More on Posner & Strict Liability

Tim Lynch dropped me an email concerning my review of part of his book "In the Name of Justice" (his blog post is here). He comments:

Btw, thinking it over some more, I'm not quite sure we can say that Posner is oblivious to the unjust cases and is therefore wrong. He's a smart guy and may just really believe that the "benefits" outweigh the "costs." We can say he's wrong but for a different reason. See p. 196 note 31.

This, I'm certain, is a comment on my "wisdom of ignorance" appellation to statutory rape strict liability argument. Let me clarify this. I don't believe that Judge Posner is an ignoramus. I do believe, and this is a conceit on my part (probably shared with most criminal law attorneys), that Judge Posner has an academic, theoretical knowledge as opposed to an on the ground, knowing it in your bones, fighting the fight, experiential knowledge. It's all well and good to stand on high and decide that you will sacrifice 5 people who did nothing immoral in order to catch 20 who did and discourage 100 who might. Yet, if you're the prosecutor who faces a command from your legislature to sacrifice 5 innocents, because the steer clear function of strict liability doesn't work if you don't, or the defense attorney watching your innocent being sacrificed "for the greater good" it's despicable.

As well, when I speak of the wisdom of ignorance I'm not just speaking of Posner. In fact, I'm mostly speaking of the emotional basis of the statutory rape argument. Statutory rape, because of its emotional, irrational trigger - harm against the young - is always the strongest case for strict liability. If there was ever anything someone would be willing to sacrifice an innocent in order to protect its his daughter. No thought need be applied. Protect. Period.

Try that same rationale with the truck driver scenario and people will look at you like you are stoned. "You're saying each and every UPS driver is committing a felony when he delivers the drugs that are shipped thru UPS without his knowledge Really? You're serious?" And you'll notice that the government isn't exactly going around and arresting package delivery drivers in job lots.

Gotta go to work. Hope to further discuss this tonight as to other, non-ignorance reasons why strict liability is wrong.

Introducing "Little Red"

Not sure what kind of dog he is, but "Little Red" here adopted into the family last week. He's 15-20 pounds, has a little bushy mane, and is young. I'm hoping he's still got some growing to do since his paws are big for his body, but I suspect he'll max out at maybe 30 pounds. The little guy is fearless and on the first night stood nose to nose with my hound a couple times (both growling) until I broke them up (my lab just ignores him).

In the Name of Justice: Posner v. Hart

{1}About 3 weeks ago, CATO sent me a copy of "In the Name of Justice" so that I could read through it and comment here on CrimLaw. It's a series of replies to Henry Hart's 1958 article "The Aims of the Criminal Law." As such, it's difficult to review the book as a whole, so I thought I'd discuss Professor Hart's article and Judge Posner's reaction.

Hart

{2}Hart is an idealist. His overarching ideal is that the purpose of criminal law is to instruct people as to what society views as the absolutes of proper behavior (this far and no further). His definition of criminal law is "community condemnation of antisocial conduct" combined with "the imposition of unpleasant physical consequences." He walks a line between deterrence and rehabilitation, rejecting both as the ultimate goal of criminal law. Deterrence is rejected as negative while the purpose of the law is positive; a person is to make his own moral choices and the knowledge of the consequences of his acts shall train him to make the proper choices. Rehabilitation is rejected because it views the offender as someone who is defective and removes the responsibility of his choices from him; one cannot make moral choices without being responsible for the act and consequences flowing from that action. Succinctly, criminal law lays down the minimal societal parameters within which moral actors can, of their own free will, choose to act and, if they fail in their choice, have knowledge of the consequences they face.

{3}Hart posits two corollaries to his theory. The first is that strict liability has no place in the criminal law. This boils down to lack of knowledge and thus lack of intent. A moral actor cannot make a free will choice if he does not know there is a choice to be made. Hence, the entire purpose of the criminal law is made void.

{4}The second corollary is that punishment should be no more severe than necessary. It should both express the community's condemnation and be tailored to returning the offender to society as soon as possible as "responsible and functioning member of the community."

