The Volokh Conspiracy

Why should foreign law ever be applied in American courts?, some people ask. Why should foreigners get the benefit of this law when they come to America? There are many answers to this, but I thought I’d offer a helpful illustration.

The broad point is that, when American courts apply foreign law, they apply it because American law calls for the application of foreign law. It’s not that American courts are somehow using foreign law to trump American law; rather, they are trying to follow American law. But why would American law consider foreign law? Here’s one example.

Say that Mahmoud (age 30) and Wafa (age 16) come on a visit to California, and have sex here. Having sex with an under-18-year-old is generally a crime in California:

Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is [under the age of 18 years].

If Mahmoud raises the defense, “I’m from France and it’s OK to have sex with under-18-year-olds there,” his defense will go nowhere. Likewise if his defense is “I’m from Washington State and it’s OK to have sex with under-18-year-olds there.” Foreign law, and out-of-state law, is in that context irrelevant.

But say Mahmoud raises the defense, “I’m from Pakistan, and Wafa and I were married there.” Then under California law Mahmoud wouldn’t be guilty (since the law refers to sex “with a person who is not the spouse of the perpetrator”), assuming his marriage is valid. Convicting him would be a denial of his rights under California law.

Now as it happens, in California, under-18-year-olds may not marry without a court order (and, generally, parental consent). But California law only says that these items are required to marry, and by the normal rules of statutory construction this applies only in California. (It might or might not be seen as applying also to Californians who leave California briefly to marry elsewhere, but we set aside here; cf. McDonald v. McDonald (Cal. 1936).) California doesn’t purport to regulate marriages in Pakistan, or to retroactively require California court approval for people married in Pakistan to have the rights of married couples in California. One can imagine a California law so providing (e.g., barring sex in California even among married couples when one spouse is under 18, unless a California court approves the marriage), but there is no such law, and I’ve never heard of any such law in an American state.

So indeed foreigners (or even people from outside the state) coming to California might have, in a sense, rights that Californians in California don’t possess: The visitors may have sex with their under-18-year-old spouses without any court approval of the marriage. But that’s just what California law calls for.

How, though, can California courts tell whether Mahmoud and Wafa are actually married? California courts can’t ask for a California marriage certificate, since Mahmoud and Wafa were married outside the state (and indeed outside the country). Instead, following the well-established American rule for determining whether a marriage is valid — which is embodied in a California statute — they ask whether the marriage was “valid by the laws of the jurisdiction in which the marriage was contracted” (here, Pakistan). If it complied with all the relevant formalities and substantive preconditions under Pakistani law, then it is valid for California law purposes, and Mahmoud isn’t guilty of statutory rape. But if the marriage was invalid under Pakistani law, then Mahmoud isn’t married, and he probably is guilty. (I say “probably” because it might be that, if Mahmoud sincerely believed he was married, or especially if he reasonably believed he was married, he wouldn’t be criminally punishable, since he wouldn’t have had the requisite “mens rea,” or culpable mental state, as to one element of the crime: the “person who is not the spouse” element. But if the marriage is valid under Pakistani law, then all that is irrelevant.)

Of course, some marriages are invalid under California law even if they are valid under Pakistani law; polygamous marriages would probably qualify, as would, say, father-daughter marriages, or perhaps marriages with 8-year-olds. They would be rejected under an exception to the general rule that marriages are valid in California if they are valid in the place where they were entered into: the exception for marriages that are “contrary to public policy.” But generally the fact that California formalities weren’t complied with in the foreign marriage (which is inevitable), or even that the marriage would be substantively invalid in California but not in a way that would shock California courts — e.g., when the age of marriageability is 16 rather than 18 — doesn’t render the foreign marriage invalid for California purposes. (Of course, this leaves some interesting and difficult line-drawing questions, but that’s what courts are supposed to do in applying the “contrary to public policy” standard. In our legal system, founded on the common law, courts are often asked to make these sorts of policy judgments when a statute doesn’t preclude the judgments.)

So to determine whether Mahmoud is guilty of statutory rape for having sex with Wafa, we need to look to Pakistani law to determine if their marriage is valid, and if Mahmoud is married to Wafa under Pakistani law, he is probably not guilty of the crime. As a result, he is free to have sex with this 16-year-old in California even though Californians generally aren’t, at least in the absence of a court order authorizing the marriage. But, again, that’s not because Pakistani law somehow trumps California law. It’s because, in this particular scenario, this is the result that California law demands — and, I think, quite reasonably so.

