Category Archives: Legal – General

The collateral consequences of overcriminalization

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scales of justice The troubling overcriminalization of American life has been a frequent topic on this blog, but this Jack Chin/Balkanization post explores an underappreciated cost of the overcriminalization policy – the collateral consequences of a criminal conviction:

Conviction and punishment, it is said, are the ways defendants “pay their debt to society.” But it turns out that criminal conviction is a debt that can never be paid. In every state and under federal law, there are hundreds of collateral consequences that apply automatically or on a discretionary basis, to people convicted of crimes. Most of these apply for life, apply based on convictions from other jurisdictions, and can never be removed, or can be relieved only through virtually unavailable methods like a pardon from the President. The rise of computer databases means that factual disclosure of convictions is inescapable.

These collateral consequences, depending on the crime, include such things as deportation for non-citizens, ineligibility for public benefits, and government licenses, permits, and public employment, ineligibility for private employment requiring security clearances or contact with vulnerable populations like children and the elderly, loss of civil rights like voting, office-holding and jury service, and loss of parental rights or ability to adopt or be a foster parent.

These collateral consequences are particularly harsh on the young, many of whom believe that they will never be able to overcome the adverse impact of a youthful indiscretion.

In short, the collateral consequences of our federal, state and local governments’ overcriminalization policy inhibits hope. How does that make sense?

With Judge Porteous’ Friends

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porteous Who needs enemies? That’s what Nola.com’s James Gill is asking after sitting through U.S. District Judge G. Thomas Porteous, Jr.’s impeachment trial last week (previous post here). Several of the judge’s friends testified for the defense about how they would slip him some money on the side:

Several of those friends were in the habit of slipping Porteous money, and Turley decided to put one of them, Don Gardner, on the stand. That was asking for trouble too, and Gardner promptly provided it by admitting that a federal litigant, alarmed to discover that the other side had retained some friends of Porteous, paid him $100,000 as a counterbalance.

Gardner conceded that he was recruited for the case, although he lacked any relevant expertise, as "a pretty face, someone who knew the judge." He added that he could have pocketed an extra $100,000 by persuading Porteous to recuse himself, but made no attempt to do so, not wanting to be a "whore."

Senators probably did not agree that Gardner’s virtue was intact.

Which reminded me of one of the following joke about a crooked judge:

Taking his seat in his chambers, the judge faced the opposing lawyers.

"So," said the judge. "Each of you has presented me with a bribe."

Both lawyers squirmed uncomfortably.

"You, attorney Mohanty, gave me $50,000," observed the judge. "And you, attorney Venkat, gave me $60,000."

The judge reached into his pocket, pulled out $10,000, and handed it to attorney Venkat.

"Now that I’ve returned $10,000 to attorney Venkat," exclaimed the judge proudly, "I’m going to decide this case solely on its merits!"

The Magnificent Corporation

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Houston skyline Wise words from Professor Bainbridge:

Legal education pervasively sends law students the message that corporate lawyering is a less moral and socially desirable career path than so-called “public interest” lawyering. The corporate world is viewed as essentially corrupting and alienating, while true self-actualization is possible only in a Legal Aid office.

Our students get these messages not only in law school, of course, but also in the media. Films like “A Civil Action” or “Erin Brockovich” illustrate the general ill repute in which corporations-and corporate lawyers-are held, at least here in Hollywood.

In my teaching, I have chosen to unabashedly embrace a competing view. I tell my students about Nicholas Murray Butler, president of Columbia University and winner of the Nobel Peace Prize, who wrote that: “The limited liability corporation is the greatest single discovery of modern times. Even steam and electricity are less important than the limited liability company.”

I tell them about journalists John Micklethwait and Adrian Wooldridge, whose magnificent history, The Company, contends that the corporation is “the basis of the prosperity of the West and the best hope for the future of the rest of the world.” [.  .  .]

The corporation also has proven to be a powerful engine for focusing the efforts of individuals to maintain economic liberty. Because tyranny is far more likely to come from the public sector than the private, those who for selfish reasons strive to maintain both a democratic capitalist society and, of particular relevance to the present argument, a substantial sphere of economic liberty therein serve the public interest. Put another way, private property and freedom of contract were “indispensable if private business corporations were to come into existence.” In turn, by providing centers of power separate from government, corporations give “liberty economic substance over and against the state.” [.  .  .]

And so I ask my students: What explains the relatively rapid development in the mid-19th century of a recognizably modern corporation and, in turn, that entity’s emergence as the dominant form of economic organization?

The answer has to do with new technologies – especially the railroad – requiring vast amounts of capital, the advantages such large firms derived from economies of scale, the emergence of limited liability that made it practicable to raise large sums from numerous passive investors, and the rise of professional management.

