The Volokh Conspiracy

I would be grateful if commenters could point to cases, statutes, or secondary materials which address these questions: In Terry stops, traffic stops, and other police encounters with individuals which do not involve an arrest, under what circumstances can a law enforcement officer temporarily detain a person’s firearm? For example, for officer safety during a traffic stop? To call a central database and see if the gun’s serial number is on a list of stolen guns?

Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the two countries made a deal: Belgium rents space for its inmates in Dutch jails, patrolled by Dutch corrections guards. (Perhaps the Flemish hope they can be “transferred” to Dutch custody as well, or at least out of Belgium.)

One would think this would spark some significant criticism on human rights grounds. So far, a delegation from the Council of Europe paid a site visit to the Dutch prison, and issued what seems a largely favorable report. There have been calls for emulation in Britain. Prime Minister Cameron has gone halfway, and come out in favor of sending foreign nationals back to their home countries to serve their time, though implementing this has been a bit of a bother.

There may be a trend here – call it Gaolbalization. Sending prisoners to the cheapest justice provider really went global in the past few years with Somali piracy. Dozens of nations have sent warships to catch the pirates. Piracy is a universal jurisdiction crime that can be tried by any country, and the Law of the Sea Treaty gives precedence to the capturing state. The problem is, piracy prosecution is time-consuming (at least in Western legal systems) and expensive, and leaves one with a permanent pirate population.

Thus European nations, the U.S., and other countries have worked out deals with Kenya and the Seychelles to transfer pirates caught by the former nations to be tried and imprisoned in the latter. There seems to be implicit compensation in these deals, with donor countries and the United Nations Office of Drugs and Crime modernizing the prisons and courts of receiving countries, getting them new “kit,” grants and other foreign aid. The stories of these dealings, often done on a case-by-case basis, would be fine reading in itself.

In the latest twist, the receiving country, the Seychelles, has found new efficiency: transferring the pirates it convicts back to breakaway regions of the Seychelles, which the capturing states were loath to do for human rights reasons. Again, under international law, piracy is as much, if not more, within the jurisdiction of the capturing state as the receiving state. Now we will have triple-transfered pirates. (One group of pirates captured by Germany and transferred to Kenya have apparently sued in a German administrative tribunal and won some kind of judgment, though I have not managed to get much on the details.)

Prisoner offshoring is now well outside the mainstream in the U.S. It would raise many constitutional difficulties. There would be questions about whether the circumstances in the foreign prisons violated particular constitutional provisions or rights of prisoners; access to counsel would seem inherently difficult. (The agreements discussed above stipulate that the receiving country will ensure adherence to relevant human rights standards, and generally provide some monitoring). One might also think that having to serve time abroad, away from kith and kin, for offenses committed here would be an Eighth Amendment violation in itself. And I’m sure there are lots of other problems.

On the other hand, if the Dutch/Belgium deal, or the Somali system, inspires other Western states, some might suggest that the Eighth Amendment is the kind of general constitutional stuff that has to be interpreted in light of changing international standards, in a global constitutional dialogue with other Western nations. Fortunately, “Decent Respect for the Opinions of Mankind” does not require following those opinions (or maybe even listening to them).

Last week, I filed an amicus brief on behalf of petitions for certiorari in Chafee v. United States and Pleau v. United States. These related cases could be among the most important federalism cases before the Court this term. The amici are the Cato Institute and the Independence Institute.

The State of Rhode Island and the federal government are fighting for custody of Jason Pleau, who is accused of perpetrating a murder during the course of a bank robbery. Rhode Island got him first, by revoking his parole for previous crimes. Pleau has offered to plead guilty in Rhode Island state court, and receive a sentence of life without parole for the murder/robbery. Although Pleau’s robbery of the bank’s night depository involves no particularly strong federal interest (such as the murder of a federal officer), the U.S. Attorney for Rhode Island wants to prosecute Pleau in federal court, and has stated that capital punishment may be sought.

Over four decades ago, the States entered into an interstate compact, the Interstate Agreement on Detainers Act (IADA). The Act provides the procedures for the temporary transfer of a prisoner from one state to another state, for criminal prosecution in the second state. Congress liked IADA so much that it not only gave permission for the compact, it also enacted IADA as a federal statute, and made the U.S. a party to the compact. So under IADA, the U.S. functions just like any other “sending” or “receiving” state.

The U.S. Attorney filed a detainer under IADA, to obtain temporary custody of Pleau. IADA explicitly provides that the Governor of the sending state has an unlimited right to refuse to transfer a prisoner. Rhode Island Governor Lincoln Chafee exercised this right. Because Rhode Island does not have the death penalty, Chafee believes that it would be contrary to Rhode Island public policy for Pleau to be subject to capital punishment for a crime perpetrated in Rhode Island, by a Rhode Island citizen, against another Rhode Island citizen.

Having been rejected under IADA, the U.S. Attorney then sought to obtain Pleau by asking a federal district court to issue a writ of habeas corpus ad prosequendum. This common law writ is used by a court to obtain a prisoner for prosecution, and it is implicitly recognized in the 1948 federal habeas corpus statute.

Lower courts split on whether the ad prosequendum writ could be used to evade IADA. Rhode Island lost in federal district court, won 2-1 before a First Circuit panel, and then lost 3-2 before the First Circuit en banc. What made the case of particular interest to Cato and the Independence Institute was the en banc majority’s casual use of the Supremacy Clause as a trump card automatically resulting in a win for the federal government.

