Technological and social changes over the past century have made it easier for people hurt each other, whether it is physically, economically, or emotionally. As a result, a new kind of crime has emerged.
Most crimes harm just a few victims – a theft from a single business, the murder of one or two people, etc. In today’s interconnected world, however, prosecutors also occasionally charge crimes that involve hundreds, or even thousands, of victims.
The most obvious example are mass casualty attacks, which seem to be a growing phenomenon due to communications advances and global instability. In the business world, too, increasing economic integration means that high-level financial fraud and workplace-safety violations can harm huge numbers of investors or employees. Even one-on-one criminal offenses may take on a social dimension when they are filmed, shared, and discussed over the internet.
This phenomenon of “mass victimization” poses several problems for the criminal law. One particular challenge is deciding who has the right to determine the location of the trial: the individual defendant, or the victimized community?
So far, courts seem to have come down on the side of the community. But this approach also risks violating the defendant’s constitutional right to an impartial jury.
Christina Swarns, litigation director of the NAACP Legal Defense Fund, tells the story of her recent victory in Buck v. Davis in this fascinating interview with Errol Morris, the director of The Thin Blue Line.
Ms. Swarns links the problems in Mr. Buck’s death-penalty case, where a psychologist testified that he was more likely to commit another violent offense because he was black, to broader racial injustices in the criminal law:
Predictions of future dangerousness are absurd, and then to be put in a capital punishment box which is already so contaminated by racial bias. The introduction of evidence linking race to dangerousness — like that which was presented in the Duane Buck case — was an inevitable product of future dangerousness in the capital punishment system in Texas. Because the Texas death penalty system was already so contaminated and corrupted by racial bias, the Duane Buck death sentence was a predictable outcome of that mess. …
In McCleskey v. Kemp the Supreme Court was asked to consider the statistical evidence of racial discrimination in death sentences reached by one study. The analysis found that defendants accused of killing white victims were 4.3 times more likely to receive the death penalty than defendants accused of killing black victims. The Supreme Court argued that racial discrimination has to be established in individual cases, not in the aggregate. Ironically, the court was perfectly willing to accept weak statistical arguments involving future dangerousness but to reject strong statistical arguments involving race and sentencing. …
The business of predicting future dangerousness without becoming corrupted by the various factors that are so tied to human functioning is impossible. It’s an absurd requirement. As a prerequisite for a death sentence, it’s insane.
This spring, Senators Dianne Feinstein (D-Calif.) and Chuck Grassley (R-Iowa) introduced the “Protecting Kids from Candy-Flavored Drugs Act of 2017.” The Act defines a new category of drug crime – selling candy-flavored drugs to children – and imposes a harsh punishment for it. Critics of the bill have questioned whether candy-flavored drugs are really a national menace requiring federal legislation.
Beyond the Act’s risible purpose, the language of the bill itself is also deeply flawed. Senators Feinstein and Grassley have drafted legislation that uses overly broad terms to impose excessively harsh sentences. The law is thus not only pointless; it also both dangerous and draconian.
Last week, the House of Representatives voted to impose a 15-year, mandatory-minimum prison sentence on parents who know their teenage children are sexting but fail to prevent them from doing so.
The law is called the “Protecting Against Child Exploitation Act of 2017.” A number of commentators have criticized the broad language of section 2(a) of the bill, which prohibits anyone from participating in the transmission of a sexually explicit image of a minor. Because over half of teenagers reportedly engage in this kind of behavior, Dan Savage observes, the Act is “basically a license to toss every other teenager in the country in jail.”
Yet Section 2(b) of the bill, which targets parents, is arguably worse. Although our representatives may have intended to punish parents who exploit their children, they have instead passed a law that criminalizes legitimate – even advisable – parenting decisions.
Professor Mark Osler, writing for the Marshall Project, shows how the prosecutor-run Department of Justice often works to stymie criminal justice reform. He illustrates his point with this appealing hypothetical:
Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.
People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.
Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.
Judge Jed Rakoff, talking with Judge Posner and Slate’s Joel Cohen, describes the Fifth Amendment right to remain silent as one example of the tension between truth and justice in American criminal law:
[O]ur Constitution allows a defendant to remain silent, even though that may in some sense impede the search for the truth.
The historic reason for this restriction is that in its absence, the government is easily persuaded to use torture to extract confessions—which is what happened in the English Star Chamber that gave rise to the Fifth Amendment privilege against self-incrimination. But is also commonplace today in legal systems like China’s, that don’t have such a privilege, and, at least for a time, was utilized in places like America’s Guantanamo Bay prison that were supposedly outside the reach of the Constitution.
While the Fifth Amendment is actually designed in part to advance the truth by guarding against coerced false confessions, it also serves the independent purpose of putting a check on government practices that most people consider repugnant regardless of their results. In short, while a legal system built on untruths is inherently unjust, truth is not the only requirement for achieving justice.
Philly.com reports on a disturbing police practice in Philadelphia:
Stories of having pants undone and lowered and underwear being rifled through come from black men from various parts of the city. Their stories are strikingly similar. Sometimes drugs are found; sometimes, not.
Such searches, conducted in public places, are strictly prohibited by police department policy and state law. The department keeps no statistics on how often these searches occur, a department spokesman said. Commissioner Richard Ross says he has no knowledge of the practice.
But five men who have had their underwear searched on public streets say the experiences left them scarred.
Call it Stop-and-Fondle.
The article goes on to describe the racist and humiliating nature of these searches, but does not dig into their legality. Underwear searches should be prohibited by the Fourth Amendment, particularly because they are so personal.
Word is out that President Donald Trump may hire a private attorney, now that the FBI is conducting a criminal investigation into his campaign’s contacts with Russia.
This intriguing possibility raises the question:
Should a public defender represent Donald Trump?