Crime & Federalism

Unprotected, Illegal Sex

Should sex without a condom be illegal?  In this article, two law professors say, "Yes, yes, oh yes!"

This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant with a preponderance of the evidence. As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in unprotected first encounters. The new law, by increasing condom use and the quality of communication in first sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.

Professor Baker is supporting her article at the Legal Affairs Debate Club, which you can read by clicking here.

UPDATE: I skimmed the article and did not see an obvious constitutional issue addressed.  Namely, the law would require men, but not women, to use a condom.  This would thus be a classification based on gender.  I'm not sure that it would be constitutional to demand that men, but not women, face criminal prosecution for not wearing a condom when a woman could easily insert a condom and thus prevent the spread of STDs.  (Here, at a work-safe site, is a female condom).

Breyer lectures on "originalists"

Justice Stephen Breyer's recent presentation on constitutional and statutory "originalists" can now be found online -- "Breyer rebuts 'originalists' in Tanner Lecture," Harvard Law Today, Jan. 20, 2005).

Justice Breyer emphasizes that  "[I]ncreased emphasis upon the Constitution's participatory objectives can help bring about better law."  He goes on to explain why the "literalist" approach (whether as "textualists" for statutes or "originalists" for the constitution) is unsatisfactory.   Among other reasons, Breyer notes (1) that originalists judges "cannot appeal to the Framers themselves in support of their interpretive views;"  (2) that judges who reject literalism do not necessarily open the door to subjectivity; (3) that subjectivity "is a two-edged criticism, which the literalist cannot escape":

"The literalist's tools -- language and structure, history and tradition -- often fail to provide objective guidance in those truly difficult cases about which I have spoken."

(4) literalists approaches are not more likely to produce clear, workable legal rules; and (5) "textualist and originalist doctrines may themselves produce seriously harmful consequences -- outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches":

"Literalism has a tendency to undermine the Constitution's efforts to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves effectively.  Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves."

Internet Fraud and Service of Process

During my first year of law school, in Civil Procedure, we discussed whether e-mail should be a valid way to serve someone with process.  I thought it was a great idea.  Almost everyone in class agreed. I've changed my mind.

Internet thieves and spammers are becoming extraordinarly sophisticated.  Two days ago I received the below email from "service@paypal.com."  Though Google told me that it might be spam, I was a bit upset when I read the e-mail, as I wondered what I did wrong.  Here is the e-mail:

Dear PayPal member,

We regret to inform you that your PayPal account has been suspended due to concerns we have for the safety and integrity of the PayPal community.

Per the User Agreement, Section 9, we may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if we believe that your actions may cause financial loss or legal liability for you, our users or us. We may also take these actions if we are unable to verify or authenticate any information you provide to us.

Due to the suspension of this account, please be advised you are prohibited from using PayPal in any way. This includes the registering of a new account.

The fastest and the most efficient way of becoming unsuspended is by clicking on the link below, login into your account and provide us additional information.

http://www.PayPal.com/aw-cgi/PayPalISAPI.dll?Sign&ssPageName=h:h:sin:US

Please note that any seller fees due to PayPal will immediately become due and payable. PayPal will charge any amounts you have not previously disputed to the billing method currently on file.

I logged into my PayPal account today: It has not been suspended.

Anyhow, due to threat of viruses, I - and many others - never open an e-mail from an unrecognized sender.  Thus, service through e-mail would not be effective, since most of us would delete such e-mails.  Moreover, giving the advances in internet thievery, would any of us believe that we were actually being sued?  Or would we instead think that this was another way for people to obtain our personal information?

Elderly Drivers - A Response

In "from my OLD dead hands," Mr. Giacalone asks:

I'm wondering where my federalist and libertarian webfriends stand on the issue of how, when, and by whom action should be taken to deal with the increasing problem of unsafe elderly drivers.

Assuming there is an "increasing problem of unsafe elderly drivers," I don't think Congress should intervene.  Although many elderly drivers use interstates and other channels of interstate commerce, I suspect that most accidents due to (unsafe) elderly drivers occur locally.  I rarely see unsafe elderly drivers on the interstates, but I see them often driving through city streets.  If, however, you could show me that unsafe drivers were continually crossing state lines and that states were incompetent to handle the issue, then I would be open to persuasion on the need for federal intervention.

