15 October 2019

Non-Unanimous (Super-Majority) Verdicts

In case you've been living under a legal rock, let me inform you that most States and the federal courts require a unanimous 12 person jury to convict someone of a criminal offense. Now, the last couple States that allow super-majority verdicts (10-2) are being brought before the US Supreme Court on claims that a less than unanimous verdict is unconstitutional (specifically, it's Ramos v. Louisiana). And if you look around, all the talking heads types are fairly confident that the court will take the power of determining jury use away from the States and mandate unanimous jury votes from here on out.

JURY REFORMS IN OTHER COUNTRIES

No matter how much the American legal system has come to cherish this unanimity (while at the same time doing everything it can to de facto eliminate jury trials), this is not a mandated outcome of the constitution as written. As is often the case, we can look to the development of jurisprudence in England in order to see see an equally valid version which could have developed in the United States. In Section 13 of the Criminal Justice Act 1967, later replaced by Section 17 of the Juries Act 1974, England and Wales codified conviction by super-majority. Under this system, the jury has two hours to reach a unanimous verdict under the statute and apparently ten minutes has been added for time to travel back and forth to the jury room. Crown Court Compendium Part I21-4 Majority verdicts.  If they have not reached a unanimous verdict after two hours at any time thereafter (at the judge's discretion) they get an instruction from the judge that contains these elements:

(1) They should still, if at all possible, reach a unanimous verdict.
(2) If however they are unable to reach a unanimous verdict the time has now come when the court could accept a verdict which is not unanimous but one on which a majority of at least 10 of them agree; that is to say a majority of 10/2 or 11/1. 
Crown Court Compendium
Or if you prefer to see a version of this delivered (although fictionalized):
I would of course prefer a unanimous verdict, but I'm prepared to accept one upon which at least ten of you are agreed.
Kavanagh QC, Season 1 Episode 1, 01:32:05 (here on Amazon)
England/Wales weren't the first to reform toward super-majority juries. In Australia the various states adopted this systemSouth Australia (1927), Tasmania (1936), Western Australia (1960), the Northern Territory (1963), Victoria (1994), and New South Wales (2006). In 2009, New Zealand adopted super-majority verdicts. Jamaica adopted them in 2010. Of course, you could complain that these are all modernish developments and be semi-correct. If you did, I'd pass on arguing whether 1927 or 1936 could be called even modernish and point you to the Scottish system which has allowed simple majority verdicts in criminal trials since the 16th century.

So, you see, the unanimous 12 person jury was not some predestined commandment based on ingrained natural law. Instead, it's the shadow on the cave's wall. The question is how we've become so rapt in our belief of the reality of the shadow.


INITIAL REJECTION OF UNANIMITY

The entirety of the mentions in the constitution having to do with criminal petit juries are:

Art. III, Sec. 2(3): The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Amendment VI:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.
You'll notice that no requirement of unanimity under either passage. So where does it come from? We know that a lot of the Bill of Rights was based upon the Virginia Declaration of Rights (incorporated as the first part of Virginia's constitution). However, we can see that portions of the VDR were rejected.
That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.VDR Section 8.
Of particular interest to this discussion is the fact that Virginia's requirement "without whose unanimous consent he cannot be found guilty" was passed over in the federal version. We know that when the 6th Amendment was being put together by Congress language requiring unanimity was proposed:
The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction . . .
1 Annals of Congress 435 (1789)
Congress chose not to include the language requiring a unanimous verdict.

EX POST FACTO CLAIMS

What followed was something we see far too often. Those who couldn't get their version into law declared that it was the law anyway. Here's an article from Reason in favor of unanimity that does a good job of summarizing all the ex post facto claims that the 6th Amendment says what it doesn't say - or at least encompasses unanimity by the mere mention of the word "jury." This interpretation sweeps aside Congress' choice not to include the requirement and the States' ratification of that choice by adopting the amendment as written (the States initially rejected two amendments).

BLACKSTONE -  THE COMMON LAW AS CONSTITUTION?

The strongest argument for the word "jury" including in its definition unanimity is that it was that way under the common law. As with all things common law, the go to place to find this is Blackstone:
UPON theƒe accounts the trial by jury even has been, and I truƒt ever will be, looked upon as the glory of the Engliƒh law. And, if it has ƒo great an advantage over others in regulating civil property, how much muƒt that advantage be heightened, when it is applied to criminal caƒes! But this we muƒt reafer to the enƒuing book of theƒe commentaries: only obƒerving for the preƒent, that it is the moƒt tranƒcendent privilege which any ƒubject can enjoy, or with for, that he cannot be affected either in his property, his liberty, or his perƒon, but by the unanimous conƒent of twelve of his neighbours and equals. 2 Blackstone's Commentaries Chapter 23: Of the Trial by Jury, p. 379 (Book Three).
Of course, as with all things Blackstone, this is a cherry-picked section which provides support for a favored position. Remember, this is the same book that says:
WHEN the evidence is gone through on both ƒides, the judge in the preƒence of the parties, the counƒel, and all others, ƒums up the whole to the jury; omitting all ƒuperfluous circumƒtances, obƒerving wherein the main queƒtion and principal iƒƒue lies, ƒtating what evidence has been given to fupport is, with ƒuch remarks as he thinks neceƒƒary for their direction, and giving them his opinion in matters of law ariƒing upon that evidence.
I dare a trial judge out there to sum up the evidence only including what she thinks is relevant and to tell the jury what facts she thinks they should concentrate on. You could probably put a stopwatch on how quickly an appellate court would overturn that conviction.

Anyway, Blackstone provides the best legal argument for those wanting to declare that less than unanimous verdicts were unconstitutional from the beginning.  Of course, it assumes that this part of the common law was constitutional and neither merely a law nor a part that has been ignored as not fitting in the current American legal framework. Clearly, the parts about "affected . . . in his property" and the twelve person requirement have both been found to be laws, not constitutional guarantees and this shouldn't bode well for claiming the rest of the statement is something guaranteed.
 
Other than that those arguing unconstitutionality are on even thinner ice. Those more disposed toward legal arguments rely on Blackstone combined with the ex post facto arguments above made by those who couldn't get Congress to include their proposed condition in the 6th Amendment.