George Will recently published an interesting column on a bill that would give judges greater discretion to reduce mandatory minimum sentences for federal crimes, co-sponsored by Democratic Senator Patrick Leahy and Republican Rand Paul:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year. They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade.....

Approximately 80,000 people are sentenced in federal courts each year. There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration. There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed....

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums. This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge...

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Unlike many other critics of overcriminalization, I don’t object to mandatory minimums as such. I think there is a good case for ensuring uniformity of sentencing across different judges. But there is also a strong case for lowering the very high minimums that currently exist for many relatively minor federal crimes. An even better way to rein in federal criminal law would be to abolish much of it completely. For many of the federal crimes currently on the books, we need a mandatory maximum of zero.

If we are really serious about curbing the expansion of federal criminal law, we will also have to pare back the War on Drugs), which accounts for the majority of all federal prisoners, and has led to some of the most constitutionally problematic extensions of federal power. Conservatives who want to enforce tight constraints on the scope of federal power must realize that this objective is incompatible with maintaining the present sweeping scope of federal drug prohibition. If the federal government can ban the possession of medical marijuana that was never sold in any market and never crossed state lines, it can ban virtually any other activity. Similarly, liberals who want to reduce our high incarceration rates must realize that the War on Drugs is responsible for a large part of the problem, Over 50% of federal prisoners and 20% of state prisoners are incarcerated for nonviolent drug offenses.

That said, given the proliferation of very high mandatory minimums for a wide range of federal crimes, the Leahy-Paul bill could well be an improvement over the status quo. If the realistic alternative to broad judicial discretion over sentencing is very high penalties for a variety of federal crimes many of which should not be on the books in the first place, the former is probably the lesser of the available evils.

UPDATE: I have corrected a couple minor but annoying typos in this post (a consequence of writing the initial version late at night).

From today’s Ferguson v. Secretary (11th Cir. May 21, 2013) (thanks to How Appealing for the pointer). Here’s a longer excerpt:

The Supreme Court has decided that a convicted murderer cannot be executed unless he has a rational understanding of the fact that he is going to be put to death and of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60 (2007). In announcing that rule, however, the Court did not decide what rational understanding means in this context. It acknowledged that a concept like rational understanding is difficult to define and cautioned that normal or rational in this context does not mean what a layperson understands those terms to mean....

The habeas petitioner in our case, John Ferguson, contends that under the Panetti decision he is mentally incompetent to be executed. As the facts come to us, Ferguson has a mental illness but he does understand that he is going to die by execution, and he understands that it is going to happen because he committed eight murders. Ferguson also believes, as tens of millions if not hundreds of millions of other people do, that there is life after death. Countless people also believe, as he does, that they are among God’s chosen people. But Ferguson’s religious belief is more grandiose than that because he believes that he is the Prince of God....

One could argue, as Ferguson’s attorneys do, that his belief that he will be resurrected as the Prince of God negates a rational understanding that he will be killed and thereby establishes that he is not mentally competent to be executed. That cannot be correct. Panetti cannot mean that a belief in resurrection or other forms of life after death is inconsistent with the rational understanding of death that is required for mental competence to be executed. If it did mean that, most Americans would be mentally incompetent to be executed.

While Ferguson’s thoughts about what happens after death may seem extreme to many people, nearly every major world religion — from Christianity to Zoroastrianism — envisions some kind of continuation of life after death, often including resurrection. Ferguson’s belief in his ultimate corporeal resurrection may differ in degree, but it does not necessarily differ in kind, from the beliefs of millions of Americans. [Details, including a canvass of many religions throughout the world, omitted. -EV] ...

A conclusion that a particular belief about the afterlife and one’s role in it is extreme enough to be irrational, delusional, and indicative of incompetence to be executed is only a few steps away from the same conclusion about any person who believes in resurrection, in heaven or hell, or in any variation of life after death. Courts should be reluctant to treat as a symptom of mental illness anyone’s belief about what will happen to him after he dies. It is beyond the ken of courts to measure the rationality of religious beliefs –– what will happen to us after we pass through the dark curtain of death is the ultimate non-justiciable question.

Because the state courts’ determination that Ferguson possesses a rational understanding of his execution and the reason for it is not so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, AEDPA precludes us from disturbing their judgment.