Should elderly drivers be required to re-take driving tests every few years?  As a policy matter, I don't know.  I would need to see a clear relationship between old age and an increase in automobile accidents before I could decide.  But assuming there is a positive correlation, then the state would rightly condition one's maintaining a driver's license on the licensee's passing a driving test.

Libertarians like to say that: "Your rights end at the bridge of my nose."  While I don't understand what that means, I do know that if you can not drive safely, then your right to drive ends at the bumper of my car.  If a person, due to old age, infirmity, or intoxication unreasonably jeopordizes the safety of others, then those people should not be allowed to drive.

Imposing heightened licensing requirements on some people would be a prophylactic measure to prevent death and other injuries.  I don't think we should wait until an unsafe driver kills someone before acting - either by removing the person's license or prosecuting them for reckless homicide.

Indeed, people who demonstrate an inability to drive safely regularly have their licenses removed.  In California, if you receive a certain number of moving violations, your driver's license will be revoked.

I also think the same rationale that applies to retrictions on drunk driving should apply to driving while one's senses are impaired - whether due to old age or other physical condition.  Mr. Sandefur has a nice discussion on libertarianism and drunk driving laws here.

Judge Kozinski on Law and Justice

The latest edition of Legal Affairs has an essay by Judge Alex Kozinski entitled "The Appearance of Propriety."  He argues that the financial disclosure statements judges file, e.g., are one of many pointless ethical obligations, since no judge would decide a case based on a few shares of stock he holds.  The real ethical issues are "hidden from view."  Judge Kozinski presents this not-so-hypothetical-hypothetical as posing a real ethical conflict:

You are reviewing a criminal appeal where a young man has been convicted of murder and sentenced to life without the possibility of parole. You examine the record and find that the evidence linking the defendant to the crime is quite flimsy. The only solid proof supporting the conviction is the testimony of an inmate who shared a cell with the defendant while he was awaiting trial, and who swears that the defendant confessed to the murder (a confession the defendant denies making). You read the snitch's testimony closely and find it transparently unconvincing.  

Applying the rules of appellate review in an objective manner, you would have to affirm the conviction. After all, the jury is the trier of fact, and it was entitled to return a guilty verdict based on the jailhouse confession alone. Yet what if you believe, to a moral certainty, that the confession is a fabrication and the defendant didn't do it? Must you affirm the conviction and let a young man you believe is innocent spend the next 60 years locked up like an animal in a 7-foot by 10-foot cage?

If you were the judge, what would you do?  You can leave a comment here, or at the VC, which is where I found the article.

Baseball and Steroids

Talking about anabolic androgenic steroids invokes a lot of memories.  As a very young boy, I read muscle magazines, and later I became fascinated with the human body.  I always wondered how a person could become bigger, faster, stronger, and smarter.  One thing many professional bodybuilders and powerlifters did to increase muscle mass and strength, was use anabolic androgenic steroids.  Of course, few would admit using steroids, and doctors and health teachers lied to us, saying that steroids were ineffective.

I remember arguing with my sixth grade biology teacher about steroids.  His position, the current dogma at the time, was simple and unsophisticated: Steroids don't "work."  I carefully explained that he was wrong by citing scientific articles and anecdotal evidence about steroids.  I even used pretty clear reasoning (for a grade schooler, anyway) saying, "If boys grow muscle when their testosterone levels increase during puberty, then why can't boys grow muscles later in life using testosterone."

But he was a teacher and therefore knew everything.  The dogma on steroids did change until about tenth grade.

Then doctors and health teachers admited that steroids were an effective way to increase strength, decrease bodyfat, and increase lead body mass.  But steroids were dangerous - they caused "roid rage" and the testicles to shrink.  Moreover, using steroids was "cheating."

Well, the science shows that "roid rage" is nothing more than an interesting phenomena that occurs when a-holes use steroids.  They remain, guess what, a-holes.  And the testicles only shrink when steroids are used improperly.  Still, I always wondered (and I still wonder) why it's not cheating to excel using your God-given genetics, but it is cheating to use science to increase performance.

Think about it.  If you're born 6'7" tall and can jump 48", you're not cheating when you dominate the basketball court.  But if someone not blessed with those genetics uses drugs to dominate, he's cheating.  What's more, no one says that a person born into an educated family (and therefore presented with more opportunities, better nutrition, and books) cheats by doing well on the SAT or LSAT.  But if someone born into poverty and in an abusive home used psychotropics or androgenics to catch up, he would be "cheating." 