INSTITUTIONAL GUILT

Some are making the argument that the non-unanimous rule should be done away with because of problems specific to Louisiana's adoption of the rule. Although neutral on its face, it was adopted for racist reasons. In 1880 the US Supreme Court ruled that Blacks must be allowed to serve on juries. In that same year, Louisiana changed its laws so that conviction would be allowed at 9-3 (changed in 1974 to 10-2); this was made part of their constitution in 1898. Thus, considering its roots, it should be swept away.

MAJORITARIANISM

Unfortunately, a potentially powerful argument in favor of the unanimity requirement is that of majority rule. Of course, it's not the job of the constitution to impose what a majority of states choose upon the minority of states, but let's be realistic. It's a powerful influence even when it shouldn't be. 

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ARGUMENTS AGAINST CONSTITUTIONALLY REQUIRED UNANIMITY

(1) CONGRESSIONAL CHOICE:  The Congress by choosing not to include it in the 6th Amendment set unanimity of jury verdicts solidly in the "law" part of American jurisprudence rather than the "constitution" part. Thus, it falls within the realm of the Congress and the law making bodies of the various states to determine whether a jury verdict should be unanimous because every single body that determines law can change or outright override the common law.

(2) CONGRESSIONAL KNOWLEDGE:  Furthermore, it was well within the knowledge of a number of the writers of the Constitution and Bill of Rights that there were places in the world where a unanimous jury verdict was not required for conviction. Remember, the man who wrote the Constitution was born in Scotland. In fact, the members of Congress didn't even have to look overseas to find this legal condition. Connecticut, Pennsylvania, North Carolina, and South Carolina during colonial times developed jury systems that did not require unanimous verdicts (see note 45 here). The proposal for a unanimous verdict clause in the Constitution and its rejection did not occur in a vacuum.

(3) NEUTRALITY OF THE STATUTORY SCHEME:  There is nothing inherently racist, sexist, or anti-religious about a super-majority verdict. While this case and the news coverage of it have concentrated on the problematic origins of Louisiana's and Oregon's rules allowing super-majority verdicts, you'll notice that none of them comment on the military's use of majority juries. It doesn't fit the narrative. Neither does the adoption of super-majority verdicts in many (perhaps most) of the countries which have judicial frameworks that find their roots in the same British common law system as ours sprang from. Our system is the one that's anachronistic. And, of course, California isn't exactly known as a hotbed of laws based on racial bigotry and it considered changing to majority verdicts three times from 1980 to 1995.

(4) TRYING TO FIX THE WRONG PROBLEM:  The problem isn't really super-majority verdicts. The argument proceeds as such: the requirement that only ten people have to vote for a finding of guilt allows African-American votes on the jury to be silenced. If this is true, the problem isn't in the allowance of super-majority verdicts; it's in jury selection. 

32.18% of the residents of Louisiana are Black. As such, a twelve person jury should have at least three Black jurors and usually four. That means that a minimum of one or two Black jurors would need to vote for conviction in order to reach the super-majority. If the number of Black jurors on a jury aren't representative then the problem isn't the super-majority requirement - it's the summoning and selection of jurors. Assuming bad intent, the problem is found in the biased creation of the list of potential jurors, or the over-liberal allowance of strikes for cause, or the poor enforcement of Batson. The problem here might be that none of that applies. I can't find anything - including Ramos' brief - that states the composition of the jury had two or less Black jurors. I would expect that to be the lead fact pointed to if it were so. It's also of note that apparently Ramos identifies or at least was identified at trial as "Mexican or Hispanic" (Ramos' brief) which calls into question whether the number of Black and White jurors is even relevant.

His lawyers had to work with what they had. If they couldn't demonstrate actual prejudice they were left with an abstract argument that didn't have any real personal emotional hooks. Obviously, they've done a good job to get it this far, but that doesn't mean they're right.

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WHY WE ARE HERE

Because the controlling precedent in this area, Apodaca v. Oregon, is weak. It's one of those 4/4/1 opinions you only see from the Supreme Court (because nobody else could get away with it). 4 justices wanted to make the states have unanimous juries, 4 justices didn't think the 6th Amendment required unanimity, and Justice Powell struck out on his own deciding that the 6th Amendment required unanimity but that it didn't apply to the states. As the Supreme Court has imposed more and more of the Amendments on the States through the 14th Amendment Justice Powell's decision has become more and more tenuous. Back in the day, the justices chose which parts of the constitution applied to the states; now they just impose everything.

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EXPECTED DISPOSITION

I expect this will be a fairly shallow opinion. That doesn't mean it won't be between 25 to 40 pages, replete with tons of citations, and filled with repetitive circular reasoning (this is the Supreme Court after all). It simply means that I expect the justices to impose all of their 6th Amendment precedent on the states without a serious consideration of whether the precedent of unanimous juries should stand.

Even were they to consider it, I wouldn't expect a decision based on solid constitutional grounds. Oh, sure, there'd be lots of legalistic sophistry, but this one is a rule of five situation where the Supreme Court has already sat and would sit as a super-legislature writing laws. It would be decided on the "feels." Instead of recognizing the Constitution as a framework that allows different possibilities within the limits laid out in the 6th amendment, the Court would again impose the unanimous jury on every state. It would do so because it feels like they ought to. The vast majority of states already do it. Louisiana, the state specifically involved in this case, has changed its law to require unanimous verdicts. Extra-legal, American institutionalized guilt would weigh in. Whatever the  legal excuse given, the feels are the real reason this Court would affirm another denial of the power of states to decide their own laws.


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WHY IT IS IMPORTANT

America is behind in the jury reform movement. While we mouth words about how sacrosanct the jury is, in reality we are making it more and more like a unicorn: a beautiful creature of myth that is never seen. Drop in on your local felony court on any given day and you'll almost never see a jury. Juries are heavily disfavored and discouraged to the point that the defendants who demand them are usually irrational or have nothing to lose. They are inconvenient, time consuming, expensive, and take matters out of the hands of legal professionals (the unforgivable sin). They were as well in the countries who have engaged in reforms.