I’m told that such arrests and charges are very rare, so I thought this was noteworthy, from the Austin American-Statesman, April 19, 2013 (thanks to Lawrence Goldman [White Collar Crim Prof Blog] for the pointer):

Former Williamson County District Attorney Ken Anderson was arrested ... after a specially convened court found that he intentionally hid evidence to secure Michael Morton’s 1987 conviction for murder.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Sturns, presiding over a court of inquiry that examined the Morton prosecution, found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court for lying to Morton’s trial judge. He then signed a warrant for Anderson’s arrest as required under state law governing courts of inquiry....

Sturns’ ruling is the first step in a potential criminal case against Anderson, who was Williamson County’s celebrated law-and-order district attorney for 16 years before he became a district judge in 2002. His current term as judge will end in 2014. State law does not require him to step down as the case against him progresses....

Morton was sentenced to life in prison for the murder of his first wife, Christine, in their Williamson County home. He was freed and declared innocent in 2011 after DNA tests pointed to another man as the killer....
Sturns told the standing-room-only courtroom that the evidence showed that Anderson improperly concealed two pieces of evidence that could have helped Morton fight the murder charge:

• The transcript of a police interview revealing that the Mortons’ 3-year-old son, Eric, witnessed the murder and said Michael Morton wasn’t home at the time.

• A police report about a suspicious man who had parked a green van near the Morton home and, on several occasions, walked into the wooded area behind the house.

Anderson also improperly concealed the documents from District Judge William Lott, who presided over Morton’s trial, Sturns said.

“Judge Lott specifically asked Mr. Anderson in open court whether the state had any evidence that was favorable to the accused,” Sturns said. “To which Anderson replied, ‘No, sir.’ ” ...

Judge Sturns’ report is here (thanks to Grits for Breakfast for the pointer).

Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit, in United States v. Blewett, held that the Fair Sentencing Act’s modification of mandatory minimum sentences for crack cocaine must be applied retroactively. Judge Merritt, joined by Judge Martin, wrote for the panel. Judge Gilman dissented.

Judge Merritt’s opinion for the court begins:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.

Judge Gilman’s dissent begins:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

They further concede that the law establishing the 100-to-1 ratio between powder cocaine and crack cocaine for sentencing purposes was constitutional when enacted . . . So far, so good. But then the majority veers off into the abyss . . .

The majority reaches [its] conclusion without citing a single case in support. This is not due to a lack of diligent research; it is due to the lack of any such cases. The best the majority can do is try to distinguish two Supreme Court decisions (McCleskey v. Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has already foreclosed the majority’s constitutional argument.

Reducing the sentencing disparity between powder and crack cocaine was certainly good policy, whether or not it was constitutionally required. Whatever one thinks of the merits, and the propriety of the court’s decision to reach out for the constitutional question, the issue is certainly cert worthy. And given the Sixth Circuit’s recent record in the Supreme Court, I would think a grant is reasonably likely — unless this opinion were to be overturned en banc.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

Conor Friedersdorf and Megan McArdle write about this at The Atlantic and The Daily Beast, respectively; an excerpt from Friedersdorf’s item:

The grand jury report in the case of Kermit Gosnell, 72, is among the most horrifying I’ve read. “This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable babies in the third trimester of pregnancy — and then murdered these newborns by severing their spinal cords with scissors,” it states. “The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels — and, on at least two occasions, caused their deaths.” ...

Until Thursday, I wasn’t aware of this story. It has generated sparse coverage in the national media, and while it’s been mentioned in RSS feeds to which I subscribe, I skip past most news items. I still consume a tremendous amount of journalism. Yet had I been asked at a trivia night about the identity of Kermit Gosnell, I would’ve been stumped and helplessly guessed a green Muppet. Then I saw Kirsten Power’s USA Today column. She makes a powerful, persuasive case that the Gosnell trial ought to be getting a lot more attention in the national press than it is getting.

The media criticism angle interests me. But I agree that the story has been undercovered, and I happen to be a working journalist, so I’ll begin by telling the rest of the story for its own sake. Only then will I explain why I think it deserves more coverage than it has gotten, although it ought to be self-evident by the time I’m done distilling the grand jury’s allegations. Grand juries aren’t infallible. This version of events hasn’t been proven in a court of law. But journalists routinely treat accounts given by police, prosecutors and grand juries as at least plausible if not proven. Try to decide, as you hear the state’s side of the case, whether you think it is credible, and if so, whether the possibility that some or all this happened demands massive journalistic scrutiny....

Here is the grand jury on oversight failures:

Pennsylvania is not a third-world country. There were several oversight agencies that stumbled upon and should have shut down Kermit Gosnell long ago. But none of them did...