For the most part, these advantages remain true today. The corporation remains the engine of economic growth, both at the level of giants like Microsoft and garage-based start-ups.

The rise of the corporate form thus has “improved the living standards of millions of ordinary people, putting the luxuries of the rich within the reach of the man in the street.” The rising prosperity made possible by the tremendous new wealth created by industrial corporations was a major factor in destroying arbitrary class distinctions, enhancing personal and social mobility. Many of the wealthiest businessman of the latter half of the 19th Century and the 20th Century began their careers as laborers rather than as scions of coupon-clipping plutocrats.

And so I put it to my students this way: You want to help make society a better place? You want to eliminate poverty? Become a corporate lawyer. Help businesses grow, so that they can create jobs and provide goods and services that make people’s lives better.

So, why are we doing this to those who are attempting to facilitate the benefits of this marvelous creation?

Ringing the Bell

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cadillac report I enjoyed the first big weekend of college and NFL football as much as anyone, but the probable concussion that star University of Houston QB Case Keenum suffered in the Cougars’ Friday night romp over UTEP reminded me of this Skip Rozin/Wall Street Journal article from awhile back:

Protecting football players from serious head injuries is making news again. Accused for years by outside critics and even Congress of dismissing the danger of concussions, the National Football League has finally installed measures to safeguard players during games and, when they are injured, to treat them more effectively.

The latest effort, a locker-room poster being sent to all NFL teams this month, alerts players to signs of concussion-such as nausea, dizziness and double vision-and urges anyone exhibiting these symptoms to be examined by a doctor. The initiative is supported by both the NFL and the players union.

The message embraces caution in what, for players, is a high-risk environment. Football is a collision sport. At the professional level, collisions occur between the biggest and fastest players and can wreak havoc. A vivid reminder of this came last week when safety Jack Tatum, nicknamed "The Assassin," was back in the news. Tatum, who passed away July 27, made a devastating hit on Darryl Stingley during a 1978 preseason game. The hit turned Stingley into a quadriplegic; no penalty was assessed.

One new rule enacted last season penalizes hits against defenseless players such as quarterbacks and wide receivers. In December, the league banned players who show symptoms of a concussion from returning to play or practice on the same day; they must also be cleared by the team physician and an independent neurologist. The biggest change came this March when the NFL replaced the doctors leading its brain- injury committee-who discredited mounting evidence linking concussions to serious brain damage-with doctors alarmed by the danger.

Welcome changes all, yet the glorification of violence remains a well-entrenched part of football.

In watching a weekend of hard-hitting football, I suspect that there are many more concussions resulting from the games than we even know about from evident injuries such as Keenum’s. As I’ve noted many times in regard to the misdirected governmental criminalization of performance-enhancing drug use, we have promoted a culture that encourages players to take these enormous health risks, but demonize them when they attempt to hedge the risk of the injuries that almost always result from engaging in such high-risk endeavors. What happens to the game of football when players start requiring the owners of that risk to compensate them for their injuries?

My sense is that the games that we watched over this past weekend may be played in a substantially different way in the not- to-distant future.

 

Preparing for Life

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john-grisham I’ve never been a fan of John Grisham’s novels, although I concede that a couple of them have been made into entertaining movies.

But after reading this Grisham/NY Times op-ed, I’m a big fan of John Grisham:

I WASN’T always a lawyer or a novelist, and I’ve had my share of hard, dead-end jobs. I earned my first steady paycheck watering rose bushes at a nursery for a dollar an hour. I was in my early teens, but the man who owned the nursery saw potential, and he promoted me to his fence crew. For $1.50 an hour, I labored like a grown man as we laid mile after mile of chain-link fence. There was no future in this, and I shall never mention it again in writing.

Then, during the summer of my 16th year, I found a job with a plumbing contractor. I crawled under houses, into the cramped darkness, with a shovel, to somehow find the buried pipes, to dig until I found the problem, then crawl back out and report what I had found. I vowed to get a desk job. I’ve never drawn inspiration from that miserable work, and I shall never mention it again in writing, either.

But a desk wasn’t in my immediate future. My father worked with heavy construction equipment, and through a friend of a friend of his, I got a job the next summer on a highway asphalt crew. This was July, when Mississippi is like a sauna. Add another 100 degrees for the fresh asphalt. I got a break when the operator of a Caterpillar bulldozer was fired; shown the finer points of handling this rather large machine, I contemplated a future in the cab, tons of growling machinery at my command, with the power to plow over anything. Then the operator was back, sober, repentant. I returned to the asphalt crew.

