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crime and punishment

As part of the wrangling over remedies imposed by U.S. District Judge Gladys Kessler, the federal government is demanding that tobacco companies be made to run ads declaring that the government was right and they wrong on various controversial issues, and in particular that they confess to having lied on purpose. A demand for judicially imposed self-denunciation, and in particular a demand that private actors be ordered to assert ideologically charged propositions that do not reflect their actual inward beliefs, should disturb civil libertarians, it seems to me, even if it does not disturb the U.S. Department of Justice. I’m quoted at 4:47 in this report by the BBC’s Ben Wright.

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  • “Once your life is inside a federal investigation, there is no space outside of it.” [Quinn Norton, The Atlantic]
  • “Cops Detain 6-year-old for Walking Around Neighborhood (And It Gets Worse)” [Free-Range Kids] “Stop Criminalizing Parents who Let Their Kids Wait in the Car” [same]
  • Time to rethink the continued erosion of statutes of limitations [Joel Cohen, Law.com; our post the other day on Gabelli v. SEC]
  • “Are big-bank prosecutions following in the troubled footsteps of FCPA enforcement?” [Isaac Gorodetski, PoL]
  • The “‘professional’ press approach to the criminal justice system serves police and prosecutors very well. They favor reporters who hew to it.” [Ken at Popehat]
  • Scott Greenfield dissents from some common prescriptions on overcriminalization [Simple Justice]
  • Anti-catnip educational video might be a parody [YouTube via Radley Balko]
  • “Too Many Restrictions on Sex Offenders, or Too Few?” [NYT "Room for Debate"]
  • Kyle Graham on overcharging [Non Curat Lex] “The Policeman’s Legal Digest / A Walk Through the Penal Laws of New York (1934)” [Graham, ConcurOp]
  • “D.C. Council Proposes Pretty Decent Asset Forfeiture Reform” [John Ross, Reason] And the Institute for Justice reports on forfeiture controversies in Minnesota and Georgia.
  • Does prison privatization entrench a pro-incarceration lobby? [Sasha Volokh, more]

Philadelphia: “Union Workers *Probably* Torched a Quaker Meetinghouse Over Christmas” [John Ross; Steve Volk, Philadelphia Magazine] The U.S. Chamber of Commerce has compiled a report [PDF] on ways in which state laws exempt unions and their members from otherwise applicable criminal laws [Sean Higgins, Washington Examiner ("Union organizing exempted from stalking laws in four states"), Nathan Benefield/Commonwealth Foundation] Columnist Fred Wszolek says the sponsors of “Freedom from Workplace Bullies Week” might need to cast their net a bit wider. And see
August 1999 post in this space (unions have secured for themselves immunities from civil liability far more extensive than most businesses dream of); Grover Norquist/Patrick Gleason, Reuters (exemptions from anti-stalking laws).

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Scott Greenfield, contra Radley Balko, believes the idea would prove “problematic, if not disastrous,” in real life, especially if enacted in the form of two-way fee-shifting (as distinct from a one-way fee payable only to defendants). It is worth noting that although legal systems around the world predominantly embrace loser-pays principles in civil litigation between private parties, they more or less uniformly decline to carry a similar principle over to criminal prosecution.

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A two-part post, with part 1 on the law as applied to the facts, and part II on sentencing, prosecutorial discretion, and the appropriate targets for reformist energy. Earlier here (& Greenfield; Timothy Lee and Mike Masnick on plea bargaining).

Environment roundup

by Walter Olson on January 17, 2013

In recent days media outlets, including respectable ones like Washington Post “WonkBlog”, have circulated an infographic on rape incidence claiming (among other things) that false accusations of sexual assault are a vanishingly rare phenomenon. The chart claims to be sourced to official statistics, but Mark Bennett digs in a bit and finds a pile of at best strained speculation, at worst made-up nonsense. [Defending People]

P.S. This supposedly corrective piece at Slate is if anything worse than the chart it purports to correct, straining to minimize false accusation as even rarer than portrayed. (It’s worth remembering that its author, Amanda Marcotte, has a bit of a history herself when it comes to credulity on this subject.) Bennett again provides a needed corrective: “Forensic DNA typing laboratories — as numerous commentators have noted — encounter rates of exclusion of suspected attackers in close to 25 percent of cases.” (& Greenfield; and an informative followup from Bennett regarding the incidence of false accusation.) Yet more: Washington Post ombudsman says mistakes were made.

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December 31 roundup

by Walter Olson on December 31, 2012

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I’m in the NYT’s “Room for Debate” feature dissenting from a proposed extension of criminal law (& Amy Adler/Advice Goddess).