The first line of defense was the Pennsylvania Department of Health. The department’s job is to audit hospitals and outpatient medical facilities, like Gosnell’s, to make sure that they follow the rules and provide safe care. The department had contact with the Women’s Medical Society dating back to 1979, when it first issued approval to open an abortion clinic. It did not conduct another site review until 1989, ten years later. Numerous violations were already apparent, but Gosnell got a pass when he promised to fix them. Site reviews in 1992 and 1993 also noted various violations, but again failed to ensure they were corrected.

But at least the department had been doing something up to that point, however ineffectual. After 1993, even that pro form a effort came to an end. Not because of administrative ennui, although there had been plenty. Instead, the Pennsylvania Department of Health abruptly decided, for political reasons, to stop inspecting abortion clinics at all... The only exception to this live-and-let-die policy was supposed to be for complaints dumped directly on the department’s doorstep. Those, at least, would be investigated. Except that there were complaints about Gosnell, repeatedly.

In the proud tradition of the Twinkie Defense and the Chewbacca Defense, we now have the Zombie Defense:

A young transient who said he was trying to shake zombies off a stolen semi-trailer truck he was driving caused a major freeway incident in southern California that sent four people to the hospital and tied up traffic for hours, the California Highway Patrol said.

Jerimiah Clyde Hartline, 19, was arrested in connection with the theft an 18-wheeler fully loaded with strawberries on Sunday near Temecula, according to the highway patrol.

Officer Nate Baer said Hartline had been riding with truck driver Daniel Martinez since his trip started in Tennessee after being kicked out of his home. When Martinez stopped to fill out paperwork at an inspection site, he left Hartline alone in the truck, Baer said. Hartline then jumped behind the wheel of the truck, sped off and soon after crashed into several vehicles on the freeway, Baer said.

Hartline was apparently under the influence of a substance that caused him to hallucinate, Baer said.

“He thought zombies were chasing him and clinging to the truck,” Baer said in an e-mail....

Hartline has been charged with taking a vehicle without the owner’s consent and receiving known stolen property, court records said.

Mr. Hartline and his defense team will have to read up on the politics of zombies, which I blogged about here. For an appropriate fee, I would be happy to serve as an expert witness on the law and economics of the undead, as well as on the special legal rights and obligations of those who are called upon to defend humanity against them.

That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v.  Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Prohibitions on the carrying of knives in general, or of particular knives, are unconstitutional. There is no knife which is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on the carrying of handguns set the upper limit for restrictions on knife carrying.

The Article is just the beginning of long overdue scholarly analysis of laws about knives. Not all households own firearms, but almost every household owns a knife, even if we do not count table knives. Issues involving knife carrying come up quite frequently in state criminal courts, but the legal academy has thus far failed to provide the courts with useful guidance. Persons who are interested in writing on Second Amendment issues, and who wish to make an original contribution, will find that there is plenty to write about.

A district court recently ruled that Congress’s power to “Define and Punish... Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

BBC News reports:

The Catholic Archbishop of Durban, Wilfrid Fox Napier, has described paedophilia as a psychological “illness, not a criminal condition”.

The South African cardinal told the BBC that people who were themselves abused as children and then abused others needed to be examined by doctors....

Cardinal Napier referred to paedophilia as “a psychological condition, a disorder”.

“What do you do with disorders? You’ve got to try and put them right.

“If I — as a normal being — choose to break the law, knowing that I’m breaking the law, then I think I need to be punished.”

He said he knew at least two priests, who became paedophiles after themselves being abused as children.

“Now don’t tell me that those people are criminally responsible like somebody who chooses to do something like that. I don’t think you can really take the position and say that person deserves to be punished. He was himself damaged.” ...

Michael Walsh, who has written a biography of late Pope John Paul II, said Cardinal Napier’s remarks were similar to the position once taken by the Catholic Church in the UK and the US.

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

And a pretty conservative panel — Chief Judge Alex Kozinski, Judge Carlos Bea, and Judge Jerome Farris (a Carter appointee who nonetheless, to my knowledge, has a fairly conservative reputation on criminal justice cases). An excerpt, from Milke v. Ryan (9th Cir. Mar. 14, 2013):

In 1990, a jury convicted Debra Milke of murdering her four-year-old son, Christopher. The judge sentenced her to death. The trial was, essentially, a swearing contest between Milke and Phoenix Police Detective Armando Saldate, Jr. Saldate testified that Milke, twenty-five at the time, had confessed when he interviewed her shortly after the murder; Milke protested her innocence and denied confessing. There were no other witnesses or direct evidence linking Milke to the crime. The judge and jury believed Saldate, but they didn’t know about Saldate’s long history of lying under oath and other misconduct. The state knew about this misconduct but didn’t disclose it, despite the requirements of Brady v. Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 153–55 (1972). Some of the misconduct wasn’t disclosed until the case came to federal court and, even today, some evidence relevant to Saldate’s credibility hasn’t been produced, perhaps because it’s been destroyed. In the balance hangs the life of Milke, who has been on Arizona’s death row for twenty-two years.

