The Volokh Conspiracy

The Los Angeles Times reports:

A Los Angeles County Superior Court judge has reversed the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks.

Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance.

Gibson testified that Banks raped her on the Poly campus. Banks said the encounter was consensual.

Rather than face a prison term of from 41 years to life, Banks accepted a plea deal that [led to his spending 5 years in prison].

Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.

Nearly a decade later, Gibson contacted Banks on Facebook, met with him and admitted that she had fabricated the story.

The AP account adds a twist:

According to documents in the case, she met with Banks and said she had lied; there had been was no kidnap and no rape and she offered to help him clear his record.

But she subsequently refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

She was quoted as telling Banks: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.”

It’s not clear whether she ultimately did repeat the story to prosecutors, or whether the prosecutors got her admission some other way. In any event, I assume that — absent some statute of limitations barrier (a subject on which I’m not knowledgeable) — what’s left of the $1.5 million will indeed have to be paid back. (Thanks to Robert Dittmer for the pointer.)

This, by the way, raises again a difficult problem with he-said-she-said rape cases, where civil liability is available. I suspect that in a typical such case, one factor that cuts in the prosecution’s favor is “Why would she lie?” A defendant has ample reason to lie by saying that nonconsensual sex was actually consensual — his liberty is at stake. But a complainant in many cases has much less reason to lie by saying that consensual sex was actually nonconsensual; sure, in some situations there might be possible motivations for lying, but they are usually not nearly as strong as the defendant’s motivation.

Yet when the complainant can get millions of dollars in damages, either from a rich defendant on an intentional tort theory, or from some other entity — such as an employer or a school district — that could be held liable on a negligence theory, the complainant now has lots of reason to lie. Of course, this by no means that such a complainant will be lying, just as the defendant’s incentive to lie doesn’t mean that all defendants who testify that they’re innocent are lying. But it does, I think, make the defense’s case stronger and the prosecution’s case weaker.

The jurors don’t know for sure who’s telling the truth. But once they know that the complainant has a potential motive to lie, they’ll be less inclined to believe her — and at least to conclude that there’s a reasonable doubt about whether she’s telling the truth. If you were a juror and the evidence against the defendant besides the complainant’s testimony was weak, wouldn’t you be influenced by evidence that the complainant has a possible financial motive for making up the charges?

What to do about this, though, is not clear. Even if negligence liability against employers, school districts, and others for crimes by their employees or on their property is cut back — some people have argued that it should be — a victim could still sue a rich defendant, or even an upper-middle-class defendant who has some assets that could be seized. If someone physically attacks you, you’re entitled to get compensation from him. But this very possibility makes it harder to criminally prosecute rapists. I don’t know of a good solution to the problem, absent perfect lie detection technology or pervasive recordi

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.’” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

Note that the same issue has recently come up in Indiana, where the Indiana Supreme Court (by a 3 to 2 margin) eliminated the common-law right using its own power to change the common law; a month ago, the Indiana Legislature in turn reinstated the right.

The so-called “duty to retreat” has been in the news recently, and has long been of interest to people interested in self-defense law. Some have argued that the duty to retreat is a special case of the general requirement that lethal force may only be used when necessary to prevent death, serious bodily injury, rape, kidnapping, or perhaps some other serious crimes. But I think this “corollary of the necessity requirement” view misses an important point, which I want to blog about briefly here.

1. The necessity theory goes like this: “The use of deadly force,” to quote the Model Penal Code, “is not justifiable … unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or [rape].” (Similar formulations are used in many states that haven’t adopted the MPC, though many of those states add robbery and sometimes burglary to the crimes that may be prevented through deadly force.)

If someone “knows that he can avoid the necessity of using such force with complete safety by retreating,” then deadly force isn’t really necessary. Hence the duty to retreat: Even when threatened with death, serious bodily injury, rape, etc., you must retreat if that’s safe (e.g., by driving away from someone who’s threatening you with a knife from across the street, if you’re safely in your car), or else lose the right to use deadly self-defense.

2. But wait: Let’s say that someone tells me “Give me your wallet or I’ll seriously injure you,” and I know that (1) if I give over the wallet, I won’t be seriously injured, and (2) if I don’t, then I will be seriously injured. (I acknowledge that it’s rare to have such confidence, but let’s assume this — perhaps because I know the attacker and his habits — just as duty-to-retreat law assumes that one can sometimes “know” that one can retreat with “complete safety.”) Under the “necessity” definition we’re discussing, here too deadly force isn’t really necessary, since I can avoid the need to use deadly force by handing over the wallet. Yet even under the Model Penal Code — which has a quite narrow view of permissible lethal self-defense (see below) — I can refuse to hand over the wallet without losing my right to use lethal self-defense.

Or say that someone credibly tells me “Beg for your life or I’ll kill you,” and instead of begging I shoot the person. Again, under the “necessity” definition we’re discussing, deadly force wouldn’t really be necessary, since I could have avoided the need to use deadly force by begging. But again, even under the Model Penal Code, I could refuse to beg without losing my right to use lethal self-defense. Likewise if someone tells me “Renounce your apostasy or I’ll kill you” or “reveal this-and-such secret to me or I’ll kill you.”

This, I think, highlights the point I noted in my earlier post on the duty to retreat: Even under a formulation such as the MPC’s, one doesn’t lose the right to lethal self-defense just because one could avoid the need for lethal self-defense with complete safety. Rather, one loses this right only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty.

Even the MPC doesn’t require one to give up one’s liberty not to hand over the wallet, or one’s liberty not to beg, as a condition of lethal self-defense. The MPC duty to retreat is thus not just an application of the “use deadly force only when necessary” requirement. Rather, it embodies a judgment that requiring someone to leave a place where he has the right to be is not an undue sacrifice of one’s liberty — even though requiring someone to comply with a demand for money, or a demand that he beg for his life or renounce his apostasy, is an undue sacrifice of liberty.

3. This is made even clearer if we look more broadly at the MPC provision, which reads:

(b) The use of deadly force is not justifiable … unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if …

(ii) the actor knows that he can avoid the necessity of using such force with complete safety
[1] by retreating or
[2] by surrendering possession of a thing to a person asserting a claim of right thereto or
[3] by complying with a demand that he abstain from any action that he has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be ….

(c) Except as required [above], a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.

This provision makes clear that people need not comply with a demand that they beg or hand over their wallets, even if doing so would “avoid the necessity of using [deadly] force.” They may have to comply with a demand to turn over property under a claim of right (i.e., if there’s a good-faith dispute about whose property it is). They may have to comply with a demand to abstain from an action. But they don’t have to comply with a demand to turn over property without a claim of right (“give me your wallet”), or a demand to engage in an action (“beg for your life”). Nor do they have to comply with a demand that they leave their homes or their workplaces.

Again, this is a judgment, I think, about acceptable restraints on liberty: The MPC’s view is that (as I argued above)

1. one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty,
2. having to leave a place where one has a right to be, having to comply with a demand to abstain from action, and having to turn over property as to which there’s a good-faith dispute is an acceptable sacrifice of liberty, and
3. having to leave one’s home or workplace, having to comply with a demand to engage in action, and having to turn over property as to which there’s no good-faith dispute is not an acceptable sacrifice of liberty.

4. One may well disagree with the MPC about what counts as undue sacrifice of one’s liberty and what counts as an acceptable sacrifice. One may conclude that the law shouldn’t demand any sacrifice of liberty on the defender’s part when someone is threatening the defender with death, serious bodily injury, and the like — one would therefore reject the duty to retreat and the other duties the MPC identifies.

But the one thing that should be clear is numbered item (1) above: Even the MPC concludes that one loses the right to self-defense only when one could avoid the need for lethal self-defense with complete safety and without undue sacrifice of one’s liberty. And the common-law rule in the duty-to-retreat states embodies this view as well. The duty to retreat is thus not just an application of the “necessity” requirement; it’s a judgment, whether right or wrong, that a particular sacrifice of liberty — though not other sacrifices of liberty — on the defender’s part is acceptable in order to prevent bloodshed.

Incidentally, note that a half dozen or so states have adopted the MPC rule that I quote above, but I haven’t found even a single case that applies the provision that a defender can’t use lethal self-defense if he “knows that he can avoid the necessity of using such force with complete safety … by complying with a demand that he abstain from any action.” I’ve looked hard, because I wanted to see how this provision plays out in practice, and yet I found nothing.

This suggests to me that prosecutors, judges, or juries likely don’t really buy this provision: Though the MPC, and the legislatures that adopted the MPC, seem to conclude that requiring a defender to comply with a demand to abstain from action is an acceptable limit on liberty, the legal system on the ground doesn’t seem to adopt this view. Please let me know if you know of any cases to the contrary.

I blogged a while ago about how the presence of a “duty to retreat” probably (though not certainly) wouldn’t have affected the outcome of any possible prosecution of George Zimmerman for killing Trayvon Martin. The issue in that case would likely be whether Zimmerman reasonably feared death or serious bodily injury or some similarly serious crime, a requirement that’s present in pretty much all states, whether or not they adhere to the “duty to retreat” doctrine (Florida and most other states don’t).

But I want to talk a bit more generally about the duty to retreat, both in this post and (I hope) in a future post. Recall that this isn’t a true duty, such as the duty to testify when subpoenaed, but rather a rule that

1. even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
2. so long as D can escape this threat with complete safety
3. by leaving the altercation
4. except when D is in his own home (or, in some states, in his workplace),
5. D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.

And the question raised by the duty to retreat is this: Should D have to surrender his liberty to be in a place where he has every right to be — e.g., a street, a bar, a party at a friend’s house — in order to retain his right to lethal self-defense? The answer might well be “yes.” Perhaps some surrender of this liberty is indeed proper in order to minimize the risk of a shootout, which could lead to death or injury to D, to V, to innocent bystanders, or to others who may be caught in some escalating cycle of retaliation (as in inter-family feuds or gang wars). But we have to recognize that there is a surrender of liberty involved.

Under a duty to retreat, D must leave V’s presence, or else if he stays he will be subject to V’s potentially deadly attack (or at least seriously injurious attack) without any legal right to use potentially deadly force in self-defense. The law thus ends up supporting V’s thuggery, not with the specific purpose of doing so but with that effect: If V credibly tells D “go away or I’ll kill you,” D must flee (if he can do so with safety, which usually means that he’s fleeing a knife or an unarmed attack rather than a gun). Even if V just says “I’ll kill you,” D must flee; that might not play as much into V’s hands (if V’s goal is really to kill D and not just chase him away), but it will still help V exercise unresisted power over D.

