Recently in Criminal Law and Prosecution Category
In a blog entry published on the Heritage Foundation's The Foundry, Daniel Dew cleverly uses the example of the recent scandals plaguing the Obama administration to point out the vast scope and inherent unfairness of the Responsible Corporate Officer Doctrine.
The Responsible Corporate Officer Doctrine allows federal prosecutors to criminally prosecute business owners and officers for the criminal activity of their businesses, regardless of whether they had knowledge of the illegal activity. The only requirement for criminal liability is "some relationship between the executive's supervisory responsibilities and the underlying misconduct." Put another way, in order to obtain a conviction, the government need only prove (1) illegal conduct occurred, and (2) the corporate officer had authority to exercise control over the activity.
The DOJ has used the Responsible Corporate Officer Doctrine to make criminals out of many well-meaning business people. In United States v. Park, the Food and Drug Administration (FDA) prosecuted the president of a corporation under the theory that his subordinates committed violations of the Food, Drug, and Cosmetic Act that the president had the ability to prevent or correct. Park, the company president, had delegated responsibility to correct the violations to one of his employees, who, regrettably for Park, did not follow through on his responsibilities. Park was convicted for FDA violations that he did not commit, order committed, or conspire to commit.
Just to be clear, there is no evidence in the recent Obama Administration scandals that criminal behavior took place, but the executive branch should stick to one definition of "responsible." The DOJ definition of "responsible" is especially troubling in the context of a criminal prosecution where a person's individual liberty is at stake--not just news stories that make the President look bad.
Heritage senior fellow, Paul Larkin, invokes a similar analogy in his latest paper and expands further.
The question is a serious one, why the double standard?
The Heritage Foundation's The Foundry blog reported today that the House Committee on the Judiciary created the bipartisan Over-Criminalization Task Force of 2013. The goal of the task force is to "conduct hearings and investigations relating to over-criminalization issues within the Committee." The task force, will be chaired by Representative James Sensenbrenner (R-WI) and will consist of five Democrats and five Republicans.
The formation of this task force publicizes both the acknowledgment by Congress that the problem of overcriminalization is real and that the House Judiciary is willing to take active steps to address the alarming criminal law trends which depart from traditional common law norms and threaten individual and economic liberty.
Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process -- the decision whether to charge a defendant, and with what -- is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.
The suicide of Aaron Swartz on the second anniversary of his arrest has drawn attention to the problem of overcriminalization. Jonathan Blanks and Scott Greenfield have good summaries noting that Swartz is hardly unique that are worth reading in addition to the more personal Larry Lessig post you have probably already seen.
Update: see also Orin Kerr for a perspective on the underlying law, Walter Olson with a roundup, and my 2008 American Spectator article on prosecutorial overreaching. Kerr's legal analysis I don't think fairly takes into account the "hacker ethos" of MIT that encourages the sort of rebellious computer activity Swartz engaged in, as bad as it can be made to look on paper. Computer culture can look more sinister than it is to the humorless outside of it; I once saw a lawyer identify Overlawyered's 404 page joke as evidence of a conspiracy either out of ignorance or cynical disingenuousness. But try explaining 404 pages to a judge (or, worse, to a $500/hour attorney).
And if you're an attorney who uses PACER, you can bring the world a little bit closer to Swartz's ideal (and save you or your clients a bit of money) by installing RECAP on your Firefox browser. Right now PACER, which recently raised its rates 25%, generates a $100 million surplus selling Americans electronic access to publicly available litigation documents.
An under-studied phenomenon: to what extent is higher CEO pay a result of the increased frequency with which prosecutors destroy the lives of CEOs by criminalizing unsuccessful business decisions or arbitrarily retroactively selectively criminalizing common business practices (compare Broadcom and Apple on question of options backdating)? Economic theory would predict that increased chances of having your wealth stripped and being sent to prison for years would require higher compensation ex ante. After Larry Ribstein's death, I'm not aware of anyone considering this at all. Today's DOJ has been surprisingly restrained in not prosecuting executives for foolish investments in the real estate bubble, and are largely being criticized, rather than praised, for their forebearance. Which academic is on the criminalization-of-risk beat these days?
