Crime & Federalism

Thanks to Jeremy Richey I learned about the American University Law Review's recent, and most excellent, symposium on overcriminalization.  Entitled "Overcriminalization: The Politics of Crime," it features the following articles (including two from the White Collar Crime Profs):

OVERCRIMINALIZATION: THE POLITICS OF CRIME

FOREWARD

Overcriminalization: The Politics of Crime
Ellen S. Podgor

ARTICLES

Jurisdiction and Separtion of Powers Strategies to Limit the Expansion of Federal Crimes
John S. Baker, Jr.

Ethics and the Problem of White Collar Crime
John Hasnas

Targeting Legal Advice
Peter J. Henning

The Overcriminalization Phenomenon
Erik Luna

ESSAY

The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization
Sara Sun Beale

Defining Overcriminalization: Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws
Geraldine Szott Moohr

EPILOGUE

Overcriminalizing: An Agenda for Change
Paul Rosenzweig

The Federal Judicial Center publishes a lot of really cool publications, and gives them away for free.  One such book, Manual on Recurring Problems in Criminal Trials, is especially helpful.  The format is thus: black letter statement of the law followed by case citations.  The entries look like this:

1. Production of government witness’s statements
The Jencks Act provides that statements of a government witness are discoverable by a defendant after that witness has testified on direct examination at trial.

The court may not compel the government to produce Jencks Act material until after a witness has testified. Some U.S. attorneys will, however, voluntarily produce those materials prior to trial or, at the latest, on the first day of trial.
United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)
United States v. Algie, 667 F.2d 569 (6th Cir. 1982)
United States v. White, 750 F.2d 726 (8th Cir. 1984)

Production of statements covered by the Jencks Act is not automatic. The defendant must invoke the statute at the appropriate time.
United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)

Also of interest is the book's summary of the federal rules of evidence.  The manual is not as comprehensive of the Assistant United States Attorney's Manual, but it's still very good reading.  Check it out.

Ethan Leib recently wrote an article about criminal juries where he makes this provocative argument: "This piece argues for a supermajoritarian decision rule for conviction by a criminal jury and a simple majority decision rule for acquittal."  Leib's speciality is democratic decision making, and his piece argues that a supermajority rule for conviction and simple majority rule for acquittal would be more democratic.  Let's put aside that (very interesting) theoretical question for a second.  Here's my question: If you had some sort of magic wand, and thus could make such trades, would you trade the current system (where convictions and acquittals must be unanimous) for Leib's proposed system?

Last night I received the latest Cato Supreme Court Review.  I stayed up until 1 a.m. reading several of the excellent articles.  If you enjoy reading this blog, you will especially enjoy the Review, since the authors develop in greater detail many of the cases and themes discussed here.  Here are the articles I read last night:

    * Douglas W. Kmiec, "Gonzales v. Raich: Wickard v. Filburn Displaced."  Kmiec traces Commerce Clause doctrine from the Founding through the first real exercise of Congress' commerce power through Gonzales v. Raich.  Kmiec concludes that Lopez and Morrison do not survive Raich.  His summary of Commerce Clause jurisprudence is worth the price of admission. 

    * Roger Pilon, "Town of Castle Rock v. Gonzales: Executive Indifference."  Using Lockean social contract theory as a framework, Pilon demonstrates that Castle Wrong was wrongly decided.  He shows, moreover, that even the dissenters got it wrong.  Pilon's article implicitly shows why Supreme Court justices must understand the philosophy of individual rights this country was founded upon in order to correctly decide cases like Castle Rock.

    * John Hasnas, "The Significant Meaninglessness of Arthus Andersen LLP v. United States."  If Hasnas' introduction doesn't draw you in, nothing will: "Arthur Andersen ... reminds me so much of the Woody Allen line that '[s]ex without love is an empty experience ... but as empty experiences go, it's one of the best.'  This is because ... Andersen is a meaningless decision, but as meaningless decisions go, it's one of the most significant."

    * Timothy Lynch, "One Cheer for United States v. Booker." Lynch, the directory of the Cato Institute's Criminal Justice Project, traces the development of sentencing from the 1800's through Apprendi, Blakely, and Booker, while making an especially interesting point I hadn't considered.  He writes:

There is a sharp philosophical split among the justices of the Supreme Court with respect to what the Constitution has to say about the administration of criminal law.  One faction contends that the Constitution establishes a paradigm of criminal justice that reflects the common law tradition [where juries decide facts after hearing opposing lawyers' arguments].

The opposing faction would have trial by bureaucrat.  That is, prosecutors - by making choices from a limitless selection of criminal laws - and judges would decide whether and how long a person would serve prison time.  I had never thought of the divide like this.  Our adversarial and jury system is the classical liberal way of addressing criminal liability.  Criminal laws exist to serve the people, and to vindicate their harms.  So regular citizens should be the decision makers - not bureaucrats.  Some, like Justice Breyer, would vest total discretion in the government where as other justices would leave such decisions to the people.  UPDATE: Showing the thin line between blogging and scholarship, Professor Berman offered similar thoughts in this post.

