The Volokh Conspiracy

The Daily Mail (UK) reports:

A muslim who raped [in the sense of statutory rape -EV] a 13-year-old girl he groomed on Facebook has been spared a prison sentence after a judge heard he went to an Islamic faith school where he was taught that women are worthless.

Adil Rashid, 18, claimed he was not aware that it was illegal for him to have sex with the girl because his education left him ignorant of British law.

Yesterday Judge Michael Stokes handed Rashid a suspended sentence, saying: ‘Although chronologically 18, it is quite clear from the reports that you are very naive and immature when it comes to sexual matters.’

Earlier Nottingham Crown Court heard that such crimes usually result in a four to seven-year prison sentence.

But the judge said that because Rashid was ‘passive’ and ‘lacking assertiveness’, sending him to jail might cause him ‘more damage than good’.

Earlier the court heard how Rashid had ‘little experience of women’ due to his education at an Islamic school in the UK, which cannot be named for legal reasons....

In ... interviews with psychologists, Rashid claimed he had been taught in his school that ‘women are no more worthy than a lollipop that has been dropped on the ground’. ...

[The sentencing judge] said that Rashid knew what he was doing was wrong.

‘It was made clear to you at the school you attended that having sexual relations with a woman before marriage was contrary to the precepts of Islam,’ he said....

My quick thoughts:

1. In the abstract, while ignorance of the law is generally not a defense to a crime (an oversimplification, but one that’s apt here), it might sometimes play a proper role in sentencing. For instance, to the extent that one is sentencing a person to incapacitate him from committing future crimes, or to specifically deter him from committing future crimes, one might treat differently (A) someone who did the act knowing it was a crime from (B) someone who didn’t know the act was a crime. Person B, under the right circumstances, might be quite willing to change his ways simply because he learns that the conduct is illegal; one can’t say the same about person A.

One can see that especially clearly as to minor offenses that vary from place to place or are just not widely known, whether we’re talking about sentencing or just law enforcement discretion. If you’re busted for turning right on red in a place where that’s forbidden, and the police officer sees from your license that you’re from a place where it’s allowed, it might make sense for the officer to give you a break. You can imagine the same as to sentencing for regulatory offenses where the defendant seems otherwise law-abiding, and seems likely to abide by this law as well, now that he knows it.

2. This having been said, when the legal system sees the offense as serious enough — and inherently serious — there ought to be some substantial punishment just as a matter of retribution, and not just incapacitation or special deterrence of this particular offender.

3. This is especially so when there aren’t separate indications that this is an otherwise highly law-abiding person who has just made an error, or when the person’s own defense suggests a propensity for serious misbehavior (as the “women are no more worthy than a lollipop that has been dropped on the ground”); there, punishment for incapacitation or special deterrence might be quite useful. To be sure, we don’t deliberately treat people as guilty just because they hold reprehensible moral beliefs, or lack evidence of being generally law-abiding. But if a person is guilty of the crime, and seeks lenient treatment on the grounds that a harsh sentence isn’t really needed, then looking at his broader character is relevant to evaluating just how dangerous he is, and how much of a lesson he needs.

4. Finally, when the claim is “I didn’t know because I was raised in an insular community,” there is reason for punishment precisely to send a message to members of insular communities (and leaders of those communities) that they need to work harder to learn the important commands of the legal system. Conversely, cutting slack to people who don’t know the law because they grew up in an insular community — or to people who claim not to know the law for this reason — reinforces the tendency of many in insular communities to focus more on following the norms of their community than trying to learn and abide by the norms of society.

University of Tennessee lawprof Glenn Reynolds (AkA “Instapundit”) has an interesting short paper on the dangers of prosecutorial discretion in a world where the scope of criminal law has gotten so vast that almost anyone can be convicted of a crime if the prosecutor goes after them aggressively enough:

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants.....“ Prosecutors could easily fall prey to the temptation of “picking the man and then searching the law books.... to pin some offense on him.” In short, prosecutors’ discretion to charge – or not to charge – individuals with crimes is a tremendous power, amplified by the huge number of laws on the books....

