Where Should Defendants Stand Trial for Harming Massive Numbers of Victims?

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.

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Christina Swarns on Race, Dangerousness, and the Death Penalty

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.

The “Candy-Flavored Drugs Act” is Pointless, Dangerous, and Draconian.

jelly-beans-2201219_1920This 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.

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House Votes to Punish Parents of Kids Who Sext

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.

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