The National Governors Association filed an amicus brief on behalf of Governor Chafee before the en banc panel; the NGA argued vigorously against the U.S. Attorney’s theory that the Supremacy Clause can override a valid compact between the States and the federal government. The NGA argued that this interpretation makes all federal/state compacts into worthless scraps of paper, as far as federal adherence to the compact is concerned.

Although the Solicitor General initially declined to respond to the cert. petitions by Chafee and Pleau, the Supreme Court has requested a response from the SG, which should be filed later this month.

The Cato Institute’s write-up of the case is here. Scotusblog’s collection of the various briefs is here, including the cert. petition amicus briefs of the National Governor’s Association and the Rhode Island ACLU. (Note that this is for docket number 12-223, the Chafee case. The related case of Pleau is 12-230, which is linked from the Scotusblog page for Chafee.) Below is the summary of argument from my amicus brief:

The First Circuit’s decision violates Supreme Court teachings about the relationship between habeas corpus writs and state sovereignty, as explicated by Chief Justice Marshall in Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), and by Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254 (1922). More fundamentally, the First Circuit misuses the Supremacy Clause to make it an absolute trump card to defeat any state claim. This is not, and never has been, the meaning of the Supremacy Clause.

The decision below mangles the Supreme Court’s major case about the Interstate Agreement on Detainers Act, United States v. Mauro, 436 U.S. 340 (1977). Westlaw characterizes the First Circuit’s decision as the “most negative” of the more than 600 lower court cases applying Mauro. The decision below does not merely misread Mauro, but instead chops quotes and inverts language so as to turn Mauro into the opposite of what Mauro actually said.

There is no evidence, let alone an “unmistakably clear statement,” that any act of Congress, including the 1789 and 1948 habeas corpus statutes, was intended to abrogate state sovereignty, including the sovereign right of Governors to refuse a writ of habeas corpus ad prosequendum.

The First Circuit grants unauthorized additional power (indeed, statutorily forbidden power) to the federal government, which makes it imperative that this Court grant certiorari to protect our constitutional system of dual sovereignty.

Thanks to my fine summer interns, Christopher Ferraro and Rachel Maxam, of Denver University Sturm College of Law, for their work on this brief.

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say. Continue reading ‘Florida’s Self-Defense Laws’ »

In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more radical proposal for turning sentencing back into a victim- and defendant-centered morality play, which I call restorative sentencing juries, but I can’t go into that here.)

Naturally, including victims gives rise to various fears. Today I’ll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.

First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants’ hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.

But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim’s input against the defendant’s and all the other evidence. A prosecutor would still be able to override a victim’s vengeful, selfish, or otherwise unbalanced requests.

What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more satisfied. That is not a zero-sum game; both victims and defendants can benefit from being treated respectfully.

Of course, some victims will desire more punishment than defendants want; that is why judges and juries must sit in judgment. But a process that listens to and respects both sides will earn more legitimacy in everyone’s eyes, regardless of the substantive outcome. And procedures that encourage catharsis, apology, and forgiveness may help victims to release their anger and find closure without demanding the maximum sentences.

Second, heeding victims would seem to invite inequality. Some victims suffer more or are more vengeful than others, and some are more attractive or more articulate.

Though many philosophers deride it as moral luck, harm to victims is undeniably central to popular intuitions of justice. For instance, whether a victim nimbly dodges a knife thrust can make all the difference between a conviction for murder, mayhem, or just aggravated assault. Each defendant may have the same mental culpability but receive vastly different sentences based on the victim he chose to victimize.

Gauging the harm to a unique human being, not a faceless abstraction, requires evidence of how that particular victim suffered. A victim’s expressed feelings and wishes are powerful evidence of the psychological harm that he has suffered or from which he has recovered. And many people’s intuitions put significant weight on victims’ wishes; they implicitly recognize that victims own a share of the right to punish.

One may legitimately worry that judges and juries may favor attractive, white, young, female victims. But sentencing guidelines, rules of evidence, and cautionary jury instructions can limit discrimination. Moreover, despite decades of regulations, scholars still find sentence disparities based on the race, sex, and class of victims. Rich, powerful victims already find ways to influence prosecutors and make their voices heard; poorer victims need formal ways to participate to achieve an equal footing.

Finally, efforts to treat like cases alike, such as mandating charging and minimum sentences, often wind up treating unlike cases alike. That is the lesson of my analysis of prosecutorial power: rules meant to ensure substantive equality often become plea-bargaining chips that turn on insiders’ interests rather than blameworthiness or harm. Perhaps, then, it is worth relaxing our fruitless quest for perfect equality in favor of the other values of victim participation.

Indeed, perhaps local participation by victims and the public may be even better at promoting equality than top-down judicial rules have been. Local democracy might perhaps defuse the insider-outsider tension, instead of driving outsiders to jack up sentences while insiders covertly and inconsistently undercut them. Over the last decade, in areas such as racial profiling, capital punishment, and crack cocaine sentencing, legislatures and governors have pushed for more criminal justice equality where judges have failed. Voters care about equality. Populism, in short, need not mean racism.

Third, transferring power from prosecutors to victims would seem to slight the benefits of professional expertise. But critics of victims’ rights overlook prosecutors’ flaws. Prosecutors are far from perfect guardians of the public’s and defendants’ interests. They have plenty of self-interests of their own, which can make them too harsh in some cases and too lenient in others. The alternative to a victim’s check on prosecutors is effectively no check at all. Prosecutors can check victims’ excesses, but likewise we need victims to check prosecutors’ excesses.

