For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a "guilty mind."Click here to read the entire story.
This legal protection is now being eroded as the U.S. federal criminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them.
As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time. When the police came to Wade Martin's home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can't. That included the 10 sea otters he had recently sold for $50 apiece.
Mr. Martin, 50 years old, readily admitted making the sale. "Then, they told me the buyer wasn't a native," he recalls.
The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.
He pleaded guilty in 2008. The government didn't have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.
"I was thinking, damn, my life's over," Mr. Martin says.
Federal magistrate Judge John Roberts gave him two years' probation and a $1,000 fine. He told the trapper: "You're responsible for the actions that you take."
Mr. Martin now asks customers to prove their heritage and residency. "You get real smart after they come to your house and arrest you and make you feel like Charles Manson," he says.
The U.S. Attorney's office in Alaska didn't respond to requests for comment.
Back in 1790, the first federal criminal law passed by Congress listed fewer than 20 federal crimes. Today there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s.
One controversial new law can hold animal-rights activists criminally responsible for protests that cause the target of their attention to be fearful, regardless of the protesters' intentions. Congress passed the law in 2006 with only about a half-dozen of the 535 members voting on it.
Under English common law principles, most U.S. criminal statutes traditionally required prosecutors not only to prove that defendants committed a bad act, but also that they also had bad intentions. In a theft, don't merely show that the accused took someone's property, but also show that he or she knew it belonged to someone else.
Over time, lawmakers have devised a sliding scale for different crimes. For instance, a "willful" violation is among the toughest to prove.
Requiring the government to prove a willful violation is "a big protection for all of us," says Andrew Weissmann, a New York attorney who for a time ran the Justice Department's criminal investigation of Enron Corp. Generally speaking in criminal law, he says, willful means "you have the specific intent to violate the law."
A lower threshold, attorneys say, involves proving that someone "knowingly" violated the law. It can be easier to fall afoul of the law under these terms...
Overall, more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had "weak" mens rea requirements at best, according to a study conducted by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers. The study, one of the few to examine mens rea, was extended to include the most recent Congress at the request of The Wall Street Journal.
Earlier this year, Justice Antonin Scalia, in a dissent from a Supreme Court decision upholding a firearms-related conviction, wrote that Congress "puts forth an ever-increasing volume" of imprecise criminal laws and criticized lawmakers for passing too much "fuzzy, leave-the-details-to-be-sorted-out-by-the-courts" legislation.
Lawmakers on both sides of the aisle worry about the weakening of mens rea. "Over my six years in Congress there have been many times when in discussions with members of Congress I say, 'Look, I know you want to show people how serious you are about crime, but don't put anything on the books that doesn't require criminal intent,'" says Rep. Louie Gohmert, (R., Tex.) a former state judge who wants the federal system reworked.
In a 2009 Judiciary subcommittee hearing on the growth of federal criminal law, Rep. Bobby Scott (D., Va.)., said that mens rea had long served "an important role in protecting those who do not intend to commit wrongful or criminal acts from prosecution and conviction."
The growing number of federal laws with weakened mens rea safeguards is making the venerable legal principle that ignorance of the law is no defense a much riskier proposition for people. That principle made sense, says University of Virginia law professor Anne Coughlin, when there were fewer criminal laws, like murder, and most people could be expected to know them.
But when legislators "criminalize everything under the sun," Ms. Coughlin says, it's unrealistic to expect citizens to be fully informed about the penal code." With reduced intent requirements "suddenly it opens a whole lot of people to being potential violators."
Tuesday, November 29, 2011
Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.Click here to read the entire story.
They are serving life sentences under California's three-strikes law...
Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.
A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony...
But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.
That, says Worthington, is the hidden impact of three strikes.
"I think people would also be surprised to know that you can get multiple strikes in one offense. They think it's for someone who has a long, illustrious career (in crime). But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...
One such case was Luther Collins, whose previous two strikes came decades ago, one in 1981. To avoid a third strike, Collins recently accepted a plea deal and six years in prison on a drug possession charge — the same charge that, under realignment, has had others in the county placed on probation.
Worthington said a client of his recently accepted a prison sentence under the threat of a third strike. He asked that the client not be named because a related case is still being adjudicated.
"I don't want to paint him as an angel," Worthington said. "But if he had a different background, he would have gotten felony probation and would have had the opportunity to have it reduced to a misdemeanor and have it dismissed. The two strikes in his background were such a powerful bargaining chip."
The man, in his mid-30s, had two previous strikes for domestic violence.
"He served his time and was released. He's been law abiding and paying his child support since the mid-2000s. He's worked things out with his wife enough to be in his son's life."
Then he blocked a bathroom doorway during a bar argument.