    *  Jonathan H. Adler, "Looking Ahead to the 2005-2006 Term."  I discussed Adler's article in this previous post.

    *  Tim Sandefur co-authored an article on Grokster that I haven't finished reading.

Purchase your copy of Cato's Supreme Court Review here.

This just in, from the Cato Institute:

September 15, 2005
Media Contact: (202) 789-5200
Cato Supreme Court Review Highlights Confusions of a Changing Court

Washington--The Cato Institute’s Center for Constitutional Studies will release on September 21 the fourth edition of the Cato Supreme Court Review, an annual critique of the Court’s most important decisions from the term just ended, plus a look at the term ahead. This is the first scholarly review to appear after the term’s end. And it is the only review to analyze the Court with a Madisonian concern for liberty and limited government.

  In their introductions to this year’s Review, publisher Roger Pilon and editor Mark Moller criticize the current Court for failing to live up to its early promise. As Pilon explains, in a Foreword that takes Harvard’s Laurence Tribe to task, modern conservative jurists, like the liberals they criticize, fundamentally misconceive the Constitution’s plan for liberty and limited government. Moller echoes that point by highlighting the growing rift between conservatives like Justice Scalia, who favor judicial inaction, and those who urge judges to be active in limiting federal power and securing constitutional liberties, as reflected in the pages of the Cato Supreme Court Review.

Included in this year’s edition: Chicago’s Richard Epstein on Progressivism and the Constitution; Vanderbilt’s James Ely Jr. on this term’s much-criticized property rights decisions; Pepperdine’s Douglas Kmiec, Ronald Reagan’s top constitutional lawyer, on the state of the Rehnquist Court’s “federalism revolution”; Cardozo’s Marci Hamilton on the Ten Commandments decisions; Temple’s David Post, a cyberlaw expert and Volokh Conspiracy contributor, on the Grokster decision; noted Supreme Court litigator Daniel Troy on business’s First Amendment rights; Pilon on Scalia’s defense of police inaction in the Castle Rock case; and Case Western’s Jonathan Adler on the term ahead.

The Review will be released at Cato's 4th annual Constitution Day Conference on Wednesday, September 21, 2005.

All four editions of the Cato Supreme Court Review are available for purchase and downloading at Cato’s website, http://www.cato.org/pubs/scr/index.html, and are available also to subscribers of Westlaw’s online legal database.

About the Editor:  Mark Moller is senior fellow in constitutional studies at the Cato Institute. Prior to joining Cato, he practiced law with the appellate practice group at the law firm of Gibson, Dunn & Crutcher LLP, where he served on the team that represented President Bush in Bush v. Gore.

Cato Supreme Court Review, 2004-2005
Edited by Mark K. Moller
Published annually by the Cato Institute in September
Retail price: $15.00 paperback, 360 pages
ISBN: 1-930865-58-9
Since 1992 the Cato Institute’s books have been distributed to the trade by the National Book Network (www.nbnbooks.com).

Contact:
Roger Pilon, vice president for legal affairs, [email protected]
Mark Moller, senior fellow, constitutional studies, [email protected]
Kristen Kestner, media manager, 202-789-5212, [email protected]
Evans Pierre, director of broadcasting, 202-789-5204, [email protected]

The Cato Institute is a nonpartisan public policy research foundation dedicated to broadening policy debate consistent with the traditional American principles of individual liberty, limited government, free markets, and peace.

Each year, to celebrate Constitution Day, the Cato Institute publishes a Supreme Court Review.  I've been reading them since the inaugural issue, as they're sure not to disappoint.  This year seems like it won't be any exception, judging by Jonathon Adler's article. (Lv Kerr.)

Prof. Adler previews some of the interesting cases the Supreme Court has already agreed to hear.  As Prof. Berman noted, he does not discuss the upcoming death penalty cases.  (That's fine by me, since modern Supreme Court death penalty jurisprudence is meaningless.)

Anyhow, I highly recommend the article, mainly because the same cases I care about, Prof. Adler seems to care about too.  In other words, if you like this blog, you will love the article.  Here it is.

The cases I'm closely watching, and thus will blog about, include these issues:

*    Whether the Religious Freedom Restoration Act prevents the government from prosecuting members of a religious sect who use hallucinogenic tea to talk to God.  (pp. 6-8).

*    Whether the federal government can prevent the people of the state of Oregon from allowing doctors to prescribe medicine to help sick people die with dignity.  (pp. 8-11).

*   May a victim of disability discrimination sue a prison under Title II of the ADA, or does sovereign immunity bar his suit? (pp. 12-13).

*    The Crime & Federalism blockbuster: Does the Hobbs Act criminalize threats of violence unconnected to economic activity?  (pp. 16-17).  As Adler aptly notes: 

[This] question is interesting insofar as it induces the Court to consider the scope of federal criminal law. If the Hobbs Act were to extend to all acts or threats of violence that obstruct or affect commerce in some way, it would become an incredibly sweeping federal criminal statute. It would also bring all manner of local violent crimes within RICO’s reach as potential predicate acts.