Posner

{5}Posner is of a different stripe. It's difficult to suss out exactly what Posner's position is, but he very clearly, and rather crudely, opposes Hart. He rejects out of hand Hart's premise of criminal law as a positive instructive force for teaching people to act as society expects.

{6}As to Hart's first corollary, the rejection of strict liability, Posner's having none of it. He strongly embraces a "steer clear" credo. If it's strictly liable people will steer very wide of anything which might cross that line. Posner also rejects the balance to which Hart attaches to the second corollary. He sees the punishment as far more important than any stigma attached to a conviction. "[T]he function of punishment is to deter crime by subjecting the criminal to a degree of disability that exceeds the utility he would obtain from the crime."

{7}He eventually gets to his rejection of Hart's premise. The government cannot press morality upon the public. Rather, the public condemnation of certain acts forces the government to illegalize them and attach a punishment appropriate to the public's level of condemnation of these acts. He ties all this to vengeance as a utilitarian tool for the implementation of retributive justice (although now supplanted by professional career incentives with the development of professional law enforcement and prosecutors). Posner never defines criminal law himself, but seems to adopt James Fitzjames Stephens': "[B]efore an act can be treated as a crime . . . it ought to be of such nature that it is worth while to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it."

{8}As a parting shot, Posner inflates Hart's position to one of Kantian/Protestant moral responsibility and then shoots down this straw man by pointing to the fact that different people performing exactly the same act can be punished differently depending upon the consequences of that act.

Lammers

To begin with, esthetically Hart's article is much better written than Posner's. Part of this is because Hart's article is less cramped at 6 times the length of Posner's and is an argument in favor of a position, rather than a reaction. Part of it is that Posner's response is just poorly written. Still, the important considerations are actually the arguments being made so let's consider them.

Hart's basic premise of criminal law as an incentive and stigmatizing tool to train people to be honest is true in the great majority of cases {1}. Honest people knowing an act to be illegal do not partake of that act. Posner's argument against Hart's social organization principle is that {7} the government can't do this because the violative acts are things which the populace already condemns and forces the government to adopt because of its condemnation. This is a distinction without a difference. Social training is not something which ends at a particular moment. It is a continuing process. There will always be outliers and youths who have not yet learned proper societal behavior. When the populace presses upon its government criminal laws it is setting up a continuing set of rules by which these people will know the consequences of their choices and thus fall under Hart's premise.

However, while Hart's second corollary is solid in concept, I think Posner is correct in rejecting the method by which Hart envisioned its implementation for offenders. Hart is entirely too optimistic about the continuing ability of the mere stigmatization of an immoral choice being able to affect the choice of a moral actor. Stigmatization works to keep honest people honest and perhaps with those convicted the first time (maybe the second). Thereafter, it is almost certainly a failed endeavor. As I've previously stated, "Once a person has demonstrated that he cannot, or will not, conform to basic societal norms removal from society as a protective measure becomes the only way to deal with the offender." Posner is also correct in his assertion that in serious cases the way in which society shows the act to be morally reprehensible is through the imposition of stiff punishment and that a failure to do so damages the system.

Nevertheless, Posner's consequetialist argument is a red herring {8}. The fact that different punishments can flow from the same act depending on the consequence does not remove the possibility of conviction as a moral consequence to an immoral actor. In actuality, the moral actor faces the most severe punishment every time he makes an immoral decision which might result in more than one punishment depending on consequences.

Turning to strict liability in criminal law, Hart has by far the better argument; it does not make sense to punish people for things they did not intend or intend to recklessly risk. However, Posner's position is at least prevalent here in Virginia.

[C]ourts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime.

Posner roots his anti-intent argument in the "intent's hard to prove" vein and the it'll make people steer clear justification (the Virginia Supreme Court's reasoning is basically "'cuz we said so"). It is, of course, sometimes hard to prove intent. In fact, trials are often held because a pesky defendant has decided to assert that his intent was other than to commit the act of which he is charged.