I was 17 years old that summer, and I learned a lot, most of which cannot be repeated in polite company. One Friday night I accompanied my new friends on the asphalt crew to a honky-tonk to celebrate the end of a hard week. When a fight broke out and I heard gunfire, I ran to the restroom, locked the door and crawled out a window. I stayed in the woods for an hour while the police hauled away rednecks. As I hitchhiked home, I realized I was not cut out for construction and got serious about college.

Many of us had similar experiences to Grisham’s before finding our life’s work. In talking with young folks these days about their uncertain futures, I find myself often advising them that uncertainty is, for most of us, an unavoidable part of life. Although often difficult at the time, those experiences help define our character and spirit.

I decided to go to law school while working on a loading dock on Produce Row in Houston. I’m eternally grateful for that loading dock. What was your loading dock?

The Commerce Clause — A conduit for state power

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Why do the feds even care?

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Clemens Following on this post from last week on the misdirected nature of the criminal prosecution of Roger Clemens, Allen Barra wrote this W$J op-ed mirroring my skepticism over the case:

Never mind that there was no criminal penalty attached to anything Mr. Clemens is accused of using-if there were, Jose Canseco, who has written two books bragging about his use of steroids, would be serving time. Never mind, too, that when Mr. Clemens is said by his accusers to have used such substances, they weren’t even banned from Major League Baseball: the Basic Agreement between the Players Association and owners forbidding the use of PEDs didn’t take effect until 2004.

And let’s disregard as irrelevant the judgment of baseball analysts such as David Ezra (author of “Asterisk: Home Runs, Steroids, and the Rush to Judgment”) and J.C. Bradbury (author of “The Baseball Economist: The Real Game Exposed”), who have studied PEDs and Mr. Clemens’s performance and found no statistical evidence that, even if he took PEDs, he gained any advantage from them. [.  .  .]

All that matters to the government is that, in February 2008, Mr. Clemens may have lied to a House committee on a matter the committee had no business poking its nose into in the first place. If there was no criminal penalty for using the drugs and if MLB and the union have agreed now to police their own house, why do the feds even care?

That’s a good question, and one we all deserve an answer to before the government goes to the expense of putting Mr. Clemens on trial.

As I noted earlier, Clemens has not defended himself well. But the government’s handling of the investigation into his conduct is far more egregious. Here’s hoping that Clemens’ jury sees it the same way.

The financial implications of NFL injury risk

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kearse_injury_300As we endure the annual, mind-numbing boredom of NFL pre-season football, my thoughts about football are elsewhere.

That is, why on earth do NFL teams expose their valuable players to such extreme risk of injury when the games do not even count?

The local Texans lost their first second round draft choice to injury for the season this past weekend. And for what?

The elephant in the closet in regard to football overall and the NFL in particular is the increasing recognition of the high injury risk that players are taking. Although this NY Times article involves primarily former MLB star Lou Gehrig and speculation whether he really died of amyotrophic lateral sclerosis, the article provides an overview of new clinical evidence that the brain damage being suffered by NFL players is severe:

Doctors at the Veterans Affairs Medical Center in Bedford, Mass., and the Boston University School of Medicine, the primary researchers of brain damage among deceased National Football League players, said that markings in the spinal cords of two players and one boxer who also received a diagnosis of A.L.S. indicated that those men did not have A.L.S. at all. They had a different fatal disease, doctors said, caused by concussion like trauma, that erodes the central nervous system in similar ways.

The finding could prompt a redirection in the study of motor degeneration in athletes and military veterans being given diagnoses of A.L.S. at rates considerably higher than normal, said several experts in A.L.S. who had seen early versions of the paper. Patients with significant histories of brain trauma could be considered for different types of treatment in the future, perhaps leading toward new pathways for a cure. [ . . .]

A link between professional football and A.L.S. follows recent discoveries of on-field brain trauma leading to dementia and other cognitive decline in some N.F.L. veterans. Dr. McKee and her group identified 14 former N.F.L. players since 1960 as having been given diagnoses of A.L.S., a total about eight times higher than what would be expected among men in the United States of similar ages.

However, the doctors cautioned, the existence of the increased number of A.L.S.-like cases should not create the same level of public alarm as the cognitive effects of brain trauma, which affect hundreds of former professionals and perhaps thousands of boys and girls across many youth sports.

Although even players commonly continue to underestimate injury risk in the NFL, my sense is that such miscalculations are being understood better and will likely recede. With NFL teams facing increasing litigation risk from injured players, will NFL teams be able to use the shield of the collective bargaining process much longer to protect the league members from the possibly severe financial implications of that risk?

And if the NFL is facing potentially dire financial implications from the increasing recognition of high injury risk, what about the implications for college football, where the compensation paid to players is regulated more rigidly than in the NFL?