"He never threw a punch. The security footage showed he tried to break it up, and he even pulled his co-defendant away."
He was charged with assault with force likely to cause great bodily injury and threatened with a third strike — which meant life in prison. "You don't have to touch anyone for it to be an assault," Worthington said.
The client ended up taking a deal for four years in prison on a false imprisonment charge.
"He should not be in prison (again) for his past crimes," Worthington said. "That's one of the problems with three-strikes laws — people can never escape it."...
Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool."
"It discourages innocent people from going to trial," he said. "The risk of conviction and punishment causes people to plead guilty. ... You have a situation that is ripe for unfair results. Mistakes happen because people are afraid of the risk."
"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years. Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it. "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."
"In the first few years (the initiative passed in 1994) there was tremendous response. They were packing away people and the prisons filled up," he said. "Then it leveled off and it has stayed level."
Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience." But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.
"The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."
Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.
While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years. Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.
Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state.
"Crime rates have been going down, down, down. I attribute it to harsher sentencing ... along with mobilization of communities" toward prevention and intervention efforts.
Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.
"You will not find any link between the harshness of the sentence and declining crime rates," he said.
Monday, November 14, 2011
"J. Edgar" is a somber, enigmatic, darkly fascinating tale, and how could it be otherwise?The full review from the L.A. Times is available here. Roger Ebert also has a review, which is available here.
This brooding, shadow-drenched melodrama with strong political overtones examines the public and private lives of a strange, tortured man who had a phenomenal will to power. A man with the keenest instincts for manipulating the levers of government, he headed the omnipotent Federal Bureau of Investigation for 48 years. Though in theory he served eight presidents, in practice J. Edgar Hoover served only himself.
Friday, November 11, 2011
When the news of Bernard Madoff 's Ponzi scheme broke, Americans were shocked and outraged, perhaps none more so than the unsuspecting members of his own family. After learning that their father's legendarily successful wealth management company was "all just one big lie," Mark and Andrew Madoff turned their father in and cut off all communication with both parents. Mark and his wife, Stephanie, strove to make a fresh start for the sake of their two young children, but Mark could not overcome his sense of betrayal and shame-he and other family members were sued for $200 million in October of 2009. He hung himself on the two-year anniversary of his father's arrest. Left to raise her children as a single mother, Stephanie wrote this memoir to give them a sense of who their father really was, defend his innocence, and put her personal statement on record once and for all. In this candid insider account, she talks about her idyllic wedding to Mark on Nantucket, what it was really like to be a part of the Madoff family, the build-up to Bernard's confession, and the media frenzy that followed. It is about the loss of the fairytale life she knew, adjusting to life with a man she hardly recognized anymore, and the tragic and final loss of her husband.The 20/20 video is available here. The book is available here from Amazon. The Sentencing Law and Policy Blog has a post regarding the above interview as well, available here.
Bernie Madoff's wife, Ruth Madoff, and son, Andrew Madoff, recently gave their own interview to 60 Minutes. That interview can be found here.
Finally, Bernie Madoff gave his own recent interview to Barbara Walters for an ABC News Barbara Walter's Exclusive. Though Walters was not allowed to bring a tape recorder or video camera to her interview, she discussed Madoff's answers here. At the same link, one can also learn about the process of conducting the interview. Walter's writes,
We went through two more gated rooms -- each time a door swung closed behind us, another door swung open in front of us. Finally we were led to a corridor with columns on one side that open to a courtyard in the middle of the complex. The courtyard had beautifully manicured gardens, which we learned were courtesy of the prisoners who maintain the grounds.One can also read more about Madoff's answers to Walter's questions here.
We were ushered into the private Assistant Warden's Conference Room. There were two long tables with about 10 chairs at each table. Walls are cinderblock painted white, with Inspirational "TEAM" posters on the wall and a computer in the corner. I was briefed about my visit and the prison rules, and then 10 minutes later Madoff was brought in by the assistant warden.
Madoff was wearing the standard prison uniform. Khaki pants, khaki short-sleeved shirt with white buttons, non-descript black sneakers with Velcro closures. He has gray hair and wears brownish wire-rimmed glasses, with bifocal lenses. He has an occasional tick (blinking of the eyes) which gets worse when he is discussing difficult matters. I was allowed to shake hands with him, then we sat down to talk.
Finally, I sat face to face with inmate #61727-054, the man many consider a monster.
Convicted Ponzi schemer Bernard Madoff was forced to "let ... go" of his wife almost a year ago and is wracked by "horrible nightmares" as he sits in a North Carolina prison, he told ABC News' Barbara Walters in an exclusive interview.
Though he "can live with" the anger of people he defrauded out of billions of dollars and he is adjusting to the rhythms of life in prison, even at 73 years old, he is troubled by anger and turmoil within his own family.