Posner's critique rings hollow. UPS, FedEx, Postal drivers (et cetera) should not be held strictly liable for the fact that drugs are, most assuredly on a daily basis, being shipped illegally in their trucks. There are, of course, other situations in which a driver might act in a manner indicating willful ignorance and that's why we have juries and jury instructions

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:

1. Actually suspected that (he/she) might be involved in criminal activity;

AND

2. Deliberately attempted to avoid taking steps to confirm or deny those suspicions;

AND

3. Did so in order to provide (himself/herself) with a defense in the event of prosecution.

This is why we put 12 people in the box - to use their combined experiences and apply their common sense to real world situations in order to decide whether the driver has engaged in deliberate ignorance.

On the other hand, Hart's theory has no problems with willful blindness. It's not even an exception to the rule. Willful blindness is a violation of minimal societal rules in that it is a purposeful omission of action in the face of likely criminal activity in order to allow one's own ignorant participation in that same criminal activity.

Posner's strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. "The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense." (p. 97)

This pretty much brands Posner as someone who has not had actual trial experience. He's never seen that trial wherein the immature 18 year old defendant (looking all of 14) has "raped" the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y'know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I've seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the "justice" of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning. Ignore the facts; ignore justice as it applies to a particular situation; chug along with statistics and plow under any sap stupid enough to get in the way of that broad prophylactic line meant to protect innocents from evil doers by destroying anyone (moral or not) who gets near the line.

In the Name of Justice

Now you see why I couldn't do a review of the entire book. Just imagine this same sort of post repeated for each and every author who replied to Hart's article. I commend this book to you all and hope you spend some time thinking about the theory behind the things that we do.

Judicial Reviews Are Dead

So, I'm sitting, eating lunch with a group of the sharpest local legal minds and someone mentions that the judicial review program is dead. The Chief Justice has so announced it. I look over at the gentleman and asked, "But wasn't there a statute requiring the program?" "Yeah, but the General Assembly didn't fund it after the problems this year and the Chief Justice now says it's dead."

Hmmm . . . Now, I wasn't the greatest fan of the program. I didn't have much of a problem with the judges getting reviewed, but I was concerned about the problems which could come from the system. Still, when Dave Albo, chairman of the House of Delegates Courts of Justice committee, left a comment I couldn't come up with a better alternative. All the solutions I can think of would rely on checks and balances and require a change in Virginia's constitution.

Still, I was pretty sure a program couldn't just be ended because the Supreme Court's budget was cut, so I looked up the statute.

§ 17.1-100. Judicial performance evaluation program.

The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By September 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House and Senate Committees for Courts of Justice. The reporting requirement of this section shall become effective when funds are appropriated for this program and the first justice or judge is evaluated.

So, the program became law in '02 and was not funded until '07 (?). Funds were appropriated; the first judge was evaluated. What authorizes shutting the program down? Not sure, unless you read that last sentence as a continuing dual requirement. I know it seems a stretch, but I suspect the Chief Justice might win an argument about how a court should construe a statute.

Who knows, maybe next time they'll rewrite the statute so that the Supreme Court is entirely out of the loop.

Chief Justice Leroy Rountree Hassell, Sr.The Man, The Myth, The Legend

Controversy, controversy everywhere. I think I've only blawged about one intervention of the Chief Appellate judge in the operation of the trial courts.

Virginia Standard of Review: Sufficiency of the Evidence

When considering a challenge to the sufficiency of the evidence on appeal, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original; citation and internal quotation marks omitted). Instead, we ask only '"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original). See also McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, ___ (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009). These principles recognize that an appellate court is "not permitted to reweigh the evidence," Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority "to preside de novo over a second trial," Haskins v. Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). This deferential standard of review "applies not only to the historical facts themselves, but the inferences from those facts as well." Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a fact finder may "draw reasonable inferences from basic facts to ultimate facts," Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted), unless doing so would push "into the realm of non sequitur," Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).

Kenneth Anthony Clanton v. Commonwealth, Va. App., no. 1018-07-2 (deciding whether moving a child to another room while you beat his father for information in the first room is abduction)

Yeah, the Summer Haircut is Here . . .

Anyone who doesn't care for it feel free to speak their mind.

What Do People Consider a Crime?

