The Faculty Lounge

Collateral Consequences: Phiadelphia Judge Unseated Over 1984 Conviction

When we talk about the collateral consequences of conviction - sometimes known as civil disabilities - we rarely are able to see the costs to someone who actually does put her life together.  (Mostly, these consequences function to stop people from becoming highly successful.)  Yesterday, the Pennsylvania State Supreme Court removed Philadelphia Municipal Judge Deborah Griffin  from the bench because of her 1984 federal conviction for using a false Social Security number.  Using this number, she had successfully applied for credit.  (Interestingly, she paid her bills on these fraudulently obtained cards.)  Subsequently, she attended law school at the University of Missouri and later became a member of the Pennsylvania bar.  (Apparently, she failed to disclose this conviction on her PA bar application. ) 

The Court's decision made sense under the law (which forbids those committed of infamous crimes from serving on the bench).  And there are some very good reasons to expect the highest standards from the judiciary.  But it is also true that Griffin's story is quite complicated.  Since the mid-1980's, she seems to have readically turned her life around.  None of this may excuse her offense, but closer scrutiny of her case suggests - as is so often the case - that not all criminal acts have identical moral culpability.  Unfortunately, collateral sanctions provisions - which also include things like felon disenfranchisement, loss of the right to live in public housing, and loss of the ability to get various forms of professional licenses - rarely account for the details of an offender's offense. 

Here, at least, it's easy to see the justification for the sanctions.  But, for example, if she were stripped of the right to be a hair dresser or cab driver - sanctions she probably faces to this day in many jurisdictions - I'd have serious doubts.  This is why many collateral sanctions should only be imposed after a full hearing.  Whether or not we formally call them punishment, that's what they are.  And they should be treated as such.

A Lesson In (In)credibility: LAPD Discovers It's Perfect

The Los Angeles Police Department announced, yesterday, that after looking into over 300 complaints of racial profiling, every single claim had no merit.  The news is even better: according to the LA Times story, this is the sixth straight year that the department has concluded that every single profiling claim was groundless.  Here's the problem: nobody can take these results seriously.

First off, there's the general problem that American human beings are not race blind.  Then there's the more specific problem that police officers are not race blind - perhaps for rational (albeit legally and morally unacceptable) reasons (e.g., an officer's life experience may teach him that specific racial heuristics produce better arrest results.)  And finally there's the most specific problem of all: the LAPD is a department with historical issues in the area of race.

I'm not here to do battle with the department's conclusions.  I don't believe them, and I suspect that I'm not alone in my doubts.  But there is another point worth focusing on.  The credibility of an investigation, a lawyer, a sales person, all depend on that person's awareness that the world is not perfect.  This certainly resonates in the context of auto sales.   Concede that the Camry is a good car, with a great track record, and I'm much more likely to believe you when you tell me that the Altima has its own special merits.

For trial lawyers, this is crucial wisdom.  For example, witnesses with perfect testimony begin to look unbelievable - everyone has some blemishes.  It may even benefit the party that brings a witness to intentionally surface a few problems; it makes the testimony look real.   Similarly, a lawyer's closing arguments may want to embrace and concede evidentiary flaws in the case.   Jurors don't like being oversold any more than customers at the Ford dealer.  The fact that the world is a messy place doesn't mean that one side isn't right. 

The same holds true in politics.  One thing we learned over and over again is that American's embraced Bill Clinton despite, and perhaps even because of, his flaws.

If the LAPD had found several legitmate cases of profiling, we might have believed that they'd at least tried to investigate fully.  As it is, the discovery of perfection only serves to undermine the search process itself. 

Diagnosing Disparity: Iowa Studies Racial Impact Of Criminal Laws

I suppose that one thing that distinguishes progressives coming of age during the Rehnquist court from those coming out of the Warren (and to a lesser degree Burger) eras is that the Rehnquist Left - if such a thing exists - sees legislatures as at least as likely a site for progressive legal change as the courts.  I suppose process-oriented conservatives can claim a victory here; people, like me, who worry about race and criminal law, now see democratic change as the most effective and durable path for change.  In that sense, the Obama candidacy is a real litmus test.  Although one can never be sure of his ultimate policy preferences, it appears that Obama may be the first criminal justice progressive heading up a major party ticket in over a generation. 

There is already definite good news, however, because there is evidence of some fresh activity at the state level.  Doug Berman reports today that Iowa has just adopted a new law requiring the state to examine the racial and ethnic impact of all new sentencing laws before passage.  Governor Chet Culver's website has more info here.  This follows release of a report last July by the Sentencing Project showing that Iowa incarcerates African-American offenders at a rate 13 times higher than whites (and twice the national average.)  Their research is consistent with my own findings in the discrete area of Megan's Law.  In Silence and the Racial Dimension of Megan's Law, I showed that Iowa and several other similar midwestern states had significant overrepresentation of African-Americans among those subject to both registration and community notification.  (This overrepresentation was substantially more noticeable in the midwest than, say, the deep south - evidence that race is every bit as much of an issue in the north as in the south.) 