"Not seeing my family and knowing they hate me" is the worst thing about being in prison, he said. "I betrayed them."
Asked what he'd like to say to his grandchildren, he said, without apparent emotion, "I am sorry to have caused them pain."
Thursday, November 10, 2011
Below is a portion of the LA Times piece.
In 2007, Galin E. Frye was charged by the state of Missouri with driving with a revoked license, a felony because he had several previous convictions. The district attorney offered Frye's lawyer a plea bargain under which Frye would serve only 90 days in prison. The lawyer, however, didn't inform Frye of the offer, and Frye ultimately pleaded guilty and received a three-year sentence.An ongoing discussion regarding the cases is available at the Scotus Blog here.
The second case stemmed from a 2003 incident in which Anthony Cooper shot a woman in her buttock and thighs, causing serious injuries. Prosecutors offered Cooper's lawyers a plea deal in which he would serve a minimum sentence of 51 to 85 months. Cooper turned down the offer because his attorney inaccurately (and bizarrely) told him that he couldn't be convicted of intent to murder because his victim was shot below the waist. Cooper went to trial, was convicted and was sentenced to 185 to 360 months.
At oral arguments last week, some justices suggested that such errors were harmless if the defendant subsequently received a fair trial. But, as Cooper can attest, that's not true: Mistakes of this sort can be extremely harmful. Justice Elena Kagan succinctly summed up the injustice of penalizing defendants for the blunders of their lawyers: "Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea-bargaining stage."
The criminal justice system would grind to a halt if every defendant insisted on his right to trial. But even those who regard plea bargains as a necessary evil must acknowledge that they should be fair.
In a 1984 decision, the court defined ineffective assistance of counsel this way: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the 6th Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Those conditions are clearly met when an attorney fails to tell a client about a favorable plea offer or discourages him from accepting one on the basis of false information. The Supreme Court should so rule.
The transcripts from the Supreme Court arguments are availabe here.
In an article that will appear later this year in the Utah Law Review, I take on the issue of plea bargaining and its constitutionality as currently utilized by prosecutors. The abstract reads as follows.
If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.
The plea bargaining article is available here. A follow-up article discussing the topic further and examining the prevalence of innocent people who falsely confess through plea bargains will be available later this year.
Tuesday, November 8, 2011
The imprisonment of human beings at record levels is both a moral failure and an economic one—especially at a time when more and more Americans are struggling to make ends meet and when state governments confront enormous fiscal crises. This report finds, however, that mass incarceration provides a gigantic windfall for one special interest group—the private prison industry—even as current incarceration levels harm the country as a whole. While the nation’s unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards. As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading companies rake in enormous compensation packages, in some cases totaling millions of dollars.The ACLU report is available here.
I recently published an article regarding prisons in the Stanford Law & Policy Review. The article describes my experiences touring prisons in the United States, Israel, and the Netherlands.
In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks. As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination. Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling. At a minimum, the court’s actions indicate that a perception has developed in the world that the American penal system has gone astray. But are prisons in the United States that much different from those found in other parts of the world?The Stanford Law & Policy Review prison article is available here for free download.
In the spring and summer of 2010, I traveled to prisons in the United States, The Netherlands, and Israel to compare the way each country detains its most violent and culpable residents. The results of this research indicate something quite striking about what makes prisons around the world successful and offer a sobering examination of the deficiencies present in many under-funded American institutions.
This article will begin by examining the cultures of four prison facilities: two prisons in America (one federal and one state), a prison in The Netherlands, and a prison in Israel. For each institution, this article will offer a narrative of my observations regarding the prison’s structure and security, living conditions, and programming. In particular, the examination of each prison facility will include discussion of the apparent significant impact of each prison’s culture on the perceived rates of violence, the financial costs of administration, and the achievement of moral obligations regarding the treatment of prisoners. Through this analysis, this article will first propose that prisons with cultures that create a sense of community within the inmate population benefit from lower rates of violence. Second, the article will contend that lower rates of violence also lead to reduced costs of administration. Finally, this article will argue that regardless of the above-described benefits it is also morally correct to create positive prison environments rather than permit prisons to become warehouses for societal outcasts.
According to Bloomberg, David Plate, a former trader at Schottenfeld Group LLC has received no prison time for his role in the massive Galleon Group insider trading case.
David Plate, who admitted to participating in an insider-trading ring with ex-Galleon Group LLC trader Zvi Goffer and testified at his trial, was sentenced to three years’ probation and six months’ house arrest.
Plate, 36, a former trader at Schottenfeld Group LLC, was one of 26 people charged in two overlapping insider-trading cases involving Galleon Group founder Raj Rajaratnam. He pleaded guilty in July 2010 to securities fraud and conspiracy to commit securities fraud and testified at the trial of Goffer, his brother Emanuel Goffer and trader Michael Kimelman.
