Archive | Criminal Law

It’s Such a Great TV Show That Even The Criminals Like It

From the facts of United States v. Cross, a decision from Chief Judge Garland handed down yesterday involving a wiretap that targeted a large-scale heroin conspiracy:

On the wiretap, the agents overheard a series of conversations between Toure and appellant Cross. On several occasions, Cross used coded language to place narcotics orders. Cross and Toure also discussed purchasing prepaid cell phones to escape detection by the police. In one conversation, Toure told Cross about a police raid on a stash house where Toure had kept some of his drugs; Toure expressed concern that an individual arrested in the raid might become a police informant. And, in a moment of supreme irony, the two shared their admiration for The Wire, an HBO television series about drug dealers being monitored by a wiretap. Supp. App. 15 (“Yea season three is my favorite.”)

Thanks to Michael Scarcella for the link. […]

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The U.N. Weighing in on the Zimmerman/Martin Investigation

According to a United Nations press release,

A group of United Nations independent experts today called on the Government of the United State to finalize the ongoing review of the case involving the death of teenager Trayvon Martin, an African-American teenager who was shot in 2012 by a neighbourhood watchman in the state of Florida.

“We call upon the US Government to examine its laws that could have discriminatory impact on African Americans, and to ensure that such laws are in full compliance with the country’s international legal obligations and relevant standards,” said human rights expert Verene Shepherd, who currently heads the UN Working Group of Experts of People of African Descent.

The death of Trayvon Martin sparked a new debate about racial profiling in the United States after the unarmed black 17-year-old was shot and killed in Florida by George Zimmerman, a neighbourhood watchman. Mr. Zimmerman, who argued that he acted in self-defence and with justifiable use of deadly force, was found not guilty of all charges against him.

The US Department of Justice, the US Attorney’s Office for the Middle District of Florida and the Federal Bureau of Investigation are currently evaluating the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial, trying to establish potential civil rights charges linked to the case.

“The Trayvon Martin case has highlighted the importance of the need to review those existing laws and policies that can have a discriminatory effect on the basis of race, as African Americans become more vulnerable to such discrimination,” Ms. Shepherd said, recalling that the US has been party to the International Covenant on Civil and Political Rights since 1992, the International Convention on the Elimination of Racial Discrimination since 1994, and many other international human rights


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Size Still Matters in the Federal Government’s War on Marijuana

Co-blogger Will Baude makes a good point in noting that the Justice Department’s new memo on federal marijuana enforcement takes a more favorable tone towards large state-licensed marijuana businesses than its 2011 predecessor. Unfortunately, however, this is only a very minor shift.

The new memo states that prosecutors should not use “the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities.” But that means that size can still be emphasized – even very heavily – so long as it is considered in conjunction with other “available information and evidence.” Thus, US attorneys who want to target large marijuana operations can still do so. This is especially true once we remember that, even in states where marijuana is now legal, the memo actively encourages prosecutors to go after marijuana enterprises that impinge on any of eight broadly worded “federal priorities,” or any other “important federal interest.” With respect to many of those interests, it is easy to argue that a larger enterprise might threaten them more than a smaller one. For example, the larger the commercial operation, the more likely it is to produce at least some marijuana that might be “diverted, directly or indirectly, and purposefully or otherwise, to minors,” or result in the “diversion” of some marijuana to states where it is still illegal.

The new memo’s less hostile tone towards large producers might make a difference at the margin. Prosecutors who already prefer to avoid marijuana prosecutions might feel slightly more empowered to do so. But the new memo provides little real protection for large-scale commercial marijuana operations in states where they are now legal. […]

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Justice Department Finally Announces its Response to the Legalization of Marijuana in Colorado and Washington

Understandably overshadowed by the debate over a possible US military intervention in Syria is the Justice Department’s long-awaited announcement of its response to the legalization of marijuana in Colorado and Washington. Criminal law experts, legalization advocates, and others have long wanted to know whether and to what extent the DOJ intends to continue federal marijuana prosecutions in those states. Today, it finally took a position on the issue, and put out a fairly detailed memorandum to federal prosecutors outlining its policy. But, as with the DOJ’s recent memorandum on charging low-level drug offenders, there is little real change here. [SEE UPDATE BELOW FOR A DISCUSSION OF WAYS THAT THE ADMINISTRATION COULD HAVE IMPOSED GENUINE CONSTRAINTS ON FEDERAL MARIJUANA PROSECUTIONS].