1976 Survey of things people of different nations (India, Indonesia, Iran, Italy, Yugoslavia, United States) expect to be crimes:

99% ~ Robbery

90% ~ Drug Use, Stealing Public Funds, Incest, Factory Pollution

74% ~ Homosexuality (reportd as "less than three-fourths")

"about half" ~ Abortion, Public Protests, Not Helping Person in Danger

via: "In the Name of Justice" p. 57 (reaction by James Wilson)

What's a Prosecutor?

Sure, it's a simple question, easily answered with some sort of smartish quip. However, a serious answer requires more complexity.

A prosecutor is a person in court who represents society's interest in the enforcement of societal norms as expressed via the statutes, common law, and constitutions. This is his primary duty, the one to which he, or more likely his boss, has been entrusted by the electorate.

In order to do this, he is given one tool: the request for imprisonment. There are multiple lesser tools which he has to offer: fines, rehab programs, probation, etc. However, each and every one of these tools works only with the threat of imprisonment behind it. It's not a particularly subtle or precise tool; as I've said here before, it's a hammer, not a scalpel.

This tool is used to accomplish one goal: strengthening societal norms. This is done in two ways. The most important, is providing an impetus and example which will keep those who are honest from choosing to violate basic social norms. This passive use is fairly basic: the knowledge of the existence of the criminal justice system and its punishments acts to keep people from doing things that society tells them they should not do.

Of course, there will always be a group of people who violate societal norms and who must be dealt with. The objective here is to prevent further violations. Depending on the the violation and violator, there are two basic ways to handle this (although an infinite variety within them). The first is the threat of imprisonment. This can take the form of various types of probation and treatment programs, all aimed at bringing the violator into alignment with society. It can also take the form of short term imprisonment, which is demonstrative to the offender both that society is serious about enforcing its basic norms and how disruptive and problematic a longer incarceration could be to the life of the offender and his family; hopefully, the combination will deter further violations. The second way to do this is long term incarceration. Once a person has demonstrated that he cannot, or will not, conform to basic societal norms removal from society as a protective measure becomes the only way to deal with the offender.

Overlaying all of this is the universal duty of prosecutors as "ministers of justice." Virginia Rule 3.8, Comment 01. This is more often referred to a command to "seek justice." Many read into this a directive toward distributive justice. However, an examination of the special rules applied to prosecutors reveal that this is actually a command to uphold procedural justice: "This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." Id.

The prosecutor's duty toward procedural justice is rather easily defined: make sure the trial is fair. Most Bars have written some part of this into their ethics rules, requiring things such as Batson disclosures and not filing charges without probable cause. However, it's my opinion that the duty toward procedural justice goes a little further. At the very least, it obligates the prosecutor to do his best to mitigate other harmful factors which may come into play in a trial. As an example, if the defense attorney is being ineffective the prosecutor has some duty to act. This is not to say that if an experienced defense attorney or obstinate defendant chooses to undertake tactics the prosecutor believes will aid the prosecution he is obligated to take steps to counteract them. To the contrary, that's just part of the adversarial system. However, when a defense attorney is acting in a manner which indicates problems which are beyond tactics a prosecutor should take some ameliorative steps. You take the young defense attorney aside and give her some advice (and, to keep yourself honest, tell her to check what you've said with other defense attorneys). If someone has not filed a discovery request in a serious case, you call them (if for no other reason than to foreclose an ineffective counsel habeas).¹ The circumstance in which a prosecutor might have to take steps to insure a fair trial or plea are pretty much an endless list (and not limited to just circumstances involving defense attorneys). None of this diminishes the prosecutor's duty toward society at large. In fact, by foreclosing ineffective assistance of counsel habeas claims, in serious cases it enhances the prosecution's effectiveness.

In the end, prosecution is an art, not a science. No two prosecutors are going to be exactly alike. No two offenses are going to be exactly alike. No two offenders are going to be exactly alike. The prosecutor is the guy trying to use his hammer to paint the world back into its proper order.