In any case, that’s the theory. Here is a real case in which this issue came up, in one of the substantial minority of states in which a duty to retreat exists. Such relatively recent, simple, and factually well-described cases are pretty rare, and this is the first such one that my quickie query revealed, the Massachusetts Supreme Judicial Court decision in Commonwealth v. Benoit, 452 Mass. 212 (2008) (some paragraph breaks added):

By the time the trial began in January, 2007, there was no dispute between the Commonwealth and the defendant that the victim had died as a result of stab wounds inflicted by the defendant with a knife during a fight between the two young men outside of the victim’s home in Pittsfield…. In particular, at the time of his arrest on May 30, 2005, some hours after the fight with and resulting death of the victim, the defendant gave a statement to the police in which he said that immediately before the actual physical confrontation between him and the victim began, the victim “was on his porch saying that, ‘I’m going to stab you nigger, this and that.’” The Commonwealth was intending to introduce the defendant’s statement in evidence at trial.

In addition, the Commonwealth had given notice that it would seek to introduce evidence of an earlier statement of the defendant to his brother, describing an encounter between the victim and the defendant approximately one year before the confrontation leading to the victim’s death. The defendant had stated to his brother that in that earlier encounter, the victim, accompanied by one friend who was white, had called the defendant, who was with three friends who were black, names, like “nigger this, nigger that,” causing a fight to erupt, and in that fight the victim ultimately “got the best of” the defendant and his friends….

The defendant claims that he was entitled to an instruction on self-defense and that the judge erroneously refused to instruct the jury on this theory. When deadly force is used, such as in this case, the deadly force standard is applied. “In order to create a right to defend oneself with a dangerous weapon likely to cause serious injury or death, it must appear that the person using the weapon had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm.” Moreover, the privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat.

A self-defense instruction is not required unless there is some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force. “This rule does not impose an absolute duty to retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense…. He must, however, use every reasonable avenue of escape available to him.” Although we resolve all reasonable inferences in favor of the defendant, as we must [when determining whether an instruction should have been given -EV], there was no such evidence in this case.

The defendant did not testify; thus we examine his statements to the police (which were in evidence) and any other evidence relevant to the feasibility of escape. In the defendant’s statement to the police, he said that, as he was about ten feet from the victim on the porch, the victim yelled, “I’m going to stab you niggers,” and that the victim jumped or “skipped” off the porch and “came at” the defendant and the defendant’s friend, Brandon Johnson. The defendant “figured that [the victim] had a knife, too, because he was going to stab us.” At that point, the defendant and Johnson talked about what to do, and Johnson gave the defendant a knife.

Viewing this evidence in the light most favorable to the defendant, after the victim’s threat to stab him, the defendant had the opportunity to go over to Johnson, get the knife, and then engage in combat with the victim. Whether Johnson was ten feet away from the victim, or somewhat closer, all these events transpired outdoors in front of the victim’s house and apparently in the vicinity of a public street. Nothing indicated that his escape was impeded in any way. Because there was no evidence of an attempt to avoid further physical combat or of the defendant’s inability to retreat, no self-defense instruction was required….

Again, the question was: Did the victim’s “I’m going to stab you niggers” require defendant to give up the right to be where he was, or else be legally stripped of the right to defend himself with deadly force if he stayed? (I infer that he was on a sidewalk or a place that’s similarly open to the public, and not on the threatener’s property, or else the court would have noted that. [UPDATE: I should have said, to be precise, that I infer that the evidence seen in the light most favorable to the defendant was that the defendant was in a place open to the public, since that's the test for when such an instruction is given; that way, the jury gets to apply the instructions to the facts as it ultimately concludes they were. And in any event, the court's decision is precedent for other situations in which a defendant is in a place open to the public.] Or should the defendant be free to remain where he was, while retaining the right to defend himself with deadly force, even when that meant a much higher chance of a deadly encounter? The Massachusetts court said the former. Most states say the latter. Which is right, in this case and in others?

By the way, here’s what ultimately happened to the defendant: The conviction was overturned on the grounds that the trial judge didn’t adequately investigate the possibility that a juror was removed because she was black. On remand, the defendant pled guilty to manslaughter before the retrial — presumably in part because the Massachusetts Supreme Judicial Court had concluded that he wasn’t entitled to a self-defense defense — and was sentenced to 18 to 20 years in prison. The defendant was 17 at the time of the incident; the man he killed, Anthony Hopkins, was 18.

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. Continue reading ‘Florida’s Self-Defense Laws’ »

To arrest someone for a crime, the police need probable cause to believe that he committed the crime. But what if it’s clear that the person committed the act (e.g., intentionally killed someone), but it seems likely that he has a good affirmative defense (e.g., self-defense)? My view is that probable cause should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed. But when I looked into this several years ago, I saw that the few courts that had discussed the matter were split.

Florida law, though, clearly resolves this: “A law enforcement agency … may not arrest [a] person for using force [in a self-defense situation] unless it determines that there is probable cause that the force that was used was unlawful.”

So in Florida, the police must have probable cause to believe that the defendant wasn’t acting in lawful self-defense in order to arrest the defendant. It’s not enough to say, “we have probable cause to believe that you killed the victim, so we’ll arrest you and then sort out later how strong your self-defense case is.”

I can’t speak with confidence to whether in the Martin/Zimmerman case the police indeed have such probable cause (which, as you may recall, is a not very clearly defined standard that is well below proof beyond a reasonable doubt, and probably somewhat below preponderance of the evidence).

The tragic death of Trayvon Martin has led to more discussion of self-defense and the “duty to retreat.” I wanted to offer a few thoughts about the broad issues.

1. The costs of the legal acceptance of lethal self-defense: To begin with, I think both self-defense enthusiasts and self-defense skeptics have to acknowledge that the law’s accepting lethal self-defense poses very serious risks, not just to criminal attackers but to the law-abiding. (When I say self-defense, by the way, I generally also include defense of others.) First, there is a risk of accidents, where a well-intentioned defender erroneously assumes he is being attacked.

Second, there is a risk of false claims of self-defense being used as a cover for murder. When D kills V in alleged self-defense, there is often only one witness left: D himself. He can say, “I heard V threaten to kill me, saw him reaching for his waistband, and was sure that he was going to shoot me”; and unless the jury concludes beyond a reasonable doubt that D — again, the only witness — is lying, D will be off the hook, even if D was well aware that V was no threat at all and just wanted to kill him. (This could happen either if D was planning to kill V all along, if D and V are involved a dispute and D kills V in a moment of anger, or if D and V are involved in a fight that doesn’t suffice to authorize deadly force, but D uses deadly force in any case.)

Third, there is a risk — especially with guns — of an innocent bystander being hit. And, fourth, there is a risk that even a justifiable killing will lead to a cycle of retaliation, including not just against the defender but also against others in the defender’s family or community, perhaps with innocent bystanders being accidentally killed as a result. Blood feuds, race riots, and gang wars often happen this way.

As I said, this is something that bears on the arguments of both self-defense enthusiasts and self-defense skeptics. The former group has to acknowledge that the legal acceptance of lethal self-defense is a mixed blessing, with real costs (and, again, not just to criminals). The latter group has to acknowledge that our legal system (and, to a large extent, most of the world’s legal systems) protects self-defense despite these costs. The costs of forbidding lethal self-defense, or cutting down on it in dramatic ways (e.g., accepting only the use of lethal force against an immediate threat of death, and not, for instance, of serious bodily injury or rape), are seen — in my view, rightly so, as exceeding the costs of accepting it.

2. What the legal system does about these costs: The question, then, is: Given our acceptance of lethal self-defense, what does the legal system do and what should it do in an attempt to minimize the costs? Let’s briefly discuss several approaches.

a. Bans on possession of deadly weapons: One possible solution is to ban the possession of various kinds of deadly weapons — whether for all people or for some, and whether just in public or both in public and at home. This is indeed the American approach with regard to felons and some other prohibited categories, and the approach of about 10 states as to guns in public places. (The remaining 40 or so states generally allow any law-abiding adult to carry a gun in public places; a few don’t requite a license, and the rest do require a license but give it to pretty much all law-abiding adults who apply.) I don’t want to rehearse the arguments on this in detail here, but they are in many respects similar to some of the cost and benefit arguments related to self-defense: The availability of a gun can make a mistaken killings more likely, or can increase the likelihood of situations where someone (who is otherwise law-abiding enough to comply with a gun carry ban, if such a ban was in place) kills in anger but then is able to cover it up with a false claim of self-defense. The unavailability of a gun can make it harder to resist those attacks that people should be able to resist. Again, this is familiar territory, which I leave to others.

b. Allowing convictions unless the defendant proves self-defense by a preponderance of the evidence: This appears to be the old common-law rule: While a murder defendant’s identity, intentional action, and the like have to be proven by the prosecution beyond a reasonable doubt, the affirmative defense of self-defense has to be proven by the defense by a preponderance of the evidence. If the jury thinks that, say, there’s a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be convicted of murder (or manslaughter, if that’s what he’s charged with).

This approach was upheld as constitutional in Martin v. Ohio (1987), but is now the law in only one state, Ohio. In all other states, once the defense introduces some evidence of self-defense, the prosecution must rebut that with proof beyond a reasonable doubt. If the jury thinks there’s a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be acquitted. The theory that “better that [say] 10 guilty men go free than one innocent man be convicted” extends to self-defense claims: “Better that 10 men who committed murder and lied about the need for self-defense go free than one man who killed in justifiable self-defense be convicted.” The worry about fake claims of self-defense has not been seen as serious enough to retain the old common-law/now just Ohio rule.

c. The duty to retreat: Another means of trying to preserve the right to self-defense while minimizing the costs of lethal self-defense has been the so-called “duty to retreat.” This is something of a misnomer — it’s not a true duty, such as the duty to testify when subpoenaed, but rather a rule that

1. even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
2. so long as D can escape this threat with complete safety
3. by leaving the altercation
4. except when D is in his own home (or, in some states, in his workplace),
5. D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.

I hope to say more about the duty to retreat in a separate post, but for now let me observe a few things. First, most American states rejected the duty to retreat even before the recent flurry of new “Stand Your Ground” laws. That’s what the LaFave & Scott 1986 treatise reports, and I have no reason to doubt it. Now that many states like Florida have, in recent years, have rejected the duty to retreat, the “no need to retreat” rule appears to be the supermajority rule in the United States, though there is still a substantial minority of the states that adopt a duty to retreat.