As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s office in the Southern District of New York was
to name a famous person – Mother Teresa, or John Lennon -­ and decide how they could be prosecuted....:

The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time....”

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as Wu’s game illustrates, everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.

Glenn goes on to note that, once prosecutors do go after a defendant, they can often force him to plead guilty even if he is innocent of any real wrongdoing simply by “overcharging” him with dozens of different offenses. The strong likelihood that at least one will stick in a jury trial is a powerful incentive to cop a plea.

As Glenn recognizes, most of us are still “safe” from abusive prosecutions because prosecutors simply don’t have the time or the resources to go after everybody. But the combination of overcriminalization and prosecutorial discretion can be a nightmare for people who are unpopular, unsympathetic, or simply run afoul of influential officials.

Various scholars and jurists I have focused on this problem before. I myself blogged about it in this 2009 post, where I referenced earlier commentary by Judge Alex Kozinski and Misha Tseytlin, and Radley Balko. Harvey Silverglate has published an important book on the subject.

But Glenn’s essay is a particularly helpful and concise summary of the problem. He also proposes some potential reforms, including penalizing prosecutors for overcharging and strengthening the role of grand juries as possibly safeguards against abusive prosecutions. This recent Boston Globe article by Leon Neyfakh describes a variety of reforms proposed by Glenn and other scholars, most of them focusing on strengthening the role of juries.

I think some of the reforms discussed in the Neyfakh article have merit, and all at least deserve serious consideration. Increasing the role of juries might help alleviate the problem. But in some cases, it might make things even worse, especially if the defendant is unpopular or otherwise unsympathetic.

Ultimately, the best solution for overcriminalization is to reduce the number of crimes on the books. If we really want to move away from a world where we are all at the mercy of prosecutors, we should move away from a world where we are all criminals. As I discuss here and here, there are numerous places where federal criminal law can be pared back, especially when it comes to the massive War on Drugs. The same is true in many states. Silverglate’s book includes more proposals along these lines, as does this interesting 2004 book edited by Gene Healy. Silverglate summarized some of his ideas in this series of guest-blogging posts right here at the VC.

I also have a modest proposal for attracting public attention to the problem. While the idea is something of a joke, I really do think that it would increase public awareness if the president actually did it:

The last three presidents of the United States are all federal criminals under the drug laws, as are probably the majority of people who went to college in the last 40 years. Kozinski and Tseytlin cite statistics suggesting that nearly half of Americans have taken banned drugs at some point in their lives. The next presidential state of the union address should perhaps begin with “My fellow federal criminals,” instead of the traditional “My fellow Americans.” It would be a great teaching moment!

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted that as sufficient for starters [in an unpublished opinion, 2011 WL 5041456]. The present indictment says nothing about foreign commerce.

The Supreme Court has said little about the scope of the power. As a textual matter, the foreign commerce power does not allow Congress to simply regulate “foreign commerce,” but rather that part of it which is “with” the United States. It is not clear that the same kind of “foot-bone-is-connected to the ankle bone” games can be played with the Foreign Commerce clause as with the domestic on. Andrew Colangelo, in the leading article on the subject, argues that it requires a substantial U.S. nexus. Indeed, without that, the Constitution would have incorporated broad universal jurisdiction, without anyone knowing about it until now!

If the Foreign Commerce clause is enough here, it would mean several recent federal cases finding no universal jurisdiction over drug trafficking and piracy conspiracy case were wrongly decided: surely those things are linked to foreign commerce in the most general sense.

One can imagine a broader argument that the terrorist group designation is a regulation of foreign commerce, and the material support statute “necessary and proper” to that. And that would turn on the particular group and executive finding...

