Criminal Law and Civil Liberties

October 27, 2020 2:13PM

Get a Warrant

Last week, the Supreme Court granted cert in a Fourth Amendment case, Lange v. California, that asks whether a police officer in “hot pursuit” of a suspected misdemeanant must get a warrant before entering the suspect’s home. That question turns out to be momentous for several reasons, two of which are obvious and one of which is less so but may be even more profound.

First, the vast majority of arrests in this country are for misdemeanors. Citing our friend Alexandra Natapoff, Lange’s cert petition notes that “[r]oughly thirteen million misdemeanor cases are filed each year, outnumbering felonies by four to one.” Indeed, as Prof. Natapoff documents in her wonderful book, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal and in this interview, “[t]he misdemeanor system represents 80 percent of the state criminal dockets in this country.” Thus, contrary to Justice Souter’s misperception in one of the Supeme Court’s most important misdemeanor cases, Atwater v. City of Lago, we certainly are “confronting … an epidemic of unnecessary minor‐​offense arrests.” Moreover, as Prof. Natapoff and others have documented, arrests for even minor offenses can have devestating effects on people’s lives. Among other things, misdemeanors “are moneymakers for local jurisdictions,” and the fines, court fees, and other monetary penalties they impose can result in crushing debt and a cascading financial crisis from which it becomes impossible for many people to escape. Besides the direct financial implications, a misdemeanor conviction can have serious collateral consequences, including loss of employement, housing, and eligibility for various government benefits. In short, contrary to what you—or, perhaps more to the point, many judges—might think, a misdemeanor arrest is a really big deal.

Second, allowing police officers to storm into people’s houses unexpectedly is a terrible idea, as at least some judges have understood for several hundred years. As recounted in an amicus brief filed by the National Assocation of Criminal Defense Lawyers (NACDL), a 1757 case from England involved “a murder conviction of a man who reacted to a peace officer’s entry into his friend’s workshop by striking the officer dead with an ax.” As the judge in that case recognized, occupants must be told whether an officer barging into a home or office “cometh as not as a mere trespasser, but claiming to act under proper authority.” Fast forward two centuries to a case where an American plainclothes detective pried open the window of a rooming house to investigate a suspicious noise, startling the landlady, and we see Justice Robert Jackson presciently warning that “[m]any home‐​owners in this crime‐​beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot [him].” If anything, this concern has only grown more acute as police have become more militarized and more people have chosen to exercise their constitutional right to own a gun at home for self defense. Underscoring that point, the NACDL’s amicus brief describes a number of hairraising incidents where police barged into a home without a warrant in “hot pursuit” of supsected misdemeanants—including a young man who relieved himself on a corner of his girlfriend’s outdoor patio—with sometimes tragic results. In short, there have always been compelling reasons to be extraordinarily careful about allowing armed agents of the state to come storming into people’s homes unannounced, even if they conflict with the government’s strong preference for volume and efficiency in the administration of criminal justice.

And that takes us to the third reason why Lange is such a compelling case and why it’s vital that the Supreme Court get it right. As I have argued elsewhere, one of the most important things to understand about our criminal justice system is the way it has moved from the essentially individualizaed, retail operation that the Founders envisioned to the industrial‐​scale, assembly‐​line operation it has become today. As Professors Chris Surprenant and Jason Brennan document in their new book, Injustice for All: How Financial Incentives Corrupted and Can Fix the US Criminal Justice System, “policing and punishment is big business in the United States.… All included, it is at least a $300‐​billion‐​a‐​year industry” employing some three million people whose jobs depend on keeping the entire pipeline—from arrest to incarceration—chock full at all times. And while felonies get the most attention, recall that there are four times as many arrests for misdemeanors. So is it reasonable to suppose that police officers, whose professional bread‐​and‐​butter is making misdemeanor arrests, would prefer a system that makes them as easy and hassle‐​free as possible? Of course it is.

Just consider the facts of the Lange case itself. The arrest arose out of Officer Aaron Weikert’s decision to pull Mr. Lange over for playing loud music and honking his horn. But instead of pulling over when Weikert activated his lights, Lange—who was nearing his home and says he did not see Weikert behind him—continued driving a few seconds, then turned into his driveway and parked in his detached garage. Weikert parked and walked up the driveway in time to stop the garage door from closing with his foot. He then entered the garage—without a warrant and without seeking consent—and began questioning Lange. Claiming he could smell alcohol on Lange’s breath, Weikert ordered Lange outside for a DUI investigaiton and ultimately charged him with driving under the influence.