Second, the duty to retreat has always been, at least in principle, a narrow doctrine. There is generally no duty to retreat from an assailant with a gun, since any retreat in such a situation would be quite likely to increase your risk of being shot as you’re retreating (compared to what the risk would be if you shoot first). A typical “duty to retreat” scenario would instead be when there’s a fistfight, and you fear serious bodily injury since even a fistfight can cause such injury, but you can easily leave (for instance, this is right outside your home, or a friend’s home, and you can go inside and close the door, or you’re in your car and can just drive away). The same may apply to someone who is at some distance from you, and is threatening to attack you with a knife (that is not likely to be thrown) or a stick, and you can get away without risk that the person will run up and indeed attack you.

Third, if the worry is that someone will lie about the alleged need for self-defense in an “only two people were there, and now one of them is dead” scenario, the duty to retreat doesn’t really do much about this worry: The killer’s lie could just as easily rebut the applicability of the duty to retreat, for instance if the killer claims that the victim seemed to be reaching for a gun.

Fourth, even when there are some witnesses, the question will often turn on what the facts were, and neither story would yield a different result in duty-to-retreat vs. no-duty-to-retreat states. I don’t want to speak in detail about the Martin/Zimmerman case, because the facts are so unclear. But if the dispute is between “Martin was trying to leave, and Zimmerman started shooting” and “Martin was on top of Zimmerman beating him, and Zimmerman reasonably feared serious bodily injury so he started shooting,” the duty to retreat would be irrelevant under either scenario. It would only be relevant if the facts show that (1) Zimmerman did reasonably fear death or serious bodily injury (or some other forcible felony) — since absent such a fear, lethal self-defense wouldn’t be allowed — but (2) the fear didn’t stem from a worry about Martin possibly pulling out a gun and shooting him (since in such a situation, one can’t retreat with complete safety), and (3) Zimmerman could have avoided the threat of death or serious bodily injury with complete safety by leaving. That’s possible, but there’s only a pretty narrow range of possible circumstances that fits all these criteria.

[UPDATE: I meant to include this paragraph, but neglected to in the first version.] Note that the duty to retreat is generally seen as arising only when the threat of death or serious bodily injury, and therefore the need to use deadly force in self-defense, arises. So even in duty-to-retreat states, a person does not lose his right to self-defense by simply doing something that’s potentially dangerous, such as approaching or following a potentially dangerous person, or going into a dangerous park. Instead, he loses his right to self-defense only if, once he sees the mortal peril, he is able to retreat with complete safety but doesn’t. See, e.g., Matter of Y.K. (N.Y. 1996). (He might also lose his right to self-defense on the different basis that he is the initial aggressor, but that’s a separate doctrine with separate requirements; I discuss it below.)

d. The aggressor exception: The duty to retreat, then, is a much less important factor in self-defense cases than many seem to assume, partly because it’s a minority rule and partly because it applies only a narrow set of cases. There is, however, another long-established means that the law has used to limit lethal self-defense: The principle that someone can’t use lethal self-defense (or, in some situations, any self-defense) if he was the aggressor in the first instance, at least unless he tries to withdraw from the fight first.

Sometimes, this principle can stem from the basic principle that self-defense can only be used against unlawful force. If someone tries to kill me, and I take out a gun and shoot him, he doesn’t then have a legal right to take out his gun and shoot me in supposed “self-defense.” My action would be legal because it was defense against unlawful force, but his wouldn’t be because it is defense against lawful force. (Note that this is something of an oversimplification. For instance, if you reasonably mistakenly believe that you need to inflict serious bodily injury to defend against me, or if you’re a small child or insane or acting under duress, you might not be acting unlawfully in your use of deadly force; but I can still defend myself against you. If you’re really interested in that, check out Model Penal Code § 3.11, which deals with this by defining “unlawful force” as nonconsensual force “the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force.”

But the aggressor principle also has some independent scope as well. Here is the Florida version:

The [self-defense defense] is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

So in principle the duty to retreat does exist under Florida law for those people who have “[i]nitially provoke[d] the use of force.” (Recall that the duty to retreat arises only as to lethal self-defense, which is available only when the person reasonably believes he’s in imminent danger of death or great bodily harm, so that clause of (2)(a) does nothing there.) And it’s possible that, depending on the factual circumstances — and on how Florida courts interpret “initially provokes” — Zimmerman’s actions might have been a provocation. (Say, for instance, that Zimmerman started unjustifiably chasing Martin in a way that made Martin worry that he himself was going to be attacked, or started a fistfight with Martin, or perhaps even grossly insulted Martin.)

And this might possibly be a stronger duty to retreat than the norm; for instance, the question is whether the provoker “exhausted every reasonable means” to escape the danger, and not whether he could escape the danger with “complete safety.” On the other hand, courts might read “exhausted every reasonable means” as referring only to means that allow a retreat with “complete safety.” If that’s so, then, as I noted above, the duty to retreat would likely make a difference only in very narrow circumstances.

In any case, these are some thoughts that I had on the subject. I hope to blog a bit more about the “duty to retreat” soon, and perhaps on other matters, though I hope to stay away from debates about what actually happened in the Martin/Zimmerman situation, given how contradictory the various factual accounts are.

In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more radical proposal for turning sentencing back into a victim- and defendant-centered morality play, which I call restorative sentencing juries, but I can’t go into that here.)

Naturally, including victims gives rise to various fears. Today I’ll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.

First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants’ hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.

But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim’s input against the defendant’s and all the other evidence. A prosecutor would still be able to override a victim’s vengeful, selfish, or otherwise unbalanced requests.

What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more satisfied. That is not a zero-sum game; both victims and defendants can benefit from being treated respectfully.

Of course, some victims will desire more punishment than defendants want; that is why judges and juries must sit in judgment. But a process that listens to and respects both sides will earn more legitimacy in everyone’s eyes, regardless of the substantive outcome. And procedures that encourage catharsis, apology, and forgiveness may help victims to release their anger and find closure without demanding the maximum sentences.

Second, heeding victims would seem to invite inequality. Some victims suffer more or are more vengeful than others, and some are more attractive or more articulate.

Though many philosophers deride it as moral luck, harm to victims is undeniably central to popular intuitions of justice. For instance, whether a victim nimbly dodges a knife thrust can make all the difference between a conviction for murder, mayhem, or just aggravated assault. Each defendant may have the same mental culpability but receive vastly different sentences based on the victim he chose to victimize.

Gauging the harm to a unique human being, not a faceless abstraction, requires evidence of how that particular victim suffered. A victim’s expressed feelings and wishes are powerful evidence of the psychological harm that he has suffered or from which he has recovered. And many people’s intuitions put significant weight on victims’ wishes; they implicitly recognize that victims own a share of the right to punish.

One may legitimately worry that judges and juries may favor attractive, white, young, female victims. But sentencing guidelines, rules of evidence, and cautionary jury instructions can limit discrimination. Moreover, despite decades of regulations, scholars still find sentence disparities based on the race, sex, and class of victims. Rich, powerful victims already find ways to influence prosecutors and make their voices heard; poorer victims need formal ways to participate to achieve an equal footing.

Finally, efforts to treat like cases alike, such as mandating charging and minimum sentences, often wind up treating unlike cases alike. That is the lesson of my analysis of prosecutorial power: rules meant to ensure substantive equality often become plea-bargaining chips that turn on insiders’ interests rather than blameworthiness or harm. Perhaps, then, it is worth relaxing our fruitless quest for perfect equality in favor of the other values of victim participation.

Indeed, perhaps local participation by victims and the public may be even better at promoting equality than top-down judicial rules have been. Local democracy might perhaps defuse the insider-outsider tension, instead of driving outsiders to jack up sentences while insiders covertly and inconsistently undercut them. Over the last decade, in areas such as racial profiling, capital punishment, and crack cocaine sentencing, legislatures and governors have pushed for more criminal justice equality where judges have failed. Voters care about equality. Populism, in short, need not mean racism.

Third, transferring power from prosecutors to victims would seem to slight the benefits of professional expertise. But critics of victims’ rights overlook prosecutors’ flaws. Prosecutors are far from perfect guardians of the public’s and defendants’ interests. They have plenty of self-interests of their own, which can make them too harsh in some cases and too lenient in others. The alternative to a victim’s check on prosecutors is effectively no check at all. Prosecutors can check victims’ excesses, but likewise we need victims to check prosecutors’ excesses.

At one extreme, lawyers can become cynical. Some of the commentators on these posts, like some of the lawyers whom I interviewed for the book, doubt that there is such a thing as justice or that criminal justice could have anything to do with justice. Others burn out, drained and beaten down by the volume of work.

Many others become jaded, dulled by time and the steady drumbeat of crime. They may have been drawn to the profession to do justice and serve the public, but over time the focus on case-processing statistics and the legal mindset dulls the freshness of their perspectives. They need to be reminded of how their constituents, the outsiders, view justice and how they need to be treated.

I’m a former federal prosecutor: I wanted to do justice, and I was proud to engage in public service. The bulk of the lawyers I practiced with, against, and in front of were good, honorable people. But a little bit of distance from practicing law has helped me to see what I and many other practicing lawyers gradually paid less attention to–the central role of moral justice and flesh-and-blood people. Insiders may come to see defendants and victims as statistics, but outsiders taking a fresh look see complex, flawed, real people.

G.K. Chesterton put it best: “[T]he horrible thing about all legal officials, even the best, . . . is not that they are wicked . . . , not that they are stupid . . . , it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of justice; they only see our own workshop.” Juries existed to bring in a steady rotation of outsiders, whose fresh eyes could see the wounded victim and “the prisoner in the dock” in all their complexity before “the awful court of judgment.”

Ours is an age that worships professionalism and bureaucracy; we are disciples of Max Weber. Professionalism has its virtues, but we are sometimes blind to its vices and shortcomings. In the book, I reach back to an earlier American tradition, that of Alexis de Tocqueville and populist self-government.

Criminal justice should fundamentally be about justice, and justice is fundamentally about morality. Idealism should guide us even as practicality brings it down to earth. Only by forcing insiders and outsiders, lawyers and laymen to see through one another’s eyes and take one another seriously can we reap the benefits of both expertise and fresh perspectives.

It’s been a pleasure blogging here this week. Thank you for your attention.

In this week’s guest-blog posts on my new book, I’ve explored just a few of the ways in which our criminal justice machine has drifted far from its moral roots. Today I want to summarize the range of problems and offer just a couple of possible solutions, though the book goes into many more.

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control. Those goods do indeed matter greatly to ordinary citizens. But criminal justice ought to serve more than this single goal to which it has been boiled down.