Some have suggested that the Foreign Commerce Clause should, on the contrary, be broader than the Interstate clause, because there is no background principle of federalism to protect. I see the point, but am hesitant for two reasons.

First, Congress is a government of limited and delegated powers. It can only have powers to regulate conduct anywhere in the world with no demostrable nexus if these were either preexisting powers of states, or somehow a natural emergent power of national sovereignty. I think neither is the case. The latter point can be seen from the fact that no other country exercises universal jurisdiction over this kind of thing...

Second, while Foreign Commerce authority is not concurrent with states, it is shared with other countries, whose existence and sovereign competency the Framers were aware of. Consider Hamilton’s discussion of the Foreign Commerce power (Camillus XXXVI):

Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The
legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country

People v. Morales (Cal. Ct. App. Jan. 2, 2013) says no, following the general view of American courts (see, e.g., Suliveres v. Commonwealth (Mass. 2007)). The one exception that courts have historically recognized is having sex with a person while pretending to be the person’s spouse, which is indeed treated as rape. The facts:

[D]efendant Julio Morales entered the dark bedroom of victim Jane Doe after her boyfriend departed and, without disclosing his identity, had sexual intercourse with her. He was charged with rape of an unconscious person under Penal Code section 261, subdivision (a)(4). The jury was instructed with CALCRIM No. 1003, which, as given, stated in part that “[a] woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her.” (Italics added.) The prosecutor argued both correct and incorrect theories under which Jane was unconscious: that she was asleep (correct), and that she was not aware of the essential characteristics of the act because defendant deceived her into believing he was her boyfriend (as we explain below, incorrect). Defendant was convicted of violating section 261, subdivision (a)(4), and the trial court sentenced him to the low term of three years in state prison, from which judgment defendant appeals. Because we cannot discern from this record whether the jury convicted defendant on the correct or incorrect theory, we must reverse. [Footnote: In doing so, we urge the Legislature to reexamine section 261, subdivisions (a)(4) and (a)(5), and correct the incongruity that exists when a man may commit rape by having intercourse with a woman when impersonating a husband, but not when impersonating a boyfriend.] ...

Prosecution’s Evidence

On February 20, 2009, 18–year–old “Jane Doe” went to a party with her boyfriend, Victor, and another friend. Jane’s brother, Filiberto, and several of his friends, including defendant, also attended the party. Jane drank three to five beers at the party. [Jane, her boyfriend Victor, defendant, and some others returned to Jane's house to eat; most of the people then left, and Jane went to sleep.] ...

According to Jane, she woke up to the sensation of having sex.... She was confused because she and Victor had agreed not to have sex that night. When light coming through a crack in the bedroom door illuminated the face of the person having sex with her, i.e., defendant, she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell. Defendant left her room; Jane locked her door and called Victor, asking him to come back to her house....

[When defendant was caught by the police, h]e admitted that he had gone into Jane’s room while she was asleep. He said that he had kissed her and that she kissed him back, but he thought she might still be asleep. He pulled down her pajama bottoms, got on top of her, and started to have sex. He said she probably thought he was her boyfriend, and when she realized he was not, she started screaming. During a second interview with Deputy Leyn, defendant once again described what happened, including that Jane was asleep when he put his penis into her vagina, and wrote out a statement admitting that he kissed Jane and touched her vagina while she was asleep.

Defense Evidence

Defendant testified that sometime after Victor had left Jane’s bedroom, Filiberto’s friend Tony and he went into Jane’s room, at Tony’s suggestion. They nudged Jane to try to awaken her so she could come out and drink with them. Defendant then realized that Tony was no longer in the room, and the door was closed. He tried to leave, but the door would not open.

He tried to wake Jane up by nudging her again, but she did not move. He thought she was attractive, so he kissed her on the cheek. She turned toward him, and they kissed some more. He thought she was not asleep because she responded to his kisses, but he also thought she believed he was her boyfriend. [Footnote: Defendant gave conflicting testimony about whether he attempted to identify himself. At first he testified that he did not identify himself and believed Jane did not know who he was, but he later testified that he told Jane he was not her boyfriend.] They kissed for several minutes, ... [and then] began to have sex. He stopped because he felt he was betraying his girlfriend; he did not recall Jane pushing him away, and he did not try to reinsert his penis after he pulled out of her.