*   Can a prosecutor be fired for doing the right thing and volunteering that a prosecution witness was likely lying?  (pp. 24-25).  (Incidentally, I'll be returning to my alma matter to beat up moot some law students who are arguing this case for our school's intraschool moot court competition.)

As you can see, there will be a lot of interesting cases next term.  I noted the ones that interest me,  but I encourage you to read the entire article since there are a lot of other interesting cases on the docket.

Professor Bill Stuntz has published an interesting article covering numerous criminal law issues, including crime and federalism-related  problems (pp. 77-79).  His writing is easy to read and understand: his style is that of a legal Mark Twain.  Among other things, he wonderfully sketches out the federalism-related problems in the criminal justice system:

The doctrines that purport to protect federalism — chiefly, the law of federal criminal jurisdiction, enforced through jurisdictional elements attached to individual criminal prohibitions — make the situation worse. The federalism-based doctrines in criminal law cut across crimes, not between them: instead of assigning bribery to federal officials and arson to the locals, federal law covers some bribery and some arson, leaving local police and prosecutors the rest — with a fuzzy and constantly changing line between the two. That pattern recurs throughout the federal criminal code. Voters cannot know whom to credit when the system functions well and whom to blame when it doesn’t. That encourages irresponsible legislation. Better to draw some plausible lines between crimes that should be exclusively federal and crimes that should be exclusively enforced by state and local officials.

Courts are poorly positioned to draw those lines, and Congress has no incentive to do so itself. Some mechanism is needed to encourage Congress to make law where law will count, and not elsewhere.

He offers this provocative solution:

There are a number of possibilities. The simplest and probably the best is a broad rule of sentencing preemption — let federal sentences apply if and only if federal criminal law is exclusive. If a given federal crime is regularly enforced by local prosecutors, let federal sentences be fixed by state law. Harsh federal sentences for drug crime would disappear unless Congress were willing to take over responsibility for enforcing drug laws nationwide, in which case those federal sentences would grow less harsh. Giving federal law larger consequences would produce a measure of legislative moderation.

Anyhow, the entire article is worth reading.  You can download it here.

(Hat tip: Orin Kerr)

Professor Orin Kerr's latest article, "Searches and Seizures in a Digital World" is available for free downloand.  (Click here to obtain the article as a .pdf).

Did the Sarbanes-Oxley Act turn a company's lawyer into an unpaid and unwilling agent of the federal government?  Former federal prosecutor Richard Janis says, "Yes," in an article entitled: "Deputizing Company Counsel as Agents of the Federal Government: How Our Adversary System of Justice Is Being Destroyed."

On Tuday April 26th, the Cato Institute will host a debate between Mr. Janis a current federal prosecutor.  Details are below:

Deputizing Company Counsel as Agents of the Federal Government
POLICY FORUM
Tuesday, April 26, 2005
12:00 PM (Luncheon to follow)
Featuring N. Richard Janis, Janis, Schuelke & Wechsler; Timothy Coleman, U.S. Department of Justice; and John Hasnas, George Mason Law School
Moderator Timothy Lynch Cato Institute

Does U.S. law shield business firms from reckless charges—or does it foster a shakedown racket whereby firms must pay tribute to the government to simply be let alone? More and more people maintain that our adversary system of justice is being undermined by new legal rules that essentially deputize company counsel as agents of the federal government. When government agents launch an investigation, business executives and company employees turn to company counsel for legal advice. But when those same lawyers must relay information back to prosecutors so as to avoid accusations of “obstruction,” has the independence of counsel been hopelessly compromised? Join us for a discussion of these questions on the day before the Supreme Court hears oral arguments in Arthur Andersen v. United States.

If you're in the D.C. area, you can attend the event live and free of charge -- Register here.  Those of us outside the beltway can watch the program via RealAudio -- I'll post a link once the CLE is airing.

George Uelman, in this law review article, asks "Who is the Lawyer of the Century?"

The "death penalty" lawyers ranked Gerry Spence and Johnny Cochran above Edward Bennett Williams.  I wonder what, if anything, the "death penalty lawyers" knew about Williams.  The Arizona lawyers did a better, although they ranked Spence ahead of Williams.

Law students, proving they are more interested in television than the tomes of the masters, each put Cochran and F. Lee Bailey and Leslie Abrahams (?) ahead of Williams, since they didn't list Williams at all!  Bailey, incidentally, ranked Williams the best lawyer of all time.  Anyhow, judging by law students' selections, the future of the criminal defense bar looks bleak.

One person not making anyone's list was Max Steuer, whom some consider the second or third greatest criminal lawyer in history.  Irving Younger - conspicuously absent from the survey - and Francis L. Wellman - who knew something about cross-examination - considered Steuer to have been the greatest cross-examiner who ever lived.

I guess the moral of the survey is that we should not learn anything about dead trial lawyers.  Instead, we should admire the ones we see on TV.  Because, if they're on TV, they must be the best.

(Via the Illinois Trial Practice Weblog).