At one extreme, lawyers can become cynical. Some of the commentators on these posts, like some of the lawyers whom I interviewed for the book, doubt that there is such a thing as justice or that criminal justice could have anything to do with justice. Others burn out, drained and beaten down by the volume of work.

Many others become jaded, dulled by time and the steady drumbeat of crime. They may have been drawn to the profession to do justice and serve the public, but over time the focus on case-processing statistics and the legal mindset dulls the freshness of their perspectives. They need to be reminded of how their constituents, the outsiders, view justice and how they need to be treated.

I’m a former federal prosecutor: I wanted to do justice, and I was proud to engage in public service. The bulk of the lawyers I practiced with, against, and in front of were good, honorable people. But a little bit of distance from practicing law has helped me to see what I and many other practicing lawyers gradually paid less attention to–the central role of moral justice and flesh-and-blood people. Insiders may come to see defendants and victims as statistics, but outsiders taking a fresh look see complex, flawed, real people.

G.K. Chesterton put it best: “[T]he horrible thing about all legal officials, even the best, . . . is not that they are wicked . . . , not that they are stupid . . . , it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of justice; they only see our own workshop.” Juries existed to bring in a steady rotation of outsiders, whose fresh eyes could see the wounded victim and “the prisoner in the dock” in all their complexity before “the awful court of judgment.”

Ours is an age that worships professionalism and bureaucracy; we are disciples of Max Weber. Professionalism has its virtues, but we are sometimes blind to its vices and shortcomings. In the book, I reach back to an earlier American tradition, that of Alexis de Tocqueville and populist self-government.

Criminal justice should fundamentally be about justice, and justice is fundamentally about morality. Idealism should guide us even as practicality brings it down to earth. Only by forcing insiders and outsiders, lawyers and laymen to see through one another’s eyes and take one another seriously can we reap the benefits of both expertise and fresh perspectives.

It’s been a pleasure blogging here this week. Thank you for your attention.

In this week’s guest-blog posts on my new book, I’ve explored just a few of the ways in which our criminal justice machine has drifted far from its moral roots. Today I want to summarize the range of problems and offer just a couple of possible solutions, though the book goes into many more.

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control. Those goods do indeed matter greatly to ordinary citizens. But criminal justice ought to serve more than this single goal to which it has been boiled down.

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

It also hides the workings of the system, leaving outsiders frustrated and mistrustful and insiders free to indulge their self-interests or idiosyncratic preferences. It exacerbates the cycle of pathological politics of crime legislation, helping to provoke draconian referenda in response and later dishonest subversion of those populist measures.

In addition, the machine neglects remorse, apology, forgiveness, healing of relationships, reintegration, and reentry. It creates a semi-permanent underclass of prisoners and ex-cons in exile. It hollows out large swaths of minority neighborhoods. And it deprives countless children of their fathers and women of their husbands and boyfriends, with little hope that these men will return to lives of lawful work and responsible fatherhood.

Whew! That’s a daunting list of problems. It is immensely difficult to reform a system as broken as our punishment factory. Skeptics can dismiss incremental reforms as cosmetic, like straightening deck chairs on the Titanic. More ambitious reforms get attacked from the other side as unrealistic given massive caseloads.

Still other critics assume, wrongly, that if the public supported any workable reforms, politicians would already have implemented them. But we must start where we can and not let pessimism paralyze us.

In the book, I suggest a range of possible solutions, including making prisoners work (even perhaps in the military) to repay their victims, families, and society and making it easier for them to find housing and jobs upon release. I propose abolishing the most dishonest forms of plea bargaining, particularly pleas in which defendants proclaim innocence or stay silent and those in which prosecutors downgrade the true charges. In today’s post, I’d like to focus on micro-level solutions to include victims more fully in individual cases.

The first step is to give victims better information about their cases. While most states have some victims’ rights law on the books, enforcement is uneven and many victims don’t receive notice. Dedicated officials, such as victim/witness coordinators, help to increase contact with victims and keep tabs on the progress of cases. Automatic email and telephone notices could keep them informed about upcoming court hearings.

Victims could also be allowed to speak at sentencing, instead of submitting perfunctory letters. They could also speak with, question, and respond to defendants and lawyers at trials and at plea and sentencing hearings.

The hardest questions involve what kind of voice victims should have over the course of the prosecution. The trick is to strike a middle path between letting victims hold the system hostage or making their participation hollow. The community’s shared sense of justice should control, but victims provide important information about the harms they have suffered. The public wants to hear what victims have to say and what they need in order to heal, but it should check that reaction with its own sense of justice.

First, prosecutors should provide timely notice of upcoming decisions, such as charges and plea offers. Second, they must affirmatively solicit victims’ views, in plenty of time to influence decisions. Third, prosecutors should have to articulate reasons for their decisions, much as judges do. For major decisions, they should do so in writing; for minor or routine ones, a checklist or oral statement could suffice.

Fifth, victims ought to have the time and opportunity to appeal major felony decisions to a prosecutor’s supervisor, even by email, phone, or a ten-minute conversation. If line prosecutors knew that victims could appeal to their supervisors, line prosecutors would listen more respectfully and be careful to justify any contrary decisions.

Finally, victims (as well as judges, fellow prosecutors and police, probation officers, and even defense lawyers and defendants) should have avenues to leave feedback on police and prosecutors’ performance. Even an eBay-style feedback loop would illuminate and check professionals’ decisions, and it could influence pay and promotions. Soliciting victims’ feedback would empower them and send the message that the system cares about their views. Corporations routinely survey customers and solicit feedback so they can continually improve their customer service; government agencies have been slow to do the same.