Gene Weingarten has won two Pulitzer Prizes in the last five years for his powerful and all-too-rare feature writing. He has another un-put-downable feature in the upcoming Washington Post Sunday magazine on the Jeffrey McDonald case, with some implicit criticism of the unskeptical coverage of Errol Morris's "A Wilderness of Error" positing a conspiracy theory to railroad MacDonald. It's an extraordinary tale not just of a prosecutor who devotes his career to seeing justice done, but of the amazing smoke screens that can be woven by defense attorneys working decades after the fact as memories fade and peripheral (or even uninvolved) witnesses appear who are willing to lie for ulterior motives—and of a media eager to consume and repeat such stories, all over the backdrop of a chilling crime and a glamorous sociopath.
The story is important for three additional policy reasons beyond the obvious ones about media bias (ironic, given the controversy over "Fatal Vision," another book about the case). First, a Salon/Alternet story (also gullibly credulous of Morris's book) asserts as "never in doubt" that if a different attorney on MacDonald's team had given the opening and closing argument at his murder trial, MacDonald would have walked. I don't know if that's true; the jury that convicted them took only six hours to do so, and Weingarten quotes one of the jurors relaying the strength of the presumption of innocence they had given a citizen with MacDonald's upstanding record; it's hard to believe that what made the difference was the long-haired Jewish lawyer who did speak the most. But if it is, it shows the degree to which jury trials are contests of "game show" tactics rather than effective truth-finding mechanisms—and the degree to which we as a society find that acceptable.
Second, the sort of nonsense of manufactured claims of innocence that we see in this murder case is not unlike that we see in other murder cases. Decades after witnesses die and evidence is discarded, private investigators looking hard enough can find someone willing to change their story or invent an entirely new one. Most people are honest, but it takes only a couple on the periphery to create an alternative scenario that results in a best-selling book. And most murder cases don't have someone as meticulous and with as much institutional knowledge as Brian Murtagh, willing to spend decades on a single case finding outside-the-box ways of refuting every new conspiracy theory that arises. (And luck played a role in this case. Indeed, a major witness apparently planned the timing of his lie around the scheduled destruction of the documents that would have refuted him; by happenstance, the documents hadn't been destroyed.) The Innocence Project has done a lot of good springing convicts through documentation of decades-old DNA evidence that was unable to be contemporaneously considered, but I hadn't realized that they're also involved in cases like MacDonald's based entirely on improbable witnesses (the DNA evidence, according to Weingarten, is entirely consistent with MacDonald's guilt), and makes me very much rethink my willingness to endorse them in the future. I will be more skeptical of decades-old innocence claims in the future—and I was already far more skeptical than most.
Third, the case and the story shows the importance of statutes of limitations in holding accurate civil trials. Witnesses die; memories fade; physical evidence is destroyed naturally or in the regular course of business; grudges and motives to lie multiply. Only an accident of fate permitted the prosecution here to rebut a 2005 fiction told about 1979 events where most of the witnesses had died.
Earlier on statutes of limitations and on game-show litigation tactics.
So says murderer Douglas Stankewitz, who's been on death row for 34 years, thanks to repeated delays caused by collateral appeals. (He had carjacked 22-year-old newlywed Theresa Graybeal at a Kmart parking lot in Modesto, drove her around, and then shot her in the head as he stopped the car to buy heroin.) The California death penalty is on the ballot as Prop 34; proponents are, with impressive chutzpah, now using the cost of defending against these appeals as an argument for abolition rather than as an argument for replacing the judges who abuse the law. Nevertheless, polls show that voters disapprove of the measure to abolish capital punishment by 13 points. [Reuters via The Transom]
The Reuters story repeats many of the same statistics I previously discussed here from an AP story. What it doesn't mention is that the arguments about "increased cost" are entirely bogus. The litigation costs from life without parole will not be any cheaper than the litigation costs from the death penalty. As I've argued here before:
[The] cost argument just simply [isn't] true. If the death penalty disappeared tomorrow, the hundreds of lawyers who fight the death penalty wouldn't rest on their laurels. They'd simply shift their focus to other attacks on the use of criminal justice to punish criminals. Governments would still be spending the same millions of dollars defending against collateral attacks on convictions; they'd just be spending it on a different set of convicted criminals. Any monetary savings from abolishing capital punishment would be illusory.
