Tag: criminal law

What You Don’t Know Will Hurt You: Reining in Prosecutorial Overreach with Meaningful Mens Rea Requirements

James Madison presciently warned “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” Sadly, however, Madison’s admonishment has fallen on deaf ears when it comes to modern statutes and regulations—which in some cases are so numerous and complex that they cannot be deciphered by trained attorneys, much less the general public.

What’s worse, federal prosecutors have seized the opportunity to use these vague statutes, and they now have the ability to prosecute almost anyone for anything. One protection against these incoherent laws and regulations, however, is that, in most criminal cases, the prosecution must prove a defendant had a certain degree of criminal intent (mens rea) to prove a violation. But in order for this protection to be effective, the courts must properly instruct the jury on the level of intent required by the statute.

In United States v. Clay, the district court—as well as a panel of judges on the Eleventh Circuit Court of Appeals—failed in this respect. In 2002, the Florida legislature enacted the “80/20 Statute,” which requires certain medical providers receiving state Medicaid funds to spend 80 percent of such funds towards “the provision of behavioral health care services” or refund the difference to Florida’s Agency for Health Care Administration (AHCA). The statute, however, was ambiguous as to how the expenditures were to be calculated and did not set out any certain guidelines. Despite this ambiguity, in 2011, federal prosecutors indicted Mr. Clay and others for healthcare fraud and making false statements relating to not properly calculating and reporting their expenditures to the AHCA. The defendants were prosecuted under a federal fraud statute, which requires the government to prove that the defendants “knew” the reports were false. The judge, however, instructed the jury that it could convict if the defendants knew either that the submissions were “untrue” or if they acted “with deliberate indifference as to the truth,” which is certainly not the same as the “knowledge” required by the statute. The district court allowed this jury instruction despite a 2011 Supreme Court case that held “deliberate indifference” cannot substitute for a statutory knowledge requirement, and a three-judge panel in the Eleventh Circuit upheld the district court’s instruction.

The Cato Institute has joined with the National Association of Criminal Defense Lawyers, the Washington Legal Foundation, the Reason Foundation and twelve criminal and business law professors in requesting the full Eleventh Circuit to rehear the case and vacate the panel’s opinion. The district court’s jury instruction was a clear departure from Supreme Court precedent, and, if upheld, would weaken one of the fundamental checks on vague statutes and over-zealous prosecutors—the requirement that the government prove someone knows they are committing a crime. 

NACDL Report Highlights Failings of Indigent Defense System; Let’s Try a Freer Market

A new report from the National Association of Criminal Defense Lawyers highlights the myriad inadequacies in the current system of federal indigent defense. 

NACDL identifies “Seven Fundamentals of a Robust Federal Indigent Defense System,” including a system insulated from judicial interference, adequate funding, sufficient training and expertise among indigent defense lawyers, and greater transparency, and finds each of them to be lacking under current circumstances.

The nuts and bolts of how the current system fails to adhere to those fundamentals can be found in the full report here.

Notably, one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system. 

As the NACDL report itself notes:

Short of warfare, there is no more awesome use of governmental power than the power to prosecute.  A criminal prosecution can result in life-altering consequences, including the loss of reputation, property, liberty, and even life itself.  For this reason, the founders of this nation recognized that no person should stand alone against a criminal prosecution.

Given the stakes, it seems bizarre that those individuals who have the entire weight of the state brought to bear against their liberty should depend on that very same state to choose the person to represent them.  It’s certainly true that public defenders tend to be undercompensated and buried under incomprehensible caseloads; but it’s just as true that a public defender system fails to respect the agency of the people who have the most at stake.

The introduction of defense vouchers, which would allow indigent defendants to choose their own lawyers rather than have that all-important decision made at random by a judge or public defender, was the subject of a Cato Policy Analysis in 2010 by David Friedman and Stephen Schulhofer. It would allow defendants a say in their representation and force lawyers to compete to serve them. In doing so, it would come closer to ensuring those fundamental principles of indigent defense than any entirely government-run system is likely to.

The voucher idea is not just a theory; a version of it has now been implemented in Comal County, Texas, which you can read about in more detail here.

When the government takes the immense step of putting someone’s life or liberty in jeopardy, why shouldn’t that person have at least some choice in who will defend them?

Fifth Time’s a Charm? Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague

The Armed Career Criminal Act (ACCA) increases the minimum criminal penalty for defendants convicted of illegal firearm possession who also have three prior violent crime convictions. While the Act lists many crimes as qualifying as “violent”—such as burglary, arson, and extortion—it also contains a catch-all provision, a “residual clause,” that includes crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

While that language may seem clear, its precise meaning has bedeviled courts for decades. In fact, Johnson v. United States represents the fifth time since 2007 that the Supreme Court has been asked to clarify what the residual clause means. For example, does drunk driving count? How about fleeing from officers in a high-speed chase? Even though the high court only hears about 75 cases per year—and it rarely revisits a law within such a short time-span—the ACCA’s residual clause keeps coming back. As Justice Antonin Scalia quipped in the last such case, “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.” Justice Scalia’s comment came in a dissent in which he argued that the residual clause is unconstitutionally vague, and it seems that the rest of his colleagues paid attention. This is the second time this term that this case will be argued before the Court.

Last November, the issue was whether merely (illegally) possessing a short-barreled shotgun is a crime that fits into the residual clause. In January, however, the Court ordered that the case be re-argued on the larger question of whether the residual clause is itself unconstitutionally vague. Apparently, in discussing the law for the fifth time, the justices got tired of trying to answer questions that Congress should have addressed by writing a clearer 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).