This is not to say that super-majority verdicts would bring back the number of juries seen in previous eras. It's just a start, but it's a start that has been adopted almost everywhere with a jury system similar to ours. When you're the odd man out, it's not a bad thing to reconsider your position. However, once the Supreme Court has declared that the states no longer have the power to reconsider, this rule will be carved in stone until the end of time unless someone amends the Constitution. Since we now seem to consider the Constitution as Holy Writ (rather than merely foundational, and changeable law) that is highly unlikely.

09 October 2019

Is it a Guilty Plea if the Plea Never Ends?

Judge: "You're pleading guilty to snipe hunting and before I can accept the plea I have to make sure that it is voluntarily made and that you understand what you're doing so I'm going to ask you some questions."

Mabel: "Okay."

Judge: "Before you pled guilty did your lawyer answer all your questions about what you were charged with, your options, and the consequences of a guilty plea?"

Mabel: "No."

Judge: "Ma'am, didn't you talk with your attorney about your case?"

Mabel: "Yes, but I didn't ask any questions."

Judge: "Ooookay. So you met with him. Did the two of you discuss the case?"

Mabel: "I guess you could say that."

Judge: "No, ma'am, I can't say anything. You're the one who has to answer the questions. Did you meet with your attorney prior to this hearing?"

Mabel: "Yes."

Judge: "Did your attorney explain to you your right to go to trial, have a jury, the possible results of trial and the consequences if you accept the plea agreement offered by the prosecution?"

Mabel: "I guess so."

Judge: "You can't just guess, ma'am. You have to give an answer."

Mabel: "Okay. Yeah"

Judge: "Yeah you'll answer the questions or yeah he explained things to you?"

Mabel: "Yeah, I'll answer the questions."

Lather. Rinse. Repeat. It takes the judge what seems like hours to get the defendant through what should have been five minutes of questioning because he has to pin her down to get actual answers. I'm sitting there watching all this with semi-fascination from the prosecutor's table and the defense attorney has chosen an enthralling section of wall to give her full attention. Personally, I'm having an internal debate over whether Mabel is on the simple side and just trying to answer as best she can or if this lady is some sort of manipulative mad genius who has decided she's going to keep us in the courtroom until we all die from old age. The judge solved that quandary for all of us.

Judge: "Now, you've pled guilty to snipe hunting. Hunting snipe is illegal. So if you snipe hunt you break the law. Tell me what you did to get convicted of snipe hunting."

Mabel: "I did something wrong."

04 October 2019

Alternative Sentencing and the 24 Judges

A group of professors got together and decided to review compliance and attitudes toward alternative sanctions as they have played out in Virginia under the "Non-Violent Risk Assessment" portion of its sentencing guidelines (link here). They, of course, have the dogmatic belief of all academics that anything which keeps a non-violent offender out of prison is a good.1 It colors the paper, but not enough to make it unworthy of a read.

I'm going to offer some observations and critiques. Most are going to be Virginiacentric, but they could still be interesting to those of you with the poor sense to live elsewhere.

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Assumptions / Assertions

(1)  To begin with, the article assumes that sentences increased as a result of Virginia's Truth in Sentencing reforms put in place in 1995: "One of the net effects of TIS was to increase the time served by those convicted of felony crimes." This is unattributed and feels like it proceeds from a shallow understanding of TIS. Yes, parole went away which would seem to increase actual sentences. However, at the same time the sentencing guidelines were put in place which lowered sentences back down to about where they actually were under parole. I am a post '95 attorney, but I was close enough to have heard the stories about judges getting talked to for not following the guidelines and sentencing too high (and adjusting their sentences downward to ensure they got reappointed the next time they went before the legislature). I'd really like to see something more than a bald assertion about sentence lengths on lesser felonies.
(2)  "Those who plead guilty to charges were more likely to receive alternative sanctions than those who went to trial."
Absolutely. If you accept responsibility rather than having it thrust upon you then you have taken the first potential step in moving in the right direction toward improving yourself. That voluntary step forward should be rewarded.
(3)  "Males were also found to be less likely to receive a first offender waiver from incarceration than females."
Yes. This is a result of actuarial tables as to the probability of re-offending showing a higher rate for males. It's also a result of the guidelines being entirely discretionary and Virginia statutes forbidding them to be a basis of appeals. If they were mandatory, the fact that the NVRA is openly biased against males would be a serious constitutional issue.

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Methodology

Of the 161 felony trial judges in Virginia, 30 agreed to be interviewed and only 24 actually were. As the authors concede this carries with it the probability of selection bias. They were questioned about the NVRA and their answers were stirred into a pot until certain "themes" were noted. This, of course is inductive reasoning. The academic doublespeak used to describe this by the authors is "an interpretivist approach based on inductive thematic analysis." That gobbledygook could mean anything so the authors are kind enough to explain it further: "Inductive thematic analysis draws from a constructionist worldview in which  [is] meaning and experience are socially-produced and can be uncovered through an examination of the structur[es] al constructs within the collected qualitative data."2  In other words, they're using inductive reasoning.

Inductive reasoning gets a bad rap sometimes. However, in the soft sciences it is the best you are going to get. There are too many constantly shifting variables for deductive reasoning and replicable tests. It's a valid research tool for a study, although you do have to point out weaknesses in a specific study. The specific dings on the study used here would be that the interviewees were self selecting (showing some sort of potentially skewed interest in the subject), the survey pool was too small, and  the data was created instead of mined from a third party data set (increasing the possibility of introduced biases). None of these invalidate the observations made in the paper; they would however increase the margin of error one might attach to any observation. However, in this case I don't think the margin of error would be enough to invalidate all the themes (save perhaps theme 4) the authors pluck from their data.

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The Themes

The authors point to seven "themes"3 which they distill from the data set they've created. Next, they claim the "themes were then organized in a conceptual map that offered a general description of the factors influencing the use of risk assessment in sentencing." I think that's more academic buzzspeak surplusage because all they actually do is lay out the themes without any kind of discussion of their interactions and the general weight a judge might give to each theme as one might expect from a conceptual map. In any case, here are the themes:
(1) The NVRA is non binding. 
A strong majority of judges consider it as a factor without it trumping all other factors during sentencing. The professors later in the article suggest making the the NVRA presumptive instead of discretionary. As a practical matter, this would be contrary to the general operation of Virginia's guidelines and give rise to valid constitutionally based appeals as described above.
(2) Deference is given to plea agreements even if they are contrary to NVRA.
Yes, a judge should have a strong preference in favor of a pre-negotiated deal with which both the prosecution and the defense have agreed. A judge knows little or nothing about the facts of a case when he is handed a plea agreement and, at least in Virginia, a judge is forbidden to participate in plea negotiations and should he reject a plea deal the case is assigned to another judge. Should a judge start denying plea agreements because they are contrary to the NVRA, (1) he is arguably participating in plea negotiations, and (2) he might be rejecting a lot of plea agreements and accomplishing almost nothing when those agreements are accepted by a subsequent judge. Well, nothing except having to answer why he rejected two-hundred agreements that were accepted by another judge the next time he is before the legislature trying to get reappointed to his job.