The court reversed, because it concluded that sex under pretense of identity is not a crime (again, except when the defendant is pretending to be the victim’s spouse). But the court remanded for retrial, because if the prosecution could prove that Morales had indeed had sex with Jane Doe while she was asleep, he would indeed be guilty of rape. (Restarting the sex after Jane pushed him away could qualify as rape as well, but apparently that wasn’t the prosecution’s theory at trial.)

I’m not a fan of allowing general “rape by fraud” prosecutions (see here for some interesting examples from Israel), largely because it would open the door to criminalizing a wide range of lies, whether about fidelity, past sexual partners, wealth, love, and so on, used to get sex. I explain some of my thinking on that here, though I acknowledge that the problem is not an easy one: In particular, I don’t have an entirely satisfying answer to the question, “why is getting money by lying a crime [fraud], but getting sex by lying not?”

But it seems to me that having sex with someone while pretending to be a particular person known to the victim — whether a spouse, a lover, a friend, or what have you — should indeed be criminally punishable. It is, thankfully, apparently a rare sort of lie; it is very far outside the normal level of dishonesty that people expect might happen in their relationships; it is one for which there is no plausible justification or mitigation; and criminalizing it is unlikely to sweep in the garden variety lies that, unfortunately, often appear in people’s sexual and romantic lives.

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law of nations. Congress cannot “define” something as a universal offense when the law of nations has not done so – not because of any superiority or comity of international law, but because that is the limit place by the Define and Punish Clause.

I have elaborated this theory of the Define and Punish Clause and its implications in a series of recent papers.

More importantly, recently several federal courts have adopted this position.
Thus in U.S. v. Bellaizac-Hurtado, 700 F.3d 1245 (2012), the 11th Circuit held unconstitutional a universal jurisdiction prosecution of drug trafficking in a foreign country. It held that drug trafficking had not been recognized as a “offense against the law of nations,” and thus cannot be reached by Congress under the Offenses Clause. One of the judges added in concurrence that because drug trafficking is not universally cognizable in international law, it cannot be punished universally through the Offenses power.

Similarly, in U.S. v. Ali, the a D.C. federal district court threw out charges of piracy and conspiracy to commit piracy because universal jurisdiction for such acts only ran on the high seas. And the Fourth Circuit in U.S. v. Dire
680 F.3d 446 (2012) agreed in dicta. (And of course, in Kiobel the Supreme Court is reconsidering whether universal jurisdiction exists under the Alien Tort Act.)

Material support for terrorism is a particularly weak case for the Offenses Clause, as the D.C. Circuit had ruled in Hamdan that it was not a war crime (though this does not rule out its being another type of international offense), and terrorism itself does not violate international law, as the Second Circuit has held in Yousef.

Indeed, I know of know other case in the world of material support for terrorism being prosecuted through universal jurisdiction. In prosecutions under the Define and Punish Clause, courts have increasingly (and properly) required actual evidence of past state practice to establish an international norm, as I’ve discussed here before.

The policy behind the material support statute, when applied without a U.S. nexus, is to punish actors whose political actors whose goals and methods the U.S. disapproves of. Al Shabab is a pernicious and destabilizing force, but that does not give the U.S. Congress Art. I power to criminally punish entirely foreign conduct simply because it runs counter to U.S. foreign policy.

There are other ways the U.S. can, consistent with the Constitution, engage and repress Al Shabab and other purely foreign terror groups. It can help local governments that are fighting them. It can even use military force itself. It the beef with Al Shabab is that it is an ally of other forces actively hostile to the U.S., it members (but perhaps not supporters) could perhaps even be detained militarily as co-belligerents.