¹ And, defense attorneys, if a prosecutor calls offering discovery the appropriate response isn't "I don't need to make a discovery motion. I've got everything in your file." You will look pretty bad when you stand up to object to the introduction of X because it wasn't disclosed pre-trial and the prosecutor can recite to the judge verbatim, from his notes of the conversation, what you said when he tried to prompt you to file a discovery motion.

Would Lex Pay Himself a Bonus from LexCorp's Bailout?

Straight into Solo:Option C: Nose to the Grindstone

Once upon a time, I was a law school graduate. I'd gone to a law school ranked in the top 20 in the nation, self-studied, and passed the Bar straight away. Then I entered the world of unemployment (well, technically, I had a job at Sears selling electronics). All this was because of a *ahem* "misunderstanding" with the firm I clerked for between my second and third year of law school which led to my not doing a serious job search until it was far too late in my 3d year of law school. The post Bar passage job search went appallingly poorly. Finally, after an interview in which a public defender's office basically told me they weren't going to hire me because I was overqualified and would leave as soon as I found a better job, I decided to start practicing on my own. Thus began my life as a criminal lawyer.

Scott has offered two models of how to become a solo criminal practitioner. I took neither of these paths and I thought I'd offer a guideline from experience on how it can be done.

The Hard Work / Frugality Model

Rule #1: Keep your costs down. As you begin a solo crimlaw practice you need to keep your costs to a minimum.

I started out with three Sears' suits, a computer, printer, dial-up internet, subscription to VersusLaw (along with the free use of FindLaw and All Law), a folding table, folding chair, cardboard file boxes, one phone line, fax/answering machine, and business cards. This was all set up in the living room of my POS apartment.

I took the steps necessary to get onto several local court appointment lists. Meanwhile, I spent a lot of time at the courthouses, watching what happened in the courtrooms - not just the interesting trials, but also arraignments, sentencing hearings, bond hearings, etc. so that I got a feel for what actually happens. Once clients started being assigned I met them at the courthouses (every courthouse seemed to have someplace I could do this). In fact, I would send letters out to clients setting exact times on Friday afternoons and sit in the law library and wait for them to come meet me. Since few clients actually showed, I spent time reading through practice books, learning about things particular to Virginia and developing the paperwork I'd use in my practice (read through the forms books to learn paperwork and jury instructions books to learn law). As there was no court on Friday afternoons, I also got to meet and talk with a lot of the people who worked at the court (clerks, deputies, the prosecutors' support staff, etc.) who were important people to know as my practice developed. I also made a point of getting to know several of the attorneys who practiced frequently in the courthouses. I didn't develop any "hard" relationships with any of them or get a mentor, but had a group of people I could ask questions about difficulties I was having. In fact, not having a single person to turn to probably helped because I (to the best of my knowledge) didn't wear out my welcome with anybody by being too needy.

You'll notice that, except for the business cards, I didn't put any money into advertising. You shouldn't either. For the small practitioner, with very limited funds to spend, advertising is a black hole which either does not produce results or produces results not worth the money spent. If you feel you must do something, join legal organizations: Bar committees (young lawyers), ethnic based Bars, practice area Bars, Inns of Court, etc. These are more likely to pay off with both referrals from people you meet and build your local reputation/influence.

Work hard, work smart, be frugal, and you can get there. Don't expect it to be fun though. I grew out of my apartment to a room rented in another attorneys office, to my very own office with nice furniture and everything. I got - and kept - the legal side under control. Coulda used a partner who had been to business school for things outside of the legal arena, but that's something you might want to ask Scott or Mark.

Georgia Supreme Court:You Will Pay for Death Defenders

You know you're in trouble when not a single judge or justice agrees with you.

A defendant had his death sentence overturned in 2005. In 2006, new "conflict" attorneys were found by a State agency, appointed by the judge and a whole new trial took place. Then, after the trial was over, the agency refused to pay the attorneys, claiming the $68,946.61 should be paid by the county. The judge disagreed, ordered the agency to pay, and - after the agency refused - held it in contempt.

