The Criminal Lawyer

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the (more…)

We’ve posted several times about how there are just too many federal crimes, many created by regulatory fiat or otherwise without meaningful oversight by elected officials. About how a great many of them are apparently drafted by people with no understanding of how criminal law works and why. About how, as a result, there are an insane number of federal crimes (all felonies, of course) that penalize without any mens rea requirement at all. The most innocent accident, the most harmless and unintentional error, can make any honest and decent citizen a felon. (Sample posts here and here.)

We’re not the first to talk about it, by any means. We won’t be the last. But it’s starting to look like we’re reaching a tipping point — a critical mass of public awareness that might actually lead to … dare we say it … change?

Back in July, we cited a recent study that showed that, when a perception is firmly held by fewer than 10% of a population, it doesn’t really catch on. But for some reason, once the magical number of 10% is reached, the opinion spreads like wildfire. From obscurity, the idea suddenly becomes a majority view.

This 10% number pops up no matter what relevant population you’re looking at, no matter what social network. All that it takes to change the world is to have 10% of them be firmly committed, stubborn, and outspoken.

Over the rest of this summer, we’ve seen more and more references to this overcriminalization.  They’ve come mainly from the libertarian right and the defense bar, as one might expect, but it’s also been catching on in the mainstream press, left-leaning internet fora, and other places indicating that the idea is starting to take root in the general consciousness.

The last several days have seen a marked uptick in the topic. The New York Times cited it three days ago as a reason why people are taking pleas rather than going to trial. The Wall Street Journal has been doing a series on it, culminating yesterday in a long article on pretty much everything mentioned in the first paragraph of this post. And various bloggers and redditors and the like have been talking it up more than usual.

It’s starting to look less and less like a passionate few shouting in futile obscurity, and more and more like a movement.

Excellent. Let’s keep it up, shall we?

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(Aside — If we were a Republican presidential candidate, we’d jump on this in a heartbeat. Not only would we be getting out in front of the movement, the better to be mistaken for a leader, but it would be a great way to repackage part of the platform. The present platform calling for less regulation comes off as a kind of “help out corporations at the expense of the people and the environment” thing. But make it a call for less regulation in the name of social justice — with plenty of anecdotal examples of real individuals who have been fucked by the fourth branch — and it becomes a populist battle cry. Just sayin’.)

A few times, now, we’ve talked about how there are too many federal crimes, and how an enormous number of them are frankly unjust.  We’re just one of many voices crying out about this deep and dangerous problem.  The other day, the WSJ entered the conversation with a piece titled “Federal Offenses: As Criminal Laws Proliferate, More Are Ensnared.”  We’re not going to comment on the piece other than to say it’s well written, and worth reading.

It is certainly true that the number of federal crimes has risen rapidly in recent decades.  And it is beyond rational dispute that a growing number of these crimes are flatly unjust.

Far too many are created by regulatory bureaucrats, unbeholden to any voters, as tools for enforcement of their strictly civil rules (the proper methods of enforcement being fines and restrictions/denials of permit).  And by “far too many” we mean “all crimes created by regulatory agencies.”  Criminal law is not just some tool for rule enforcement; it is the singular means by which the awesome might of the state is brought to bear to punish those whose conduct is so bad that society demands that we take away the transgressor’s liberty, his property, his reputation, and sometimes even his life.  As an old bureau chief of ours used to say, “it is a big fucking hammer, not to be used lightly.”

Many of the federal crimes are unjust for that reason, because they do not punish conduct that society (through elected officials) requires punishment.  Far too many are also unjust because they lack any (more…)

It’s rare that we agree with a NY Times editorial.  Yesterday, we came close.  In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting its parole officers use programs and other alternatives to jail for lesser violations.

Ooh, so close.

Two problems: One, most of those who return to prison aren’t coming back on a parole violation, they’re going in because they got convicted of a whole new crime.  Yes, far too many parolees get put back in for non-criminal stuff like failing to abide by arbitrary and asshole-ish conditions imposed by dickhead parole officers.  But this doesn’t account for much of the actual recidivism numbers.  So dealing with this isn’t going to make too big a dent in the repeat prison population.

Two, the people making the decision are still going to be the same parole boards, parole officers, and parole magistrates who are acting like assholes and dickheads in the first place.  (These are obscure legal terms of art, perhaps obscure to those who do not practice criminal law.  To any non-lawyers reading this, we believe the common expression would be something akin to “unthinking, tyrannical bullies.”)  The problem people are the ones who are so jaded by dealing with scumbag after scumbag that they are incapable of recognizing a deserving parolee when they see one; or they are so stupid that they are incapable of reasoned discretion and cling to rote practices like a drowning man clutching a lifeline; or they are such villains that they derive satisfaction from fucking people over; or they are so righteous that they believe they are doing the right thing in fucking people over.  Whichever variety you’re dealing with, they either abuse their discretion or fail to use their discretion in the first place.  So giving them more discretion isn’t going to solve anything.

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So okay, the NYT oversimplified, missed the real point, and offered a useless suggestion.  Who cares, that’s what they always do.  But this is The Criminal Lawyer, you’re saying to yourself.  What do we suggest?

