Tag: criminal law

David Friedman: The Machinery of Criminal Defense

I once went to another Washington think tank to hear an advertised lecture by David Friedman, “author and professor of law and economics at Santa Clara University.” The great libertarian author of The Machinery of Freedom, speaking at a liberal-establishment Washington think tank? Cool. So I showed up early, took a seat by the wall, and was crushingly disappointed to discover that the speaker was in fact some other David Friedman, who was decidedly no libertarian, and I was pinned in and couldn’t leave. They told me later that an intern got the wrong bio off the web. Always blame the intern.

So anyway, I just wanted Cato-at-Liberty readers to notice that our new paper “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System,” which Tim Lynch wrote about here, is in fact co-written by “the real David Friedman,” the son of Milton Friedman, the professor of law and economics with a Ph.D. in physics, the author of the early libertarian classic The Machinery of Freedom as well as such other books as Hidden Order, Law’s Order, and Future Imperfect – yes, that David Friedman.

So even if you didn’t think you were interested in the topic of voucherizing legal aid for indigent defendants, just consider that David Friedman is always interesting.

Cybertormenting Now Illegal in Louisiana

Louisiana has a new law on the books that outlaws “any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.”

This is a statute aimed at “cyberbullying,” the increasingly common use of text messages and social media as a vehicle for teenage taunting. The issue caught its first big headlines with the Lori Drew case. The case against the Missouri woman hailed into court in California for suicide-inducing internet harassment was a stretch of an existing federal statute that was ultimately thrown out. The government continues to contend that violating a website’s terms of service is a federal crime.

The federal cyberbullying statute proposed last year was a monstrosity. Felony time (up to two years) for a statute that will primarily be used against minors is excessive. There is no dedicated federal juvenile justice system, and this is not a good excuse to create one. Harvey Silverglate, Cato Adjunct Scholar and author of Three Felonies a Day: How the Feds Target the Innocent, testified at the hearings last fall.

The state laws aimed at cyberbullying are generally less onerous than the proposed federal one. The crime is a misdemeanor, and offenders under the age of seventeen are directed to the juvenile justice system. As Eugene Volokh points out, this law is still pretty bad:

Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to … abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.

Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) qualify as “malicious and willful intent to … abuse [or] torment”? What if the message “speak[s] insultingly, harshly, and unjustly” (unjustly, that is, in the view of the judge), which is the dictionary definition of “abuse” that seems most relevant to speech?

So either the law is too broad, or it will be narrowed only by reading “malicious” as limited to speech that courts dislike — which raises the risk of impermissible content and viewpoint discrimination. And until the narrowing takes place (and maybe even after that), the law will be remarkably vague.

The exception for religious speech is also probably unconstitutional, because it treats nonreligious speech worse than religious speech. Cf. R.A.V. v. City of St. Paul (holding that content-based distinctions are presumptively unconstitutional even when they operate within an unprotected category of speech).

Volokh has provided excellent coverage of the development of this law – from proposal, to adoption, and even the scrivener’s error that purports to protect free speech from cyberbullying charges via the state constitution’s right-to-bail provision. He coined the “cybertormenting” term as well, which has the rhetorical flair appropriate for a legislative overreach of this magnitude.

Overcriminalization in the Financial Reform Legislation

The Heritage Foundation and National Association of Criminal Defense Lawyers (NACDL) made a stir by announcing their joint report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The report highlights the growth of federal criminal provisions in the 109th Congress. Many criminal statutes are drafted without the traditional requirement of criminal intent. When there is no requirement that the government prove you “willfully” or “knowingly” broke the law, mistakes are treated the same as intentional criminality. Some laws are written so broadly that it is impossible for anyone to know what conduct is illegal. Criminal provisions are included in statutes that are never reviewed by the judiciary committees of either chamber of Congress.

The NACDL has a follow-up analysis of the financial regulatory reform currently being considered by Congress. The Restoring American Financial Stability Act of 2010 has passed both houses and is heading into committee.

This 1600-page bill does everything that the Without Intent report warned against. The “reckless disregard” intent requirement is imported from tort law in several provisions and many others have no mental state requirement at all. New bribery and mail/wire fraud provisions are included where none are necessary. Bribery and fraud are already illegal.

Read the whole thing (direct .pdf link here).

‘A Smorgasbord of Delights’

That’s what my colleague Tim Lynch’s 2009 volume In the Name of Justice is, according to a glowing review in the new edition of the Loyola Law Review. Tim’s  probably too modest to link it himself, so I’ll do that here.

In the review, Professor Laurie L. Levenson of Loyola Law School writes:

I have been teaching criminal law for more than twenty years and the one question I predictably get from my students every year is, “Why do we have to read so much?” Sometimes they add, “Isn’t there one book—one article—that explains all of criminal law?” Ordinarily, I just smile and assign them more reading. However, the recent book, In the Name of Justice reminded me that there is such a work. This book raises nearly every important issue one must consider in critically analyzing criminal law.

