The Faculty Lounge

Prosecutors and Pregnancy

As national elected officials clash over access to contraception, a criminal case in Indianapolis also illustrates the price that women can pay for the politicization of reproduction.

In December 2010, Bei Bei Shuai was pregnant and living with her partner, the father-to-be of the child. Instead of marrying her as he had promised, the partner disclosed that he was married to someone else and was ending his relationship with Ms. Shuai. Driven to despair and believing herself worthless and blameworthy, she attempted suicide by swallowing rat poison. Fortunately, friends found her and took her to the hospital. Doctors were able to save her life, and they delivered her 33-week old fetus by cesarean section. Unfortunately, the baby survived for only a few days before dying.

In most cities in this country, Ms. Shuai would have received the mental health care that she needs.  In Indianapolis, the prosecutor has described her as a “cold-blooded” killer and filed murder charges that carry a minimum sentence of 45 years, with the possibility of a death sentence or life in prison without parole.  

After nearly 11 months of jail time for Ms. Shuai, the Indiana Court of Appeals has paved the way for her to be released on bail. However, the court declined to dismiss the murder charge.

(I co-authored an amicus brief on behalf of medical organizations and health care professionals supporting Ms. Shuai.)

Boydton Prison

The Washington Post has an article on the impending closure of the Boydton, Virginia, prison, which will have a devastating effect on the local economy.  I'm particularly interested in this because I've visited Boydton a few times over the past several years to see the remains of Randolph Macon's pre-war campus there.  (And a Confederate monument in front of the courthouse, of course!)  It's a beauitful part of Virginia and I recommend the trip if you're driving down I-85 and can spare the time for a side-trip.  It's also a place I want to go back to sometime to look at their probate records, but that's a story for another time.  What I find important is how the prison represents a lifeline for that small and poor community, especially after the local candy factory and mill closed.  And now even that's going to be closed, in large part because Pennsylvania no longer wants to pay Virginia to house 1000 of their inmates.

This also reminds me of something I've been meaning to blog about for a while now: a trip I took last summer to Chester, Pennsylvania, shortly after the trip I made out to Cherokee, North Carolina.  The nicest -- by far -- building in Cherokee is the Harrah's Casino.  I was there with a friend who studies indigenous people and so one of the things we wanted to do was to see the effect of the casino on the community.  While I fully realize that the casino brings in money to the community, it sure looked like that money wasn't well-distributed.  The casino is beautiful; the surrounding buildings aren't.  The casino is also the only place in Cherokee Country where you can buy alcohol.  Yes, really.  Anyway, to get back to the story, a couple weeks later I was up in Chester and a friend there mentioned to me that the local casino -- which looks remarkably like the one in Cherokee -- is across the street from the Chester jail.  There's something incredibly poignant about the juxtaposition of those two American institutions across the street from each other.  The casino and the jail.  Next time I'm back there I'm going to try to get both in the same picture.

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

Mercer to Offer Unique LL.M. Degree

Mercer will begin offering the first LL.M. degree in Federal Criminal Practice and Procedure next fall.  The law school's press release is here.

UC Davis Law Profs, Student Named To Pepper Spray Investigation

Mark Yudof, President of the University of California, has named the panel to investigate the pepper spray incident at UC Davis.  The team is chaired by former California Supreme Court Justice Cruz Reynoso, Professor of Law Emeritus at Davis (pictured).  He is joined by Professor Alan Brownstein of the law school as well as law student William McKenna.  In all, there are thirteen members of the task force.

Policing White People

In an op-ed published Friday, I argue that the new "normal" policing involves both hyper-policing and militarization - but that these policies can only be sustained, politically, when they are used on under-represented minorities.  That's why the UC Davis pepper spray incident  - as well as the news from Alabama that the police had arrested a Mercedes executive who couldn't prove his right to be in the United States - are so potent.  From the point of view of policing norms, these actions were totally appropriate.  But the only way that our society has even come to tolerate these police norms has been with the tacit agreement that they would not be used on white folks.  From the piece:

As police culture has shifted, the police seem to have forgotten — or perhaps never realized — that these aggressive policies are really only politically sustainable when they’re employed against disempowered communities. Airport profiling is OK for Muslims. Random street searches are OK for African-Americans. And seat-of-the-pants immigration detentions are fine for Mexicans. But you can’t engage in invasive stops, searches and unsubstantiated detentions of, and attacks on, white folks without other white people getting agitated. What’s good for the goose has never been good for the gander.