For those of us who fear that courts are neither a likely, or a durable, source of policy improvement, this new development in Iowa is great news.  It sounds like sorts of proposals for change that many of us have begun to embed in our law review articles: a way to make democracy work better.

Death Penalty For Child Rape: Rhetorical Games In Supreme Court Briefs

One ongoing issue in the debates over child sexual abuse is the tendency of certain advocates to play games with statistics.  In  Making the Case for Megan's Law: A Study in Legislative Rhetoric, I noted that advocates for sex offender notification often used data about widespread levels of child abuse and neglect to prove the existence of a child abduction crisis.  The actual number of stranger abductions - the sorts of cases Megan's Law is designed to combat - is quite small and advocates apparently felt they needed to puff up the problem to promote new laws.

Now it seems that the state amici in Kennedy v. Louisiana, the Supreme Court's upcoming child-rape death penalty case, are playing the same game.  In their brief, Attorneys General from Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington argue that child rape has a devastating effect on society.  The crime is devastating for kids - no doubt.  But the following paragraph, which follows directly under this claim, looks an awful lot like the bolstering we saw in legislative debates over Megan's Law.  It conflates child rape with child neglect, emotinal abuse, physical abuse, prostitution, pornography, and other things, thereby producing very large numbers and a sense that a crisis is afoot:

When Will We Ban Cigarettes? Reading The Tea Leaves

When I teach criminal law, I try to use at least one class to address the question of what acts we call crimes - and why.  Many students have not previously questioned whether our current menu of crimes is natural or is, in substantial part, a cultural artifact.  Setting aside crimes that are malum in se - offenses like murder, larceny, and arson that many (though not all) cultures understand to be immoral - most American criminal codes are larded with offenses that aren't universally understood to be wrong.  And the American prison system is filled with people who commited these malum prohibitum crimes: according to a 2007 Department of Justice report on prisoners in the U.S., 53% of all Federal inmates and 20% of all state prisoners are there for drug offenses. 

It hasn't always been this way, of course.  For most of this nation's history, heroin, marijuana and cocaine use was legal.    And this all leads me to ask students whether we ought to, or will, ban cigarettes.  The trends certainly point that way.  A half century ago, smoking was widespread - and well tolerated in public places.  Today, smoking bans are ubiquitous. Children are taught to hate smoking (as any parent has experienced when his young child walks past a smoker and exclaims "yuck, that's disgusting!")  I've wondered whether we'll soon treat parental smoking as child abuse.  It seems entirely logical, as a next step, to ban the product.

Yet if my students are any indicator, we're not ready for this next step.  And I wonder why.  Is it because we have a commitment to personal freedom - albeit one that does not include cocaine, heroin, marijuana, and the like?  Is it because we anticipate low compliance rates for such a ban - chastened, in part, by the failure of prohibition?  Is it because we think that domestic tobacco companies will block efforts to impose this sort of drug ban?  Or is it that we want our tobacco companies to continue to make money selling cigarettes in developing nations - and we'd face an international outcry if we tolerated the promotion and export of a product so dangerous, we don't allow it here in the U.S.

I'm not sure where we'll be in twenty years.  Perhaps there will be a resurgence of smoking that provides political support for Philip Morris et al.  Perhaps the political forces that have successfully pushed for heavy smoking regulation will stall.  Perhaps we'll tax cigarettes into a leisure product only available to rich folks - and thieves.  Or perhaps we'll have a new unit to cover in our Criminal Regulation of Vice courses.

Rape In The Military: The Other Inbound Wounded

Representative Jane Harman has a disturbing post up at Huffington (which is also an LA Times op-ed) discussing the frequency of rape in the military - and particularly the extent that woman soldiers are sexually assaulted.  Everyone knows I'm a crime data skeptic.  Still, I was particularly troubled by some Department of Defense stats she cites for 2007.  Here's a snapshot:

Only 181 out of 2,212 subjects investigated for sexual assault in 2007, including 1,259 reports of rape, were referred to courts-martial.... Another 218 were handled via nonpunitive administrative action or discharge, and 201 subjects were disciplined through "nonjudicial punishment," which means they may have been confined to quarters, assigned extra duty or received a similar slap on the wrist. In nearly half of the cases investigated, the chain of command took no action; more than a third of the time, that was because of "insufficient evidence."  This is in stark contrast to the civilian trend of prosecuting sexual assault. In California, for example, 44% of reported rapes result in arrests, and 64% of those who are arrested are prosecuted, according to the California Department of Justice.