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

It also hides the workings of the system, leaving outsiders frustrated and mistrustful and insiders free to indulge their self-interests or idiosyncratic preferences. It exacerbates the cycle of pathological politics of crime legislation, helping to provoke draconian referenda in response and later dishonest subversion of those populist measures.

In addition, the machine neglects remorse, apology, forgiveness, healing of relationships, reintegration, and reentry. It creates a semi-permanent underclass of prisoners and ex-cons in exile. It hollows out large swaths of minority neighborhoods. And it deprives countless children of their fathers and women of their husbands and boyfriends, with little hope that these men will return to lives of lawful work and responsible fatherhood.

Whew! That’s a daunting list of problems. It is immensely difficult to reform a system as broken as our punishment factory. Skeptics can dismiss incremental reforms as cosmetic, like straightening deck chairs on the Titanic. More ambitious reforms get attacked from the other side as unrealistic given massive caseloads.

Still other critics assume, wrongly, that if the public supported any workable reforms, politicians would already have implemented them. But we must start where we can and not let pessimism paralyze us.

In the book, I suggest a range of possible solutions, including making prisoners work (even perhaps in the military) to repay their victims, families, and society and making it easier for them to find housing and jobs upon release. I propose abolishing the most dishonest forms of plea bargaining, particularly pleas in which defendants proclaim innocence or stay silent and those in which prosecutors downgrade the true charges. In today’s post, I’d like to focus on micro-level solutions to include victims more fully in individual cases.

The first step is to give victims better information about their cases. While most states have some victims’ rights law on the books, enforcement is uneven and many victims don’t receive notice. Dedicated officials, such as victim/witness coordinators, help to increase contact with victims and keep tabs on the progress of cases. Automatic email and telephone notices could keep them informed about upcoming court hearings.

Victims could also be allowed to speak at sentencing, instead of submitting perfunctory letters. They could also speak with, question, and respond to defendants and lawyers at trials and at plea and sentencing hearings.

The hardest questions involve what kind of voice victims should have over the course of the prosecution. The trick is to strike a middle path between letting victims hold the system hostage or making their participation hollow. The community’s shared sense of justice should control, but victims provide important information about the harms they have suffered. The public wants to hear what victims have to say and what they need in order to heal, but it should check that reaction with its own sense of justice.

First, prosecutors should provide timely notice of upcoming decisions, such as charges and plea offers. Second, they must affirmatively solicit victims’ views, in plenty of time to influence decisions. Third, prosecutors should have to articulate reasons for their decisions, much as judges do. For major decisions, they should do so in writing; for minor or routine ones, a checklist or oral statement could suffice.

Fifth, victims ought to have the time and opportunity to appeal major felony decisions to a prosecutor’s supervisor, even by email, phone, or a ten-minute conversation. If line prosecutors knew that victims could appeal to their supervisors, line prosecutors would listen more respectfully and be careful to justify any contrary decisions.

Finally, victims (as well as judges, fellow prosecutors and police, probation officers, and even defense lawyers and defendants) should have avenues to leave feedback on police and prosecutors’ performance. Even an eBay-style feedback loop would illuminate and check professionals’ decisions, and it could influence pay and promotions. Soliciting victims’ feedback would empower them and send the message that the system cares about their views. Corporations routinely survey customers and solicit feedback so they can continually improve their customer service; government agencies have been slow to do the same.

Of course, victim involvement works only where one can identify a victim. More than a third of arrests are for drug crimes, and one-ninth are for public-order offenses, such as weapons and driving-related offenses. But not all drug and public-order offenses are truly victimless: think of crack houses that blight neighborhoods or armed criminals who terrorize communities.

Where even indirect victims are absent, that very absence should weigh against aggressive enforcement. That would reshape drug enforcement away from racking up easy buys and busts toward the subset of crimes that indirectly harm neighborhoods. More of a focus on victim input would mean more focused enforcement of so-called victimless crimes and more emphasis on classic violent and property crimes.

So, that’s just a sampling of the book’s diagnosis and remedies for what ails American criminal justice. In my final post late today or tomorrow, I’ll respond to some objections, most notably fears of inequality, vengeful victims, and unprofessionalism. Each concern, I’ll suggest, is legitimate but manageable.

In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest that the root problem is the state’s monopoly on criminal justice, and solutions have to involve giving greater roles to victims.

Today, the right to punish belongs exclusively to the state, not the victim. Crimes violate the state’s laws and its interest in maintaining public order and social cohesion. The state does not settle for restitution and fines, as private litigants do, but imprisons and even executes wrongdoers. It exacts its justice quickly and impersonally to lock up the dangerous criminal and to deter him and others. All that seems to matter is the bottom-line number of years in prison and, to an extent, accuracy in discerning guilt.

The state-centered model assumes that cold reason should dominate criminal-justice decisions and exclude human emotions. But the cool logic of state-monopolized justice, to the exclusion of victims, conflicts with many people’s moral intuitions.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

That is a big part of why victims’ rights laws have proven so popular (though, as the book explains, they haven’t lived up to their promise and have often been hijacked by tough-on-crime groups such as prison guards). Plus, an important function of punishment is to defeat crimes by vindicating and re-empowering victims.

Empirical evidence confirms the intuition that victims’ views matter. When surveyed about concrete punishment scenarios, many people give great weight to the victim’s attitude and wishes, particularly for crimes involving property or personal injury. A democracy ought to do more to incorporate this widespread intuition about justice.

Professionals look at conflicts as costly disputes to be negotiated away. But in a sense, conflicts are important opportunities for the victim, defendant, and community to express themselves, listen, and learn. The parties have suffered personally and belong at the center of the dispute. Thus, criminal law used to resemble private law, in which tort victims may prosecute, settle, or waive their shares of claims. But professionalization has stolen conflicts from the parties, not only disempowering them but also muting the lessons taught by public criminal verdicts.

The law could surrender its monopoly on criminal justice by once again making more room for the parties’ interests and voices. That doesn’t mean transferring the monopoly to victims; prosecutors need to keep a leading role to ensure accuracy, equality, and fairness. But victims and defendants deserve greater speaking roles, both in court and in mediation. Judges and juries must filter the partisans’ voices, empathizing yet reflecting and keeping critical distance, to keep retribution from collapsing into vengeance.

The exclusion of any victim’s right is especially puzzling when the victim wishes to forgive and show mercy. The state may cap punishments to check bloodthirsty vengeance, but it has much less reason to symmetrically limit mercy. As long as the punishment suffices to deter, incapacitate, and condemn the seriousness of the crime, the state’s interests are satisfied. Any margin of retribution above that should be the victim’s to forgive.

We need to take seriously the metaphor of a debt wrongdoers owe both to society and to victims. As the victim suffered the direct loss and holds a share of the wrongdoer’s debt, he may either insist on payment or forgive his share.

The moral of the story is that, even if the state runs the process, human emotion deserves a seat at the table. Emotion isn’t just a raw, blind, unreasonable passion. It is in part cognitive and evaluative, and it can be taught.

Emotions are an important part of what makes us human and how we understand and evaluate our fellow humans’ actions. Crime excites fear and anger, empathy and indignation, sorrow and forgiveneness. Victims need our solidarity; wrongdoers merit our anger but also empathy for their plight and reasons for breaking the law. But neutral arbiters must reflect and balance competing emotional claims to distill justice. Laymen care whether criminal justice is emotionally sensitive or tone-deaf, and taking these concerns into account should bolster the law’s legitimacy.

But, as the book discusses in detail, too often lawyers hijack emotional discourse to serve particular political ends. In that vein, I canvas three recent political movements (victims’ rights, restorative justice, and therapeutic jurisprudence) that react against the impersonality of the criminal justice machine. Each movement is unbalanced, but each has something to teach narrow, cold, state-centered criminal justice.

In my final installment tomorrow, I’ll offer a few suggestions for how criminal justice could do much more to include victims alongside prosecutors, to blend the perspectives of both insiders and outsiders, lawyers and laymen.

In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples of the tug of war that erupts between the two sides; and explain some of the hidden costs of this gulf.

By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel. They are knowledgeable about investigations, crimes, and punishments. Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.

Though prosecutors and police are nominally agents of the outsiders whom they supposedly represent — victims and the public — outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs. Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining. Finally, as lawyers, insiders are taught to weigh costs against benefits, focusing on neutral, amoral criteria such as speed and cost.

Outsiders see the system quite differently. They see little of police enforcement decisions, plea-bargaining conversations in courtroom hallways, or secret grand jury proceedings, and receive little notice or information even about proceedings that are public. Sensational media accounts and crime dramas lead the public to imagine that sentences are lighter than they actually are. In addition, victims and members of the public have few opportunities to participate and have their day in court, or even to see what’s going on. Finally, outsiders do not mellow or become jaded, and they view crime in moral terms, not economic ones.

The gulf between insiders and outsiders breeds a tug of war between the two sides. In America, the law on the books is often tenuously related to the law in action, because police and prosecutors have pervasive discretion in deciding which laws to enforce in which cases and how vigorously. In other words, criminal laws create not binding obligations, but a menu of options for insiders to exercise or not.

So, for instance, police choose not to make troublesome arrests, or prosecutors bargain down charges or sentences, to get rid of troublesome cases. For a long time, they viewed drunk driving, domestic abuse, and date-rape cases as not very serious and (in the latter two cases) hard to prove, so police would avoid making arrests and prosecutors would bargain the cases away to get rid of them. (Those are about the only crimes I can think of where popular outrage has been loud and sustained enough to bring about an enduring shift in arrest and prosecution practices.)

When the public sporadically gets angry about a criminal justice problem, perhaps because of media hype, it may clamor for new crimes or mandatory-minimum sentences. What the public doesn’t see, however, is that insiders’ procedural discretion usually undercuts these reforms, turning even so-called mandatory sentences into chips to be bargained away. If the public gets angry about plea bargaining, it may even try to limit prosecutors’ ability to plea bargain through ballot initiatives and referenda. But even then, prosecutors find ways around such laws.

Now, some readers probably aren’t too troubled by this. If you think lawyers know best and voters are benighted, you might be tempted to applaud how lawyers subvert democratic accountability and responsiveness in order to process cases efficiently.

But the costs are considerable. The tug of war wastes prison resources, unduly lengthening some sentences and shortening others based on defendants’ plea-bargaining behavior rather than what they deserve. It leaves insiders vast discretion to apply new laws selectively, opening the door to discrimination or arbitrariness. It leaves outsiders disempowered, and it thwarts democracy. In particular, it undermines trust in and the legitimacy of the criminal law, and it prevents the public from monitoring its agents and ensuring that they are following the will of the people.

Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.

But now that jurisdictions are much larger and most citizens learn about criminal justice from television, outsiders can intervene only crudely. At best, they can paint with a very broad brush by voting and influencing legislatures. At worst, they must pass laws that read like bumper-sticker slogans, such as three-strikes laws and mandatory minimum sentences, because they have lost faith in insiders and lack subtler tools to limit leniency and ensure equality. What should have been a cooperative relationship has degenerated into a competitive one, as outsiders wield these sledgehammers and insiders feel they have to evade their crude blows.

At root, these difficulties stem from what economists call the principal-agent problem. Prosecutors and police are supposed to serve victims and the public interest, but those voices are so diffuse and powerless that there is really no identifiable client to constrain how the agents do their jobs. (The book offers a similar critique of the relationship between defendants and their lawyers.) In tomorrow’s blog post, I’ll propose a fairly radical shift in how to think about the stakes in criminal justice: loosening the state’s monopoly on criminal justice by once again giving victims a central role.

In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen.

To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by ordeal. Nor did I endorse flogging or rampant use of the death penalty, though actual executions were much less common than most people suppose. Nor did I say that we ought to get rid of all modern due process and lawyers and go back to 20-minute-long trials (though one can question how much better modern plea bargaining is in practice). My point was more modest: that the colonists saw justice done and had their day in court. In our Whiggish assumption that the past was irredeemably backward and all change is progress, we often overlook what we have lost in our quest for efficiency.

Today, I’d like to set forth some of the things that changed over the course of the nineteenth and twentieth centuries, transforming the lay-run morality play into a professionalized plea bargaining assembly line.

First, over the course of the nineteenth century, public prosecutors steadily gained control of American criminal justice at the expense of victims. Some colonies did have public prosecutors, but their role was occasional and limited. To give just one example, some public official was needed to prosecute homicides because, for obvious reasons, the victim could not. But there was nothing like a professional, state-dominated system of routinely detecting, charging, and prosecuting crime.

Prosecutors, of course, lack victims’ personal stake in the outcome. That is good as a way to check private vengeance, but it also opens the door to what economists call agency costs: the distinctive self-interests and incentives that influence public servants. Salaried prosecutors usually have little reason to invest extra work in any one case, particularly if they are part-time employees who can earn more by getting back to their private clients. Prosecutors are also a politically ambitious bunch who may want to burnish their reputations by winning a few high-profile convictions at trial.

In addition, prosecutors may care about keeping their conviction rates up, trading severity of sentences for certainty in the course of plea bargaining (see below). If they care about racking up conviction statistics, and lack personal stakes in any case, they may lean toward prosecuting easier-to-prove victimless crimes. In a victim-run system, such crimes would be prosecuted only where they at least indirectly affected some victim.

Second, defense lawyers gradually came to stand in for defendants. Back in the eighteenth century, victim and defendant would tell their stories at trial almost in a shouting match, letting juries hear both sides first-hand.

As defense lawyers increasingly entered the picture, however, they advised their clients to let them do the talking. Instead of offering excuses or pleading for mercy, defendants increasingly stood mute. That transformed the trial from a morality play between the protagonist and antagonist into a courtroom duel between professional adversaries. And because those adversaries were professionally trained and repeat players, they developed intricate rules of evidence and procedure, further distracting the trial’s focus from who did what and who deserved what.

But third, those courtroom duels became increasingly rare. The sprouting of technical rules made trials much longer, from minutes to hours and then days. (Today, a good number take weeks or even months.)

During the nineteenth century, courts became increasingly busy with civil (tort) lawsuits over streetcar and railroad accidents, factory injuries, and the like. So prosecutors, defense counsel, and judges alike came to share an interest in clearing their dockets through speedy plea bargaining. And since they were all repeat players, they could develop going rates and market prices for recurring crimes.

From the point of view of these insiders, plea bargaining made perfect sense. Lawyers who have seen a lot of trials can predict with some accuracy whether a jury will convict and what sentence a judge will likely impose.

In exchange for offering a charge or sentencing discount, prosecutors free up time and resources to pursue more cases. Defense lawyers cap their clients’ sentence exposure, receive discounts, and get cases over with quickly. And trial judges clear their dockets and avoid the possibility of embarrassing reversals on appeal. Just as private bargains make both sides better off, because each side gets something it values more, so plea bargaining makes all the participants feel better off.

If plea bargaining makes everyone happier and is so efficient, why then does it remain controversial today? That depends on whether one looks at it primarily as a matter of public law or of private (contract) law. The lawyers who negotiate the bargain may all be better off; they efficiently dispose of caseloads and trade off severity of sentences for certainty of more sentences. The lawyers see the process primarily as a contract, a private deal that happens to serve their professional and personal interests as well as their understanding of the public interest.

But that perspective leaves out the public, the laymen to whom criminal justice is not a private bargain but a public morality play. From the public’s point of view, plea bargaining is opaque, it cheapens justice by commodifying it, and it is often dishonest (as when, for example, a charge bargain reduces attempted murder or rape to aggravated assault). Victims may feel sold out and excluded, and defendants may feel they have gotten away with something.

These wildly divergent perspectives on plea bargaining track what I call the great gulf that separates criminal justice insiders from outsiders. The contours of that gulf, and the ways that it harms criminal justice, will be the topic of my next post tomorrow.

I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because informal social pressure did so much work in preventing and responding to lawbreaking, there was less need for professional state intervention and coercion. Because the moral consensus emphasized that everyone was weak and fallen, there was more understanding and brotherly love to moderate criminal punishments.

And because morals crimes cut across the social spectrum, criminal justice didn’t create a discrete criminal underclass; everyone could occasionally stumble. People paid their dues, were forgiven, and could reenter society with a clean slate and rise to high office and social station. There was no gulf between the governors and the governed, the law-abiding and the lawless.

It’s also extremely significant that colonial justice was the business of amateurs: laymen, not lawyers. Ordinary white men took turns serving as night watchmen and constables, and when victims shouted out a hue and cry all the neighbors were supposed to rise up to help catch the perpetrator.

Criminal cases were decided by local juries, who applied their common-sense notions of right and wrong to decide who was factually guilty and morally blameworthy. At first there were no American law books or law schools, and very few lawyers overall. Thus, even the judges had little training, and many if not most cases were prosecuted by victims pro se (without lawyers) and defended by defendants pro se, each telling his side of the story.

The lack of professionalization certainly had its downsides; for example, it left amateur night watchmen poorly equipped to deal with dangerous professional criminals. But it also meant that trials were straightforward contests about who had done what and who deserved what punishment.

There were no lawyers to generate and argue over technical rules of evidence and procedure, nor to draw out pretrial motions and post-trial appeals. The side issues that today distract from factual and moral guilt, such as Miranda warnings, the exclusionary rule, and the intricate hearsay rules, were far off in the future.

Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution’s case. Criminal trials publicly aired each side’s story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.

So, with apologies to professional legal historians for oversimplifying, that’s a rough snapshot of what colonial American criminal justice looked like. Tomorrow I’ll explain the dramatic changes it underwent over the nineteenth and twentieth centuries.

Writing in the Arizona Law Review, Chuck Weisselberg and Su Li have a very interesting article, Big Law’s Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms. The abstract:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

What are the most draconian three-strikes laws currently on the books? Do any states still have a 25 year mandatory minimum for the third strike?

I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the most interesting book on the criminal justice system that I’ve read in a long time, and perhaps ever. At the same time, I’m not sure I’m entirely convinced: Stuntz makes a number of claims that strike me as questionable. Plus, his recommendations for reform stuck me as a bit utopian. In this post, I’ll introduce Bill’s basic theory, and then offer some thoughts in response. In a future post, I’ll turn to Stuntz’s recommendations, and again offer my own reaction.

I. The Basic Argument of Stuntz’s Book

Stuntz’s argument starts with a widely-heard set of complaints about today’s criminal justice system: Too many people are in prison, too many laws are too punitive, and criminal cases are generally resolved by guilty pleas guided by prosecutors rather than trials resolved by juries or judges. The question is, why? In Stuntz’s view, the major reason is that criminal justice has lost its local character.

In the 19th Century, Stuntz explains, criminal law and justice was largely local. There was a lot of variation by region, to be sure. But on the whole, local police captured local criminals, who were charged by local prosecutors and tried before local juries using criminal law standards from the common law that were vague and left considerable discretion to the jury. In Stuntz’s view, that system worked pretty well – much better than we realize today. Criminal punishment was relatively rare, and punishment reflected community norms and senses of justice. According to Stuntz, a range of forces have slowly eliminated the local character of criminal law. And losing the local character of the law has made it more punitive and less fair.

What changed? First, the shape of criminal law doctrine came to be seen as a legislative question, not a judicial question. Criminal law used to be fixed: It was settled by the basic doctrines of the common law. As criminal law became seen as a field subject to control of the state and federal elected branches, criminal law began to expand. Because most see themselves as potential crime victims rather than potential criminals, especially in the aggregate at the state and federal level, politicians have a strong incentive to be seen as “tough on crime” by making criminal law broader and harsher. And because most voters don’t directly experience crime levels or the effect of punishment on their own communities — most voters don’t live in high-crime neighborhood — they tend to be receptive to the “tough on crime” message even if the law is already tough. The system thus tends towards harsher and harsher punishment, especially at the state and federal level. Even local prosecutors have new incentives to be extra harsh, as state governments rather than localities have come to pay for the prisons: Local prosecutors can get all the public relations benefits of “locking them away” without having to pay the bill for costly imprisonment.

This trend was facilitated by the Supreme Court’s failure to keep legislatures in check. In Stuntz’s view, the Equal Protection clause should have been a major check on legislative and executive action in the criminal justice field. The Courts should have interpreted it to ensure substantive fairness in the laws, and especially to eliminate racial discrimination. But the Court instead gutted the Equal Protection clause in the 19th Century in United States v. Cruikshank. At the same time, the Supreme Court adopted an expansive interpretation of the Commerce Clause as far back as the 19th Century, allowing Congress to federalize morals legislation based on a simple showing that something crossed state lines. By taking a deferential position that allowed racial discrimination to flourish at the state level and enabled Congress to federalize criminal law, the Supreme Court wrongly let the political branches do as they pleased. Legislatures could raise punishments as high as they liked; police could engage in pretext prosecutions, and target minority groups; and prosecutors could add lots overlapping charges to induce guilty pleas.