That’s why the UC Davis video is so powerful. These are campus cops using the new normal police strategies — the police experts agree — on white people. It turns out, the public isn’t as comfortable with the new normal as the police believed. Meanwhile, in Alabama, the state is trying to figure out what to do when a police officer uses his new powers to detain a German Mercedes executive — visiting the company’s Tuscaloosa factory — on the grounds that he could not prove his right to be in America.

  Read the full op-ed here.

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

Lawtalk, Old and New

I've long been fascinated by the interaction of law and culture, and so jumped at the chance to be one of the authors of Lawtalk:  The Unknown Stories Behind Familiar Legal Expressions, due out in November. The rich histories behind phrases we law professors use every day, coupled with their tendency to pop up in today's headlines, is just plain fun.  So I'm also very happy to get this chance to guest blog a bit and share some of those stories with readers of The Faculty Lounge.

I'll start with two related terms:  "rap" and "rap sheet."  The former started life meaning a blow to a person or sharp tap on an object.  Over the centuries it developed a figurative meaning, and by the end of the 19th century to "get the rap" for something was well-established slang for getting the blame.  The lingo of criminal world then adopted "rap," adding colorful variations.  The New York Times in 1926 helpfully provided this translation of one meaning of "rap" for its readers:  "When one is singled out from a line of suspects as the dick who slid with the ticktick, one is the victim of a 'rap.'"

"Rap sheet" came along later, but was based on the well-established sense of "rap" as a criminal charge.  This straightforward history did not, however, prevent the establishment of a false etymology -- the belief that the "rap" in "rap sheet" is an acronym for "Record of Arrests and Prosecutions." It would make a logical acronym, like SCOTUS (Supreme Court of the United States). 

Logical, but untrue.  That version of "rap" sheet is another animal entirely:  the backronym.  While in a true acronym the phrase precedes the word, a backronym attributes a false back-story.  "Golf," for example, did not come from "gentlemen only, ladies forbidden," nor does "cop" come from "constable on patrol."  An enterprising computer programmer has even created a backronym generator. FACULTY, for example, becomes "Foolish Antiquarianism Clarification Unbecomingly Lateness Terrible Yelp," and LOUNGE is "Learn Old Unhallowed Neptunian Group Endowment."  One computer-generated backronym for RAP is "Ridicule and Penetration."

Nevertheless, the fiction is becoming truth.  A few states have actually formally adopted the phrase "Record of Arrest and Prosecution" and call the resulting records R.A.P. Sheets, converting slang into the official title for criminal history records and turning the simple, earthy "rap" into a pretentious series of initials.  "Rattling Analyst Poster," anyone?

 

Finally, a nuanced approach to the MPC/Common Law divide

Everyone who teaches first-year crim inevitably teaches the two competing frameworks of the criminal law:  the common law v. the Model Penal Code.  The frustration is that no one state or jurisdiction follows either framework entirely--usually it's just some complicated melange of the two.  Usually I just acknowledge this and move on.

Now, however, Anders Walker, of SLU, has written a paper which explores and complicates this reality, arguing  that there is actually a "new common law" that functions in many states: 

The New Common Law: Courts, Culture, and the Localization of the Model Penal Code

Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this article proposes a radical update, emphasizing two objectives: 1) the need to stress the interplay between individual state cases and codes, and 2) the need to abandon the position that the MPC represents a bold new vision of criminal law reform, particularly since that vision is itself almost half a century old.

 

Definitely recommended reading for all crim law teachers and scholars!

 

 

Middle School Dean Plays Crack Detective

This is where our anxiety about drugs and school crime takes us.  The LA Times reports today that a jury has issued a million dollar judgment for a 12 year old boy who was coerced into being a decoy marijuana buyer.  The boy's middle school dean was organizing a  buy-and-bust scheme targeting an eighth grader alleged to be selling weed.   Without consulting police or parents, the dean marked a $5 bill and sent the boy into action. 

I'm sure that these sorts of transactions happen all the time in America's city schools.  They are fully consistent with viewing such schools on the prison continuum, complete with metal detectors and virtually unreviewable disciplinary power.   Of course, when an adult gets co-opted into serving as a decoy, he (or she) has hopefully considered the many social and physical dangers involved in the maneuver.  Somehow, I suspect that this youngster was a little less savvy.   Apparently, a jury agreed.