(Thanks to Jon Bellish for the pointer.)

UPDATE: The defendants seem to be among the folks discussed in today’s Washington Post renditions story:

The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti. . . . U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.

A very interesting concurring opinion yesterday, in United States v. Craig (7th Cir. Dec. 18, 2012); here’s a slightly trimmed version:

[From the panel opinion, which Judge Posner joined.] The defendant pleaded guilty to four counts of producing child pornography. He produced them by photographing his repeated sexual assaults on a girl who was a friend of his daughters and sometimes slept over at his house. He obtained additional pornographic images of her by threatening to kill her unless she photographed herself in sexually explicit poses and emailed him the images. The abuses began when she was 11 years old and continued until she was 14....

[T]he statutory maximum sentence for each count of conviction was 30 years. (It would have been longer had the defendant had previous convictions, but he didn’t.) The judge sentenced him to the 30–year maximum on one count and to concurrent sentences of 20 years on each of the remaining three counts, but he ordered that the set of 20–year sentences be served consecutively to the 30–year sentence, making the total sentence 50 years. The judge was entitled to do this....

[Judge Posner's concurrence:] I write separately merely to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences. If the defendant in this case does not die in the next 50 years he will be 96 years old when released (though “only” 89 or 90 if he receives the maximum good-time credits that he would earn if his behavior in prison proves to be exemplary).... [I]n all likelihood the defendant will be dead before his prison term expires.

Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000, and the expense rises steeply with the prisoner’s age because the medical component of a prisoner’s expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year.

That is not a net social cost, because if free these elderly prisoners would in all likelihood receive Medicare and maybe Medicaid benefits to cover their medical expenses. But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes — which is a reminder of an additional social cost of imprisonment: the loss of whatever income the prisoner might lawfully have earned had he been free, income reflecting his contribution to society through lawful employment.

The social costs of imprisonment should in principle be compared with the benefits of imprisonment to the society, consisting mainly of deterrence and incapacitation. A sentencing judge should therefore consider the incremental deterrent and incapacitative effects of a very long sentence compared to a somewhat shorter one. An impressive body of economic research ... finds for example that forgoing imprisonment as punishment of criminals whose crimes inflict little harm may save more in costs of imprisonment than the cost in increased crime that it creates. Ours is not a “little crime” case, and not even the defendant suggests that probation would be an appropriate punishment. But it is a lifetime imprisonment case, and the implications for cost, incapacitation, and deterrence create grounds for questioning that length of sentence.

For suppose the defendant had been sentenced not to 50 years in prison but to 30 years. He would then be 76 years old when released (slightly younger if he had earned the maximum good-time credits). How likely would he be to commit further crimes at that age? ... [A]lthough persons 65 and older are 13 percent of the population, they accounted for only seven-tenths of one percent of arrests in 2010. Last year 1,451 men ages 65 and older were arrested for sex offenses (excluding forcible rape and prostitution), which was less than 3 percent of the total number arrests of male sex offenders that year. Only 1.1 percent of perpetrators of all forms of crimes against children are between 70 and 75 years old and 1.3 percent between 60 and 69. How many can there be who are older than 75?

It is true that sex offenders are more likely to recidivate than other criminals, Virginia M. Kendall and T. Markus Funk, Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses 310 (2012), because their criminal behavior is for the most part compulsive rather than opportunistic. But capacity and desire to engage in sexual activity diminish in old age. Moreover, when released, a sexual criminal is subject to registration and notification requirements that reduce access to potential victims.

As for the benefits of a lifetime sentence in deterring other sex criminals, how likely is it that if told that if apprehended and convicted he would be sentenced to 50 years in prison the defendant would not have committed the crimes for which he’s been convicted, but if told he faced a sentence of “only” 30 years he would have gone ahead and committed them? ...