Now ask yourself what would have happened if, as Lange urges in his cert petition, Officer Weikert had been required to obtain a search warrant before entering Lange’s garage in order to question him about his loud music and horn‐​honking. Most likely, Weikert would have considered it a waste of time—not just his own but particularly the judge’s—to apply for a warrant under the circumstances and would never have ended up questioning Lange in his garage that day.

This is key because so many encounters between police and citizens amount to fishing trips where police use a traffic infraction or other minor offense to ask incriminating questions, check for outstanding arrest warrants, or simply get a whiff of somebody’s car, backpack, or breath. And the longer police can prolong the encounter—long enough, say to get a probable‐​cause‐​creating (aka “drug‐​sniffing”) dog to the scene—the better their chances of making an arrest.

Indeed, much of modern criminal justice involves actors within the system simply following the path of least resistance, regardless of whether it makes society any better off. For example, marijuana arrests continue to outnumer arrests for violent crimes, even as clearance rates for homicides and other violent crimes plummet. Can there be any doubt that every single dollar spent arresting and processing people for simple marijuana possession would have been far better spent catching murderers, rapists, and armed robbers?

The truth is, we criminalize far too much conduct, with the result that police and other actors in the criminal justice system are asked to do too much have far too much opportunity to devote their efforts to activities that provide little social benefit but impose terrible costs on individuals—including humiliation, incaceration, and permanent financial ruin, to name but a few.

The constitutionally prescribed process of arresting, prosecuting, and convicting someone was deliberately designed to be cumbersome and expensive, and therefore not something to be undertaken lightly. But the government has been extraordinarily successful in hacking that process, in effect turning what was meant to be a social‐​utility‐​maximizing criminal justice system into an implacable conviction machine that gobbles up vast quantities of citizens and spits out convicts.

What are some of the ways the government has hacked the protections we were meant to enjoy?

One is by designing various legal frameworks—the traffic code at issue in the Lange case is a prime example—that make it practically impossible for ordinary citizens to go about their business without giving police some legal basis (even a purely pretextual one) to detain them and see if they can turn up evidence of any other infractions.

Another is by criminalizing vast amounts of non‐​morally‐​wrongful behavior that perfectly decent, otherwise law‐​abiding people wish to engage in, believe they have a right to engage in, and will continue to engage in despite the fact that it is illegal to do so. Examples include everything from wearing saggy pants, to growing the wrong not‐​particularly‐​harmful plant in your back yard, to owning the wrong kind of hunting rifle.

But the most significant hack—the one that represents the true sine qua non of mass incarceration—was when the government discovered how to streamline the cumbersome adjudicative process prescribed by the Constitution and drive the cost‐​per‐​criminal‐​conviction down from tens or hundreds of thousands of dollars per unit to almost nothing. We refer to that hack as “plea bargaining,” but that’s an ignoble lie we tell ourselves in order to avoid confronting the fact that American‐​style plea bargaining has become pervasively coercive and is increasingly difficult to distinguish from the use of judicially sanctioned torture in pre‐​Enlightenment Europe to extract confessions from the guilty and innocent alike.

The bottom line is this: No one knows exactly how many people should be locked up at any given time. Given our penchant for overcriminalization, we can be confident that the correct number is fewer than the total number of “offenders”; but without some rational system for ensuring that the government only decides to go after people—and potentially ruin or even end their lives—when their conduct truly merits that response, our criminal‐​justice system will be driven more by the insatiable appetite of the conviction machine than by the best interests of society.

Our criminal justice system was designed to be relatively inefficent and to ensure the government would not bring that sanction to bear willy‐​nilly. Those are features, not bugs. Simply put, if the conduct at issue isn’t worth the time and effort of getting a warrant—or the expense and inconvenience of a jury trial—then maybe it’s not worth ruining somebody’s life over either. Let’s hope the Supreme Court sees it that way in Lange anyway.

October 16, 2020 1:14PM

Maryland Lawmakers’ Task Force Urges Repeal of Police “Bill of Rights”

A working group of Maryland lawmakers appointed by House of Delegates Speaker Adrienne Jones yesterday recommended that the state repeal its first‐​in‐​the‐​nation Law Enforcement Officers’ Bill of Rights, a law that I and others have inveighed against for years.