BTW: The authors do a clever thing here where they flip the script and talk about how this could lead to a number of people getting alternative punishments who do not qualify under NVRA. In so doing, they have accidentally tripped over a real issue with NVRA. Males under the age of 30 almost never qualify for alternative punishment. Assuming that alternative punishment is a proper reaction to criminal activity, it cannot be proper to exclude all males from it. Thus, assignment of a male to an alternative program is almost always contrary to NVRA and often the only way they can get there is thru a plea deal.
(3) Lack of alternative programming capacity.
This really is a serious problem. It's a money issue. The problem with this sort of thing is always going to be money. I suspect that if the survey had been completed by all the judges in Virginia this would have been the predominant reason given. There is only so much money a legislative body - be it the General Assembly or the local county board of supervisors - is going to be willing and able to allocate to this as opposed to things such as fixing roads or educating children. Keep in mind, one of the major selling points of these programs is that they will save money, not cause an infinitely growing amount of expenditures.

In Virginia all courts have at least two options available: advisement and CCAP (formerly Detention and Diversion). Rather than reinventing the wheel, here is a link to a post I think is still generally correct from several years back. As the authors point out, many of these programs are limited by available slots and whether the defendant is medically capable of being in the program.
(4) Valuing risk assessment as a way to reduce incarceration rates.
 No. Just No. Nobody thinks about incarceration rates in the courtroom. Their own quotes in this section support this. They quote judges not wanting to send people to prison who are addicted or "low level" offenders. None of them are talking about incarceration rates.

Defense attorneys are trying to get their client the best deal they can with a strong, strong presumption that the client's liberty interest is paramount. Prosecutors are at the very least responsible for protecting the citizenry from destructive behavior first before they start to think about fixing the person who harmed the community; in other words, when they push to incarcerate they are looking toward their community's interest, not how many people are held by the Department of Corrections. The judge is responsible for visiting appropriate consequences on the guilty person standing in front of him. Rate of incarceration is an issue for the legislature, not the people int he courtroom.

A better theme here might have been "Concern that incarcerating low level offenders is not appropriate."
(5) Skeptical that the NVRA is actually predictive.
As the authors point out, judges were particularly skeptical as to the NVRA's ability to be predictive as to the risk of re-offense by addicts; one judge among the interviewed flat out told them that this isn't science. I think this is reflective of a general thought pattern you will find amongst almost anyone that does much work in criminal courtrooms. We see so many recidivists that it's hard to not be colored by it. And almost all of them have had prior opportunities attached to prior convictions.

The problem with things like the NVRA is that they are not predictive as to the individual standing in front of the judge. They are predictive as to trends within a group. Thus, they aren't really scientific when applied to a single person while they might be toward the population in general. Let's put this in perspective. Assume this advertisement is right and 60% of adults have farsightedness (not likely, but don't get sidetracked). You wouldn't want a doctor to immediately stick you in a chair and start lasik because the trend among adults is that the majority have nearsightedness. No one would question the fact that the doctor runs specific tests and examinations to determine whether you as an individual are farsighted. Large group data trends may give the doctor an idea of what to look for; they should never be dispositive as to the individual patient.

The same principle applies with an individual in front of a judge. The NVRA may give a judge an idea of which way most convicts will behave in the future. The judge must consider the facts in the presentence report and other evidence presented to make a valid determination concerning the actual person standing in front of him. The NVRA isn't predictive as to the actual person and therefore should not be dispositive.
(6) Judges aren't sure whether  following the NVRA is a downward deviation from the guidelines.
I must admit, I never thought about this before reading the article. Inasmuch as the guidelines say a defendant should get between 7 months and 2 years engaging in alternative sentencing without incarceration seems to be a downward deviation. However, it is an authorized downward deviation and shouldn't count negatively in whatever statistics the legislature maintains on sitting judges. However, I do not know how the legislature actually handles this.
(7) Lack of training on NVRA.
Why would judges require indepth training on this? They understand the legislature has made this a part of the guidelines and therefore a part of the sentencing process if a defendant is being sentenced by the judge. The ones who put thought into it most likely figure out the same thing I reasoned out under theme 5 above. Training as applied here feels more like it is meant as advocacy on the behalf of those who believe the NVRA should be blindly applied to make a better world where actuarial tables determine who should and shouldn't receive alternative sentences without resort to consideration of the particular person being sentenced.

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My Thoughts

The NVRA isn't a bad thing or even a good thing. It's just a thing. It's something of a shame that it has been tacked onto the end of the guidelines where it is more likely to be ignored by all unless it benefits one party or the other during arguments over sentencing. If it were at the front of the guidelines it could show the judge the general trend against which he should view the defendant and the evidence provided for her individualized sentence.

I also wish it was more nuanced. As it stands if the points scored in the NVRA are below 32 the defendant qualifies for alternative punishment. I would much prefer, and believe it would be more helpful, that the NVRA were to provide a percentage of potential to re-offend for persons of like circumstance as the defendant without setting a specific line above which persons don't qualify. I realize that the default to simple, easily workable solutions will probably keep this from happening, but I can dream.

And, no, the actuarial tables represented by the NVRA should not become mandatory or even presumptive. The NVRA is a tool among many tools which can be used to decide an individualized sentence. If they were even presumptive the rest of the tools would be ignored the vast majority of the time and that's not the appropriate way to sentence any particular person.