No intent needed to be convicted of many federal crimes

Great article on Tuesday in the Wall Street Journal about the ever-increasing number of federal crimes that lack any mens rea, or intent requirement, to find guilt.  As the article details, this leads to a lot of unfair convictions and punishments for acts that most of us would not assume are crimes:

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."

This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.  As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

The lack of a mens rea requirement in so many federal crimes, often the result of poor or sloppy drafting, goes hand in hand with the mushrooming number of crimes now punishable by federal, as opposed to state, law.   This vast federalization of crime, which has primarily taken place in the last thirty years or so, makes it more and more difficult for the average citizen to have even a basic working knowledge of what is and is not criminal conduct.   Combined with harsh mandatory minimum sentencing laws, it is no wonder our prisons are full to bursting. 

Does Availability Of Legal Drugs Reduce Crime?

A new study out from Rand suggests as much.  Rand Corp. studied crime rates around several LA marijuana dispensaries which were forced to close after the city adopted a new medical marijuana ordinance in 2010.  The findings: crime spiked 59% within three-tenths of a mile of a closed dispensary (compared to an open one) and rose 24% in the area within six tenths of a mile of the closed facility.  Not surprisingly, city officials dispute the data.

Democracy and Defense Counsel

On the BBC News this morning, I heard an interview with Geir Lippestad, the lawyer for Anders Behring Breivik.  Breivik has admitted to last week's mass-killings in Norway.  Here is my transcription of a portion of that interview:

[Reporter:] You, as a lawyer, are, in a sense, at the receiving end of a lot of hostility on a massive scale.  How do you feel?

[Mr. Lippestad:] Well, Norwegian people are loving people and caring people and if you look into the Internet right now, you can see that people value the democracy – the principle of democracy – very high. And the legal system is part of that democracy, and I am proud of being part of a system that is strong, and proud to be in Norway now and receive lots of comments that [a]defender’s work is important.

A video of that interview is here.  The (U.K.) Telegraph reports (here) that Mr. Lippestad was reluctant to accept the case, after police notified him that the defendant had requested Mr. Lippestad's services.

For several hours he hesitated and discussed with friends and family whether to defend a man who only hours early had massacred 68 young people on a summer holiday island.

But in the end his civic instincts trumped his initial horror. "I believe that the legal system is very important in a democracy and someone has to do this job," he told reporters this afternoon.

That's moral mettle.

FCPA

My friend Mike Koehler has a "new and improved" website for his blog devoted to the Foreign Corrupt Practices Act.  Here's the link.

Conference on Intersection of Complex White Collar Crime Prosecutions and Business Bankruptcy

From an email that I received earlier this week:

CALL FOR PROPOSALS / CALL FOR PAPERS

The American Bar Association, Business Law Section, Business Bankruptcy Committee, Criminal Justice Section, White Collar Crime Committee and the Golden Gate University School of Law proudly host a national dialogue about freezing, seizing and distributing entity assets and operating the entity at the intersection of complex white collar crime prosecutions and business bankruptcy.  The conference will serve as part of an ongoing discussion about lessons learned, recurring issues and best practices.  The conference will feature leading voices from the federal district and bankruptcy bench, Department of Justice, Criminal and Civil Divisions from "Main Justice" and prominent U.S. Attorney's Offices, and Securities and Exchange Commission, as well as prominent white collar crime and business bankruptcy practitioners and academics.  The conference is scheduled for Friday and Saturday, November 4-5, 2011 at Golden Gate University School of Law in San Francisco, CA.

The conference organizers seek proposals for papers of publishable quality that explore this intersection between white collar crime prosecutions and business bankruptcy.  Particularly, we seek papers discussing freezing, seizing and distributing entity assets, operating the entity, and the different practices and goals inherent to criminal prosecution, civil enforcement and business bankruptcy proceedings.  A committee of academics will review paper proposals that may contribute to our discussion.  Both essay and article length papers are welcome.

Proposals should describe the thesis, its general support, and the proposed format of the final paper. Proposals should be no more than 3-pages. We will review proposals as received, beginning on June 1, 2011, with the submission deadline of August 1, 2011.  Authors of selected proposals will then submit a draft of the paper in advance of the November conference and by October 1, 2011. During the November conference, authors of the selected proposals will present a draft of their paper and the committee of academics and conference participants will review the draft papers in advance of the conference and participate in workshops for selected papers during the conference.