Of course, victim involvement works only where one can identify a victim. More than a third of arrests are for drug crimes, and one-ninth are for public-order offenses, such as weapons and driving-related offenses. But not all drug and public-order offenses are truly victimless: think of crack houses that blight neighborhoods or armed criminals who terrorize communities.

Where even indirect victims are absent, that very absence should weigh against aggressive enforcement. That would reshape drug enforcement away from racking up easy buys and busts toward the subset of crimes that indirectly harm neighborhoods. More of a focus on victim input would mean more focused enforcement of so-called victimless crimes and more emphasis on classic violent and property crimes.

So, that’s just a sampling of the book’s diagnosis and remedies for what ails American criminal justice. In my final post late today or tomorrow, I’ll respond to some objections, most notably fears of inequality, vengeful victims, and unprofessionalism. Each concern, I’ll suggest, is legitimate but manageable.

In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest that the root problem is the state’s monopoly on criminal justice, and solutions have to involve giving greater roles to victims.

Today, the right to punish belongs exclusively to the state, not the victim. Crimes violate the state’s laws and its interest in maintaining public order and social cohesion. The state does not settle for restitution and fines, as private litigants do, but imprisons and even executes wrongdoers. It exacts its justice quickly and impersonally to lock up the dangerous criminal and to deter him and others. All that seems to matter is the bottom-line number of years in prison and, to an extent, accuracy in discerning guilt.

The state-centered model assumes that cold reason should dominate criminal-justice decisions and exclude human emotions. But the cool logic of state-monopolized justice, to the exclusion of victims, conflicts with many people’s moral intuitions.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

That is a big part of why victims’ rights laws have proven so popular (though, as the book explains, they haven’t lived up to their promise and have often been hijacked by tough-on-crime groups such as prison guards). Plus, an important function of punishment is to defeat crimes by vindicating and re-empowering victims.

Empirical evidence confirms the intuition that victims’ views matter. When surveyed about concrete punishment scenarios, many people give great weight to the victim’s attitude and wishes, particularly for crimes involving property or personal injury. A democracy ought to do more to incorporate this widespread intuition about justice.

Professionals look at conflicts as costly disputes to be negotiated away. But in a sense, conflicts are important opportunities for the victim, defendant, and community to express themselves, listen, and learn. The parties have suffered personally and belong at the center of the dispute. Thus, criminal law used to resemble private law, in which tort victims may prosecute, settle, or waive their shares of claims. But professionalization has stolen conflicts from the parties, not only disempowering them but also muting the lessons taught by public criminal verdicts.

The law could surrender its monopoly on criminal justice by once again making more room for the parties’ interests and voices. That doesn’t mean transferring the monopoly to victims; prosecutors need to keep a leading role to ensure accuracy, equality, and fairness. But victims and defendants deserve greater speaking roles, both in court and in mediation. Judges and juries must filter the partisans’ voices, empathizing yet reflecting and keeping critical distance, to keep retribution from collapsing into vengeance.

The exclusion of any victim’s right is especially puzzling when the victim wishes to forgive and show mercy. The state may cap punishments to check bloodthirsty vengeance, but it has much less reason to symmetrically limit mercy. As long as the punishment suffices to deter, incapacitate, and condemn the seriousness of the crime, the state’s interests are satisfied. Any margin of retribution above that should be the victim’s to forgive.

We need to take seriously the metaphor of a debt wrongdoers owe both to society and to victims. As the victim suffered the direct loss and holds a share of the wrongdoer’s debt, he may either insist on payment or forgive his share.

The moral of the story is that, even if the state runs the process, human emotion deserves a seat at the table. Emotion isn’t just a raw, blind, unreasonable passion. It is in part cognitive and evaluative, and it can be taught.

Emotions are an important part of what makes us human and how we understand and evaluate our fellow humans’ actions. Crime excites fear and anger, empathy and indignation, sorrow and forgiveneness. Victims need our solidarity; wrongdoers merit our anger but also empathy for their plight and reasons for breaking the law. But neutral arbiters must reflect and balance competing emotional claims to distill justice. Laymen care whether criminal justice is emotionally sensitive or tone-deaf, and taking these concerns into account should bolster the law’s legitimacy.

But, as the book discusses in detail, too often lawyers hijack emotional discourse to serve particular political ends. In that vein, I canvas three recent political movements (victims’ rights, restorative justice, and therapeutic jurisprudence) that react against the impersonality of the criminal justice machine. Each movement is unbalanced, but each has something to teach narrow, cold, state-centered criminal justice.

In my final installment tomorrow, I’ll offer a few suggestions for how criminal justice could do much more to include victims alongside prosecutors, to blend the perspectives of both insiders and outsiders, lawyers and laymen.

In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples of the tug of war that erupts between the two sides; and explain some of the hidden costs of this gulf.

By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel. They are knowledgeable about investigations, crimes, and punishments. Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.

Though prosecutors and police are nominally agents of the outsiders whom they supposedly represent — victims and the public — outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs. Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining. Finally, as lawyers, insiders are taught to weigh costs against benefits, focusing on neutral, amoral criteria such as speed and cost.

Outsiders see the system quite differently. They see little of police enforcement decisions, plea-bargaining conversations in courtroom hallways, or secret grand jury proceedings, and receive little notice or information even about proceedings that are public. Sensational media accounts and crime dramas lead the public to imagine that sentences are lighter than they actually are. In addition, victims and members of the public have few opportunities to participate and have their day in court, or even to see what’s going on. Finally, outsiders do not mellow or become jaded, and they view crime in moral terms, not economic ones.