Now the agency got its shot to convince the Supreme Court of Georgia. The agency argued that it shouldn't have to pay because the the charge came into being prior to the existence of the statute requiring it to pay. Every single Justice joins in a ruling which, in polite legalese, calls that argument balderdash. "The attorneys were appointed after the statute was in place, you promised to pay them, and it's a brand new trial - so you cannot disclaim the debt by claiming the date of the original trial is the relevant date. Pay up, you skinflints!"

Saving Grace: The Review

Grace Hanadarko is a crass, self-destructive hedonist. She also happens to be a police homicide investigator. She's busy destroying her (male) partner's marriage. She's may be an officer, but she's not a "good guy." Then, an angel enters her life. A real honest-to-God Angel: Earl.

Earl isn't your Touched by an Angel, goody-goody angel. Nope. He's a tough as nails, Last Chance Angel and he's there to save both Grace and a guy on death row, Leon Cooley.

It sounds pretty hokey. And Grace isn't a likable sort. And I may not have been the bestest learner in Catechism classes growing up, but I'm pretty sure we never talked about "Last Chance Angels." And, despite it all, this may be my favorite show on TV right now.

An angel comes to save Grace and she ain't buying it. Does the angel go away? No. Does Grace see the error in her ways after a couple episodes and reform? No. Earl persists, refusing to cease in his efforts to save Grace. Grace persists, continuing to choose to err, suffering serious consequences for her failures, and driving on with bluster, cussedness, and grit - and we start to see the parts of Grace which, while rough hewn, may allow her to live up to her name. Meanwhile, we are drawn in and a large cast of characters have been brought into play (Grace's flawed family - including a priest brother, her best friend the forensic analyst, the officers she works hard and plays harder with). And we also see Earl's persistent efforts with the just as stubborn Leon on death row and how this is interwoven with Grace's life.

It's a parable on a large scale and, much like a parable, the exact meaning of the story is hard to fathom. Is it the persistence of God's offer of grace? Is it about how God wants us to work to help our fellow man (Grace to save Leon) (Grace's friend and brother who seem to be getting roped into helping her by Earl)? Is it about the forgiveness of the failures of others? It's probably all these plus. This lends a depth to this series which one rarely finds on television.

It's on Mondays at 9 or you can watch episodes over at TNT online. Check it out. You may not like it, but I bet you get hooked.

Will Lack of Money Make the Criminal Justice System More Brutish?

The affluence of the United States and the various States has allowed us to spend a great deal of money on the criminal justice system. Now, we have a downturn in our economy causing States to run massive budget shortfalls. As anyone knows, this always leads to a cutback in "alternative" programs, meant to divert people out of the criminal justice system. Of course, there are other things which affluence has allowed us to impose upon the criminal justice system: indigent defense, expensive death penalty cases, high imprisonment rates, etc.

Of the items listed above, the high imprisonment rate is the one which the one which we have already seen affected. We've all read the stories of judges and sheriffs discharging prisoners early because there's not enough space or money to incarcerate them.

Indigent defense is an ongoing problem. There has been a push for years to improve indigent defense. Obviously, indigent defense is not something which legislators are going to have as the top item of their list of things to do to satisfy their constituents. Still, as long as the country and the States were riding an economic high actual opposition to funding improvements faded. Now, with states such as Virginia facing billions of dollars of shortfall, it's unlikely that any legislator is going to be favorable to putting money into defending those accused of breaking the law.

Expensive Death Penalty Cases: This is the sacred cow. Under the rubric "death is different", more and more and more expensive requirements have been added to death penalty cases. Facing the finality of the punishment, it has been difficult for anyone to step up and say "no more." And, it is obviously part of the anti-death penalty stratagem to make death penalty cases financially untenable. Personally, I don't think the current economic downturn is enough to effect this one way or the other. Sure, anti-death penalty activists are reliably making noises about eliminating the penalty because it is too expensive, but it does not seem to be making too much headway. Nevertheless, the question at hand is, should the economy ever become so depressed that it cannot support the money we now spend on capital defense will we prune the defense or eliminate the punishment?

Round & About

1) Citizens express doubt about Drug Court.

2) Canada: Justice Minister proposes mandatory minimums for drug crimes.

3) Does a prisoner have a constitutional right to a DNA test?