Though the Ninth Circuit has differed, four federal circuit courts of appeal have read the Computer Fraud and Abuse Act to criminalize unauthorized access to computers even when the breach in question was to overstep contractual terms of service or the access a computer provider intended to furnish. As reported earlier, that leaves open possibilities of private liability or even felony conviction for behavior that in no way resembles hacking. [Mashable]

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  • “The Cash Machine: How the Philly D.A. seizes millions in alleged crime money — whether there’s been a crime or not.” [Isaiah Thompson, Philadelphia City Paper via Alkon] Jacob Sullum on the Motel Caswell forfeiture case [syndicated, earlier]
  • Online symposium on Brandon Garrett’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong [Co-Op]
  • Victims of Detroit police raid on art gallery nightclub get some justice [Ferndale 115]
  • John Baker on mens rea and “strict liability” crimes [Fed Soc, PDF]
  • Radley Balko has moved his Agitator blog to Huffington Post. And (via @normative) Cato’s Police Misconduct project is tweeting at @NPMRP.
  • Want to cross-examine someone on that traffic-camera ticket? Be prepared to pay travel costs for the camera company person [Scott Greenfield] “The mission creep of rape shield law” [same]
  • “Does the Criminalization of Tort Inhibit Safety Investigation?” [Beth Haas, Faculty Lounge]

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Stay alert

by Walter Olson on December 3, 2012

Scott Greenfield has doubts about the approaching campaign to criminalize, as distinct from just warning against, drowsy driving. More: Radley Balko.

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  • “‘Stand Your Ground’ task force offers no big changes to Florida law” [Orlando Sentinel, Tampa Bay Times]
  • “Statutes of Limitations Apply Especially to Government Agencies” [Ilya Shapiro on Cato Institute amicus brief in Gabelli/SEC case] “The rule of lenity is violated when people go to prison for breaking ambiguous laws/regulations.” [Roger Marzulla, Federalist Society "Engage"]
  • Sen. Rand Paul on the Missouri rabbit breeder case [Daily Caller]
  • Mondale Act of 1974 (CAPTA) laid down basis for child abuse witch hunts [William Anderson, Agitator]
  • Sententiousness vs. due process, plus a window into comments moderation at BoingBoing [Popehat] Background on State v. Fourtin [Gideon's Trumpet first, second post]
  • Massachusetts: “State’s Chemist Admits ‘Testing’ Drug Samples by Looking at Them” [Lowering the Bar]
  • Plea bargaining: For Scott Greenfield, a showdown for justice at high noon turns into one of life’s little compromises [Simple Justice]

“Six Italian scientists and an ex-government official have been sentenced to six years in prison over the 2009 deadly earthquake in L’Aquila. A regional court found them guilty of multiple manslaughter. Prosecutors had said the defendants gave a falsely reassuring statement before the quake after studying tremors that had shaken the city.” [BBC, earlier] More: Orac.

Speaking of science and the Italian courts, Italy’s Supreme Court has ruled in favor of a litigant claiming cellphone use caused his brain tumor; most authorities have found no such link [Telegraph]

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The magic of expungement

by Walter Olson on September 19, 2012

“Is It Libel to Say Someone Was Arrested When the Arrest Record Has Been Erased?” Last year the New Jersey Supreme Court said no in a case raising the same issue as to convictions, saying the law’s expungement provision

is not intended to create an Orwellian scheme whereby previously public information — long maintained in official records — now becomes beyond the reach of public discourse on penalty of a defamation action. Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.

Now, however, a lawsuit filed in Connecticut seeks to assert similar liability as to mention of an erased arrest record. The state erasure statute provides that the person whose record is erased “shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” Eugene Volokh finds the theory of liability constitutionally defective:

the First Amendment protects other people’s rights to talk about arrests that had — as a matter of historical fact — actually happened. A statute can’t rewrite history, and force others to pretend that something didn’t happen when in fact it did happen.

(& Above the Law)

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The fine is well below the cost of mounting a legal defense in a case that had become a symbol of trigger-happy regulatory prosecution. [Nick Gillespie/Reason, Ann Althouse, AP] Besides, Ted Frank argues, “Gibson was planning on setting up camp at the RNC to promote the problem of overcriminalization,” so the Obama administration gets something of value too in an election season.

More: “The Lacey Act: Protectionism Through Criminalization” [K. William Watson, Cato at Liberty]

Prosecution roundup

by Walter Olson on June 8, 2012

  • John Edwards mistrial is umpteenth setback for DoJ white-collarers; FEC’s failure to charge might have been tipoff [BLT] One lawyer on the campaign finance implications of the Edwards prosecution [David Frum]
  • Jeralyn Merritt analysis of Martin/Zimmerman evidence dump indicates once again that Stand Your Ground issue is likely to prove a red herring [TalkLeft, earlier]
  • Letter writer doesn’t care for my recent structuring-forfeiture op-ed [Baltimore Sun] More on civil forfeiture: when cops become robbers [Nita Ghei, Washington Times]
  • Deferred prosecution and NPAs: “The Justice Department may be in the next cubicle” [Jim Copland]
  • Converting tickets into “court costs”: ploy raises funds for courts in Atlanta and elsewhere [Consumerist via Alkon]
  • When lawyers advise innocent clients to plead guilty [John Steele, LEF on Brian Banks case]
  • “Jailtime for twittering on your office PC? The federal courts are split” [Appellate Daily via @andrewmgrossman] “12 steps for overcoming overcriminalization” [TPPF via Vikrant Reddy, Right on Crime]

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