From Chief Judge Kozinski’s concurrence:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

UPDATE: From the last paragraph of the majority opinion:

The clerk of our court shall send copies of this opinion to the United States Attorney for the District of Arizona and to the Assistant United States Attorney General of the Civil Rights Division, for possible investigation into whether Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating the federally protected rights of Arizona residents.

As I note in the post below, the Indiana Attorney General’s office agrees (see its brief) that the State v. Brewington Indiana Court of Appeals decision was unsound. But the AG’s office argues that Brewington’s conviction should still be affirmed. This illustrates a broader issue that I thought was worth briefly discussing, though note that I’m talking about this in my capacity as an academic, and not as a lawyer for the amici that I represent in this case.

Here’s the basic matter, though somewhat stylized to highlight the interesting legal question. (For more details, see this post.) Brewington was prosecuted for “intimidation” of Judge Humphrey, which consists in relevant part of threatening the judge with retaliation for the judge’s past lawful act (his decision in Brewington’s case).

But what does “threatening” mean? Under the Indiana intimidation statute, threatening is defined to include any of several things, including (A) threatening violence or (B) threatening to expose the target to hatred, contempt, disgrace, or ridicule (which I’ll just shorten to “disgrace”). And the jury was instructed that, to find Brewington guilty, it needed to find a threat, defined in precisely those statutory terms — a threat of violence, or a threat of exposure to disgrace, or one of several other kinds of threat. The jury thus could have found Brewington guilty based on a conclusion that he threatened violence or based on a conclusion that he threatened to expose the judge to disgrace. Since the jury just returned a general verdict, we can’t tell which theory the jury followed.

The Indiana AG’s brief seems to agree that the Indiana Court of Appeals’ decision, which upholds the conviction based on a conclusion that Brewington threatened exposure to disgrace, is “overbroad.” Our amicus brief argued that a threatened-exposure-to-disgrace theory would violate the First Amendment. But the AG’s office argues that the Indiana Supreme Court should nonetheless affirm Brewington’s conviction because Brewington threatened Judge Humphrey with violence.

Now it’s not clear to me that Brewington’s speech should be seen as a constitutionally unprotected threat of violence; you can decide for yourself by reading the summary in the AG’s brief, and then perhaps compare it to the speech that was found to be constitutionally protected in NAACP v. Claiborne Hardware Co. (1982). But in any event, even if a jury could find Brewington’s speech to be such a punishable threat, we don’t know that the jury did so find, and a reviewing court can’t just assume that they jury did or would so find.

Indeed, both the U.S. Supreme Court and the Indiana Supreme Court has made clear that, “[a] general verdict can not stand when the case was tried and submitted on two theories, one bona fide and the other not.” Miller v. State, 417 N.E.2d 339, 343 (Ind. 1981); see also Wells v. State, 437 N.E.2d 1333, 1335 (Ind. 1982). “To say that a general verdict of guilty should be upheld though we cannot know that it did not rest on the invalid ... ground ... would be to countenance a procedure which would cause a serious impairment of constitutional rights.” Street v. New York, 394 U.S. 576, 586 (1969) (quoting Williams v. North Carolina, 317 U.S. 287, 292 (1942)); see also Bachellar v. Maryland, 397 U.S. 564, 571 (1970). And this makes sense: In our legal system, a conviction must generally rest on (1) a jury finding of guilt under (2) a constitutionally valid theory. A jury finding but under a constitutionally invalid theory doesn’t suffice. And a reviewing court’s finding of guilt under a constitutionally valid theory doesn’t suffice, either (at least unless it finds that any constitutional error was harmless beyond a reasonable doubt, a standard that I think can’t be satisfied here).

So if the Indiana Supreme Court agrees that the threat-to-expose-to-disgrace theory would violate the First Amendment, then it can either reverse outright (if it thinks that Brewington’s speech couldn’t be reasonably seen as a threat of violence), or reverse and remand for a new trial. It can’t just affirm, given the impossibility of knowing whether the jury’s decision rested on “the invalid ... ground” or on the “bona fide” one.

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.