The main bright spot for legalization advocates is that the federal government won’t be suing to overturn the Colorado and Washington laws in federal court – for now. But they don’t rule out filing such a suit in the future if they conclude that federal interests are threatened. In the meantime, the DOJ memorandum urges federal prosecutors not to prioritize marijuana enforcement in these states so long as they adopt “strong and effective regulatory and enforcement systems” that protect against threats to a long list of “federal priorities” that may be endangered by marijuana legalization. This list is long and vague enough that it would be difficult for any state to fully address it without virtually negating marijuana legalization entirely. For example, it includes “preventing the distribution of marijuana to minors,” which the DOJ defines expansively as “call[ing] for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors when marijuana or marijuana-infused products are are marketed in a manner to appeal […]

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Public Ignorance About Crime Rates

CNN recently published an interesting article about how most of the public believes that violent crime is rising, despite the fact that it has actually fallen dramatically over the last twenty years:

You can’t escape the headlines. An Australian going to college in the United States is gunned down by teens who police say killed him out of boredom. A few days later, a World War II veteran is beaten to death for reasons still unknown….

Although the cases have struck a nerve with their disturbing randomness and apparent cruelty, the reality is that living in the United States may never have been safer, and you’re much more likely to be the victim of a crime committed by someone you know than you are to be assaulted by a stranger.

Nearly eight of every 10 murders in the United States between 1993 and 2008 were committed by someone the victim knew, according a 2010 report by the federal Bureau of Justice Statistics….

Pair that with figures on overall crime: According to the FBI, the violent crime rate in the United States is about half what it was in 1992.

And between 1992 and 2011, the annual number of murders in the United States fell from 23,760 to 14,612 despite a growing population.

Rape, robbery, assault, even property crimes also fell in a well-documented decline that has gone on for years….

But perceptions of crime haven’t always followed the reality.

In May, a Pew Research Center study found that 56% of Americans believe that gun violence is higher than it was 20 year ago, even though it has fallen precipitously since the 1990s.

And in 2011, Gallup found that 68% of Americans believed crime was getting worse, despite the reality of declining crime rates nationwide.

Public overestimation of the crime rate […]

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Interesting Self-Defense Story

From the Sarasota Herald Tribune:

[Vickie] Rock, 50, of Riverview, came outside armed with a .45-caliber handgun and saw [Daniel] Robertson beating [his girlfriend Christy] Vasilakos with a metal object, said Hillsborough sheriff’s spokesman Larry McKinnon.

When Rock tried to intercede, Robertson turned on her. Rock suffered several facial injuries before firing at least one round and striking Robertson, McKinnon said.

The rest of the story provides some more details, including Vasilakos’s perspective on Robertson (though of course one should take any media accounts in such a situation with a grain of salt, and more broadly take everyone’s accounts with a grain of salt). From the story, Rock’s actions seem perfectly legally proper — and likely would be seen as legally proper even in duty-to-retreat states — and morally praiseworthy.

At the same time, though much depends on the nature of the metal object, it seems likely (though not certain) that if Rock hadn’t intervened, both Robertson and Vasilakos would be alive today. Indeed, it seems possible (though far from certain, and perhaps not knowable to us) that Rock might have thought that she could have saved her own life, at the expense of submitting to the beating, even without shooting Robertson.

So whether you think this was a laudable instance of self-defense (as I do) or something that you think shouldn’t have happened may turn not just on whether it’s good to take an attacker’s life to save the victim’s life, but also whether it’s good to take an attacker’s life to prevent likely harm that is likely to be well short of death. The law in all states says yes, in allowing killing not just to protect life but also to prevent serious bodily injury (including rape), and also, in many states, to prevent robbery or even […]

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The Justice Department’s New Memorandum to Federal Prosecutors on Charging Drug Offenders

In my last post, I gave a preliminary assessment of Attorney General Eric Holder’s recent speech on reforming charging policy for low-level drug offenders. I pointed out that whether or not this really marks a major policy change depends in large part on the details outlined in an internal memorandum Holder issued to federal prosecutors. Here is that memorandum in all its glory [HT: Jacob Sullum, who makes some good points about the memo and its limitations]. Unfortunately, the relevant section is not much more precise than Holder’s speech or the NY Times account I quoted in my last post. Overall, this is hardly “a major shift in criminal justice policy,” as the New York Times calls it. It looks more like a fairly minor shift dressed up in major rhetorical flourishes.

Here are the relevant guidelines:

[I]n cases involving the applicability of Title 21 minimum sentences involving drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

* The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a
weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

* The defendant is not an organizer, leader, manager, or supervisor of others within a criminal organization;

* The defendant does not have significant ties to large-scale drug-trafficking organizations, gangs, or cartels; and

* The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.

These four exceptions are both vague and broad. They don’t […]

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Assessing the Justice Department’s New Policy on Drug Offenders

In a speech to the American Bar Association today, Attorney General Eric Holder announced a potentially important new change in Justice Department policy on charging drug offenders. For reasons noted by Tom Angell of the Marijuana Majority, this is potentially an important step in curbing at least some of the excesses of the War on Drugs. But, as is often the case, the devil is in the details. Here’s the relevant passage in the speech:

I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences. They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins. By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation – while making our expenditures smarter and more productive. We’ve seen that this approach has bipartisan support in Congress – where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders. Such legislation will ultimately save our country billions of dollars while keeping us safe.