Stuntz argues that the harshness of the criminal justice system was inadvertently aided by well-meaning progressive reformers. Reformers tried to make the system more fair, but their efforts backfired. In the 19th Century, criminal law was vague and procedural rights were few: Trials were cheap, they occurred all the time, and juries had a lot of discretion under common law standards. In response, 20th Century reformers tried to rationalize and clarify criminal law standards by replacing vague common law definitions of crimes with new clear ones (such as the Model Penal Code). The idea was to make criminal law more predictable and rational, but the perverse effect was to greatly diminish the role of the jury: Whereas traditional criminal law doctrines had left lots of discretion for the jury, the new clear standards gave defense attorneys very little to argue about. The result was more guilty pleas and fewer trials.

At the same time, the Warren Court’s criminal procedure revolution gave defendants more rights with the aim of making the criminal justice system more fair. To some extent, this was a belated response to the 19th century Supreme Court’s failure to take the Equal Protection clause seriously. But in Stuntz’s view, using the Bill of Rights to focus on the procedure of criminal justice (the law of investigations) rather than using the Equal Protection clause to focus on the substance of criminal law (definitions of crimes) only made the problem worse. More procedural rights raised the costs of trials. Because legislatures were free to alter the substance of criminal law however they pleased, legislatures responded to the new procedural rights by broadening criminal laws, jacking up criminal penalties, and giving prosecutors wide discretion to pressure defendants to plead guilty in exchange for a “deal.” Perversely, the result of giving defendants more rights was to create an environment in which most defendants were pressured into waiving all their rights in practice by pleading guilty. The Supreme Court’s regulating procedure instead of substance just made the substance worse instead of making the procedure better.

II. A Few Thoughts In Response

I find Stuntz’s argument fascinating. He makes a lot of intriguing claims, and there’s a ton to chew on here. It’s the kind of book I want to mull over and read again, which is about the highest compliment I can give. For what it’s worth, my initial “mull” finds me partially persuaded and partially unpersuaded. Some of what Stuntz says rings true, but some of his claims raise a lot of question marks.

Stuntz’s basic narrative of the need for localism strikes me as persuasive and really important. His focus on the need for criminal justice to stay attentive to the needs of the community — and the dangers when decisionmakers don’t reflect the views of the community most directly impacted by crime — rings true to me. To some extent, Stuntz’s view is the classic argument for local decisionmaking: People can take care of themselves better than others they don’t know, as they are more closely tied to the facts of what is happening and they can exercise judgment based on local opinions. So on the basic gist of the argument, I’m pretty impressed.

Stuntz’s effort to link the Supreme Court’s caselaw on substantive criminal law and criminal procedure is also a terrific and insightful move — one that is based on and extends what what is probably Stuntz’s most important article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, published in the Yale Law Journal in 1997. Uneasy Relationship is a favorite of mine, and I was glad to see its insights take a prominent place in Stuntz’s book.

At the same time, I had some significant concerns with parts of the argument. Let me focus on two parts in particular. First, I thought Stuntz had a rather rosy view of the past of criminal justice. His conclusion that the system more or less worked in the past strikes me as optimistic. Much of his argument was based on data like crime rates and imprisonment rates that I found hard to assess. I found myself unsure of whether to accept the data as accurate, and I was dubious that we can say very much about how the criminal justice system worked assuming all the data is right Take the fact that crime rates have plummeted since the early 1990s: Does that really suggest that we’re doing something right today that we were doing wrong twenty years ago? Or is this just the fortunate byproduct of banning lead, or something else? Stuntz doesn’t have much of an answer for why crime rates have plummeted in the last 20 years — he discusses it at length, and concludes it is a real puzzle — which to my mind reflects a skepticism that could be equally well applied to the causes of crime rates in the past.

Similarly, I think the differences between the common law of crimes and the more modern approach to criminal law are much more modest than Stuntz suggests. There are some differences, yes. But on the whole, they’re minor: The basic elements of the basic crimes today are pretty similar to what they were in Blackstone’s time. And some defenses, like necessity, are generally considered broader today than they were in the past (to the extent they existed at all). As a result, it seems dubious to me that changes in approaches to criminal law played a significant role in changing the nature of the criminal justice system. It’s an intriguing idea, and fits the classic Stuntzian unintended consequences mold. But I’m just not sure it works. If there were such an important difference between the common law standard and the modern standard, wouldn’t we expect to see a difference between the outcomes in jurisdictions that today still retain the gist of the common law approach and those that have widely adopted the modern approach? Stuntz doesn’t suggest that there is such a difference, and I don’t know of one. So I’m skeptical that that there is an effect such as what Stuntz mentions, or at least that it is significant.

Of course, it may be that the law has operated differently, rather than the doctrine is different. Slight differences in trial procedure can have a huge difference in how the law is applied. Take the case of the trial judge’s gate-keeping function. These days, trial judges play a major gate-keeping role: If a defendant wants to put on a defense, for example, the trial judge has to find enough evidence to support it before it can be argued to the jury. If there were different gate-keeping functions in an earlier time, then the law could be applied very differently even if the formal doctrine were the same. If judges used to give all the issues to the jury, for example, the jury would have a lot more discretion than they do today because they would be invited to consider more defenses, not because the details of the jury instructions on the law would be any different. I don’t know enough about the history of criminal trials to know if that gate-keeping function has changed much, but I suspect that is more likely source of jury discretion than changes in doctrine.

Radley Balko has an interesting piece at Huffington Post on the ways in which the War on Drugs creates perverse incentives for police departments:

Arresting people for assaults, beatings and robberies doesn’t bring money back to police departments, but drug cases do in a couple of ways. First, police departments across the country compete for a pool of federal anti-drug grants. The more arrests and drug seizures a department can claim, the stronger its application for those grants.

“The availability of huge federal anti-drug grants incentivizes departments to pay for SWAT team armor and weapons, and leads our police officers to abandon real crime victims in our communities in favor of ratcheting up their drug arrest stats,” said former Los Angeles Deputy Chief of Police Stephen Downing. Downing is now a member of Law Enforcement Against Prohibition, an advocacy group of cops and prosecutors who are calling for an end to the drug war.

“When our cops are focused on executing large-scale, constitutionally questionable raids at the slightest hint that a small-time pot dealer is at work, real police work preventing and investigating crimes like robberies and rapes falls by the wayside,” Downing said.

And this problem is on the rise all over the country. Last year, police in New York City arrested around 50,000 people for marijuana possession. Pot has been decriminalized in New York since 1977, but displaying the drug in public is still a crime. So police officers stop people who look “suspicious,” frisk them, ask them to empty their pockets, then arrest them if they pull out a joint or a small amount of marijuana. They’re tricked into breaking the law. According to a report from Queens College sociologist Harry Levine, there were 33,775 such arrests from 1981 to 1995. Between 1996 and 2010 there were 536,322.

Several NYPD officers have alleged that in some precincts, police officers are asked to meet quotas for drug arrests. Former NYPD narcotics detective Stephen Anderson recently testified in court that it’s common for cops in the department to plant drugs on innocent people to meet those quotas — a practice for which Anderson himself was then on trial.

At the same time, there’s increasing evidence that the NYPD is paying less attention to violent crime. In an explosive Village Voice series last year, current and former NYPD officers told the publication that supervising officers encouraged them to either downgrade or not even bother to file reports for assault, robbery and even sexual assault.

Even when police officials don’t consciously prioritize drug crimes ahead of violent crimes, the vast expenditure of law enforcement resources on the former probably reduces the amount of police effort that can be devoted to the latter.

Later in the article, Balko notes that the War on Drugs also incentivizes police departments to shift resources away from violent crime because drug busts allow them to earn extra money through asset forfeiture, while solving violent crime usually does not:

The most perverse policy may be asset forfeiture. Under civil asset forfeiture, police can seize property from people merely suspected of drug crimes. So long as police can show even the slightest link of drug activity to a car, some cash, or even a home, they can seize it. In the majority of cases, most or all of the seized cash goes back to the police department. In some cases, the department has taken possession of cars as well, but generally non-cash property is auctioned off, with the proceeds then going back to the department. An innocent person who has property seized must go to court and prove his property was earned legitimately, even if he was never charged with a crime. The process of going to court can often be more expensive than the value of the property itself.

Asset forfeiture not only encourages police agencies to use resources and manpower on drug crimes at the expense of violent crimes, it also provides an incentive for police agencies to actually wait until drugs are on the streets before making a bust.

I wrote about the ways in asset forfeiture threaten constitutional property rights here.

State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports:

Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. . . .

“The whole jurisprudence system is based on the jury system,” [state legislator Lynn] Slaby said. “Until we do away with juries entirely, it’s more fair to have both sides have a right to a jury trial.”

As the article notes, this proposal is not revolutionary. Although criminal defendants have a constitutional right to trial by jury, they are not guaranteed the ability to waive this right.

I have nothing useful to add about the awful events at Penn State, both the child molestation and the failure of various people to properly intervene to stop it. But I do want to second Jonah Goldberg’s disgust at the rioting students, rioting that just adds an extra level of nastiness and moral failure to an already horrible chain of events.

That’s what it looks like, given a newly enacted state statute. Until recently, Texas Penal Code § 31.03 provided that theft is “a state jail felony if,” among other things, “the value of the property stolen is less than $20,000 and the property stolen is insulated or noninsulated tubing, rods, water gate stems, wire, or cable that consists of at least 50 percent: (i) aluminum; (ii) bronze; or (iii) copper.” But the new statute deletes the text from “insulated” to “50 percent,” so that the new version now makes theft a felony when “the value of the property stolen is less than $20,000 and the property stolen is … (i) aluminum; (ii) bronze; (iii) copper; or (iv) brass.”

According to Wikipedia, most pre-1982 pennies would qualify, being copper, bronze, or brass, but probably more recent pennies would as well, if “brass” is just read as being a “metal alloy[] consisting mainly of copper and zinc.” In any case, an aluminum can would pretty clearly qualify — and, again, we’re talking about the theft being treated as a felony. And, of course, that means you’ll lose your right to keep and bear arms as well as facing a longer sentence. Or am I missing something? Thanks to Charles Blevins for the pointer.

No, said the Pennsylvania Supreme Court on Wednesday in Commonwealth v. Hart (Sept. 28), over one judge’s dissent (and with an interesting short concurrence). Here’s an excerpt from the majority opinion:

[W]e determine that a “lure” involves the making of a promise of pleasure or gain, the furnishing of a temptation or enticement, or the performance of some other affirmative act calculated to strongly induce another individual to take a particular action, usually and most often likely to result in his or her harm.