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1 Experience in several jury trials, tends to show that the citizens of my county would disagree with this. In my locality there is a long standing joke that the best defense to murder is "He needed to be kilt" and lower level violent crimes tend to get swept up under the term "swarping" which generally means drunk/stupid/fighting and excused as typical Friday night behavior. But God help you if you if you shoplift a $5 item from the local grocer; years have been imposed for such an offense by the jury (jury sentencing, the ultimate barometer of community standards).

2  Yes, yes, I get it. You are terribly modern or post-modern or whatever the current accepted terminology for being an academic hipster is. Your rejection of pre-existent first principles contributes nothing. The basis for the forms in the data (themes in your chosen language) is not relevant only the presence of the forms is.

3  If you've had any sort of training in philosophy or theology you might recognize what they are actually discussing are forms. Out of several similar answers they derive one perfect answer - a form. Referring to it as a "theme" is ambiguous and awkward, but I will use their language because it's their paper.

30 September 2019

Virginia's Criminal Statutory Code Ranks _____ in the U.S.

Going through SSRN yields a lot of fairly worthless papers, but even the worthless ones can be fun at times. Professor Paul Robinson is an extremely prolific writer who has put out all sorts of papers - some few of which might actually be useful to lawyers who actually practice criminal law. However, we're not going to concentrate on one of those today. Instead, we're going to look at the one in which he ranks the criminal codes of the various States. It's pretty obvious looking through his curriculum vitae that he's a big believer in the model penal code and the American Law Institute.1

When I saw his article ranking all the criminal codes in the various states as well as the federal code and D.C.'s code, I thought I'd look to see where the Great Commonwealth of Virginia ranked. Honestly, I was pretty certain that, as a common law state which rejected the MPC out of hand (it wasn't written by Jefferson), Virginia would be in the bottom five. However, I was also fairly certain that Virginia wouldn't be the last. As always in these kind of things, I knew in my bones that some Deep South state would be singled out as the absolute worst - probably Louisiana or Mississippi (because they always are).

Comprehensiveness:  47/52
Because Virginia uses a common law system and therefore doesn't have all the crimes in the code, this score wasn't terribly surprising.

Effectively Communicate Rules of Conduct:  32/52
This was a little surprising considering that many of Virginia's crimes are not statutory, but derived from the common law.

Comprehensiveness and Accessibility of Principles of Adjudication (are the rules well laid out and complete):  41/52 (tied with five other states)

Accuracy in Imposing Liability: 45/52 (tied with one other state)
This is entirely subjective on the author's part. The states which he believes are too tough on low level crimes get worse scores.

Accuracy in Grading Liability and Punishment (does the code provide consistent punishment and do the authors think it is sufficiently distinctive in its various levels of punishments):  21/52 (tied with two other states)

Overall:  37/52

Worst State:  Mississippi

Best State:  Texas

Grading Myself: Well, as to my actual two predictions I was 50-50. I pegged the conclusion as to the worst state. I totally whiffed on Virginia being in the last five. I will say that Texas being graded as the best criminal statutory system in the United States was a bit of a surprise. I must admit I never thought I'd see an academic saying that Texas' criminal justice system is the best out there.

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Remember folks, this is a subjective test which favors the criteria in line with the biases of the author. As a practical reality your basic criminal defendant isn't affected by the fact that the elements of larceny aren't in a specific statute, but are found in a case from 1842 that is referenced in a practice book. Defendants rarely go research the definition of a crime before they batter someone, or bomb a building, or shoplift a necklace, or rob a bank. Heck, even the lawyers and judges aren't terribly affected by where the law was initially written down. Where the elements for larceny come from isn't terribly important; the issue is whether they are proven.

Still, these kind of articles are fun puff pieces to read through and see where your state ranks. I thank Professor Robinson et al. for what must have been a lot of work putting this together. And now, I head back into the trenches.


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1 Somebody has to be. As Professor Robinson himself points out in an article he wrote in 2007, nobody's adopted the MPC since 1985 and it was rejected by several important states (California, Virginia, Michigan) as well as the federal government. Additionally, the ALI has gone rogue and is no longer only trying to write laws in the best manner possible; it is trying to legislate from an obviously slanted political position. It has taken a stance in opposition to the death penalty and is currently trying to rewrite sexual assault laws in a manner that is not concerned with justice or consistency, but "to make sure the code is progressive." Note how much of that page is propaganda without giving us the actual wording so we ourselves can see if we think the changes comport with proper law.

21 September 2019

CATO Institute Fun and Games

Back when I was much more active on this blog I had a semi-relationship with CATO. I think they viewed CrimLaw as a pretty decent place to get some of their ideas and papers publicized. As for me, I felt obligated to support any organization which adopted a character from a Pink Panther movie as their raison d'être.

Anyway, the good people over at CATO still send me notices about various seminars that they have going on and I finally bit and went to last week's seminar on Constitution day. I cleared my calendar for the first part of the week, reserved a room at a Bed and Breakfast in Loudoun County, woke up Monday morning and started driving. 

Eight hours and two traffic jams later, I arrived at a Bed and Breakfast in the middle of nowhere and hunkered down for a night of finishing off a post on my other blog about salaries and realities in professional women's sports. In the morning I got up and headed into D.C. It should have taken an hour. So, I got to CATO two and a half hours later - just in time to miss the opening remarks.

The first speaker addressed the sole issue of the day that had anything to do with criminal law: Timbs v. Indiana. That one made a splash amongst the legal community where I practice because it characterized civil forfeitures against those who do criminal acts (most commonly drug dealers) as a fine, subject to the ban on "excessive fines" under the 8th Amendment. Listening to Brianne Gorod talk it became clear this case was basically just about whether the 8th Amendment was incorporated under the 14th. It was the first time it broke through into my conscious that Indiana apparently never argued it was a civil taking instead of a fine.1 That's interesting. I long ago learned not to expect practical instruction from this kind of seminar, but I did find myself wishing for some practical guidance on (1) whether there an argument that forfeitures are not fines that just wasn't raised by Indiana, and (2) what the ratio is of provable drug dealing to amount of forfeiture before it is excessive.2

The lecture by Eric Baxter on the Court's shift in American Legion v. American Humanist Association away from the Lemon Test to "retaining established, religiously expressive monuments, symbols, and practices carries a presumption of constitutionality" was interesting. The Court suggested that the presumption could be overcome by showing discriminatory intent or an effort to deliberately disrespect other religions or the irreligious. It will be interesting to see where this shift carries American jurisprudence. 