The biggest problem is really out of the hands of the criminal justice system.  It’s people who (more…)

So everyone from the Washington Post to Fark is reporting gleefully about the recent acquittal of a Northern Virginia man charged with failing to stop for a school bus picking up kids.  The defense attorney is getting kudos for pointing out that the law, when rewritten 40 years ago, omitted the word “at.”  The resulting language, agreed the judge, only criminalizes a driver who fails to stop a school bus that was stopped.  Absurd, but Virginia doesn’t let judges add words to statutes by interpretation, even if they’re absurd.

So far, so good.  We’re all in favor of forcing the government to do its job properly before being able to impose a criminal punishment.  And one of our pet peeves is poorly-drafted statutes and regulations, many of which seem to have been written by junior high dropouts.  Passing a stopped school bus is incredibly dangerous and richly deserving of criminalization, but we have no problem with someone getting off on a technicality of bad drafting.  A poorly or vaguely drafted statute does not provide the notice of criminal liability that is a basic element of Due Process, and the state shouldn’t be allowed to punish someone for violating it. (See “Honest Services.”)

But on actually reading the statute, we have to say the judge screwed up.  Here’s what it says:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

The error here is not the omission of the word “at” after the word “stop.”  It’s the inclusion of a gratuitous comma after the word “direction” — a comma which is artless, but nonetheless does not change the meaning of the sentence.

Here’s the sentence with the “at” included:

A person is guilty of reckless driving who fails to stop at, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

That reads even worse.  That’s where the “at” was before amendment.  (But the statute also had a lot of other language as well that was deleted or replaced.  It read fine before it was amended.)

Here’s the sentence with the gratuitous comma removed:

A person is guilty of reckless driving who fails to stop, when approaching from any direction any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

This makes perfect grammatical sense.  It’s still artlessly written, but it scans.  You’re guilty if there’s a bus stopped to pick up or drop off kids, and you don’t stop, no matter whether you’re coming from behind or ahead or the side.

As written, it still says that.  The extra comma (a bane of ancient legal writing) doesn’t change the meaning one way or the other.

Speaking as a card-carrying Grammar Nazi, the judge was simply wrong to think it meant you’re guilty if you fail to stop a school bus you approached.  The same misreading could be used to say you’re guilty if you fail to stop your own car for the purpose of taking on or discharging children.  The Commonwealth cannot appeal from an acquittal, so this case is over, but the defense really was in the wrong here.

How would we have written it?  To convey the same meaning, we’d probably draft something like this:

A person is guilty of reckless driving if he fails to come to a full stop a safe distance away from a school bus that is stopped on any road for the purpose of taking on or discharging children, regardless of the direction in which he is traveling.

Or some such.

Anyway.  Kudos to the defense lawyer — it’s still a perfectly valid victory, and in a way it’s nice to have a foolish judicial decision in the defense’s favor for a change.  But it’s a good thing that driver didn’t hit a kid.  His actions still count as reckless under any definition of the word.

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

The Supreme Court is back in session on Monday, and we’re not ashamed to admit that we’re excited.  As always.  And they’re starting off the argument season with a bang — a critical issue on federal sentencing of gun crimes.  Can’t wait.

The case is actually two cases, Abbott v. U.S. and Gould v. U.S.  The issue is just what the heck 18 U.S.C. § 924(c) means.

§ 924(c) says, if you’re convicted of possessing a gun during a narcotics crime, you get a 5-year minimum sentence, to be served consecutively.  Unless, that is, “a greater minimum sentence is otherwise provided by this subsection or any other law.”

Such straightforward language, and yet capable of so many different interpretations.  Is it written to make sure that you get at least 5 years if you carried a gun during a drug crime?  Or is the point to make sure that you get at least an extra 5 years, added to the original sentence?

Does it mean that, if you’re already facing a mandatory minimum greater than 5 years for the gun, then § 924(c) doesn’t even apply?

Does it mean that, if you’re (more…)

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (more…)

It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 

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We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that (more…)

“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any (more…)

It was a case of very strange bedfellows today at the Supreme Court.  The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority.  The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent.  So Thomas and Alito sided with Breyer, Ginsburg and Sotomayor.  And Roberts and Scalia were united with Stevens and Kennedy.

What gives?  We suggest that it reflects a changing approach to statutory interpretation. 

The case is about how to interpret 18 U.S.C. § 3664(d)(5), which says a sentencing court has to order restitution within 90 days of sentencing, but fails to specify what happens if the deadline is missed.  Specifically, it says that, if losses aren’t calculated 10 days before sentencing, the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”  That word “shall” is pretty strong, and its accepted meaning is “must.”  In other words, a court has no choice here, no discretion, but “must” set a restitution amount within 90 days.  But there is no provision for remedies if that doesn’t happen.  So the Court had to fill in the blanks.

The majority reasoned that, given that the whole point of the statute is to ensure speedy restitution to victims, Congress couldn’t possibly have intended for restitution to be forfeited if a court takes too long.  And Congress wasn’t particularly concerned with giving finality to defendants, but anyway so long as the defendant is on notice that restitution is in fact going to be ordered, the defendant isn’t harmed if the deadline is missed. 

The dissenting Justices pointed out that this interpretation makes a nullity of 18 U.S.C. § 3664(d)(5).  The 90-day deadline is no deadline at all.  The majority allows restitution to be ordered at any time after sentencing, thereby gutting the plain language of the (more…)

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”

That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.

What we found instead was a totally inane article on the Huffington Post, leading off with the following lines: (more…)