The gulf between insiders and outsiders breeds a tug of war between the two sides. In America, the law on the books is often tenuously related to the law in action, because police and prosecutors have pervasive discretion in deciding which laws to enforce in which cases and how vigorously. In other words, criminal laws create not binding obligations, but a menu of options for insiders to exercise or not.

So, for instance, police choose not to make troublesome arrests, or prosecutors bargain down charges or sentences, to get rid of troublesome cases. For a long time, they viewed drunk driving, domestic abuse, and date-rape cases as not very serious and (in the latter two cases) hard to prove, so police would avoid making arrests and prosecutors would bargain the cases away to get rid of them. (Those are about the only crimes I can think of where popular outrage has been loud and sustained enough to bring about an enduring shift in arrest and prosecution practices.)

When the public sporadically gets angry about a criminal justice problem, perhaps because of media hype, it may clamor for new crimes or mandatory-minimum sentences. What the public doesn’t see, however, is that insiders’ procedural discretion usually undercuts these reforms, turning even so-called mandatory sentences into chips to be bargained away. If the public gets angry about plea bargaining, it may even try to limit prosecutors’ ability to plea bargain through ballot initiatives and referenda. But even then, prosecutors find ways around such laws.

Now, some readers probably aren’t too troubled by this. If you think lawyers know best and voters are benighted, you might be tempted to applaud how lawyers subvert democratic accountability and responsiveness in order to process cases efficiently.

But the costs are considerable. The tug of war wastes prison resources, unduly lengthening some sentences and shortening others based on defendants’ plea-bargaining behavior rather than what they deserve. It leaves insiders vast discretion to apply new laws selectively, opening the door to discrimination or arbitrariness. It leaves outsiders disempowered, and it thwarts democracy. In particular, it undermines trust in and the legitimacy of the criminal law, and it prevents the public from monitoring its agents and ensuring that they are following the will of the people.

Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.

But now that jurisdictions are much larger and most citizens learn about criminal justice from television, outsiders can intervene only crudely. At best, they can paint with a very broad brush by voting and influencing legislatures. At worst, they must pass laws that read like bumper-sticker slogans, such as three-strikes laws and mandatory minimum sentences, because they have lost faith in insiders and lack subtler tools to limit leniency and ensure equality. What should have been a cooperative relationship has degenerated into a competitive one, as outsiders wield these sledgehammers and insiders feel they have to evade their crude blows.

At root, these difficulties stem from what economists call the principal-agent problem. Prosecutors and police are supposed to serve victims and the public interest, but those voices are so diffuse and powerless that there is really no identifiable client to constrain how the agents do their jobs. (The book offers a similar critique of the relationship between defendants and their lawyers.) In tomorrow’s blog post, I’ll propose a fairly radical shift in how to think about the stakes in criminal justice: loosening the state’s monopoly on criminal justice by once again giving victims a central role.

In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen.

To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by ordeal. Nor did I endorse flogging or rampant use of the death penalty, though actual executions were much less common than most people suppose. Nor did I say that we ought to get rid of all modern due process and lawyers and go back to 20-minute-long trials (though one can question how much better modern plea bargaining is in practice). My point was more modest: that the colonists saw justice done and had their day in court. In our Whiggish assumption that the past was irredeemably backward and all change is progress, we often overlook what we have lost in our quest for efficiency.

Today, I’d like to set forth some of the things that changed over the course of the nineteenth and twentieth centuries, transforming the lay-run morality play into a professionalized plea bargaining assembly line.

First, over the course of the nineteenth century, public prosecutors steadily gained control of American criminal justice at the expense of victims. Some colonies did have public prosecutors, but their role was occasional and limited. To give just one example, some public official was needed to prosecute homicides because, for obvious reasons, the victim could not. But there was nothing like a professional, state-dominated system of routinely detecting, charging, and prosecuting crime.

Prosecutors, of course, lack victims’ personal stake in the outcome. That is good as a way to check private vengeance, but it also opens the door to what economists call agency costs: the distinctive self-interests and incentives that influence public servants. Salaried prosecutors usually have little reason to invest extra work in any one case, particularly if they are part-time employees who can earn more by getting back to their private clients. Prosecutors are also a politically ambitious bunch who may want to burnish their reputations by winning a few high-profile convictions at trial.

In addition, prosecutors may care about keeping their conviction rates up, trading severity of sentences for certainty in the course of plea bargaining (see below). If they care about racking up conviction statistics, and lack personal stakes in any case, they may lean toward prosecuting easier-to-prove victimless crimes. In a victim-run system, such crimes would be prosecuted only where they at least indirectly affected some victim.

Second, defense lawyers gradually came to stand in for defendants. Back in the eighteenth century, victim and defendant would tell their stories at trial almost in a shouting match, letting juries hear both sides first-hand.

As defense lawyers increasingly entered the picture, however, they advised their clients to let them do the talking. Instead of offering excuses or pleading for mercy, defendants increasingly stood mute. That transformed the trial from a morality play between the protagonist and antagonist into a courtroom duel between professional adversaries. And because those adversaries were professionally trained and repeat players, they developed intricate rules of evidence and procedure, further distracting the trial’s focus from who did what and who deserved what.

But third, those courtroom duels became increasingly rare. The sprouting of technical rules made trials much longer, from minutes to hours and then days. (Today, a good number take weeks or even months.)

During the nineteenth century, courts became increasingly busy with civil (tort) lawsuits over streetcar and railroad accidents, factory injuries, and the like. So prosecutors, defense counsel, and judges alike came to share an interest in clearing their dockets through speedy plea bargaining. And since they were all repeat players, they could develop going rates and market prices for recurring crimes.