Sentencing judges are not required to engage in cost-benefit analyses of optimal sentencing severity with discounting to present value. Such analyses would involve enormous guesswork because of the difficulty of assessing key variables, including one variable that I haven’t even mentioned, because I can’t imagine how it could be quantified in even the roughest way — the retributive value of criminal punishment. By that I mean the effect of punishment in assuaging the indignation that serious crime arouses and in providing a form of nonfinancial compensation to the victims.

But virtually all sentencing, within the usually broad statutory ranges — the minimum sentence that the judge could have imposed in this case, by making the sentences on all four counts run concurrently, as he could have done, would have been 15 years, and the maximum sentence, by making them all run consecutively, as he could also have done, would have been 120 years — involves guesswork. I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge’s sentencing decision.

I’m inclined to think that there’s a very strong retributive case for life imprisonment for this particular defendant, but I agree with Judge Posner that there are real costs to such sentences, and they should indeed generally be saved for situations where there is a powerful imperative for maximum retribution (short of a death sentence, which the Court has precluded for child rape and nearly all other crimes short of murder). Thanks to Jeffrey Sarles for the pointer.

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes....” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

– Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

– James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

The Prologue to my book No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix it, includes a section on the Ruby Ridge case. Much more on Waco and Ruby Ridge is available on the Waco page on my website.

Some commenters have recently brought up the perennial question of when speech becomes constitutionally unprotected blackmail. As I’ve mentioned before, this is one of the thorniest conceptual questions in all of jurisprudence. (Our own Jim Lindgren has written oft-cited articles on it, and blogged on it as well.) It’s sometimes called the Blackmail Paradox, and here’s how it goes:

1. I am generally perfectly free to publish embarrassing information about you — in fact, I generally have the constitutional right to do so. (The “disclosure of private facts” tort may constrain this in some instances, but the tort has been read quite narrowly, and much revelation of embarrassing secrets is not tortious and constitutionally protected.) Likewise, I am free to keep quiet about such information.

2. I am generally perfectly free to ask you for money — or to ask you to do something else — in exchange for my doing something (here, keeping quiet) that I have no preexisting legal obligation to do. This distinguishes classic extortion, where I ask you for $10,000 not to burn down your store: Because I have a legal obligation not to burn down your store, it’s easy to explain why extortionate threats to burn down the store would be punishable. I will use “blackmail” to mean just threats to reveal information, not threats to commit illegal violence or property destruction.

3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you, then that’s a crime.

What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

To be sure, the legal system often happily ignores conundrums such as this. Blackmail is a crime, and that’s that (and incidentally I agree on pragmatic grounds that it should be a crime, though I myself don’t have a good answer to the puzzle). But sometimes this does raise some significant practical difficulties. Here are a few examples:

A. Say that during the Clinton-Lewinsky scandal, a publisher tells a Congressman “If you vote to impeach Clinton, I will publish information about your own sexual indiscretion.” That may well be blackmail (as I mentioned, many blackmail laws cover attempts to get people to do things as well as just attempts to get money).

But if the publisher starts a series of articles exposing the sexual indiscretions of Congressmen who have stated their intention to vote for impeachment, that’s perfectly legal journalism — even though the implication is clearly “If you vote against impeachment, we won’t run this article about you.” Likewise if the publisher asks the public for information that might prove to be fodder for such articles. (During the scandal, Larry Flynt’s behavior was fairly similar to that in this hypothetical.)

B. My saying “If you don’t pay me $X, I’ll tell people about your sexual indiscretions” is generally clearly blackmail.

But what if I tell you “I’m about to sue you for a certain behavior, unless you pay me $X to settle the claim,” and it’s clear that if I do sue you, your sexual indiscretions will come out, either because they’re the basis of the suit or because they are somehow relevant to it and will emerge in discovery? This is common and generally legal litigation behavior, subject only to very loose constraints.

Likewise, what if I tell you “If you don’t stop cheating on your wife, I’ll tell her about it”? That too would likely be legally permissible.