The Huffington Post's provocative homepage teaser for the post - women in the military are more likely to be raped by a fellow soldier than killed by enemy fire - turns out to be a wild understatement.  For whatever reasons - everything from institutional culture around gender and sex to a healthy does of troop omerta - the military seems unable to safely support a co-ed force.  Moreover, if Harman's analysis is anything close to right, we have a whole other cohort of injured soldiers coming home - and one that I fear nobody in Washington, at the VA, or pretty much anywhere else, is taking seriously.   

Must Sex Offenders Vote Absentee?

Massachusetts state legislator Demetrius Atsalis has proposed that high risk sex offenders be prohibited from voting at polling places located in libraries and schools.  As he explained, "if someone has to use a bathroom, there's an excuse to go down the hallway, and potentially, something can happen."  What's the solution for these individuals?  Vote absentee or don't vote at all.

I understand where this proposal is coming from.  Sex offenders who attack children certainly do exist (although in smaller numbers than media accounts would suggest) and we have adopted a system where we attempt to intensively regulate the physical movement of these folks.  They must register upon release, notify authorities about address changes, reside far from schools and churches, and stay out of areas popular among children.  It only makes sense, then, that these complicated procedures be applied on election day as well. 

So is there a problem with this bill?  Maybe.  In my view, many of these sex offender regulations are of minimal value.  Registration may have utility insofar as it gives authorities a ready pool of locatable suspects; the existence of community notification, a recent study shows, may deter first time offenders.   But I seriously doubt that geographical limits have much use at all.  They're difficult to enforce and ignore the most likely community of victims: an offender's family and friends.  So we need to weigh this very limited upside with the costs of this proposal.  It significantly burdens an ex-offender's right to vote (controversial as this right may be) since many polling sites are in schools or libraries. 

The benefits don't outweight the costs.  The bill purports to offer safety, but would provide only the thinnest extra margin.  A stronger argument, I suppose, might be that the provision - and the debate that surrounds it - provides a retributive payoff, allowing the community to express further outrage sexual offenders.  But this is an utterly inappropriate justification for these sorts of collateral sanctions - civil disabilities, as they're often called - at least as long as courts do not subject them to critical review as forms of punishment.  The real purpose of these laws, I've always thought, was to help legislators get re-elected.  And in this regard, I expect, the proposal will be highly efficacious.  The people who can show up to vote will presumably reward Atsalis for his hard work. 

Crack-down on Mothers Using Drugs

The New York Times reports that Alabama has adopted a new law to prevent children from being exposed to drugs--in and out of the womb.  The district attorney in Andalusia, AL argues that pregnant women should be prosecuted for using drugs, saying that "When drugs are introduced in the womb, the child-to-be is endangered."  This concept of chemical endangerment of a child targets meth towns--municipalities with little diversion outside the chemical.  Most often, these victims are white, poor, and young.  Babies born with traces of drugs in their system provide evidence of the mother's drug use.  State officials hold that they are protecting mothers and children, but those prosecuted think otherwise.

The article my be found here.

The Community's Right to a Jury Trial

Despite the fact that a good 95% of criminal indictments are disposed through guilty pleas, the jury trial--and the right to a jury trial--still looms large in the American imagination.  For better or for worse, our nation is obsessed with the criminal jury trial.  And it's been a focus since the founding of the country:  the right to a jury trial is codified twice in the Constitution, once in Article III and once in the 6th Amendment. 

But whose right is it, exactly?  Currently, we understand it as the defendant's right--that's certainly how the 6th Amendment seems to read.  But what if that's wrong?  What if, originally, the jury trial right was a community right , and was never intended as an individual right? What if we had spent the last century misunderstanding and misreading the Bill of Rights, contrary to the original historical meaning?  What would that mean for the individual jury trial right today?

That's the premise of my latest article, sent out to law reviews last week (and available here in draft form).  Full abstract after the jump.

New Data On Effectiveness Of Megan's Law Sex Offender Community Notification

Sex offender community notification laws - sometimes known as Megan's Laws - have been a popular way for legislators to establish their anti-crime bona fides.  We've known that these laws have a disparate impact on people of color.  To date, though, there has been little data on their efficacy.  Legislators and activists argued that these laws would help prevent recividism - both because it would scare offenders and empower potential victims and families to protect themselves. 

Prescott and Rockoff have a new paper up on SSRN which presents an interesting take on this issue of effectiveness.  This, from their conclusion:

We also find evidence that notification laws reduce crime, but do so by deterring potential criminals, not necessarily recidivists.  In fact, our results suggest that registered offenders might be more likely to commit crime in a state that imposes a set of notification requirements, perhaps because of heavy social and financial costs associated with the public release of their information. 