Forget about cheating: Let's talk fairness.  It seems awfully unfair that someone who, by accident of brith, comes from a better gene pool and more nurturing home should be guaranteed the top spots.  "Morality" prevents the rest of us from catching up.  This position is illogical, and I think, immoral.

Thus, I've always been in favor of alowing doctors to prescribe anabolic steroids for sports-enhancing purposes, or even vanity.  Today a man can take estrogen if he wants to be a woman; a person can have botox (a poison) injected into his or her skin to look more youthful; and a person can have fat sucked out or have implants implanted..  You can take a drug if you have difficulty socializing or if you're depressed.  The question isn't whether drugs or medical procedures should be legalized (most drugs are available with a prescription), but why anabolic steroids are not.

The answer is that steroids, like marijuana, are subject to an irrational bias.  They're not available with a prescription for the same reason racism exists - ignorance.

Thus, the "steroid problem in baseball" is no problem to me.  But most people disagree.  Here are links to other positions on steroids and baseball, and steroids and crime. 

Greg Skimore has collected several sources on baseball and steroids.

At the Legal Affairs Debate Club, two sports law experts are discussing: "What should baseball do about drugs?"

Given the prevalent drug use in sports, the White Collar Crime Prof Blog wants to know why aren't celebrity athletes being prosecuted.

Reason Online has an article entitled: George Bush vs. Barry Bonds: The government's effective smear campaign against baseball's best player.

Finally, don't miss attorney Rick Collins' numerous articles on steroids and steroids and the law.

A Fisk Not to be Missed

See here.

The Mom Can't Spy Case

We're hearing cries about judicial activism again.  The media is reporting that the Washington Supreme Court held that parents may not monitor the telephone conversations of their children.  Furthermore, that this decision is the result of judicial activism.

Let's get something straight: This was not a constitutional law case.  In State v. Christensen, the Washington court did not hold that a child's right to privacy trumped parental control.  Rather, judges were interpreting a plainly-worded statute.  That statute said that it was unlawful to:

intercept, or record any: [p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

RCW 9.73.030(1)(a) (emphasis added).  Moreover, any "[e]vidence obtained in violation of the act is inadmissible for any purpose at trial."  RCW 9.73.050.

Boyfriend called and asked for daughter.  Daughter took the phone and left the room because she did not want mom to listen in.  Yet mom listened in on daughter's conversation and the prosecution used the evidenced obtained therefrom at trial against boyfriend.  That seems to me to meet the plain language of the law.  But the prosecutors sought a dose of judicial activism.

The prosecution made two arguments that daughter's call was not "private."  First, "The State suggests ... that because Lacey and Christensen knew that it was possible that their calls would be monitored, their expectation of privacy was not reasonable despite their subjective intent."  In other words, because you and I know that some perverts might listen in our conversations, nothing we say over a cellular or wireless telephone is private.  Nothing.  The ability of a scoundrel to spy on us means that nothing we say using a wireless phone is private.  The court rejected this argument, and I'm glad that they did.

The prosecution's second argumentt was "that there should be an implied exception to the act in the case of minor children, arguing that children have a reduced expectation of privacy because parents have an absolute right to monitor all telephone calls coming into the family home."  In other words, courts should read an exception into the law when no exception is specifically listed.  That's what implied exception means, after all.  The court respected the legislature and rejected that argument.

Some people are saying that since there is an implied exception to the federal wiretap act, that the court should have implied an exception here.  But there is a big difference.  Under the federal law, a single party may consent to a phone call being monitored.  (That's something to keep in mind before baring your soul over the phone).  Washington's law is broader: It protects the caller and the callee.  Thus, federal cases allowing parents to vicariously consent to their child being monitored do not apply because boyfriend must also consent to monitoring.

Boyfriend is a dirt bag, but the Washington law protects his privacy.  If you don't like it, write the legislature: Tell them to change the law.  But don't ask the Washington Supreme Court to reach an activist result.

Cato Book Forum

Today the Cato Institute held a book forum discussing Go Directly to Jail: The Criminalization of Almost Everything, which you can watch in RealAudio here.