4) In New York they're trying a Lebanese man for selling weapons to Colombians in Romania.

5) What happens when you exercise your 1st Amendment speech rights on the campus of Central Connecticut State University, as part of a class project? Why, Professor Paula Anderson calls the police about your un-PC behavior (of course).

6) Sheriff sues Craig's List over "Erotic Services" section.

7) The screenwriter for "To Kill a Mockingbird" has left the mortal coil.

In the Name of Justice: The Beginning

I'm finally getting some time to read In the Name of Justice, which CATO was kind enough to send me to review. It's a series of articles from renowned legal big-wigs in reaction to a 1958 article by Henry Hart Jr in which he lays out a basic understanding of criminal law. Here's a quote from the beginning of Hart's article

The statement has been made, as if in complaint, that "there is hardly a penal code that can be said to have a single basic principle running through it." But it needs to be seen that this is simply a fact, and not a misfortune. A penal code that reflected only a single basic principle would be a very bad one.
. . .
Examination of the purpose commonly suggested for the criminal law will show that each of them is complex and that none may be thought of as wholly excluding the others.
. . .
The problem, accordingly, is one of priority and relationship of purposes as well as their legitimacy - of multivalued rather than single-valued thinking.

So far, its intriguing. I look forward to delivering a full report asap.

White Collar Crime: Oil Dumping, Respondeat Superior, and Alcohol

I know, I know . . . Since when did I start thinking about white collar crime or the 2d Circuit? Well, when fellow W&L graduate, Charles E. James Junior, forwards a brief article he has co-written, it merits some consideration.

Ionia’s corporate policy dictated that its ships would not discharge untreated waste and it had in place a robust compliance program to ensure that its employees adhere to that policy. Senior Ionia officials did not know that employees aboard the ship were refusing to comply with that policy and were falsifying ship records to cover up their non-compliance.

The company was held liable anyway.

The 2d Circuit's opinion is mostly about whether a record book is maintained or merely possessed if no records are entered prior to a ship coming into US jurisdictional waters (it's maintained). The respondeat superior arguments are given short shrift. They find that the evidence (giving the best light to the prevailing party below) showed that the sailors dumping oily water without processing it, falsifying records about the dumping, and lying to the Coast Guard about the dumping were within the scope of their authority, acting under the orders of their supervisors.

That all makes sense, but it's followed by a weird sentence. "The jury could, moreover, infer from the expert testimony about the maintenance and expense involved in using the Oil Water Separator that the crew used the bypass hose to benefit Ionia and subsequently lied to protect the company." Since the Court just said they'd admitted to acting under the orders of their supervisors, I have no clue what this sentence is referring to.

Next, the Court states that corporate criminal actions don't have to originate from managerial employees, but that it's not relevant because the actions in question were ordered by the ship's chief engineers.

Finally, the Court dismisses the amici curiae's argument "that the prosecution, in order to establish vicarious liability, should have to prove as a separate element in its case-in-chief that the corporation lacked effective policies and procedures to deter and detect criminal actions by its employees." The only test is whether the employee was acting within the scope of his employment. Corporate policies may be relevant to this question, but not dispositive in and of themselves.

Virginia

Respondeat superior isn't something those of us down in the trenches deal with often. In fact, I didn't think Virginia used it at all in criminal law. I thought that if a situation similar to this arose in Virginia we'd probably prosecute the company as a principal in the second degree.

However, it appears that respondeat superior does exist under Virginia law. It's found in old alcohol cases. Specifically, O'Donnell v. Commonwealth, 108 Va. 882 (1909), in which a store clerk sold illegal alcohol the Court stated this:

It is wholly immaterial, under the positive prohibition and policy of the statute, what the instructions were from the defendant to his clerk, or that the sale was in violation of his instructions. Neither the motives nor the intent of the defendant, nor his purpose to obey the law, can relieve him, when it is shown that a sale in violation of the statute was actually and purposely made either by himself or by another for him. The clerk knew he was selling the liquor, and the proof shows that he was selling it as the agent of and for the defendant.

Who knew? Virginia was ahead of the federal courts by 100 years.