Posts Tagged ‘crime and punishment’

“Codifying the Rule of Lenity”

Justice Scalia on the rule of lenity in U.S. v. Santos, 2008:

This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

Vikrant Reddy (footnotes omitted):

Although this understanding should be perfectly ordinary, the application of the rule of lenity has in fact begun to erode dramatically in recent years. This has happened in concert with a troubling phenomenon: the dramatic growth of criminal law in a variety of non-traditional arenas, generally involving freely agreed-upon exchanges between adults. These “business crimes” (which include such things as harvesting oysters at the wrong time of day, improperly thrashing pecan trees, or even mislabeling citrus fruit) are increasingly exempt from the ordinary application of the rule of lenity in the minds of many judges and prosecutors.

Tim Lynch of the Cato Institute has even argued that the ordinary application of the rule of lenity “has been turned on its head.” He has observed that “When an ordinary criminal statute is ambiguous, the courts give the benefit of the doubt to the accused, but when a regulatory provision is ambiguous, the benefit of the doubt is given to the prosecutor.”11 What is troubling is that while defendants found guilty of these business crimes are subject to criminal sanctions—including prison—they increasingly do not enjoy the fundamental due process protections that are supposed to be guaranteed by the rule of lenity.

His paper for the Texas Public Policy Foundation recommends:

• Texas should formally codify the rule of lenity in the state code.
• The rule of lenity is a partial solution to a larger problem — the overall trend towards overcriminalization in American life.
• Fewer “business crimes” would mean fewer crimes for whichthe rule of lenity is disregarded.

Pennsylvania bill would enable victims to sue offender for reopening anguish

Both houses of the Pennsylvania legislature have passed and sent to Gov. Tom Corbett a bill “allowing judges to issue injunctions, or grant any other ‘appropriate relief’ if there is ‘conduct’ by a criminal ‘offender’ that ‘perpetuates the continuing effect of the crime on the victim.” Such an effect is specified to include, though it is not limited to, a “temporary or permanent state of mental anguish.” The “revictimization remedy” bill, S. 508, is apparently aimed at providing a way to go after a much-cooed-over convicted cop-killer for delivering recorded speeches at college campuses, to the distress of the family of the policeman he shot; Paul Alan Levy describes the bill’s use of the word “conduct” as a “fig leaf” for its intent to restrict speech. What Levy calls the “exceptional breadth” of the bill’s language could imperil or chill a wide range of other activity that might tread on victims’ feelings, such as campaigns to rally public opinion against a conviction or in favor of clemency. The bill, Levy says, “threatens to make Pennsylvania a national laughing stock.” [Consumer Law & Policy; Fox News; NBC Philadelphia; more, Joel Mathis, Philadelphia mag] More on the ever-popular “victims’ rights” cause from Steve Chapman and Roger Pilon.

Police and prosecution roundup

  • Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal]
  • Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon]
  • “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it someday? San Diego Unified School District defends acquisition of armored vehicle [inewsource.org] And Senate hearing [AP]
  • “Machine-based traffic-ticketing systems are running amok” [David Kravets, ArsTechnica]
  • Thanks, Fraternal Order of Police, for protecting jobs of rogue Philadelphia cops who could cost taxpayers millions [Ed Krayewski; related earlier]
  • Study: returning from 6- to 12-person juries could iron out many racial anomalies at trial [Anwar et al, Tabarrok]
  • Courts can help curb overcriminalization by revitalizing rule of lenity, mens rea requirement [Steven Smith]

An execution, ten years after

First a house fire killed Cameron Todd Willingham’s three tiny daughters. Then the state of Texas killed him. Mistakes were made, notes the Washington Post. The forensics testimony on accelerants has long since been discredited, and now the jailhouse informant whose words sent Willingham to execution, who has wavered between recanting and not-recanting, has given a recantation with much more circumstantial detail about the lies he says he told on the stand.

Here’s a Texas Monthly article (linked a while back) on the unsettling history of arson forensics over many years, in which the use of accelerants was deduced from dubious evidence in such a way as to shift many fires from the “likely accidental” to the “deliberate” category, with dire legal consequences for family members and others on the scene. Earlier on the Willingham case, including pro-prosecution links, from five years ago. More: Jonathan Adler.

Leash laws for dogs — and sometimes humans too

“Busted for Off-Leash Dog, Man Ordered Not to Leave Southern California,” reads the headline. John Gladwin lives right next to a national park in the mountains outside Los Angeles, and has had a series of run-ins with park police after letting his Australian cattle dog, Molly, roam on both sides of the boundary. Now Gladwin “cannot leave a seven-county area, for any reason, without permission from his probation officer.” [L.A. Weekly]

Feds indict FedEx for not snooping into packages

The federal government has prevailed on a grand jury to indict Federal Express for servicing what it should have known were illicit online pharmacy operations. FedEx says it repeatedly asked the government to supply a list of shippers it considered illicit so that it could cut off service, but that the government refused; the Department of Justice contends that circumstantial evidence should have been enough to alert the package shipment company. Writes Mike Masnick at TechDirt: “we don’t want shipping companies to be liable for what’s in packages, because then they have not just the incentive, but the mandate to snoop through all our packages.” Amy Alkon has more on reactions. Earlier, UPS paid the government $40 million to resolve similar allegations, and Google agreed to pay a fine of $500 million for (as we put it at the time) “matching willing buyers with sellers through Canadian pharmacy ads… a forfeiture geared to the revenue the pharmacies (not it) took in from the ads.”

“How Destroying Fish Is Not Like Destroying Financial Records”

In the upcoming case of Yates v. United States, the Supreme Court will decide whether a fisherman can be prosecuted under Sarbanes-Oxley’s prohibition on destroying or concealing “any record, document, or tangible object” to impede an investigation. The records, documents, or tangible objects in question were undersized fish, which Mr. Yates threw overboard instead of bringing back to the dock as instructed by inspectors. Cato has filed an amicus brief urging the Court to rule that Mr. Yates was not adequately put on notice of the reach of “tangible object” to include not just business items such as hard drives, but small marine creatures, lest the law “potentially criminalize an unfathomable range of activities.” [Trevor Burrus, earlier]

Police and prosecution roundup

  • Sad and bad: “House Republicans vote to block Obama’s new pardon attorneys” [MSNBC, Jacob Sullum, my Cato take]
  • Ready for sorghum-patch unrest? More than 100 U.S. Department of Agriculture agents are armed with submachine guns [Matt Welch]
  • “Cop who punched Occupy Wall Street protester gets tax-free disability pension” [New York Daily News, video of punch]
  • “Officials could identify just one [Bronx] prosecutor since 1975 … disciplined in any respect for misbehavior while prosecuting a criminal case.” [City Limits via Radley Balko]
  • Georgia drug raid: flash-bang grenade thrown into crib badly burning toddler [Tim Lynch, PoliceMisconduct.net “Worst of the Month”]
  • New book by Sidney Powell critical of USDOJ explores Ted Stevens, Enron prosecutions, has foreword by Judge Alex Kozinski [“Licensed to Lie”: Craig Malisow/Houston Press, Legal Ethics Forum, Amazon]
  • Two times over the legal limit, hmm. Would it help to flash my badge? [Prosecutorial Accountability on state bar discipline against San Francisco deputy d.a.]