As I wrote in 2015:

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Despite minor revisions following the Freddie Gray episode, the Maryland law retains its most objectionable features, as I observed in a piece this summer, including a five‐​business‐​day “get your story straight” period in which a department cannot question officers after an incident; rules prescribing that the process of investigation and discipline be reserved in general to fellow officers; and a lid on the release of information in which the public is legitimately interested.

As lawmakers observed at a late September hearing, repeal would still leave in place numerous other mechanisms by which police officers charged with misconduct could resist investigation and discipline, including state civil service rules, union contract provisions, and Supreme Court doctrines giving public employees constitutional rights to contest some dismissals.

Definitions vary, but per one 2015 roundup, at least a dozen other states as of then had enacted bills similar to Maryland’s into law, including California, Delaware, Florida, Illinois, Kentucky, Louisiana, Minnesota, Nevada, New Mexico, Rhode Island, Virginia, West Virginia, and Wisconsin. All states with such a law, and the equivalent laws sometimes enacted for correctional officers, should follow Maryland’s lead in considering repeal. And the truly terrible idea of making everything worse by imposing LEOBR rules from shore to shore, a perennial measure championed in the U.S. Congress by such as Sens. Mitch McConnell (R‐​Ky.) and Joe Biden (D‐​Del.), should be buried on the ocean floor, never to rise again.

October 15, 2020 1:32PM

Opioid Policymakers Keep Tilting at Windmills, Striking Patients in the Process

The American Psychological Association Dictionary of Psychology defines “denial” as “a defense mechanism in which unpleasant thoughts, feelings, wishes, or events are ignored or excluded from conscious awareness. It may take such forms as refusal to acknowledge the reality of a terminal illness, a financial problem, an addiction, or a partner’s infidelity…”

Many policymakers, including many in Congress, remain in a state of denial about the true cause of the overdose crisis: drug prohibition.

The Centers for Disease Control and Prevention’s October 4, 2020 provisional report on overdose deaths for the 12‐​month period ending March 2020 shows a total overdose death rate of 73,860 (up from 67,726 a year earlier), of which 52,488 are opioid‐​related. 39,535 (75 percent) of the opioid‐​related deaths involved illicit fentanyl and 13,793 (26 percent) involved heroin. Prescription‐​type opioids were found among 12,002 of opioid‐​related deaths (23 percent). Methamphetamine and psycho‐​stimulants were found in 17,435 (33 percent), and cocaine was found in 16,970 (32 percent) of total overdose deaths, also up dramatically over the past year.

Despite these glaring numbers, Senator Elizabeth Warren (D-MA) and Representative Katherine Clark (D-MA) joined with other House and Senate colleagues in sending a letter to the Drug Enforcement Administration urging the agency to finalize new regulations that would allow pharmacists to partially fill opioid prescriptions if they judge that patients don’t require the entire amount of opioids prescribed.

As Josh Bloom of the American Council on Science and Health points out:

On the surface, it would seem that the new regulation would be harmless, possibly even helpful. For example, it would enable someone with a prescription for 20 Vicodin tablets to tell the pharmacist “Gee, I don’t really need 20, just give me 15.” (As if that’s ever going to happen in this universe.) What is far more likely is for the pharmacist to say “you only need 15, not 20″ which isn’t the least bit difficult to believe since pharmacists have been haphazardly imposing their own limitations prescriptions for years :

“As a patient advocate and healthcare writer who is very active in social media, I see reports from thousands of patients who have been denied a refill of valid prescriptions for opioid pain medications. This is particularly true for prescriptions at high doses. And it is a trend reinforced by insurance providers and pharmacy chains as policy without scientific support. It’s pretty obvious that Elizabeth Warren and her colleagues literally don’t know what they are talking about.”—Richard “Red” Lawhern, Ph.D., Co‐​founder of the Alliance for the Treatment of Intractable Pain, and a member of the ACSH Scientific Advisory Board

The supposed rationale is to reduce the number of unused prescription opioids that can get stolen or otherwise diverted into the black market for non‐​medical use.

But the DEA and other policymakers have effectuated a dramatic reduction in opioid prescribing only to see the overdose rate climb, as non‐​medical users have switched over to cheaper and more readily available heroin and fentanyl provided by the efficient black market. Furthermore, there is no correlation between prescription volume and non‐​medical use or addiction among persons age twelve and up.

As millions of patients get abruptly tapered off of their chronic pain medications, and millions of others go under‐​treated for acute pain, policymakers remain in a state of denial and continue to press a quixotic war on prescription opioids in which patients in pain are civilian casualties.

