In conducting some last-minute update research on a forthcoming article (here) on the legal ethics of real evidence (and the potential use of obstruction of justice statutes to punish a lawyer for zealous representation of a criminal defendant), I came across the "Brief for Eighteen Criminal Law Professors as Amici Curiae" in the pending Supreme Court case of Yates v. United States, No. 13-7451.
Yates is the case in which creative federal prosecutors applied the new "anti-shredding" provision in the Sarbanes-Oxley Act to prosecute a fisherman for anticipatory obstruction of justice because he tossed some under-size fish overboard (rather than bring them back to the dock) after a Florida fish and wildlife officer had cited him for a civil violation.
The statute punishes those who knowingly destroy or conceal “any record, document, or tangible object” with the intent to impede an investigation within the jurisdiction of a federal agency. In prosecuting the fisherman and now before the Supreme Court, the federal government argues that the three red grouper fish were a "tangible object." The fisherman's lawyer, and the amicus brief above, argue that "tangible object" should be understood in the context of "record" and "document" to mean such things as hard-drives, flash-drives, computer diskettes, etc. which can record information.
What especially struck me about the brief, which was filed on behalf of a member (Rick Garnett) and several friends of the Mirror of Justice, was its powerful indictment of overcriminalization -- together with the sad decline of wise use of prosecutorial discretion. Below is the key discussion of this matter from this thoughtful and well-written brief:
Today’s federal criminal code would be profoundly troubling to the Founders. As James Madison wrote in FEDERALIST NO. 62, “[i]t will be of little avail to the people * * * if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood[.]” Yet these words provide an apt description of today’s U.S. criminal code. As one commentator puts it, the federal criminal “code” is a “haphazard grabbag of statutes accumulated over 200 years”—it is “incomprehensible, random and incoherent, duplicative, ambiguous, incomplete, and organizationally nonsensical.” Julie O’Sullivan, The Federal Criminal “Code” is a National Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 643 (2006).
Neither prosecutors nor their targets can plumb the depths of this criminal law. Federal law addresses conduct ranging from unquestionably serious crimes (e.g., 18 U.S.C. § 2381 (treason)), to trivial ones (e.g., id. § 711 (unauthorized reproduction of “Smokey Bear”)). As one well-known jurist has observed, “most Americans are criminals and don’t even know it.” Alex Kozinski & Misha Tseytlin, You’re (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43, 44–45 (Timothy Lynch ed., 2009).
To be sure, U.S. Attorneys cannot (and would not) enforce every one of these provisions every time it was violated. For those who do get prosecuted, however, the circumstances are grim. The vastness of the federal code and the breadth of myriad statutes provide the imaginative prosecutor with near-endless permutations of crimes to charge. Exercising prosecutorial discretion has evolved “from an exercise of wisdom to a selection of weaponry.” Robert Weisberg, Crime and Law: An American Tragedy, 125 HARV. L. REV. 1425, 1445 (2012).
* * *
According to recent estimates, U.S. law contains 4,450 criminal provisions. . . . Now add to this expansive body of criminal statutes a mountain of federal criminal regulations. According to one estimate, there are now more than 300,000 federal regulations that may trigger criminal sanctions.
Still worse, many of these regulatory offenses pro-scribe conduct that is malum prohibitum—i.e., conduct that is wrong only because it is prohibited. Everyone knows that it is immoral to kill, rape, or steal. The same cannot be said, however, of importing non-veneered ebony wood from India, snowmobiling into a national forest in the midst of a blizzard, or saving a bird from the clutches of a hungry cat. Yet as Gibson Guitar Corp.[2] IndyCar champion Bobby Unsar,[3] and11-year-old Skylar Capo[4] found out, the Government has no qualms about prosecuting such behavior. As these heavy-handed prosecutions show, the vast ocean of regulatory crimes—including many offenses that are “wrongful only because [they are] illegal”—threatens to “allow punishment where ‘consciousness of wrongdoing be totally wanting.’” Stephen Smith, Overcoming Overcriminalization, 102 J. CRIM. L. & CRIMINOLOGY 537, 538 (2012) (quoting United States v. Dotterweich, 320 U.S. 277, 284 (1943)).