In many ways, these results make sense.  To the degree that individual offenders have control over their actions, notification functions as a deterring punishment (notwithstanding the fact that the Supreme Court has happily embraced the fiction that Megan's Law isn't punishment at all).  To the degree that the an individual's conduct really is beyond rational control, offenders will reoffend notwithstanding the existence of registration and notification laws.   (It remains possible that notification empowers potential victims - that is a separate and complicated issue.)

We do need more research on the effectiveness of these laws.  To be candid, though, I doubt such data will have much effect on the politics of community notification.  These laws are first and foremost politicals tools for particular politicians and interest groups; secondarily, they are tools of retributive punishment against convicted offenders.  Even if they are utterly ineffective, and increase crime overall, Megan's Laws will maintain powerful support in our legislatures.

Hat tip: Doug Berman.

Racist Prosecution By Design: The Philly DA Training Tape

As we bid adieu to Charles Rosenthal, the Houston DA accused (among other things) of sending racist emails, it's a good time to remind ourselves that race and prosecution is a toxic mix.  We need only go back a to the 1987 Philly DA training tape (note that the tape says 1996 - and that's not right) where junior DA's are taught that: "let's face it, the blacks from the low income areas are less likely to convict and as a result you don't want those people on your jury...you're just being realistic."  Am I suggesting that all prosecutors or prosecutions are racist?  Not at all.  But given the outputs of our criminal justice system - the overwhelming disproportionate representation of minorities, for example - it seems to me that we have a special duty of vigilance when it comes to state sponsored racism.

A Challenge for Crime Deterrence Models: Irrational Juvenile Fatalism

The Journal of Adolescent Health has a new study, Unrealistic Fatalism in U.S. Youth Ages 14 to 22 (subscription may be required), which concludes that 6.7% of all studied youth believed they would not live much past 30.  This is conisistent with a 2000 study in Public Opinion Quarterly (subscription required) which showed that nearly 4% of 15 and 16 year olds believed that they would probably die before age 20.  All of this complicates any good deterrence model for kids.  We already know that developmental progress limits kids' ability to behave like rational actors.  This new study (in tandem with existing work) shows that a 20 year sentence for a 20 year old may actually be read as a 10 year life bid.  I'm not sure how that affects an offender's valuation of that sentence - whether an effective life sentence looks more or less daunting than a 20 year sentence followed by a return to society - but I'm confident that it does affect valuation.  The question I grapple with regularly is not whether punishment can deter, but whether we have any economic or agent-based models sufficiently sophisticated (taking into account data like this) to give us even the remotest hint of how we can harness the power of deterrence. 

Don't Mess With...Kentucky?

One of the courses I teach in the spring is Criminal Procedure:  4th, 5th, and 6th Amendment.  It's a wonderful class to teach (thanks in part to the fantastic Miller and Wright casebook) and part of the fun is keeping up with the ever-changing doctrine, particularly in the areas of search & seizure and right to counsel.  I try to keep a close eye on what goes on in the states--as we crim profs know, the practice of criminal law is really about state law.  The feds may get all the glory, but the state gets all the action.

That said, it's not often that you hear about two major decisions from the same state court in the same day.  After reviewing the two latest decisions from the Kentucky Supreme Court, one involving an ineffective assistance of counsel claim and one involving frisks of motorists, all I can say is this:  in Kentucky, keep your friends close and your rights even closer.

 

Should Parole Boards Punish Uncharged Conduct?

The USA Today reports that 12 states allow prosecutors to introduce DNA evidence from unprosecuted crimes at parole hearings - in some cases, even after the statute of limitations has run.  There are a few obvious criticisms of this policy ranging from fairness and process issues to the question of whether conduct predating the inmate's sentenced crime is particularly germane to the issues a parole board normally considers (such as the inmate's degree of success during incarceration.) 

One slightly different issue stuck out for me, however.  In the story, a prosecutor is quoted as arguing that denying parole for these uncharged offenses will make offenders "pay at least some price for their actions."  I'm just not certain that the parole board is the right venue to make people pay for crimes for which they've never been convicted.  In fact, I doubt many states have authorized their parole boards to "punish" people for  uncharged crimes.  If states are actually extending this authority to parole boards, that's a whopper of a problem in its own right; I can't imagine that it would be constitutional to mete out punishment  for an uncharged crime under these circumstances. 

I feel confident that the public will cheer any opportunity to punish criminal conduct.  Notwithstanding the allure of using DNA strategically to punish inmates at their parole hearings, states should think twice about doing so.  There is a time and a place, and a parole hearing is generally neither.

[Image from a 1958 Michigan parole hearing.]