October 6, 2020 4:57PM

Blatant Misrepresentations of Qualified Immunity by Law Enforcement

Since the death of George Floyd this past May, and in the wake of the national turmoil his death provoked, both Congress and state legislatures have turned their attention to policing reform -- and in particular, the doctrine of qualified immunity. At the federal level, four separate bills have been introduced (both by Democrats and Republicans) that would eliminate or substantially modify qualified immunity nationwide. Meanwhile, several states have either passed or are currently considering policing reform that would eliminate or limit qualified immunity for state-level civil rights claims.

Unfortunately, the discussion around qualified immunity is plagued by misinformation. Nearly all of the defenses I've seen raised in support of the doctrine display a profound misunderstanding of what qualified immunity actually is and how it works, and I increasingly find that almost all of my public comments on this issue are devoted simply to correcting clear mistakes. Perhaps unsurprisingly, the most common peddler of such misinformation is the law enforcement lobby, which appears to be acting out of a combination of knee-jerk defensiveness and profound ignorance as to qualified immunity reform.

I therefore thought it would be helpful to identify and correct some of the most flagrant misrepresentations of qualified immunity by law enforcement organizations and leaders. The purpose of this catalogue is both to correct the object-level errors on these particular issues, but also to put the public in general, and policy makers in particular, on notice that they should take with a grain of salt any statements about qualified immunity made by the law enforcement lobby. As these examples illustrate, those statements are simply not reliable.

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September 25, 2020 4:12PM

Response to Scott Keller on Qualified Immunity and the Common Law

The doctrine of qualified immunity protects public officials from civil liability, even when they break the law, unless a civil rights plaintiff can show that the defendant violated "clearly established law." This rule is nominally an interpretation of our primary federal civil rights statute, Section 1983, but that statute says nothing about any immunity, qualified or otherwise. And the recent scholarship of William Baude, which Justice Thomas himself has relied on in calling for qualified immunity to be reconsidered, argues that the background common law against which this statute was passed did not include anything like the across-the-board defense for all public officials that characterizes qualified immunity today. Rather, the general rule was strict liability for public officials who committed constitutional violations, with "good faith" only relevant to the extent that it was an element of particular torts; there was not, however, a generally applicable good-faith defense for state actors who acted unlawfully.

But a forthcoming article by Scott Keller, partner and appellate practice chair at Baker Botts, challenges this conclusion. His article, titled Qualified and Absolute Immunity at Common Law, focuses on four 19th century tort treatises, as well as various 19th century Supreme Court decisions, and concludes that "19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties—like qualified immunity today." He does note, however, the Court's modern immunity doctrines nevertheless depart in several ways from the 19th-century common law, most notably in that "qualified immunity at common law could be overridden by showing an officer's subjective improper purpose, instead of 'clearly established law.'"

This article is an important and ambitious piece of scholarship, and at first glance, it certainly seems to at least complicate the question of whether there were any free-standing immunities around the time that Section 1983 was passed in 1871. For example, he cites Wilkes v. Dinsman, 48 U.S. 89, 129 (1849), which states that "a public officer, invested with certain discretionary powers . . . cannot be made answerable for any injury, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty." Various 19th century tort treatises seem to express a similar point -- that executive officials, acting in a "quasi-judicial" capacity (what we would today call "discretionary functions") generally cannot be sued unless acting with some improper motive.

An in-depth historical evaluation of Keller's article is beyond my capabilities here, so I'm not going to offer a definite conclusion on how much to take from this. It certainly appears that Keller has mustered a strong case, and I'll admit substantial confusion on how to reconcile some of his evidence with the historical sources discussed in Will Baude's article, which seem to suggest just as persuasively the opposite conclusion.

On a first look, one possible explanation for this apparent contradiction may be the fact that 19th-century constitutional law included far fewer limitations on public officials than exists today. The Bill of Rights, of course, did not even apply against state officials until the Fourteenth Amendment was passed, and it would take until the mid-20th century for the Supreme Court to incorporate most of those rights against the states. Therefore, in this context, saying that executive officers could not be sued unless they acted "with malice" doesn't necessarily imply that they were immune for constitutional violations -- because at least for state actors, there were few federal constitutional limitations on them in the first place.

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September 24, 2020 5:44PM

A Tale of Two Scourges

Some observers of our policy toward the coronavirus pandemic criticize the tendency to focus on case numbers alone, when hospitalization rates and fatality rates are what really matter. And as we learn more about the COVID virus, mitigation and treatment is improving and fatalities are diminishing.