From the point of view of these insiders, plea bargaining made perfect sense. Lawyers who have seen a lot of trials can predict with some accuracy whether a jury will convict and what sentence a judge will likely impose.

In exchange for offering a charge or sentencing discount, prosecutors free up time and resources to pursue more cases. Defense lawyers cap their clients’ sentence exposure, receive discounts, and get cases over with quickly. And trial judges clear their dockets and avoid the possibility of embarrassing reversals on appeal. Just as private bargains make both sides better off, because each side gets something it values more, so plea bargaining makes all the participants feel better off.

If plea bargaining makes everyone happier and is so efficient, why then does it remain controversial today? That depends on whether one looks at it primarily as a matter of public law or of private (contract) law. The lawyers who negotiate the bargain may all be better off; they efficiently dispose of caseloads and trade off severity of sentences for certainty of more sentences. The lawyers see the process primarily as a contract, a private deal that happens to serve their professional and personal interests as well as their understanding of the public interest.

But that perspective leaves out the public, the laymen to whom criminal justice is not a private bargain but a public morality play. From the public’s point of view, plea bargaining is opaque, it cheapens justice by commodifying it, and it is often dishonest (as when, for example, a charge bargain reduces attempted murder or rape to aggravated assault). Victims may feel sold out and excluded, and defendants may feel they have gotten away with something.

These wildly divergent perspectives on plea bargaining track what I call the great gulf that separates criminal justice insiders from outsiders. The contours of that gulf, and the ways that it harms criminal justice, will be the topic of my next post tomorrow.

I’d like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because informal social pressure did so much work in preventing and responding to lawbreaking, there was less need for professional state intervention and coercion. Because the moral consensus emphasized that everyone was weak and fallen, there was more understanding and brotherly love to moderate criminal punishments.

And because morals crimes cut across the social spectrum, criminal justice didn’t create a discrete criminal underclass; everyone could occasionally stumble. People paid their dues, were forgiven, and could reenter society with a clean slate and rise to high office and social station. There was no gulf between the governors and the governed, the law-abiding and the lawless.

It’s also extremely significant that colonial justice was the business of amateurs: laymen, not lawyers. Ordinary white men took turns serving as night watchmen and constables, and when victims shouted out a hue and cry all the neighbors were supposed to rise up to help catch the perpetrator.

Criminal cases were decided by local juries, who applied their common-sense notions of right and wrong to decide who was factually guilty and morally blameworthy. At first there were no American law books or law schools, and very few lawyers overall. Thus, even the judges had little training, and many if not most cases were prosecuted by victims pro se (without lawyers) and defended by defendants pro se, each telling his side of the story.

The lack of professionalization certainly had its downsides; for example, it left amateur night watchmen poorly equipped to deal with dangerous professional criminals. But it also meant that trials were straightforward contests about who had done what and who deserved what punishment.

There were no lawyers to generate and argue over technical rules of evidence and procedure, nor to draw out pretrial motions and post-trial appeals. The side issues that today distract from factual and moral guilt, such as Miranda warnings, the exclusionary rule, and the intricate hearsay rules, were far off in the future.

Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution’s case. Criminal trials publicly aired each side’s story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.

So, with apologies to professional legal historians for oversimplifying, that’s a rough snapshot of what colonial American criminal justice looked like. Tomorrow I’ll explain the dramatic changes it underwent over the nineteenth and twentieth centuries.

My co-author Yale Kamisar helped found the field of constitutional criminal procedure in the 1960s, and his articles have been cited in dozens of Supreme Court cases as early as 1960 and as recently as 2009. He’s now in his 80s and remains active. Yale lectured on the law of police interrogations at the University of Washington Law School back in October in a lecture titled “The Rise Fall and Decline of Miranda.” You can watch the video of the event via Quick Time here; watch it via Windows Media Player here; download the mp3 here; or read the transcript here.

I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the most interesting book on the criminal justice system that I’ve read in a long time, and perhaps ever. At the same time, I’m not sure I’m entirely convinced: Stuntz makes a number of claims that strike me as questionable. Plus, his recommendations for reform stuck me as a bit utopian. In this post, I’ll introduce Bill’s basic theory, and then offer some thoughts in response. In a future post, I’ll turn to Stuntz’s recommendations, and again offer my own reaction.

I. The Basic Argument of Stuntz’s Book

Stuntz’s argument starts with a widely-heard set of complaints about today’s criminal justice system: Too many people are in prison, too many laws are too punitive, and criminal cases are generally resolved by guilty pleas guided by prosecutors rather than trials resolved by juries or judges. The question is, why? In Stuntz’s view, the major reason is that criminal justice has lost its local character.

In the 19th Century, Stuntz explains, criminal law and justice was largely local. There was a lot of variation by region, to be sure. But on the whole, local police captured local criminals, who were charged by local prosecutors and tried before local juries using criminal law standards from the common law that were vague and left considerable discretion to the jury. In Stuntz’s view, that system worked pretty well – much better than we realize today. Criminal punishment was relatively rare, and punishment reflected community norms and senses of justice. According to Stuntz, a range of forces have slowly eliminated the local character of criminal law. And losing the local character of the law has made it more punitive and less fair.