By contrast, the acts of merely extending a plain invitation, or making a neutral offer to another person, which are unaccompanied by any inducement intended or designed to increase the probability that the person will accept, do not, in their most common understanding, constitute endeavors to “lure.” Such acts simply do not involve the additional and extra element of powerful persuasion designed to influence the person to take action, which is the sine qua non of a lure. See Adamo, 637 A.2d at 307 (holding that a simple offer of a ride by a friend or neighbor does not constitute a “lure” as that term is usually defined, as the offer is not accompanied by an inducement such as a “promise of pleasure,” “an enticement,” or prospect of “financial gain”).

Therefore, as the legislature specifically chose to use the term “lure” in Section 2910, not alternative words such as “invite” or “offer entry,” and because this is a penal statute which we must strictly construe, it is only that particular and specific conduct meeting the definition of a “lure” which this statute properly may be interpreted to criminally prohibit.

Continue reading ‘Does Law Banning “Lur[ing] … a Child into a Motor Vehicle” Cover Simply Offering a Child a Ride?’ »

The Obama Administration’s legislative proposals on cybersecurity are a distinctly mixed bag.  But probably the worst ideas are those put forward by the Justice Department, which last week testified about the need to update the Computer Fraud and Abuse Act.

Again.

In fact, for the eleventh time since it was adopted in the 1980s.  We’ve seen this movie. Every time Congress gets exercised about cybersecurity, the Justice Department claims that the CFAA needs to be updated.  But “updated” almost always turns out to be a euphemism for “made more prosecutor-friendly.”

Justice’s latest proposals fit squarely into this mold.  Justice wants to create a new crime, hacking a critical infrastructure computer, with a mandatory minimum sentence of three years.  It wants to impose the same penalties on conspiracies and attempts as on successfully completed crimes.  It would get rid of first-time offender provisions in sentencing, increase sentences in general, allow civil forfeiture of hackers’ real estate, and make violation of the CFAA a RICO predicate, which would allow heightened penalties and private civil suits against violators.

Well, you might ask, why not get tough with hackers?  Surely we shouldn’t be playing pattycake with Anonymous and Lulzsec, let alone the foreign hackers endangering our national security.  That’s true, but the problem we have with those hackers is not the weakness of our criminal penalties but the fact that, most of the time, we can’t find them.  Until we do a better job of breaking the anonymity that protects them, increasing penalties for criminals we don’t catch will not make much difference.

Take a look at the website where Justice maintains a representative list of its most significant prosecutions.  What’s striking is how few prosecutions it has to brag about – less than 50 – and how few of those (maybe half) represent cases in which we actually caught the kind of remote hackers we’re most threatened by. I’m willing to bet that there is no other federal criminal law that has been amended so often in prosecutors’ favor with so few successful prosecutions to show for it.

The latest amendments are more of the same:  Shooting in the dark with a bigger gun. As protections against cyberattack, these amendments are useless.  They are added to the administration’s package mainly to give it the appearance of heft.

They are the legislative equivalent of Hamburger Helper.

Actually, they’re worse than that.  The RICO provision is far more dangerous than it first appears. To explain, I’ll need to repeat some of what Orin Kerr has been saying for years, so if you’re already familiar with that, you can skip the next ten paragraphs.

***

As I’ve said, the remarkable growth in cyberattacks over the last quarter century has enabled Justice to turn the CFAA into what may be the most prosecutor-friendly criminal statute on the books.  What does “prosecutor-friendly” mean in practice?  That any competent prosecutor can find a way to indict and convict anyone who does anything Really Bad with a computer.

With the CFAA, that’s mission accomplished:  The law imposes harsh criminal penalties on anyone who accesses a protected computer “without” or “in excess of” authorization.  The definition of a “protected computer” has been expanded until it covers any computer used in interstate or foreign communication, which in the Internet age is, well, every computer. As a practical matter, then, you can be indicted any time you do something on a computer that isn’t authorized. That term isn’t defined, but you can bet that if you do something Really Bad with a computer, it will turn out to be unauthorized.

Take Lori Drew, an overprotective, nasty mother who created a fake teenage-boy identity on MySpace in an effort to humiliate her daughter’s teenaged frenemy.  The scheme worked so well that the teen killed herself.  There’s no doubt that Lori Drew’s behavior was Really Bad, and it involved computers, so federal prosecutors decided it must violate the CFAA. And, mirabile dictu, it did.  By using a fake identity, Drew had violated MySpace’s terms of service, which meant that she had accessed a MySpace computer “in excess of” authorization. Drew was convicted, although in the end, with Orin Kerr’s help, the guilty verdict was overturned.

This kind of prosecutorial overreach is an inherent risk of the CFAA, given its reliance on the slippery concept of authorization.  As some civil liberties groups recently pointed out, the CFAA at its heart makes it a federal crime to violate a private contract, even a contract of adhesion like a social network’s terms of use:

If, for example, an employee photocopies an employer’s document to give to a friend without that employer’s permission, there is no federal crime (though there may be, for example, a contractual violation).  However, if an employee emails that document, there may be a CFAA violation.  If a person assumes a fictitious identity at a party, there is no federal crime.  Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation.

I don’t want to be too hard on the drafters of the CFAA;  they faced a tough drafting problem.  Hackers cause terrible harm, but the things they do aren’t all that different from the things legitimate users do.  Legitimate users open files, modify code, install programs, and send data to remote sites.  So do hackers.  We know the difference between the two, but it’s not easy to express that difference without falling back on the notion that the good guys are authorized to do those things and the bad guys aren’t.

I think this means that any statute that criminalizes hacking is likely to be either too broad or not broad enough.  Congress chose broad language to make sure that hackers couldn’t get off on a technicality, but in the process it gave Justice enormous prosecutorial discretion. Justice Department official James Baker gave a persuasive defense of the “authorization” test in last week’s testimony.  But the Department’s misuse of its broad discretion in the Lori Drew case suggests a need for greater accountability and discipline within the Department.  Requiring that the head of the Criminal Division sign off on all such cases — and take the blame if they turn out badly — may be a more workable solution than taking away the prosecutors’ discretion by changing the law.

Remarkably, though, that isn’t even the worst problem created by the CFAA.  The law also creates a private cause of action, handing a big legal weapon to everyone from the RIAA to the Church of Scientology.  And private parties aren’t exactly showing a lot of restraint.  According to the Center for Democracy and Technology, at least one company has brought a CFAA counterclaim in a pregnancy discrimination case, seeking damages under the Act because its employee acted in excess of authorization on the corporate network.  What did she do?  She violated a corporate proscription on “excessive Internet use.”  Equally abusive is a case that Orin Kerr has pointed out – Sony’s threat to sue PS3 hackers because they used their own computers in violation of Sony’s licensing restrictions.

Maybe back in the 1980s, Congress thought that creating a civil action would unleash the plaintiff’s bar on real hackers.  If so, Congress was deluded.

Civil CFAA lawsuits have proliferated but by and large they aren’t being filed against people who hack into systems.  Instead, they’re being brought by corporations against employees thought to have downloaded too much information from the corporate network before quitting.  They’re being brought by websites to keep competitors from using “scraper” software to collect their pricing data. Maybe those are bad things.  If so, they’re probably already torts under state law, and it’s hard to see why the cases should be in federal court.  And if they aren’t torts under state law, well, it’s even harder to see why they should be in federal court.  It’s the law of unintended consequences run amok.

***

OK, that’s the Gospel According to Orin Kerr. Now back to the latest proposal from Justice.

Justice wants to make the CFAA one of the federal crimes that qualify as “racketeering activity” under the Racketeer Influenced and Corrupt Organizations Act, or RICO.  This would add RICO prosecutions to the long list of get-tough measures that Justice rarely uses against actual hackers because, well, because it can’t catch most actual hackers.

But that doesn’t mean the amendment would have no effect.  Because, like the CFAA, RICO creates a private cause of action against RICO violators.  Actually it’s not just a private cause of action.  It’s a bonanza. Plaintiffs can recover treble damages plus attorney’s fees by bringing suit against “racketeers.” And what do you know, just like CFAA civil suits, it turns out that most RICO civil suits have been brought against ordinary businessmen, “rather than against the archetypal, intimidating mobster,” according to the Supreme Court.

The Supreme Court and Congress have struggled for decades to curb abuses of civil RICO.  Now, almost casually, the Justice Department proposes to open another can of RICO liability for unintended defendants.

How would that happen?  First, treble damages under civil RICO can be claimed by any person “injured in his business or property by reason of” a RICO violation.  18 U.S.C. § 1964(c).    A violation of RICO occurs, inter alia, when a “person employed by or associated with any enterprise engaged in” interstate or foreign commerce participates, “directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.”  (Sorry for the dense language; it may help to parse the language by thinking of a mobster who acquires partial ownership of a legitimate “enterprise” through threats of violence. He would be squarely covered by the provision, as long as he committed a  pattern of racketeering activity –- that is, more than one predicate crime.  But the words will sweep in far more conduct than classic mobster tactics, especially if Justice gets its way and violating the CFAA becomes a predicate offense.)

Pulling these elements together, let’s look at what the Justice Department’s proposal would mean for some of the unnecessary federal litigation now being brought under the CFAA.  We can start with the employer lawsuits against departing employees.  Employers who want to turn their CFAA claims into much more potent RICO claims would have to show that the departing employee committed two CFAA violations, which should be easy, since every unauthorized download is a new offense.  And, they’d have to show that they were injured in their business by reason of the racketeering; this they can do by showing the same damages that supported the CFAA case.  In short, on a quick look, the Justice Department seems to have created a massive incentive for companies to sue departing employees, and perhaps the companies they join, as racketeers.  Anyone who has a plausible CFAA case today will have a plausible RICO case once Justice gets its amendment.

Okay, another one: How about CDT’s favorite case – the pregnant worker accused of a CFAA violation because of excessive Internet use?  Well, she probably violated the rule on Internet use more than once, which makes for a pattern of racketeering, and she’s employed by an enterprise, in whose affairs she participated by misusing its computers.  The enterprise has been injured, too, by virtue of not getting her full attention at work.  What do you know? She sounds like a racketeer too!  It would be malpractice not to hit her with a counterclaim for treble damages and attorneys’ fees.

(At this point, you may be wondering why the Obama administration, of all administrations, wants to give employers even heavier litigation weapons to use against their employees. Beats me.  Maybe it has something to do with trial lawyers.  Maybe it’s just prosecutorial myopia.  James Baker’s testimony doesn’t even acknowledge the issue.)