2 See C. Jarrett Dieterle, Note, The Lacey Act: A Case Study in the Mechanics of Overcriminalization, 102 GEO. L.J. 1279, 1284–86 (2014) (summarizing the prosecution of Gibson Guitar Corp. under the Lacey Act, 16 U.S.C. §§ 3371 et seq.).
3 Reining in Overcriminalization: Hearing Before the Sub-comm. on Crime, Terrorism, & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 21–35 (2010) (statement of Robert “Bobby” Unser, detailing his prosecution under 16 U.S.C. § 551 and 36 C.F.R. § 261.16 for unintentionally entering a national forest with a snowmobile during a blizzard).
4 Girl saves woodpecker, but her mom fined $535, CBS NEWS, Aug. 4, 2011, available at http://www.cbsnews.com /news/girl-saves-woodpecker-but-her-mom-fined-535/ (re-porting the citation of an 11-year-old child under the Migratory Bird Act, 16 U.S.C. §§ 703 et seq., for saving an endangered woodpecker from being eaten by the family cat). The charges were dropped after an international outcry over the incident.
In short, the ever-expanding breadth and redundancy of the federal statutory and regulatory crimi-nal “code” threatens to create, in the words of the late Bill Stuntz, “a world in which the law on the books makes everyone a felon.” William Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 511 (2001).
I am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I've listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of and from within the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.
Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.
Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.
Wednesday, September 10, 2014
The New Republic is running a book review by Justin Driver of Bruce Allen Murphy's book about Justice Scalia. Titled "How Scalia's Beliefs Completely Changed the Supreme Court ... and therefore, the country," the review combines appreciation for the impact of Justice Scalia's beliefs about interpretation (and the role of Justices in oral argument) with criticism of Murphy's "vituperative attacks on Scalia's character and even on his religion."
Driver's appreciation of Justice Scalia's impact is far from uncritical. The review concludes: "If legal liberals are going to prevail in the long run, they must comprehend that the many profound problems with Scalia's views are not characterological or ecclesiastical; they are jurisprudential." But Driver's criticisms of Scalia are not the main feature of the review. His criticisms of Murphy are. And those criticisms are deserved. So, too, are Driver's criticism of reviews like Dahlia Lithwick's. After outlining problems with Murphy's treatment of Justice Scalia's Catholicism, Driver writes:
These deficiencies in Murphy’s approach may seem glaringly obvious, but his book has received a surprisingly warm reception in some estimable quarters. At least one reviewer has even showered praise on Murphy for his brave, penetrating insights into Scalia’s religion. Writing in The Atlantic, Dahlia Lithwick commended Murphy as “a timely and unintimidated biographer” who “refuses to be daunted by the silence that surrounds most discussions about religion and the Court.” In Lithwick’s view, “Murphy’s conclusion—at once obvious and subversive—is that Justice Scalia is very much a product of his deeply held Catholic faith.” Failure to acknowledge the ample flaws in Murphy’s treatment of religion is a dereliction. But celebrating the biography for its bold willingness to speak truth to power is perverse.
Driver describes as "indefensible" the idea that "the issue of religion should never be broached when it comes to assessing justices." Indeed, he says that "[i]n the particular case of Scalia ... it would be irresponsible for any biographer to avoid discussing his religion at some length." But Driver objects to treatments like Murphy's that use tactics whose "impudence is enough to make practitioners of guilt by association blush with embarrassment."
I wish Driver were correct that Murphy's "hatchet is so crude and so wanton that it falls well short of achieving its intended effect." But the set of readers "who are unsympathetic to Scalia's legal vision," but nevertheless "find themselves leaping to his defense, supplying the counterarguments, explanations, and qualifications that Murphy too often disregards," must be very small. It is to Driver's credit that he is one such reader. But Driver is almost certainly atypical, at least outside the legal academy.