This is promising, but is a fairly vague statement of the criteria by which federal prosecutors are now supposed to determine whether to charge drug trafficking defendants with “offenses that impose draconian mandatory minimum sentences.” The New York Times has a slightly more detailed description of the new policy:

Under a policy memorandum being sent


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Obama Probably Did Not Win the 2012 Election by Violating the Computer Fraud and Abuse Act

In a recent post, co-blogger Stewart Baker writes that there is “a very real possibility” that the Obama campaign won the 2012 election by increasing turnout among its supporters, using tactics that violated the Computer Fraud and Abuse Act. It is difficult to definitively disprove such claims. But the available evidence cuts the other way – at least if “real possibility” means more than an extremely small chance.

To prove that Obama won by violating the CFAA, it must be shown that 1) that Obama won because of unusually successful efforts to increase turnout among his supporters, and 2) that turnout would have been so much smaller absent violations of the CFAA, that Romney would have won. Both claims are problematic. Contrary to much conventional wisdom, Obama’s victory was actually well in line with historic trends. Standard econometric models based on trends in the economy predicted a narrow win for Obama, and his margin of victory was only slightly greater than the predictions, as I explained in this post shortly after the election. The final popular vote margin was larger than that indicated in the early numbers I used in the post; but the key point is that Obama would have won even if he had gotten exactly the percentage of the vote predicted by standard electoral models. Sean Trende and political scientist John Sides make similar points in greater detail (see also Sides’ forthcoming book with Lynn Vavreck). As Sides and Trende emphasize, incumbent presidents usually win reelection if there is even moderate improvement in the economy during the last year or so before the election. A major scandal or an unusually strong opposing candidate can overcome this tendency. But the GOP in 2012 didn’t benefit from either.

To the extent that high-tech campaign tactics and selective turnout […]

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Losing Self-Defense Rights If You Refuse to Comply with Attacker’s Demands to Abstain from Conduct?

I’ve long been curious about the “duty to comply with negative demands,” an analog to the duty to retreat suggested by the Model Penal Code (based on the Restatement (First) of Torts) and implemented in Connecticut, Delaware, Guam, Hawaii, Maine, Nebraska, New Hampshire, and New Jersey. (Alabama and Pennsylvania had such a rule, but recently repealed it.) Under this doctrine, a defendant loses the right to use lethal force in self-defense if he knows that

he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take.

That always struck me as shockingly broad — read literally, if Vic tells Don, “stop seeing my ex-girlfriend or I’ll kill you,” Don must stop seeing the ex-girlfriend or else lose the right to use lethal force to defend himself against Vic. Likewise, if Vic tells Don, “stop burning this flag / displaying this cartoon of Mohammed / picketing with this sign, or I’ll kill you,” Don must abandon his First-Amendment-protected activity or else lose the right to defend himself with lethal force against Vic. Perhaps prosecutors agree, and are skittish about using this theory, because I’ve found only one case in which it seemed to have been argued, State v. Savage, 573 A.2d 25 (Me. 1990); I thought I’d pass along an excerpt and see what people thought (some paragraph breaks added):

[James] Savage was a lead singer and rhythm player in a blue grass band called the Shilo Mountain Boys, led by the victim, C. Sumner Morrill. Shilo Mountain Farm was the name of the Morrill home in North Baldwin. Savage, who


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Cathy Young on Race and Self-Defense

An interesting Newsday column. A couple of excerpts:

Could there have been a white Trayvon Martin? Ask the parents of Christopher Cervini, also 17 when he was killed in Rochester, N.Y., in 2009. The shooter, Roderick Scott, said he saw three boys breaking into a car, went out with his (legal) handgun to stop them, and fired in self-defense after Cervini ran at him yelling a threat. Cervini’s family insisted that the teen, who had never been in trouble, was murdered in cold blood. Scott was tried for manslaughter and acquitted. He is black; Cervini was white….

As proof of pervasive bias, some cite a June 2012 Tampa Bay Times report based on a study of cases involving self-defense claims since 2005, when Florida passed its “stand your ground law”: 73 percent of defendants who killed blacks were cleared, compared to 59 percent of those who killed a white person. Yet, since most homicides were between people of the same race, this also suggests black defendants were more likely to win. Indeed, the study found that “black defendants went free 66 percent of the time in fatal cases compared to 61 percent for white defendants.” In mixed-race cases, “four of the five blacks who killed a white went free; five of the six whites who killed a black went free.” …

In any case, if you’re interested in the topic, read the whole thing. […]

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Duty to Retreat and Stand Your Ground: Counting the States

People are talking about how common “stand your ground” states are compared to “duty to retreat” states, so I thought I’d do a bit of looking to see the current head count. First, let me explain what I mean by “duty to retreat,” which is something of a misnomer (though a very common one):

Say that a defendant is facing the risk of death or serious bodily injury (or rape or kidnapping or, in some states, robbery or some other crimes). And say that the defendant

  1. is not in his home or other property that he owns or his place of business,
  2. is in a place where he may lawfully be,
  3. is not engaged in the commission of such crime, and
  4. has not attacked the victim first or deliberately provoked the victim with the specific purpose of getting the victim to attack or threaten him.