OK, let’s try a harder problem.  You’re a copyright holder — Jon Stewart, say — and you’d like faster takedowns and more respect from YouTube.  Posting copyrighted material on YouTube is a violation of law and can lead to termination of your YouTube account.  The Lori Drew case tells us that the people who post clips in violation of that policy are using YouTube’s computers “in excess of authorization.” That’s a CFAA violation.  Do it twice and it becomes a pattern of racketeering, at least if Justice gets its way.  Now, the people doing the posting aren’t employees of YouTube, but they are “associated with” the YouTube enterprise, and they are participating indirectly in the conduct of YouTube’s affairs by virtue of their shocking CFAA violations.  What’s more, the Daily Show can claim injury in its business because it has lost viewers and ad revenue.  Presto!  Another racketeer takes the fall.  Maybe they’ll name YouTube’s parent, Google, as a co-conspirator just to keep it on its toes.

Oh, and what about you, dear reader?  Have you ever violated the terms of service on a website?  Hell, have you ever read them?  C’mon, I’ve seen the comments on my privacy and TSA posts. Are you sure yours didn’t violate the site’s proscription on “abusive or denigrating comments”?  Cause if you did it twice, that’s a predicate, and VC is an interstate enterprise that you are associated with and in whose affairs you are participating by virtue of your appalling violations of the terms of use and thus of the CFAA.  Best of all, VC has what strikes me as a pretty upscale readership.  Treble damages and attorney’s fees would go a long way toward finally monetizing my blogging habit.

(Had you going there, huh?  Actually, as far as I know, VC doesn’t have any terms of use for commenters, so fire away. You’re safe.)

I’m not a RICO lawyer, thank God, so maybe I’m oversimplifying what it takes to make out a civil RICO suit.  But, what the hell, the lawyers representing departing or pregnant employees aren’t RICO lawyers either.  If the claim against them is plausible on its face, they will face overwhelming pressure to settle, quite possibly by abandoning good claims, especially if their next employer is dragged in as a co-conspirator.  Ditto for the YouTube uploaders.

And in exchange for all this uncertainty and injustice, what benefit can we expect in fighting actual criminals?  About as much as we’ve gotten from the CFAA’s private right of action, which is nothing, and from RICO’s private right of action, which is less than nothing.

This is Hamburger Helper with a dose of cyanide.

UPDATE: Clarified with a reference to Google’s ownership of YouTube

Photo credits:

http://www.flickr.com/photos/arkangl/with/4709166389/

http://www.flickr.com/photos/like_the_grand_canyon/3853938360/lightbox/

Der Spiegel (Germany) has an interesting and troubling story about this. Here’s an excerpt, though you should read the whole thing:

According to police, the victim’s and the perpetrator’s families had met at a restaurant in the presence of an Islamic “justice of the peace,” an arbitrator who mediates conflicts between Muslims. The two families had reached a compromise: Fuat would drop the charges, and in exchange be relieved of part of his debt.

According to Bernhard Mix, the public prosecutor in charge of the case, Fuat’s false testimony was part of a deal between the families. “It’s difficult to establish the truth using legal means, when the perpetrator and the victim reach an agreement,” he says….

These justices of the peace don’t wear robes. Their courtrooms are mosques or teahouses. They draw their authority not from the law, but from their standing within the community. Most of them are senior members of their families, or imams, and some even fly in from Turkey or Lebanon to resolve disputes. Muslims seek them out when families argue, when daughters take up with nonbelievers or when clans clash. They often trust these arbitrators more than they trust the state….

In [a recent book on the subject], judges and prosecutors tell of threats toward public officials and systematic interference with witnesses. “We know we’re being given a performance, but the courts are powerless,” says Stephan Kuperion, a juvenile court judge in Berlin. Federal public prosecutor Jörn Hauschild warns, “It would be a terrible development if serious criminal offences in these circles could no longer be resolved. The legal system would be reduced to collecting victims.”

[The arbitrators] operate in a gray area between conflict resolution and obstruction of justice. [One arbitrator], for example, claims to work closely with authorities, but investigators suspect him of preventing witnesses from giving statements to the police. So far they’ve never been able to prove an obstruction of justice….

If these arbitrators would limit themselves to containing conflicts, there would be no reason to object, says legal and Islamic studies expert Mathias Rohe in the Bavarian city of Erlangen. German law, after all, allows for arbitration. What Rohe finds unacceptable is the exertion of influence over criminal proceedings. “Criminal prosecution is a privilege of the state,” he says.

The state justice system, though, is having a hard time shaking off the shadow system….

For a similar story from the U.S., though apparently involving only a small Orthodox Jewish community, see this post.

I generally support the right to engage in religious arbitration of civil disputes, if the parties agree to such arbitration by contract. Such arbitrations should generally be legally enforceable, like other contractually provided-for arbitrations are enforceable, and subject to the general limits that govern other contractually provided-for arbitrations (though there may or may not be some legal problems with that if the arbitrators enforce sex- or religion-discriminatory rules with regard to witnesses). In most states, for instance, parties can provide by binding contract for a marital property settlement, subject to some limitations, but not for a child custody decision (since that involves the rights of people other than the parties). Likewise, arbitration of such disputes should be permitted on similar terms.

I recognize that sometimes the contracts might be the result of social, economic, or emotional pressure, but generally speaking that isn’t a reason to set aside contracts: Businesses and individuals routinely enter into deals as a result of economic pressure, and sometimes social and emotional pressure, and we generally don’t try to rescue people from such deals (again, with some exceptions) — the same should be true if the individuals involved are members of religious groups who call for religious arbitrators rather than secular ones.

But this having been said, the practices described in the Der Spiegel article are quite different, and seem to be crimes, not contracts. Working out a deal through which someone testifies falsely is conspiracy to commit perjury. Working out a deal through which a witness is paid not to testify is conspiracy to obstruct justice. (Sometimes prosecutors may agree to drop minor charges if the underlying harm has been properly compensated for, but that is a decision for prosecutors to make.) Even if the parties have concluded — with or without social pressure — that they don’t want the crime to be prosecuted, the rest of us still have an important interest in making sure that the criminal is incapacitated or deterred from committing such future crimes, and that others are deterred as well.

In any event, some of what the article describes constitute serious crimes, which should be prosecuted and punished as such. Of course, proving such crimes is often difficult, because once the deal is made, the witnesses refuse to testify. But in at least some cases, there should be enough evidence to prove guilt; and a few such prosecutions can have a considerably broader deterrent effect, it seems to me. Thanks to Dan Gifford for the pointer.

I just ran across an interesting 2009 case that I thought I’d note for our readers. Here’s a brief and oversimplified summary of the facts: Danna Back dated Nicholas Super, but then decided to get back together with an earlier boyfriend, Daniel Holliday. Back knew that “Super threatened Holliday with a gun several times,” and that Super was a dangerous guy who was “known to pull his gun out on anybody.” Nonetheless, Back asked Super to drive her to Holliday’s house (hoping to get back together with Holliday). Super stayed around, and when Back and Holliday started arguing, and Holliday kicked Back out, Super and Holliday started arguing. Super then shot and killed Holliday.

Back was then prosecuted for, and convicted of, involuntary manslaughter, and the Minnesota Court of Appeals affirmed, on the grounds that the jury had enough “evidence of: (1) the prior intimate relationship between appellant and Super; (2) appellant’s knowledge that Super previously fired a gun into the victim’s garage; (3) appellant’s knowledge of the past conflicts between Super and the victim; and (4) appellant’s knowledge that Super carried a gun. On this record, although appellant did not shoot [Holliday], we cannot say that in light of the evidence presented, a reasonable jury could not infer that appellant was grossly negligent [and even criminally reckless] in getting Super to drive her to the victim’s house.” Moreover, the proximate cause requirement was satisfied, chiefly because Super’s attack on Holliday was reasonably foreseeable. “Here, appellant may not have foreseen that the victim would be killed in the manner that he was, but appellant had knowledge about the conflicts between Super and D.H., and knew of Super’s reputation for carrying and using his gun. And although appellant may not have intended for D.H. to be harmed or killed, the jury could have properly determined that she could have anticipated that harm may occur.”

The Minnesota Supreme Court reversed, because “[a] defendant cannot be negligent, culpably or otherwise, unless the defendant has a duty that he or she breached,” and “there is generally no duty to protect strangers from the criminal actions of a third party” absent a “special relationship” that didn’t exist here.

Now I think the state supreme court got it right as to the bottom line; people shouldn’t be held liable for simply bringing violent people to a situation that would foreseeable cause more violence. Part of my concern here is that any such liability would be so hard to cabin that those who have the misfortune of living around violent people could have their liberty drastically constrained — not just by regrettable practical reality, but by the law — as they have to organize their lives around not inadvertently enabling or provoking others’ violence. Thus, for instance, allowing liability on the prosecution’s theory would have potentially led Back to be liable for merely informing her current boyfriend that she was leaving him for someone else (since that could foreseeably lead to the boyfriend killing or injuring her new lover), or for cheating on her boyfriend in such a situation, or for openly having dinner with her new lover in a place where her boyfriend might see, and so on.

Holding Back liable for negligently bringing on a deadly confrontation between Super and Holliday would leave Back a continuing victim to Super’s oppression, and would indeed bring in government power in support of Super’s oppression, because Back would now have a legal duty not to do those things that might provoke Super. That strikes me as quite troublesome, and more troublesome than leaving Back free to do such things even if that increases the risk of death for Holliday or other third parties.

But I’m not persuaded by the supreme court’s reasons for reaching the right result. The prosecution’s theory wasn’t that Back negligently failed to protect Holliday. Rather, its claim was that Back negligently engaged in the affirmative act of bringing Super to Holliday’s house, in the context where she should have known that violence might happen. In such an affirmative liability theory, the presence or absence of a special relationship, it seems to me, would be irrelevant.

Thus, for instance, consider this hypothetical: Say Back affirmatively brought a dangerous animal — say, a poisonous snake — to a place where she knew the animal might well attack Holliday, and the animal indeed killed Holliday. I take it that then she Would be guilty of involuntary manslaughter (assuming she was sufficiently grossly negligent in creating such a risk) even though she had no special relationship with Holliday, since she’s being faulted for a sin of commission (affirmatively endangering), not of omission (failing to protect). That Super was a dangerous person and not a dangerous animal should, I think, make a legal difference. But that difference isn’t explained, I think, by the conclusion that Back had no duty to protect Holliday, and no “special relationship” with Holliday. Or am I missing something? I’d love to hear what others think.