U.S. District Judge Richard Sullivan in Manhattan, who presided over the case, today called Plate a “significant”prosecution witness who deserved a reduced term because of the help he gave to the government. He cited the recommendation of Assistant U.S. Attorney Andrew Fish, who said Plate provided information about the insider-trading scheme that no other witness knew.
“Your cooperation was substantial and you were a very important witness at the trial,” Sullivan said.
Plate, who was arrested along with 14 others in November 2009, told the U.S. that while working at Schottenfeld, he received inside information from Zvi Goffer about the acquisitions of 3Com Corp. and Axcan Pharma Inc. and traded on that information in his account and in an account he managed for his sister.
Friday, November 4, 2011
In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence.
The former asphalt facilities manager of Pelican Refining Company LLC (PRC), pleaded guilty today [october 31, 2011] to the crime of negligent endangerment under the Clean Air Act in federal court in Lafayette, La., announced Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice and Stephanie A. Finley, U.S. Attorney for the Western District of Louisiana.According to government, the company, Pelican Refining Company LLC, and others have also pleaded guilty in the matter.
Mike LeBleu served as the asphalt facilities manager of the Pelican Refinery in Lake Charles, La., from May 9, 2005, through Oct. 15, 2009. LeBleu was a member of upper management with regard to the asphalt plant and had overall responsibility for the plant’s operations and personnel. According to court documents, LeBleu negligently caused the release of hydrogen sulfide (H2S), an extremely hazardous substance, into the air, which placed other persons in imminent danger of death and serious bodily injury.
LeBleu faces a maximum of one year in prison and a fine of $100,000.
In related cases, PRC pleaded guilty on Oct. 12, 2011, to felony violations of the Clean Air Act and obstruction of justice for its mismanagement of the refinery. Sentencing is scheduled for Dec. 15, 2011. Additionally, the company’s vice-president and general manager, Byron Hamilton, pleaded guilty to Clean Air Act negligent endangerment charges on July 6, 2011. Sentencing has yet to be scheduled for Hamilton.
According to the New York Times, "Prosecutors and federal agents seemed stunned, if pleased, and declared that the plea was evidence that the American court system, as opposed to a military tribunal, could bring a suitable outcome to a terrorism case."
The New York Times story continued:
Almost two years after fellow passengers flying aboard Northwest Airlines Flight 253 watched in panic and confusion as smoke and flames rose from Mr. Abdulmutallab’s lap, he pleaded guilty to eight federal crimes, including conspiracy to commit an act of terrorism, attempted murder and attempted use of a weapon of mass destruction. He was offered no deal from prosecutors in exchange for his plea. He faces sentencing in January, but prosecutors said the nature of some of the crimes he pleaded guilty to automatically required a life sentence with no chance of parole.
The choice appeared less a strategic legal calculation than an opportunity for Mr. Abdulmutallab, who has described himself as a member of Al Qaeda and who prosecutors say conspired in his plan with other members of Al Qaeda, to make a public statement certain to reach a wide audience.
After telling Judge Nancy G. Edmunds that he was indeed pleading guilty to each count against him, Mr. Abdulmutallab read a statement that he had written saying that his behavior may have violated American law but that it was in keeping with Muslim law, and that his efforts to harm Americans were retribution for American acts around the world.
“I attempted to use an explosive device which in the U.S. law is a weapon of mass destruction, which I call a blessed weapon to save the lives of innocent Muslims, for U.S. use of weapons of mass destruction on Muslim populations in Afghanistan, Iraq, Yemen and beyond,” Mr. Abdulmutallab, a Nigerian citizen in his 20s, said quietly and calmly. In repeated appearances in court, Mr. Abdulmutallab, the well-educated son of a wealthy family, has almost seemed to have two personas: a polite, silent observer who appeared small at the defense table, and an unruly onlooker who would suddenly yell out messages of support for Osama bin Laden and Anwar al-Awlaki, who was recently killed by a missile from an American drone. The American authorities have described him as a leading figure in a Qaeda affiliate in Yemen.
“If you laugh at us now,” he said Wednesday, during the statement in open court that went on for several minutes, “we will laugh at you later.”
...In Washington, Eric H. Holder Jr., the attorney general, issued a statement on the verdict. “Contrary to what some have claimed, today’s plea removes any doubt that our courts are one of the most effective tools we have to fight terrorism and keep the American people safe,” he said. “Our priority in this case was to ensure that we arrested a man who tried to do us harm, that we collected actionable intelligence from him and that we prosecuted him in a way that was consistent with the rule of law.”
In an article I published last year, I discuss some of the motivations behind terrorist suspects pleading guilty. The article is available here.