Is American Liberty Imperiled?
BOOK FORUM Tuesday, December 14, 2004 12:00 PM (Luncheon to follow)
Judge Andrew P. Napolitano, Senior Judicial Analyst, Fox News, and Author, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Nelson Books, 2004); Gene Healy, Senior Editor, Cato Institute, and Editor, Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute, 2004); and moderated by Tim Lynch, Director, Cato's Project on Criminal Justice

If the price of liberty is eternal vigilance, then it is necessary to take a step back from the transient issues of the day, which so often transfix our capital city, and assess the state of liberty in America. According to two new books, liberty in America has been under a relentless, though often subtle, assault. In Constitutional Chaos, Judge Andrew Napolitano maintains that most Americans take their constitutional rights and liberties for granted and are largely ignorant of how the government breaks its own laws and gets away with it. In Go Directly to Jail, Cato Institute senior editor Gene Healy shows how the government has been criminalizing more and more citizen conduct. With more than 4,000 federal offenses on the statute books and thousands more buried in the Code of Federal Regulations, Healy points out that there are good reasons to be alarmed by the government’s perfectly “legal” restrictions, investigations, and prosecutions.

Please join us for a discussion of these disturbing trends and what might be done about them. Cato book forums and luncheons are free of charge.

Ethics and the Criminal Defense Lawyer

Prof Yin and I had a very interesting discussion at Prof. Yin's blog.  The question we were debating is this: Is it admirable for a criminal defense lawyer to fall on his/her sword to save a client?

Prof. Yin noted that many CDL's will declare, under penalty of perjury, that they performed ineffectively under Strickland.  He though this was inappropriate, where as I diagreed, writing:

But a the lawyer might say, "General public, we know there are innocent people who are convicted, we've seen them leave death row. But we know that there aren't very many.     "Unfortunately, I represented an innocent man, and I failed.  Because of me, someone who is not guilty will go to prison.    

"Should I just let that happen? Should I do nothing while Johnny here is raped in prison? Or should I take the blame? I think I should take the blame, because as you know, innocent clients are so rare. And when one is convicted, it has to be someone's fault. Sadly, I am the one responsible. It was my fault."

At first he and I had a misunderstanding because Yin tought I found it appropriate for a criminal defense attorney to lie about his performance at trial, if the CDL thought lying would help save an innocent client from prison.  My point, however, was that a CDL is usually (though not always) ineffective when his innocent client goes to jail. [But I do note that F. Lee Bailey said representing innocent clients is more difficult than representing guilty ones, because the innocent people have no way to explain what happended during the events leading to the criminal charges.]  Thus, the attorney is not lying by admitting ineffective assistance of counsel, especially since the question of ineffectiveness vel non ultimately rests with the judge.

In any event, Skelly says that Yin and I were debating a non-problem.  Skelly writes:

In my experience, the bigger problem than criminal defense lawyers telling lies about their deficient performance has been to get criminal defense lawyers to tell the truth about their deficient performance. When an old client files a PCR petition, too many trial attorneys have too much ego invested in their Spence-like self-image to come forward and concede that they might just possibly have made at least one mistake in the handling of the case. Each one of us likely can think of at least one attorney whose work objectively isn't up to Strickland standards - and the sooner that lawyer owns up to it, the better! (hey, it's not me! I have been on the stand and have signed affidavits in PCR proceedings. Where I've done a good job, I've said so; where I didn't, I've said so too.)

Indeed, Ken Lammers, though in a different context, supported Skelly's thesis:

[O]ther lawyers will not take [habeas cases] because they are political hot potatoes. Many (probably most) habeuses are based upon an ineffective assistance of counsel claim and that's just not a way to make yourself popular with the local bar.

Now that I've provided some factual context, I'd like to hear from you.

Question No. 1.  Do CDL's frequently fall on their swords, i.e., admit ineffectiveness under Strickland when the attorney instead believes that he or she performed ably?

Question No. 2. (the more interesting question).  If a prosecutor falsifies evidence that will lead to the conviction of a criminal defendant, is it morally acceptable for a CDL to also submit false excluplatory evidence?  Does the answer to Question No. 2 change depending upon whether the defendant is guilty or innocent?

Give that these are hot issues, you may use a fake email address when commenting.  Use anybody@anyuser.com if you want to keep your answer unassociated with your identity.