The rest of the day was filled with presentations on mildly interesting cases, but nothing so cool or relevant that they need to be discussed here. And then came the panel discussing upcoming cases for the pending term. Elizabeth Slattery raised an interesting case out of New York where the city basically forebade the carrying of a legally owned pistol outside of one's residence except to seven firing ranges in the city. As was quickly pointed out, the law was so draconian that a gun owner couldn't legally take their gun with them when they moved their residence. The law was challenged and the city won in the trial court and the 2d Circuit. However, once the Supreme Court took the case the city purposefully changed the law so that they could claim the plaintiffs had gotten what they wanted and the case would become moot - pretty clearly done because they realized the law was unconstitutional and they were going to get trounced in the Supreme Court.3  So now, the city's going to argue that the Court should drop the case and the plaintiffs are going to argue "So, what do we do when they put the law right back in place a day after you dismiss for mootness and point to the 2d Circuit's decision as proving that it's constitutional?" It'll be interesting how the Court will react to such a blatant attempt to manipulate its procedure to avoid a decision on the merits.

I didn't stick around for the final speech because I was trying to get back to Loudoun in time to meet up with an old buddy. It didn't work out because Google Maps ran me around D.C. for an hour before I finally escaped. It kept telling me to take turns that would have required my car to helicopter over three lanes of traffic and then demanding I do u-turns which would have required me to spin the car around like I was one of the Duke boys. By the time I got back to the Bed and Breakfast it was well and truly dark and I had to drive home the next day so I ended up just hunkered down.

And then came the nine hour drive home the next day in which I purposefully chose to drive secondary roads for the scenery - which sounds like a great idea until you're in the middle of nowhere and your car has been pinging "LOW GAS" at you for the last ten miles . . .  But finally, I made it back home where people don't wear ubiquitous, overly expensive dark suits and have phones glued to their ears. Home sweet home.

It was an okay experience all around, but unless I get drafted into service as a presenter (unlikely for a poor country bumpkin lawyer) I think I'll watch the online stream next year.


--------------------------  

1 I've heard this rationalization in Virginia for a long time and occasionally wondered how it doesn't run afoul of the takings clause in the 5th Amendment - not enough to research it thoroughly though.

2  Yes, I know that there will probably never be bright line, easily applicable standard here. This sort of thing practically begs for a totality of the circumstances analysis. Still, a man can dream.


3
 There has been a feeling for a while now that the governments and lower courts in anti-gun areas such as NYC, Chicago, D.C., and California have been blatantly ignoring the Supreme Court's direction on firearms and allowing regulations, ordinances, and statutes which render the ownership of firearms a mere potentiality. You're going to have to do your own research to confirm or deny that proposition.

10 September 2019

Constructive Flight

Judge Smith is not happy.

Defense attorney Greene is asking for the eighth continuance in the case and Judge Smith isn't having any of it.

"We were scheduled for a jury today. Tell me why we aren't having the jury and why I shouldn't reschedule the jury to start tomorrow?"

Attorney Greene: "Judge, my client told me two days ago that there is a document at Tiny-Local Bank that I'm going to need for this case."

Judge: "The last continuance in this case was three months ago. Why did she wait to tell you until this week?"

Attorney Greene: "Judge, she told the attorney who represented her in district court before the preliminary hearing. She thought when I replaced the other attorney that I got that information."

The Judge looks entirely unconvinced. "You've been her attorney for the last nine months. She didn't tell you about any of this vitally important piece of paper until three days before the trial?"

Attorney Greene: "Umm, Judge, I . . ."

[Quick conference with client]

Attorney Greene: "Judge, my client wants to address the court."

Judge Smith looks skeptical but nods his head.

Client: "I told my first attorney. Then she moved to Canada and you gave me this'un. I met with him when that first happened and I told him about the stuff at Tiny-Local. I didn't know he ain't got it until I asked him why this case ain't been throwed out, 'cuz, ya know, the stuff at Tiny-Local proves I ain't done it."

Judge looks really disgruntled now and engages defendant and defense attorney in a conversation wherein he tries to get someone to take responsibility for the vitally important missing document. That goes nowhere fast. Attorney Greene doesn't remember anything about a document and Client swears she told him months ago.

Judge Smith: "I think there was plenty of time for this paper to have been found. This is at least the third time this case has been scheduled for trial. If the paper was so important it would have come up before the last two trial dates. I think we should bring the jury in tomorrow and get this done."

Up to this point, I have been sitting at the prosecution table minding my own business. Only now, I'm faced with a Hobbesian choice. I can either scramble to get a jury put together before 9 a.m. tomorrow (sleep is for wimps) and let a possible constitutional issue get baked into the case or I can come to defense counsel's aid and possibly get my head chopped off. Being the adventurous (and slightly stupid) type, I stick my head right into that guillotine.

Me: "Judge, far be it from me to help a defense attorney dig his way out of a hole . . ."

Judge Smith's eyes' pin my soul to the back wall of the courtroom and clearly convey the idea that this is not the time for levity.

" . . . but, I'd rather not invite error . . ."

Judge Smith gives me a get real look. "I don't see any error here. This is something which the defendant had plenty of time to deal with and is raising only as she is required to go to trial."

Okay, it's pretty clear that Judge Smith believes this is just something being used to delay the trial. For what it's worth, I tend to agree with him. Unfortunately, you never know if an appellate court might go off on a tangent and staying up all night to prep, while doable, probably isn't a great idea. I need my beauty sleep (there are those who might argue I need a several year long beauty coma).

"Sir, if you think it appropriate you could find the defendant has committed constructive flight if you think that the defendant is playing games meant to keep the trial from happening."

At that, the judge's face turns thoughtful. The defendant gives me a quick, sharp WTF is wrong with you look. The judge takes a few seconds to turn some thoughts over in his head. Then he takes a close look at the defendant.

Judge Smith: "Mr. Greene, can your client pass a drug test?"

Client jerks like she's just been kicked and you guessed it, Client turned up positive for cocaine, alprazolam, and and buprenorphine. Judge Smith revokes her bond.

Client: "If'n I'm going to jail, I want my jury tomorrow."

