbert and Nappen, Aitken’s lawyers, say he also should have been protected by a federal law that forbids states from prosecuting gun owners who are transporting guns between residences. Morley would not let Aitken cite that provision either.
Brian Aitken is currently serving seven years in a state prison. Now a website and Facebook page are asking Governor Chris Christie to pardon Aitken.
Gov. Christie has proven a sensible leader and shown political courage in taking on his state’s debt-ridden “Situation.” Here’s hoping that Christie, a former prosecutor, will see that Aitken’s continued imprisonment does nothing to serve the interests of justice.
The Ghailani Verdict
You’ve probably heard that a jury found Al Qaeda bomber Ahmed Ghailani guilty on only one out of 286 charges associated with the 1998 embassy bombings in Kenya and Tanzania.
A predictable debate followed. Glenn Greenwald cited the outcome as proof that the system works, while Liz Cheney, Debra Burlingame and Bill Kristol described the trial as a reckless experiment. Thomas Joscelyn called the trial a miscarriage of justice.
The most insightful commentary I’ve seen is over at Lawfare. Benjamin Wittes and Robert Chesney summed things up pretty well: “Trial in federal court didn’t work out the way the Obama administration wanted, but it wasn’t a disaster–and we can’t honestly say it worked out worse than the military commission alternative would likely have done.”
I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.
That’s a good outcome.
John Stagliano’s Obscenity Trial
Pornography producer John Stagliano is on trial in Washington, D.C., accused of interstate trafficking of obscenity. Reason has been producing workmanlike coverage of the trial.
Setting aside the constitutionally difficult prospect of defining obscenity, the trial is replete with procedural anomalies that call into question the basic fairness of the proceedings.
District Court Judge Richard Leon ruled that Stagliano cannot use expert witnesses, and shut the press out of the jury selection process (which, after a full week, has yet to finish). Things don’t bode well for a free and open trial: The courtroom monitors that will display the crucial evidence are all arranged to be out of the sightlines of press and interested citizens, viewable only by jurors and lawyers. If the press and the public cannot see the evidence, how will we know if the trial is fair?
One of the proposed expert witnesses for the defense is University of California Santa Barbara Film Studies Professor Constance Penley, who would have testified to the artistic value of the indicted films. Artistic value is one of the characteristics of non-obscene materials, so this cripples Stagliano’s defense from the outset. Reason’s interview with Penley is available here.
The judge has even kept the jury selection questionnaire’s secret. Richard Abowitz is covering the trial for Reason. His latest dispatch is available here. Read the whole thing. Additional coverage from The Blog of Legal Times is available here. Full disclosure: Stagliano is a former Cato donor.
Without Intent
One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill-defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.
Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.
The report studies the legislation proposed or passed by the 109th Congress (2005-2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:
- Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction.
- Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
- Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
- Provide detailed written justification for and analysis of all new federal criminalization.
- Redouble efforts to draft every federal criminal offense clearly and precisely.
This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.
The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.
‘A Smorgasbord of Delights’
That’s what my colleague Tim Lynch’s 2009 volume In the Name of Justice is, according to a glowing review in the new edition of the Loyola Law Review. Tim’s probably too modest to link it himself, so I’ll do that here.
In the review, Professor Laurie L. Levenson of Loyola Law School writes:
I have been teaching criminal law for more than twenty years and the one question I predictably get from my students every year is, “Why do we have to read so much?” Sometimes they add, “Isn’t there one book—one article—that explains all of criminal law?” Ordinarily, I just smile and assign them more reading. However, the recent book, In the Name of Justice reminded me that there is such a work. This book raises nearly every important issue one must consider in critically analyzing criminal law.
In the Name of Justice is structured around Professor Henry M. Hart’s classic 1958 essay “The Aims of the Criminal Law,” and Tim assembled an all-star team of scholars and practitioners–including Judge Richard Posner, Judge Alex Kozinski, James Q. Wilson, and Alan Dershowitz–to react, criticize, comment, and expand on Hart’s seminal article. Professor Levinson concludes:
Timothy Lynch has done an excellent job of assembling original essays and appendices of previously published essays and speeches on the critical issues in criminal law. The book is a smorgasbord of delights—the real “meat and potatoes” of criminal law. For my taste, the most fulfilling observations actually come from the contributions in the book’s closing materials. Justice Robert H. Jackson’s famous speech to federal prosecutors on their role in the criminal justice system and the function of criminal law is infused with lessons from Hart, as are the other speeches and essays in the Appendices. The aim of criminal law remains elusive, but the journey itself is worth the effort. In the Name of Justice is the perfect manner to explore the journey of understanding and applying our criminal laws.
I couldn’t agree more: I wish I’d had this book when I took Crim Law. Fortunately, it’s available now for law professors, students, and anyone else who wonders whether our burgeoning state and federal criminal codes have become unmoored from the criminal law’s proper purposes.
The John Yoo Theory of Gun Control
A modest proposal: Suppose that we decide to streamline our inefficient criminal justice system by treating people under suspicion of involvement with violent crime—whether or not they’ve been arrested, charged, or even informed of this suspicion—as equivalent to convicted felons. Suppose, then, that we permit them to be stripped of certain constitutionally protected rights at the discretion of the executive branch.
Outrageous? Some depraved brainchild of the Bush administration’s Office of Legal Counsel? Actually, it’s the editorial position of The New York Times:
Under federal law, people who pose a heightened risk of violence cannot buy or own firearms, including convicted felons, domestic abusers, the seriously mentally ill and several other categories. Suspected terrorist is not one them.
Individuals on the government’s terrorist watch list can be barred from boarding airplanes, but not from purchasing high-powered guns or explosives. Bipartisan legislation in both houses of Congress would end this ridiculous loophole, commonly known as the “terror gap.
The Times does note, before dismissing the fact with the wave of a hand, that “thousands” of people have been found to be on the list improperly. But let’s linger a bit longer over this. The terrorist watch list, at last count, boasted about a million entries. When you eliminate variant spellings and duplicate entries—and rest assured that this would be another enormous source of problems—there are about 400,000 unique individuals on the list, of whom some 20,000 are Americans. Thousands more are nominated for inclusion on the list each week.
Right and Left Take on Feds
The New York Times has a good article about how lawyers on both the right and left are working together to try and roll back state power in the criminal justice system. Here is an excerpt:
“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”
There’s plenty to be concerned about — overcriminalization, federalization of crime, and the militarization of police tactics. I told the reporter that Cato has been uniquely positioned on this subject — that is, we remind our friends on the left that businesspeople have their rights violated all the time. And we remind our friends on the right that police and prosecutors abuse their powers in the “blue collar” context as well. It is encouraging that more organizations are taking a more skeptical view of government power generally and are embracing more principled positions with respect to the rights of the accused set forth in the Constitution.
Other blogs are covering this article and subject too — go here, here, and here.
It was also nice to see that our friend Harvey Silverglate’s new book (Three Felonies a Day) was mentioned. We had a book forum for Harvey a few weeks ago and C-Span was here to cover it.
For additional Cato work on criminal justice, go here, here, and here.
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