Finally, will the financial implications of injury risk in football eventually prompt dramatic changes in the way the game is played?

Seems to me that these questions are a lot more interesting than pre-season football.

Will Skilling be released?

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jeff-skilling-.jpgOn the heels of his brief on the merits in support of his motion to be released from prison pending further disposition of his case by the Fifth Circuit Court of Appeals and the U.S. District Court, Jeff Skilling filed his reply brief below (download it to review the bookmarked version) to the government’s merits brief opposing his proposed release.

Skilling’s brief hammers home why he should be released:

As the standard is articulated in [Neder v. U.S., 527 U.S. 1 (1999)], the case on which the government relies, a court cannot find the presence of a factually supported invalid theory to be harmless beyond a reasonable doubt where the defendant contested the [valid theory] and raised sufficient evidence to support a contrary finding. 527 U.S. at 19. In that situation, it cannot be presumed that rational jurors necessarily would have accepted the valid theory, and so it remains impossible to tell which theory the jury selected.

As shown below, the government cannot prove that the honest services error was harmless because, for every count of conviction, the record, the instructions, evidence, and argument allowed a rational juror to reject the valid theory asserted, while relying on the invalid honest-services theory to return a conviction. Because it is thus impossible to tell whether the jurors selected the valid or invalid path to conviction for any count, every count must be reversed.

Stated simply, the government relied on the amorphous nature of an invalid theory of criminality in obtaining a conviction against Skilling on numerous different charges. Having relied on that blather, the government cannot now prove that the jury didn’t rely on it in convicting Skilling on all charges.

Although results rarely occur as they should in misdirected criminal prosecutions, Skilling really should win his release and a re-trial. Stay tuned.
Jeff Skilling’s Reply Brief on his Motion for Bail

Too many laws, too many prisoners

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prison cellThe troubling overcriminalization of American life has been a frequent topic on this blog, so this excellent Economist article on the subject caught my eye.

After beginning with the example of the absurdly over-the-top local federal criminal case against local orchid importer George Norris, the article hammers home the stark statistics:

Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under correctional supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.

Of course, America’s dubious drug prohibition policy fuels a substantial part of the prison industrial complex. Check out how supposedly enlightened Massachusetts handles certain drugs:

Massachusetts is a liberal state, but its drug laws are anything but. It treats opium-derived painkillers such as Percocet like hard drugs, if illicitly sold. Possession of a tiny amount (14-28 grams, or ¬Ω-1 ounce) yields a minimum sentence of three years. For 200 grams, it is 15 years, more than the minimum for armed rape. And the weight of the other substances with which a dealer mixes his drugs is included in the total, so 10 grams of opiates mixed with 190 grams of flour gets you 15 years.

And don’t think for a moment that the ubiquitous law of unexpected consequences isn’t at play with regard to this mess:

Severe drug laws have unintended consequences. Less than half of American cancer patients receive adequate painkillers, according to the American Pain Foundation, another pressure-group. One reason is that doctors are terrified of being accused of drug-trafficking if they over-prescribe. In 2004 William Hurwitz, a doctor specialising in the control of pain, was sentenced to 25 years in prison for prescribing pills that a few patients then resold on the black market. Virginia’s board of medicine ruled that he had acted in good faith, but he still served nearly four years.

Here are previous posts dealing with the sad case of Dr. Hurwitz. And it gets worse:

There are over 4,000 federal crimes, and many times that number of regulations that carry criminal penalties. When analysts at the Congressional Research Service tried to count the number of separate offences on the books, they were forced to give up, exhausted. Rules concerning corporate governance or the environment are often impossible to understand, yet breaking them can land you in prison. In many criminal cases, the common-law requirement that a defendant must have a mens rea (ie, he must or should know that he is doing wrong) has been weakened or erased. [. . .]

“You’re (probably) a federal criminal,” declares Alex Kozinski, an appeals-court judge, in a provocative essay of that title. Making a false statement to a federal official is an offence. So is lying to someone who then repeats your lie to a federal official. Failing to prevent your employees from breaking regulations you have never heard of can be a crime. A boss got six months in prison because one of his workers accidentally broke a pipe, causing oil to spill into a river. “It didn’t matter that he had no reason to learn about the [Clean Water Act’s] labyrinth of regulations, since he was merely a railroad-construction supervisor,” laments Judge Kozinski.

One of the most encouraging moments in the most recent presidential campaign was then-candidate Obama’s willingness to address the overcriminalization problem by considering reform of America’s abhorrent drug prohibition policy.

One of the most disappointing aspects of Obama’s Presidency is his abandonment of that issue.

So it goes.