Judge Smith: "No ma'am. Your Attorney needs time to get the document you need for your defense from Tiny-Local Bank. The docket is busy for the next month. We'll set this for the 22nd of next month. Good day, ma'am."

So Endeth the Story

06 September 2019

For Want of Moral Certainty

Once upon a time, the standard for guilt in a criminal case was "moral certainty." For instance, in Anderson v. Commonwealth, 83 Va. 326 (1887), the Virginia Supreme Court said of certain evidence "The most that can be justly said of it is that it merely excites suspicion against him, which is a very different thing from proving his guilt to a moral certainty." Since this was a case concerning circumstantial evidence the moral certainty language has to be carried forward into modern Virginia case law involving circumstantial evidence: "there must be an unbroken chain of circumstances proving the guilt of the accused to the exclusion of any other rational hypothesis and to a moral certainty." Taylor v. Commonwealth, JUN18 VaApp no. 0687-17-1 (U). See also, Nebraska v. Sandoval, 511 U.S. 1 (1994)(explaining that "moral certainty" instructions in the 1850's were the beginning/basis of the beyond a reasonable doubt standard). However, actually using "moral certainty" has fallen out of favor in modern jury instructions.

Why? Well, I'm certain all sorts of sophistic reasons have been given, but I think that the reality probably breaks down to two things. First, the assumption of a common morality fell out of favor in the universities and the relativistic viewpoint eventually became common and accepted amongst those educated in them so that it "moral certainty" became something considered at best poorly phrased and at worst harmfully anachronistic. That placed the judges and academics against it and probably those defense attorneys that didn't think it through too much. Second, the prosecutors went along with dumping it because "moral certainty" comes across as a much higher standard than "beyond a reasonable doubt" no matter how many times we're told they are the same thing.

So, how do you deal with the relatively more benign "beyond a reasonable doubt" standard if you want to beef it up? CrimProf Blog points to an Article set to be published in W&L Law Review which has a prescription for this by Michael D. Cicchini: Reasonable Doubt and Relativity. In it, Mr. Cicchini provides an interesting study he has done in which he shows that instructing jurors on lower civil standards in comparison to beyond a reasonable doubt raises the point at which a juror is willing to convict. I leave it to people more adept at statistics and procedures of conducting a study to address his methods, but I'll say that his result feels right (not always a perfect barometer, but often all we truly have). I was going to say I didn't think the case he presented to his study group could make it to a jury past whatever motion a particular jurisdiction uses to show legal failure of the evidence (motion to strike, directed verdict, judgment as a matter of law, &cetera), but I guess if the prosecution got leave to call the victim as a hostile witness it might pass muster. In any event, whether the case was legitimate isn't the point. The differences in the levels of confidence needed for a conviction with and without contrasting beyond a reasonable doubt to lower civil standards is the point.

As best I can tell, a majority of those not given an instruction comparing the standards (Group A) were confident of guilt at somewhere between 60%-70%. A majority of those given an instruction comparing the standards (Group B) were confident of guilt at somewhere between 70%-75%. I really wish this study was more large scale and granular. While it confirms my beliefs, I don't know how strongly.

I agree that the comparison should be pointed out to the jurors. In fact, back in the beginning of time when I was a defense attorney, I had a whole spiel I either used in voir dire (remember Virginia does mass voir dire) or in closing starting at reasonable suspicion, going through probable cause, emphasizing preponderance, and pointing out there was even a higher standard than that - clear and convincing - before we even start to talk about beyond a reasonable doubt. More important than my agreement, the courts of Virginia agree that the comparison should be pointed out.
The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt every material and necessary element of the offense charged against the defendant. It is not sufficient that you may believe his guilt probable, or more probable than his innocence. Suspicion or probability of guilt, however strong, will not authorize a conviction, but the evidence must prove his guilt beyond a reasonable doubt.
 (From Jury Instruction on Conviction Standard)
It's not exactly what Mr. Cicchini is asking for, but it's pretty close.

However, I think Mr. Cicchini is particularly wrong on one point. If we are going to bracket beyond a reasonable doubt from below, we need to provide the bracket from above as well. I guess this is where I as a prosecutor offer my "poorly reasoned, kneejerk complaints."😎

GO BUY HERE

The upper bracket is needed because there is always the possibility that space aliens landed in the backyard and stole the money that grandma kept in the safe rather than grandson Bobby (to whom all the evidence points). There's always something a juror can fasten upon such as "He's a Taurus and if the moon was in the third quadrant he would have too involved with romance to rob a bank." These are not reasonable doubts.

Of course, a defense attorney will come up with better hypotheses than those, but if he's competent he'll come up with something. Standing pat on a "they didn't prove it good enough" defense is an extremely dangerous place to be and if you want to talk about something that would probably drop the level of confidence a juror would need to convict this is it. And, no, I'm not saying a defendant has a duty to produce evidence or explanation. I'm just talking about realities in front of a jury and I've seen plenty of good defense attorneys stand in front of jurors without having put on a lick of evidence and weave a tale of possibilities in and out of the prosecution's evidence.

The jury has to determine if any doubts it comes up with itself or is fed through the good offices of the defense attorney are legitimate. Nowadays, as a prosecutor I bring up in voir dire or closing argument the difference between "beyond a reasonable doubt" and "beyond all possible doubt." Once again, more importantly, the courts in Virginia point this out to juries.
The burden resting upon the Commonwealth to prove guilt of the defendant beyond a reasonable doubt does not require that such guilt be proven beyond every imaginable, conceivable or possible doubt, but only beyond a reasonable doubt.
(From Jury Instruction on Conviction Standards)
Mr. Cicchini devotes a small section decrying this, but I think the Virginia jury instruction is solid. Of course, eventually the jury sorts out which doubts are reasonable or not. This instruction merely informs them they have to stick to those doubts which are reasonable. It's the defense job to push the "beyond a reasonable doubt" standard as high into the stratosphere as it can and I don't begrudge them that. It's the job of the judge, through jury instructions, to tell jurors that they don't have to go as high as the defense would like them to. Could the instruction be more concise? Probably not. Lawyers aren't capable of writing anything concise. I'm pretty sure it's somewhere in the Bar's ethics rules. If the jury instruction just said "You shall neither consider nor create explanations that are unreasonable in determining if someone is guilty beyond a reasonable doubt" anybody could understand it and we wouldn't have things to quibble over.