Similarly, the U.S. Department of Justice’s policy toward the overdose epidemic seems to be focused on arrests and drug interdictions, apparent in a DOJ press release today, itemizing the arrests of drug traffickers and seizures of illegal drugs that have resulted since “Operation SOS” began in July 2018. But it’s the overdose death rate that really matters.

The DOJ claims its operation is bringing down overdose deaths. There’s just one problem: overdoses were already rising in 2019 and early 2020, even before the COVID-19 pandemic hit, and are soaring since the start of the pandemic.

Public health experts and health care practitioners have learned, since the early days of the pandemic, how to mitigate spread with harm reduction measures such as wearing masks and social distancing, and how to better treat the infection. New therapeutics are being developed and, hopefully soon, a vaccine will help us reach “herd” or “community” immunity.

Unfortunately, the same cannot be said for those who prosecute the drug war. Public officials seem reluctant to mitigate the spread of death and disease with proven harm reduction measures like “needle exchange” and “safe injection site” programs, Medication Assisted Treatment, and over‐​the‐​counter distribution of the overdose antidote naloxone. And they seem disinterested in developing the overdose epidemic’s version of a vaccine: ending drug prohibition.

All public health experts agree that, eventually, the world’s population will recover as the coronavirus pandemic gradually disappears. Alas, the same cannot be said about the overdose epidemic.

Look for the DOJ to release another upbeat press release touting arrests and drug seizures next year. And look for overdoses to continue to mount as well.

September 24, 2020 5:41PM

Breonna Taylor Is Another Victim of the War on Drugs

By Jeffrey Miron and Erin Partin

Yesterday Kentucky Attorney General Daniel Cameron announced charges against one of the three officers who killed Breonna Taylor, an emergency medical worker who was shot when police raided her apartment on the suspicion that her ex‐​boyfriend, Jamarcus Glover, had received shipments of drugs at her address. The charges, three counts of wanton endangerment, were not for shooting and killing Ms. Taylor in her own home but for firing three stray rounds through a curtained window. Whether the charges, or lack thereof, are the appropriate legal response lies outside of our particular expertise, but widespread protests in the wake of the announcement show that many people do not feel justice has been served.

The Drug War killed Breonna Taylor. Former Detective Brett Hankinson, Sergeant Jonathan Mattingly, and Detective Myles Cosgrove may have pulled the trigger, but they carried out this raid because of our misguided, ineffective, and racist drug laws. Since President Nixon first declared a “War on Drugs” in 1971, Black Americans have been arrested, jailed, and killed for frequently minor or nonviolent drug offenses. No‐​knock raids, in which police are authorized to enter a property without notifying the residents, have become a favorite tool of law enforcement, with tens of thousands executed each year.

Breonna Taylor was not the first innocent victim of a no‐​knock raid, and unless policymakers act she will not be the last. In March 1994 police in Boston entered the wrong apartment and tackled 75‐​year old Accelyne Williams, who suffered heart failure and died. No officers were charged. In May 2010 7‐​year old Aiyana Stanley Jones was shot and killed by police in Detroit during a botched drug raid as she lay asleep in bed next to her grandmother. Charges against the officer were dropped, and he remained on the force. In May 2011 26‐​year old Iraq war veteran Jose Guerena was shot at 71 times in front of his wife and 4‐​year old daughter. Police claimed he was involved in a drug trafficking ring – allegations that were never substantiated – and no officers were disciplined although his family received a $3.4 million settlement. There are far too many similar stories, not all of which receive the attention or scrutiny they deserve.

The Kentucky AG and others claim that the raid that killed Breonna Taylor was not, in fact, a no‐​knock raid because the police, despite having a no‐​knock warrant, announced themselves. Taylor’s boyfriend disputes this claim and says he thought the intruders were Taylor’s ex‐​boyfriend.

Regardless, the warrant was executed in the early hours of the morning as Ms. Taylor and her boyfriend slept; reacting defensively to heavily armed intruders breaking down doors in the middle of the night is a reasonable response. Using violent shock and awe tactics on people suspected of nonviolent offenses is not.

What many of these violent raids have in common is that they target low‐​level drug offenders. Dozens of raids have ended in injury or death since 2010. The aggressive enforcement of marijuana laws may be as dangerous as the drug itself.

Ending the War on Drugs will not eliminate police misuse of deadly force, but it will limit the ability of law enforcement agencies to use the pretext of “public safety” to commit violence. The Drug War must end; it has already claimed too many victims.