What changed? First, the shape of criminal law doctrine came to be seen as a legislative question, not a judicial question. Criminal law used to be fixed: It was settled by the basic doctrines of the common law. As criminal law became seen as a field subject to control of the state and federal elected branches, criminal law began to expand. Because most see themselves as potential crime victims rather than potential criminals, especially in the aggregate at the state and federal level, politicians have a strong incentive to be seen as “tough on crime” by making criminal law broader and harsher. And because most voters don’t directly experience crime levels or the effect of punishment on their own communities — most voters don’t live in high-crime neighborhood — they tend to be receptive to the “tough on crime” message even if the law is already tough. The system thus tends towards harsher and harsher punishment, especially at the state and federal level. Even local prosecutors have new incentives to be extra harsh, as state governments rather than localities have come to pay for the prisons: Local prosecutors can get all the public relations benefits of “locking them away” without having to pay the bill for costly imprisonment.

This trend was facilitated by the Supreme Court’s failure to keep legislatures in check. In Stuntz’s view, the Equal Protection clause should have been a major check on legislative and executive action in the criminal justice field. The Courts should have interpreted it to ensure substantive fairness in the laws, and especially to eliminate racial discrimination. But the Court instead gutted the Equal Protection clause in the 19th Century in United States v. Cruikshank. At the same time, the Supreme Court adopted an expansive interpretation of the Commerce Clause as far back as the 19th Century, allowing Congress to federalize morals legislation based on a simple showing that something crossed state lines. By taking a deferential position that allowed racial discrimination to flourish at the state level and enabled Congress to federalize criminal law, the Supreme Court wrongly let the political branches do as they pleased. Legislatures could raise punishments as high as they liked; police could engage in pretext prosecutions, and target minority groups; and prosecutors could add lots overlapping charges to induce guilty pleas.

Stuntz argues that the harshness of the criminal justice system was inadvertently aided by well-meaning progressive reformers. Reformers tried to make the system more fair, but their efforts backfired. In the 19th Century, criminal law was vague and procedural rights were few: Trials were cheap, they occurred all the time, and juries had a lot of discretion under common law standards. In response, 20th Century reformers tried to rationalize and clarify criminal law standards by replacing vague common law definitions of crimes with new clear ones (such as the Model Penal Code). The idea was to make criminal law more predictable and rational, but the perverse effect was to greatly diminish the role of the jury: Whereas traditional criminal law doctrines had left lots of discretion for the jury, the new clear standards gave defense attorneys very little to argue about. The result was more guilty pleas and fewer trials.

At the same time, the Warren Court’s criminal procedure revolution gave defendants more rights with the aim of making the criminal justice system more fair. To some extent, this was a belated response to the 19th century Supreme Court’s failure to take the Equal Protection clause seriously. But in Stuntz’s view, using the Bill of Rights to focus on the procedure of criminal justice (the law of investigations) rather than using the Equal Protection clause to focus on the substance of criminal law (definitions of crimes) only made the problem worse. More procedural rights raised the costs of trials. Because legislatures were free to alter the substance of criminal law however they pleased, legislatures responded to the new procedural rights by broadening criminal laws, jacking up criminal penalties, and giving prosecutors wide discretion to pressure defendants to plead guilty in exchange for a “deal.” Perversely, the result of giving defendants more rights was to create an environment in which most defendants were pressured into waiving all their rights in practice by pleading guilty. The Supreme Court’s regulating procedure instead of substance just made the substance worse instead of making the procedure better.

II. A Few Thoughts In Response

I find Stuntz’s argument fascinating. He makes a lot of intriguing claims, and there’s a ton to chew on here. It’s the kind of book I want to mull over and read again, which is about the highest compliment I can give. For what it’s worth, my initial “mull” finds me partially persuaded and partially unpersuaded. Some of what Stuntz says rings true, but some of his claims raise a lot of question marks.

Stuntz’s basic narrative of the need for localism strikes me as persuasive and really important. His focus on the need for criminal justice to stay attentive to the needs of the community — and the dangers when decisionmakers don’t reflect the views of the community most directly impacted by crime — rings true to me. To some extent, Stuntz’s view is the classic argument for local decisionmaking: People can take care of themselves better than others they don’t know, as they are more closely tied to the facts of what is happening and they can exercise judgment based on local opinions. So on the basic gist of the argument, I’m pretty impressed.

Stuntz’s effort to link the Supreme Court’s caselaw on substantive criminal law and criminal procedure is also a terrific and insightful move — one that is based on and extends what what is probably Stuntz’s most important article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, published in the Yale Law Journal in 1997. Uneasy Relationship is a favorite of mine, and I was glad to see its insights take a prominent place in Stuntz’s book.

At the same time, I had some significant concerns with parts of the argument. Let me focus on two parts in particular. First, I thought Stuntz had a rather rosy view of the past of criminal justice. His conclusion that the system more or less worked in the past strikes me as optimistic. Much of his argument was based on data like crime rates and imprisonment rates that I found hard to assess. I found myself unsure of whether to accept the data as accurate, and I was dubious that we can say very much about how the criminal justice system worked assuming all the data is right Take the fact that crime rates have plummeted since the early 1990s: Does that really suggest that we’re doing something right today that we were doing wrong twenty years ago? Or is this just the fortunate byproduct of banning lead, or something else? Stuntz doesn’t have much of an answer for why crime rates have plummeted in the last 20 years — he discusses it at length, and concludes it is a real puzzle — which to my mind reflects a skepticism that could be equally well applied to the causes of crime rates in the past.