C. Some things that clearly fit the “If you don’t pay me $X, I’ll tell people about what you did” mold should pretty clearly be legal. In the words of one court: “For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television ‘on-the-side-of-the-consumer’ program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.”

The uniting thread seems to be that it’s OK to use the threat of publicity to get what is rightfully owed you — but the boundaries of this principle end up being themselves quite uncertain. Factoid: Autumn Jackson, who allegedly tried to blackmail Bill Cosby several years ago by threatening to reveal her being his out-of-wedlock child, had her conviction reversed because the judge didn’t instruct the jury about this principle, but the court of appeals later reversed the reversal, because it concluded that the error was harmless, since there was no evidence that Autumn Jackson was just asking for what was rightfully owed her; the above quote is from that case, United States v. Jackson (2nd Cir. 1999).

Here, by the way, is how the Model Penal Code tries to deal with the issue (§ 212.5):

A person is guilty of criminal coercion if, with purpose unlawfully to restrict another’s freedom of action to his detriment, he threatens to: ...

(b) accuse anyone of a criminal offense; or

(c) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute ....

(d) take or withhold action as an official, or cause an official to take or withhold action.

It is an affirmative defense ... that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior, making good a wrong done, refraining from taking any action or responsibility for which the actor believes the other disqualified.

Some jurisdictions have enacted this largely verbatim, and others (such as the Jackson court) are likely to apply some similar rules in elaborating on the definition of blackmail, precisely so that “give me back that property you took from me, or I’ll call the police” doesn’t become a crime.

D. Finally — as a result of this theoretical uncertainty, and the practical uncertainty that it sometimes breeds — the principle that blackmail may be outlawed has not much expanded into areas that may at first seem to be analogous. “This is quite similar to blackmail, and should therefore be treated just like blackmail is” is an argument that courts are pretty cautious about endorsing, precisely because they realize that quite a few things that are quite similar to blackmail must remain legal, and may even be constitutionally protected.

Today, in United States v. Burwell, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, divided 5-3 over whether the federal mandatory sentnce of thirty years for possessing a machine gun when committing a crime of violence has a mens rea requirement. Judge Brown, writing for the Court, concluded the answer is “no,” joined by Chief Judge Sentelle, and Judges Henderson, Griffith and Garland. Chief Judge Sentelle and Judge Henderson also wrote concurring opinions, each suggesting the case was not worthy of en banc review. Judges Rogers and Kavanaugh (joined by Judge Tatel) dissented.

In today’s Washington Post, George Will describes what I can only call a real whale of an abusive federal criminal prosecution:

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert....

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions.

As Will points out, this is just one particularly egregious example of the abuses caused by the vast growth of federal criminal law over the last several decades, to the point where the majority of Americans are probably federal criminals. I wrote about the broader problem here:

As [Judge Alex Kozinski and Misha Tseytlin put it, “most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted....”

The vast scope of federal criminal law is a very serious problem. Because of it, most Americans are effectively at the mercy of federal officials whenever they might choose to come after us. We are used to thinking of “criminals” as a small subset of the population... most of whom have committed genuinely heinous acts. But when we are all federal criminals, perfectly ordinary citizens can easily get swept up in the net simply by being unlucky or because they ran afoul of federal prosecutors or other influential officials. Overcriminalization also leads to the longterm imprisonment of hundreds of thousands of nonviolent people (mostly as a result of the War on Drugs, but many for other reasons as well) who haven’t caused any harm to the person or property of others. Some 55% of all federal prisoners are nonviolent drug offenders. In addition, the ability to convict almost anyone of a federal crime means that federal officials have wide discretion to punish people who are unpopular, politically weak, run afoul of the current administration, or otherwise become tempting targets.....

To me, the amazing thing is not that federal prosecutors sometimes abuse their enormous powers, but that they don’t do so far more often. However, as federal criminal law continues to expand, it will be more and more dangerous to keep relying on their self-restraint....