And on a slightly different point . . . 

Let's be honest, while we lawyers do tend to quibble endlessly over jury instructions, they are far from the most important factor in the outcome of a case. It's my opinion that quite often the primary factor is the potential jury pool. Trials in an affluent suburb are going to get different results than those in rural farm country and both of those are going to get different results from a jurisdiction where there's a lot of impoverished, unemployed former coal miners and their families getting checks from the government.

Next time you think that jury instructions are terribly important, sneak a peak at the jurors as they are in minute fifteen of jury instructions being read at them. Then explain to me how terribly important it was that y'all argued for twenty minutes over the placement of that comma in the instructions. It's fun to argue all these points, just don't lose track of the truly important parts of trial craft.

03 September 2019

The Indeterminate Zone (Sentencing with Parole Baked In)

In the 1970's a man killed a police officer in NY and was sentenced to 25 years to life in prison. After several attempts to gain parole, the Parole Board finally decided to award it to the man. The wife of the police officer tried to intervene to stop the killer of her husband from being released. She failed.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He's not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia's does, I'd agree. Unfortunately, it does not. NY exists in the indeterminate zone (That's the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn't turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

Unfortunately, this all happened in New York and that meant the entire thing was subject to a determined indeterminate sentence. As best I can tell looking at NY Penal Law Art. 70 sec 70.00 (a little confusing because they were amended 01 SEP 19), there wasn't any choice in the judge's sentence. Under subsection (2)(a) "For a class A felony, the term shall be life imprisonment." Under subsection (3)(a)(i)(A) "where a sentence, other than a sentence of death or life imprisonment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years." It doesn't look like the judge had any choice in his indeterminate sentencing.1

Anyway, baked into a system of indeterminate sentencing is a long term process of determining the sentence. The sentencing isn't actually done by the judge. The legislature gives the judge parameters within which to sentence. In some cases, the judge may narrow the parameters of the sentence even further. The people who determine what the sentence should be within those parameters are those sitting on the Parole Board. Effectively, the Parole Board sentences. In the end, it is the organization which determines when the damage to victims and threat to society is overbalanced by how much the defendant has reformed or at least become less of a threat to society.

The argument in favor of this kind of sentencing is that it gives an incentive for the convict to reform and make himself into a person who should be released back into society; the quicker he reforms, the quicker he gets back. The problem is that in order to figure out where the balance stands each time a person comes up for parole there must be another sentencing. Thus the need for the victim to testify each time. It seems, from what I can find on this case, that NY handles this basically through a review of paperwork and does not have or allow the victim come in to verbally testify each time; it only allows her to send in a report of her condition as a result of the crime. In any event, every so often the scab gets torn back off because the victim has to fight again to keep the convict in prison.

In the end it's a terrible system that builds in uncertainty, almost assuredly has created a massive bureaucracy to carry out the Parole Board's function, and causes continuing harm to victims because there's a yet another sentencing hearing every year or two. And yet, as long as this system exists and there is a perpetual sentencing process, the victim should be allowed to testify in it each time the balance is weighed. Who knows? She may have decided that her religious beliefs require her to forgive the convict and she won't be rabid about keeping him in prison. That wasn't the case this time, but I'm sure people would whine if she were forbidden from saying the convict should be released.

Better yet, scrap the indeterminate sentencing system and provide clarity in sentencing and closure to victims.2


1 Yes, I know that I probably got this at least partially wrong. NY has a complex statutory system that doesn't seem too terribly well organized. This poor old Southern boy just can't keep up. And my lack of knowledge of the intricacies is beyond the point anyway. Quit wasting your time reading this and go back up to the argument.

2  Yeah, I know it won't happen. When's the last time anyone in NY paid attention to someone in the flyover part of the country - unless, of course, they want to overpay to steal someone from our baseball team.

01 September 2019

Sexting is Not Only Stupid - It Can be Criminal

David Post, over at Volokh, is shocked, shocked! that a minor who films herself preforming a sexual act and sends it to others is distributing child pornography. Despite some of the interesting comments that followed the article, I don't think anyone who practices criminal law was terribly surprised by the ruling. On the legal merits, it's 100% correct. You just have to wonder why it was pursued.

For a long time, sexting among minors has been a nightmare for prosecutors. The scenario usually goes something like this: Mary, 14 years old, has found her true love, Bobby, 15 years old. Mary sends him all sorts of pictures of herself nude or semi-nude. Six months later she finds her next true love, Lawrence, and dumps Bobby. Bobby then spreads the pictures far and wide. The school gets involved (somehow the school always gets involved) and Mary's mother is on the warpath. She wants me to hold Bobby down while the investigating deputy drives a stake through the heart of the boy and then she wants him burnt alive and buried in ground that is specifically unhallowed and then she wants him dug up and sentenced to life plus cancer in prison.

As a prosecutor, you agree something should be done. However, spin it as you might, the boy's not the only party guilty of the distribution of child porn here. And, let me tell you, I'd rather be in a cage with an enraged gorilla than explain to another mother that if Bobby's guilty of felony distribution of child porn so is her darling baby girl. After all, those pictures didn't magically appear on his phone; they came from somewhere and they're pretty obviously selfies when the girl is taking a picture of herself in the bathroom mirror with the phone in hand. On top of which, tagging a young, stupid boy with a felony may be a little harsh in this situation, although something needs to happen to him.

The Virginia General Assembly helped with this quite a bit when it created a revenge porn misdemeanor in 2017: 18.2-386.2. Now, in the situation above the boy can be brought before the Juvenile Court on a misdemeanor that will disappear at 18. The court can handle it and Mary's mother will be somewhat mollified. On top of that, this is a much more proportionate handling of the situation.

It's not a perfect solution. Moms check their daughters' phones and find pics sent to a boy and go on a rampage demanding the boy be punished. Boys get pictures from girls and send them out to their buddies well before it could be characterized as "revenge." The only way to solve this problem entirely would be to make it illegal for anyone under eighteen to possess a cell phone. Or maybe legislators could write careful exceptions to the child porn statutes for those under eighteen (don't want to make 15-17 year olds child porn cutouts or forgive the 17 year old who solicited pics from 30 girls and published them all).