Similarly, I think the differences between the common law of crimes and the more modern approach to criminal law are much more modest than Stuntz suggests. There are some differences, yes. But on the whole, they’re minor: The basic elements of the basic crimes today are pretty similar to what they were in Blackstone’s time. And some defenses, like necessity, are generally considered broader today than they were in the past (to the extent they existed at all). As a result, it seems dubious to me that changes in approaches to criminal law played a significant role in changing the nature of the criminal justice system. It’s an intriguing idea, and fits the classic Stuntzian unintended consequences mold. But I’m just not sure it works. If there were such an important difference between the common law standard and the modern standard, wouldn’t we expect to see a difference between the outcomes in jurisdictions that today still retain the gist of the common law approach and those that have widely adopted the modern approach? Stuntz doesn’t suggest that there is such a difference, and I don’t know of one. So I’m skeptical that that there is an effect such as what Stuntz mentions, or at least that it is significant.

Of course, it may be that the law has operated differently, rather than the doctrine is different. Slight differences in trial procedure can have a huge difference in how the law is applied. Take the case of the trial judge’s gate-keeping function. These days, trial judges play a major gate-keeping role: If a defendant wants to put on a defense, for example, the trial judge has to find enough evidence to support it before it can be argued to the jury. If there were different gate-keeping functions in an earlier time, then the law could be applied very differently even if the formal doctrine were the same. If judges used to give all the issues to the jury, for example, the jury would have a lot more discretion than they do today because they would be invited to consider more defenses, not because the details of the jury instructions on the law would be any different. I don’t know enough about the history of criminal trials to know if that gate-keeping function has changed much, but I suspect that is more likely source of jury discretion than changes in doctrine.

David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia.  In recent years he has led the charge for more strict enforcement of the Sixth Amendment‘s confrontation clause.  This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results.  Justice Scalia’s commitment to his understanding of the Constitution’s original meaning is not all that’s at work here, however.  His commitment to formalism, and the imposition of bright-line rules, is even greater.  Indeed, the best way to understand the current Court’s division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations.

State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports:

Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. . . .

“The whole jurisprudence system is based on the jury system,” [state legislator Lynn] Slaby said. “Until we do away with juries entirely, it’s more fair to have both sides have a right to a jury trial.”

As the article notes, this proposal is not revolutionary. Although criminal defendants have a constitutional right to trial by jury, they are not guaranteed the ability to waive this right.

My friend Jennifer Granick points me to an interesting new case, Hubbard v. Myspace (S.D.N.Y. June 1, 2011), that touches on a fascinating Fourth Amendment question: What are the territorial limits of search warrants for Fourth Amendment purposes? To be clear, the Hubbard case itself involved a statutory challenge, not a constitutional one. The plaintiff sued MySpace for complying in California with a state warrant issued in Georgia that was faxed to MySpace in California on the ground tat the Stored Communications Act, 18 U.S.C. 2703, did not allow MySpace to comply with the out-of-state warrant. As a statutory claim, the argument was pretty clearly incorrect. But at the end of his opinion (p.11) Judge Kaplan touches on a really interesting issue: What about the Fourth Amendment?

Specifically, the interesting issue is this: If the Fourth Amendment imposes a warrant requirement on government access to an e-mail account, which I think it does and the Sixth Circuit has expressly so held, is the warrant requirement satisfied by an out-of-state warrant from a jurisdiction far away with no authority to actually compel compliance with the warrant? Or is the warrant requirement only satisfied by a warrant issued locally, or at least in the same state or federal district? This issue generally doesn’t come up in traditional physical investigations because the police will get a local warrant to physically search a local location, and arrests generally don’t require warrants. But warrants for e-mail accounts are unusual: The police obtain the warrant and fax it to the ISP, and the Stored Communications Act contemplates out of state warrants. ISPs usually don’t have to comply with out of state warrants, as they are out of state and not binding on them: But the question I’m interested in here is, does the out of state warrant satisfy the warrant requirement?

I would think the best answer is that the warrant requirement does not have a territorial limit: For Fourth Amendment purposes, the warrant requirement is satisfied so long as a neutral and detached magistrate somewhere has found probable cause, established particularity, and signed the warrant authorizing the disclosure. I think that for a few reasons. First, the Eighth Circuit has expressly approved of the constitutionality of an out-of-state e-mail warrant in one case, United States v. Bach, which involved a Minnesota state warrant for an e-mail account that was faxed to Yahoo in California. Although Bach did not discuss the extraterritorial nature of the warrant, the approval of the facts of that case hints that the extraterritorial nature of the warrant doesn’t matter. Second, I think the territorial limits of courts to issue warrants is at least arguably the kind of statutory limit on state power that the Supreme Court has said is irrelevant to Fourth Amendment reasonableness in Virginia v. Moore, 128 S.Ct. 1598 (2008). Third, cases from the wiretapping context have held that judges in one district can authorize intercepts in other districts. See, e.g., United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) (Posner, J.)

Finally, if warrants do have territorial limits for purposes of the warrant clause, we need a theory for what those limits are, and figuring that out is actually kind of tricky. For example, imagine the rule is that the warrant requirement is satisfied only if the issuing judge’s power to issue warrants includes that physical location under the statutory warrant rules. That would mean that whether the warrant requirement is satisfied is only a matter of legislative grace, which seems arbitrary: Fiddling with the statutes would change the constitutionality of the search. Alternatively, you might try to argue that the territoriality is state by state, such that each magistrate has some implicit power to issue warrants in the state that authorizes the judge’s commission (or perhaps nationwide in the case of federal warrants). That’s a theory, but I don’t think it has much in the way of a constitutional basis. So putting the pieces together, I would say that the Fourth Amendment warrant requirement is satisfied by a warrant being issued somewhere, independently of whether it was issued in a particular state or district.