To submit a proposal or draft paper, or for more information about the conference, participants or call for papers, contact Professor Karen Gebbia (kgebbia@ggu.edu) or Wes Porter (wporter@ggu.edu), or by phone at (415) 442-6600.  The attachment should be in Word or PDF format.  Late submissions will not be accepted.  An e-mail acknowledging submission will be sent promptly to each author.  Decisions will be communicated on a rolling basis with final decisions no later than August 15, 2011.

ABC Hires New Abduction Commentator: Elizabeth Smart

Am I the only one who thinks this story is weird?  ABC has announced that Elizabeth Smart will join ABC as a commentator on missing person and child abduction cases.  Clearly, Smart has unique insights to these matters - having been abducted, raped and abused herself for nine months at age 14.  And she seems to have recovered amazingly from that horrific experience. 

Elizabeth Smart deserves to have a wonderful life - and becoming a television commentator certainly qualifies as a plum job in the eyes of many people. 

But the act of hiring an abduction commentator, and the decision to trade on Smart's fame in this respect, is a little creepy.  And the news alone is sure to perpetuate public misconceptions about the extent of the child abduction problem.

Congress And The Politics Of Criminal Law: Sometimes It's Hard Not To Love Justice Scalia

Broad stroke categorization of justices is always dangerous.  As many people (including the Justice himself) have noted, Antonin Scalia can't be pigeonholed when it comes to criminal law.    Here is Scalia, dissenting yesterday, in Sykes v. United States:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases,so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.

 

How to improve guilty pleas

As some of you may know, some of my writing has focused on the Sixth Amendment jury trial right and how this plays out with our system of guilty pleas.  Over on the EvidenceProf blog (always a good read), Colin Miller discusses a recent DC Ct. of Appeals case involving the public aspect of the jury trial right, and then compares his forthcoming article about improving guilty pleas with better judicial participation with a recent article  of mine arguing for community participation in guilty pleas.  If you're interested, the link is here.

And to chime in on the self-promotion debate going on both here and on Prawfsblawg, I obviously have no problem with any kinds of promotions, whether self-, for others, or in the shopping sense.  In my mind, anything that promotes the discussion of ideas is a good thing.  So promote away, scholars!

Pretext Laws: NY Cops Bust Make 51,000 Marijuana Arrests Per Year

According to this story, the NY police arrest 140 people per day for possession of small amouts of marijuana.  Multiplied out, that's over 51,000 arrests per year for a charge that few people - including, certainly, the New York District Attorneys offices - take very seriously.  I understand the true purpose of these arrests to be social control - they give officers an excuse to take potential troublemakers off the street.  (Lawmakers in Albany may think there are other social benefits as well - namely, the suppression of marijuana use - but it's hard to make the case that this priority is shared by many folks within New York City itself.) 

This makes me ponder two things.  First, isn't this a gross waste of resources?  Second, if it's not, it seems that the reason is that the arrests serve goals other than those we usually attach to drug laws - namely, as a pretext for other social control objectives.  We usually think in terms of pretext stops.  But what about pretext laws:  statutes designed not principally to control the stated regulated behavior, but to justify police interventions and arrests.  These laws may be constitutional, but they seem particularly likely to be targeted at hated or feared minority populations.  (Presumably, disorderly conduct laws also fit this bill - but in their generic coverage, perhaps they are less likely to be targeted at discrete groups.) 

I concede that New York marijuana regulations may not have been adopted, ab initio, as pretext laws (but see Kathleen Auerhahn's essential article on Split Labor Markets ).  But it seems to me that that's what they've become.

Allegations of Misconduct Cause Shakeup At Northwestern J-School Innocence Project

David Protess, the journalism professor directing Northwestern's Medill J-School Innocence Project, has been removed from the course by the University as a result of claims that he lacked personal and professional integrity.  He is alleged to have both failed to produce documents, and altered documents, in response to a Cook County DA subpoena.  According to the University's official statement, these irregularities were discovered when lawyers for  the client himself - Anthony McKinney - turned over material to the DA. 

Protess pushed back, stating that Northwestern's claims were “sinister stuff that they have come up with through selective quotes.”

A more complete story is here.  A critical look at how this mess poorly serves McKinney is here.