This prediction has been borne out by recent successful challenges to life without parole such as Miller v. Alabama and Graham v. Florida.
Orin Kerr has long warned of the dangers of aggressive prosecutorial interpretation of the Computer Fraud and Abuse Act, and the criminal prosecution of Harvard Safra Center fellow Aaron Swartz over a civil breach of the terms and conditions of an MIT academic-article database where he had an account seems just such an abuse. [Wired]
Something you didn't read in the New York Times this weekend, as it lobbies for clemency for convicted murderer Terrance Williams:
Williams retrieved a nearby baseball bat, chased after [Herbert] Hamilton, and beat him with the bat until Hamilton was bloody and severely wounded. Williams then recovered the butcher knife and stabbed Hamilton approximately twenty times--twice in the head, ten times in the back, once in the neck, four times in the chest, and once each in the abdomen, arm, and thumb. Finally, Williams drove the butcher knife through the back of Hamilton's neck until it protruded through the other side. He then doused Hamilton's body with kerosene and unsuccessfully attempted to set fire to it.
Williams v. Beard, 637 F.3d 195, 199 (3d Cir. 2011). But Williams was only 17 when this murder happened (and 16 when he fired a shotgun three times during a home invasion and robbery of an elderly couple); this isn't why he got the death penalty. This is:
More on Criminal Law and Prosecution
On Monday, June 8, 2009, the Manhattan Institute hosted a forum featuring Home Depot co-founder Ken
Langone and former attorney general of the United States Dick Thornburgh. In a structured interview
format, Chief Executive editor-in-chief J.P. Donlon asked Mr. Langone and Mr. Thornburgh for their
analysis of the criminilization of corporate conduct. The program will be adapted for publication in
Chief Executive magazine.
To watch a video of the event, please click here.
Jim Copland, director of the Center for Legal Policy, interviewed both Ken Langone and Dick
Thornburgh on their thoughts about the overcriminilization of corporate conduct from the legal and
Click here to listen to the interview with Dick Thornburgh.
Click here to listen to the interview with Ken Langone.
Jim Copland, director of the Center for Legal Policy, interviews Judge Alex Kozinski and attorney Misha Tseytlin about their essay
on overcriminalization entitled "You're (probably) A Federal Criminal". Click
here to listen to the podcast.
In the Name of Justice: Leading Experts Reexamine the Classic Article "The Aims of the Criminal Law"
Lying, Cheating and Stealing: A Moral Theory of White Collar Crime
Trapped: When Acting Ethically Is Against The Law
Enacting Principled, Nonpartisan Criminal-Law Reform: A Memo to President-elect Obama
Mens Rea Requirement: A Critical Casualty of Overcriminalization
Revisiting the Explosive Growth of Federal Crimes
Culture of Privilege Waiver Compromises Corporate Compliance
Criminal Liability for Document Shredding after Arthur Anderson LLP
What We Have Here Is Failure to Cooperate: The Thompson Memorandum and Federal Prosecution of White-Collar Crime
Waiver of the Attorney-Client Privilege: A Balanced Approach
Bringing Coherence to Mens Rea Analysis for Securities-Related Offenses
The Overcriminalization Phenomenon
Crime and Punishment: the Significant Meaninglessness of Arthur Anderson LLP
Reforming Corporations Through Threats of Federal Prosecution