In duty-to-retreat states, the defendant is not legally allowed to use deadly force to defend himself if the jury concludes that he could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating.

In stand-your-ground states, the defendant is legally allowed to use deadly force to defend himself without regard to whether the jury concludes that he could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating.

Relaxing criterion 1 above moves states into the stand-your-ground category; for instance, nearly all (and perhaps all) states don’t require retreat when the defender is in his own home, except in some narrow circumstances. Relaxing criterions 2 to 4 above moves states into the duty-to-retreat category, or even denies a right to self-defense regardless of whether the defendant tried to retreat. I’m speaking here of the core duty-to-retreat vs. stand-your-ground case, […]

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A Few Zimmerman-Related Notes

I. For most of its history, the ACLU opposed separate state and federal prosecutions for the same acts as unconstitutional double jeopardy. If I’m remembering correctly, the ACLU abandoned this position under the pressure of the egregious facts of the Rodney King case, but by an extremely close vote with much controversy. Apparently, the ACLU has now fully abandoned this position without any significant controversy, as witnessed by its press release stating that “it is imperative that the Department of Justice thoroughly examine whether the Martin shooting was a federal civil rights violation or hate crime.” The ACLU used to be primarily a civil liberties organization, albeit one dominated by a liberal worldview. It has gradually become a liberal pressure group with some (and declining) interest in civil liberties.

II. With all the hullabaloo over the Not Guilty verdict, let’s not forget the serious accusations of prosecutorial misconduct that have been leveled against prosecutor Angela Corey. Prosecutors get away with such conduct way too often, and it’s the most vulnerable members of society who are typically their victims.

III. I’ve seen a lot of commentary by people upset with the verdict to the effect that if the races were reversed, a black Zimmerman would have been convicted for murdering a “white” Martin. That’s a good argument against the verdict only if you think there was sufficient evidence for the jury to convict the real Zimmerman beyond a reasonable doubt, which IMHO there wasn’t, not even close. And if there wasn’t sufficient evidence, I would hope it wouldn’t make anyone feel better to put multi-racial (or even “white”) Zimmerman in jail just because that person believes that a black Zimmerman would have been unjustly convicted on similar evidence, just to even things out. A better lesson would be to consider […]

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A Correction and Apology Regarding the New York Times Zimmerman Editorial

In a post Monday, I criticized the New York Times editorial that read, in relevant part,

The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of the now-notorious Stand Your Ground provision in Florida’s self-defense law. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved.

One thing I argued was that there was no reason to think that the jury had relied on the Stand Your Ground instruction, since that’s relevant only when, in “the circumstances by which [the defendant] was surrounded at the time the [deadly] force was used,” the defendant had the opportunity to retreat with safety — something that didn’t seem to be part of either the prosecution’s or defense’s factual theory. It thus struck me that the issues before the jurors were matters, such as whether Zimmerman reasonably feared death or serious bodily injury, on which the law was unaffected by Florida’s Stand Your Ground statute.

Nonetheless, as some commenters noted in the last several hours, one of the jurors said in an Anderson Cooper 360 interview,

JUROR: Exactly, exactly. We looked through pretty much everything. That’s why it took us so long. We’re looking through the evidence, and then at the end we just — we got done, and then we just started looking at the law. What exactly we


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Provocation and Self-Defense

One recurring comment I’ve heard on the Zimmerman case is that Zimmerman was in the wrong for following Martin in the first place, and therefore couldn’t use deadly force when Martin reacted violently in response (perhaps in what Martin perceived was self-defense). This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post) discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.

To begin with, it’s clear that the right of lethal self-defense is lost in some situations. If D criminally attacks V with a knife, V takes out a gun, and D stabs V, D can’t defend himself by saying “I was in reasonable fear of death or grave bodily harm.” That risk of injury happened because D was committing a serious crime in the first place.

But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force? (Note that this is a separate kind of provocation from that which reduces a murder charge to voluntary manslaughter; though the label is the same, the legal rules and consequences are completely different.)

Let’s consider a few scenarios:

1. D knows that V is insanely jealous, and has threatened to attack D for dating V’s ex-girlfriend. Nonetheless, D keeps dating her, and even appears with her in places where V might well see them. V attacks D in a way that threatens D’s life, and D shoots V.

2. D knows that V hates him, […]

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