These dangers are not unique to federal law. State criminal law has been expanded too far as well. However, states that overcriminalize risk losing people who “vote with their feet” either because they fear imprisonment or because they don’t want to pay the high taxes needed to finance an overgrown criminal justice and law enforcement system. It is far more difficult to escape the feds.... Overbroad state criminal law is a menace. The fact that we are all federal criminals is even worse.

UPDATE: I have fixed the broken link to my 2009 post on the dangerous growth of federal criminal law. Thanks to Hans Bader for pointing it out.

The Los Angeles Times reports:

A Los Angeles County Superior Court judge has reversed the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks.

Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance.

Gibson testified that Banks raped her on the Poly campus. Banks said the encounter was consensual.

Rather than face a prison term of from 41 years to life, Banks accepted a plea deal that [led to his spending 5 years in prison].

Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.

Nearly a decade later, Gibson contacted Banks on Facebook, met with him and admitted that she had fabricated the story.

The AP account adds a twist:

According to documents in the case, she met with Banks and said she had lied; there had been was no kidnap and no rape and she offered to help him clear his record.

But she subsequently refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

She was quoted as telling Banks: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.”

It’s not clear whether she ultimately did repeat the story to prosecutors, or whether the prosecutors got her admission some other way. In any event, I assume that — absent some statute of limitations barrier (a subject on which I’m not knowledgeable) — what’s left of the $1.5 million will indeed have to be paid back. (Thanks to Robert Dittmer for the pointer.)

This, by the way, raises again a difficult problem with he-said-she-said rape cases, where civil liability is available. I suspect that in a typical such case, one factor that cuts in the prosecution’s favor is “Why would she lie?” A defendant has ample reason to lie by saying that nonconsensual sex was actually consensual — his liberty is at stake. But a complainant in many cases has much less reason to lie by saying that consensual sex was actually nonconsensual; sure, in some situations there might be possible motivations for lying, but they are usually not nearly as strong as the defendant’s motivation.

Yet when the complainant can get millions of dollars in damages, either from a rich defendant on an intentional tort theory, or from some other entity — such as an employer or a school district — that could be held liable on a negligence theory, the complainant now has lots of reason to lie. Of course, this by no means that such a complainant will be lying, just as the defendant’s incentive to lie doesn’t mean that all defendants who testify that they’re innocent are lying. But it does, I think, make the defense’s case stronger and the prosecution’s case weaker.

The jurors don’t know for sure who’s telling the truth. But once they know that the complainant has a potential motive to lie, they’ll be less inclined to believe her — and at least to conclude that there’s a reasonable doubt about whether she’s telling the truth. If you were a juror and the evidence against the defendant besides the complainant’s testimony was weak, wouldn’t you be influenced by evidence that the complainant has a possible financial motive for making up the charges?

What to do about this, though, is not clear. Even if negligence liability against employers, school districts, and others for crimes by their employees or on their property is cut back — some people have argued that it should be — a victim could still sue a rich defendant, or even an upper-middle-class defendant who has some assets that could be seized. If someone physically attacks you, you’re entitled to get compensation from him. But this very possibility makes it harder to criminally prosecute rapists. I don’t know of a good solution to the problem, absent perfect lie detection technology or pervasive recordi

That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state authority to enforce immigration laws), and others.

The major part of the Article details some recently-enacted criminal law and sentencing reforms in Colorado, which mitigate the fiscal damage of the drug war. The second part of the Article summarizes the fiscal benefits of ending prohibition. Finally, the Article looks at some of the legal history of alcohol prohibition, and suggests that current federal drug prohibition policies are inconsistent with the spirit of the Tenth Amendment, including  state tax powers.

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.’” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

Note that the same issue has recently come up in Indiana, where the Indiana Supreme Court (by a 3 to 2 margin) eliminated the common-law right using its own power to change the common law; a month ago, the Indiana Legislature in turn reinstated the right.