In the Name of Justice is structured around Professor Henry M. Hart’s classic 1958 essay “The Aims of the Criminal Law,” and Tim assembled an all-star team of scholars and practitioners–including Judge Richard Posner, Judge Alex Kozinski, James Q. Wilson, and Alan Dershowitz–to react, criticize, comment, and expand on Hart’s seminal article.  Professor Levinson concludes:

Timothy Lynch has done an excellent job of assembling original essays and appendices of previously published essays and speeches on the critical issues in criminal law. The book is a smorgasbord of delights—the real “meat and potatoes” of criminal law. For my taste, the most fulfilling observations actually come from the contributions in the book’s closing materials. Justice Robert H. Jackson’s famous speech to federal prosecutors on their role in the criminal justice system and the function of criminal law is infused with lessons from Hart, as are the other speeches and essays in the Appendices. The aim of criminal law remains elusive, but the journey itself is worth the effort. In the Name of Justice is the perfect manner to explore the journey of understanding and applying our criminal laws.

I couldn’t agree more: I wish I’d had this book when I took Crim Law. Fortunately, it’s available now for law professors, students, and anyone else who wonders whether our burgeoning state and federal criminal codes have become unmoored from the criminal law’s proper purposes.

Playing Chicken Again

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

The Case against Domestic Military Detention

Washington is consumed once more with the problem of terrorism, driven by the dual pressures of an unsuccessful terrorist attack on commercial aviation and upcoming elections that give politicians an incentive to speak in terms of war. We are again treated to the ridiculous argument that a terrorist attack is either an act of war or a criminal violation but never both. Senators McCain and Lieberman recently proposed a bill that mandates military detention for domestic terror suspects instead of civilian criminal justice proceedings – an approach that sidelines half of our domestic counterterrorism tools.

The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected terrorists. Choosing military detention over prosecution takes criminal justice tools off the table, including prosecuting terrorists for the instrumentalities of terrorism – assembling bombs, financing, and all of the illegal activities associated with attacking the system.

We’ve been down this road before, and domestic military detention in lieu of criminal prosecution has not worked as advertised.

Take the case of Ali Saleh Mohamed Kahlah al-Marri. After the 9/11 attacks, the FBI arrested al-Marri, an exchange student at Bradley University in Peoria, Illinois. The government alleged that al-Marri met with Osama Bin Laden, was working with senior al Qaeda organizers, had a more-than-casual interest in poisons, and was told by his handlers to be in America before September 11th or to forget about executing his mission here.

Terrorism, even when it can be viewed as an act of war perpetrated by a sleeper agent such as al-Marri, inherently breaks laws. Al-Marri arrived in the United States with a suitcase full of credit card numbers and set up a false business entity and bank accounts to finance his mission.

The government produced a seven-count indictment that, if proven, would have put al-Marri away for a long time. The charges included fraudulent use of a false identity (five or fifteen years, depending on the amount of money involved), three counts of bank fraud (thirty years each for a total of 90 years), making false statements to FBI investigators (ten years), and credit card fraud (ten years). This amounts to a maximum sentence of 115 or 125 years in federal prison. Subsequent sentence enhancers for committing these crimes in support of an act of international terrorism make the same indictment worth up to 146 years today.

That’s an impressive prison stretch, but it wasn’t too late for the government to snatch defeat from the jaws of victory.

Before al-Marri’s trial, the government removed him to military custody and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed upon his release). He remained in a naval brig in South Carolina as lawyers fought over his continued detention without trial. No military commission was ever planned for al-Marri. This was a power play to establish the precedent that terrorism suspects could be held indefinitely without trial, and the government asserted at oral argument before the 4th Circuit that the process al-Marri received is what any American citizen would receive.

The Supreme Court agreed to review his case, prompting the Obama administration to move al-Marri back to the civilian criminal justice system in early 2009. The government re-indicted al-Marri on two counts of material support of terrorism (maximum sentence of thirty years). He pleaded guilty to one count and received eight years. The judge was barred from officially giving credit for time served in military custody, but a fifteen-year sentence minus six years and change for being in military custody is what he received.

The al-Marri case was not a success. He should have been locked up for the rest of his life, but cramming a set of civilian crimes into a case for military detention failed to protect national security and provide justice.

The McCain-Lieberman proposal would have pushed al-Marri’s trial into a military commission. As they stand now, our military commissions have jurisdiction over material support of terrorism but not the panoply of federal statutes that allow prosecution of the instrumentalities of terrorism. The Founders allowed Congress to punish war crimes –- “Offenses against the Law of Nations” –- and bank fraud does not fit the bill. Congress could add a catch-all provision to the commissions’ statute, but do we really want military officers sitting in judgment of domestic financial crimes?

Many terrorist acts are simultaneously acts of war and criminal violations, and applying one legal paradigm to the exclusion of the other makes for good politics but terrible policy. The United States should continue to use its criminal justice tools. Conservatives have been railing for years about limits on the Executive during wartime; passing this bill would certainly tie the Executive’s hands. If you can get 146 years, take it. We can defeat al Qaeda both on the battlefield and in the courtroom.