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Law and Courts
Current Perspectives from InfoTrac®
George Ackerman
Florida International University Miami, Florida
Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States
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ISBN-13: 978-0-495-91233-0 ISBN-10: 0-495-91233-6 Cover Image: © Jeff Spielman / Getty Images Wadsworth 20 Davis Drive Belmont, CA 94002-3098 USA Cengage Learning is a leading provider of customized learning solutions with office locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil, and Japan. Locate your local office at: www.cengage.com/global Cengage Learning products are represented in Canada by Nelson Education, Ltd. To learn more about Wadsworth, visit www.cengage.com/wadsworth Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com
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Contents Preface
v
About the Author
ix
Part I: Overview of Law and Courts
1
1.
Redefining Criminal Courts: Problem-Solving and the Meaning of Justice JAMES L. NOLAN JR.
3
2.
Conference Report: New York City’s Criminal Courts: Are We Achieving Justice? MARTHA RAYNER
33
3.
The Criminalization of Poverty KAARYN GUSTAFSON
75
Part II: Courts, Crime and Controversy
153
4.
When Procedure Trumps Justice BENNETT L. GERSHMAN
155
5.
Investigating the “CSI Effect” Effect: Media and Litigation Crisis in Criminal Law SIMON A. COLE, RACHEL DIOSO-VILLA
159
Part III: Law and Crime
207
6.
Crime Data THE FEDERAL BUREAU OF INVESTIGATION
209
7.
Internet Fraud on the Rise: Spike in Internet Crime Complaints Concerns U.S. Law Enforcement CYNTHIA G. WAGNER
211
iii
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iv 8.
Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism?” MATTHEW HAIST
213
Part IV: Federal and State Courts
247
9.
Threats to the Rule of Law: State Courts, Public Expectations and Political Attitudes MARGARET H. MARSHALL
249
10.
Getting Terror’s Number JAMES J. ROTH
259
Part V: Civil Law
265
11.
Charges are Enough to Create Standing LEO STRUPCZEWSKI
267
Part VI: Criminal Courts – Prosecutors and Defense Attorneys
271
12.
Prosecutor’s Errors Bring New Trial on 1993 Verdict JOEL STASHENKO
273
13.
Drawing the Line: Court Looks Again at How Much Immunity Prosecutors Have JOHN GIBEAUT
279
14.
Fashioning a Top Career: Prosecutor’s Memoir Details Work from Watergate to the 9/11 Probe BARBARA ROSE
283
15.
“A Prosecutor is a Lawyer with Convictions” JOSEPH I. CASSILLY
287
INFOMARKS: MAKE YOUR MARK
293
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Preface Law and Courts Law and Courts focuses on several current and fascinating subjects related to the United States legal system. We give special attention to courtroom processes and the individuals who make up our legal system. PART I: Overview of Law and Courts Laws are created by the legislative branch of government and carried out on a daily basis by law enforcement officers. The role of the judicial branch of government is to uphold the laws in the courtroom. These three segments of the criminal justice system, the legislative branch, law enforcement, and the courts, work hand-inhand to create, carry out, and interpret our laws. Various courts exist to hear and rule on cases depending upon the proper venue and jurisdiction of each case. Jurisdiction refers to the authority of a court to hear, preside over, and rule on cases based on the subject matter of the cases. A court’s jurisdiction is limited to the powers vested in them. A significant factor in a court case often is venue, the location in which the case will be heard. The venue of a case is usually determined according to the location where the action or crime took place or where the parties involved reside, but in some cases other considerations particular to the issue at hand might justify moving a trial to a neutral location. Court cases fall into two categories: civil and criminal. Civil cases involve the pursuit of monetary or injunctive remedies for cases involving torts, family members and divorce, or property. On the other hand, the criminal process is a set of procedures governing arrest, indictment, and trial as a result of crime. The criminal process was designed to safeguard the rights of the individual from the state. The criminal process begins when a law is allegedly broken and extends through investigation, arrest, indictment, trial, and appeal. Various courts are assigned to hear particular types of cases. Domestic disputes and other matters of family law can fall under the jurisdiction of a circuit court. Misdemeanors and felonies are usually heard in county courts, with jurisdictions determined state-by-state. A misdemeanor is a crime punishable by less than a year in jail or a fine and can range from traffic violations to assault. Felonies, v
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vi however, are criminal offenses punishable by a year or more in prison for crimes such as burglary, robbery, and rape. In addition, there are state courts and federal courts. State courts hear civil matters and offenses involving state laws. Federal courts hear cases involving civil matters relating to federal law, such as civil rights discrimination cases and immigration matters. Federal courts are also concerned with matters superseding states’ jurisdictions and cases with amounts exceeding the sum or value of $75,000. PART II: Courts, Crime, and Controversy Media attention to celebrity crime and the prevalence of movies and television shows about crime have skewed the public perception of the legal and court systems. In fact, the legal system, on occasion, has changed the manner in which cases are handled in response to the light shining from the camera into the courtroom. Many shows portray the criminal justice system in a glamorous and unrealistic way, ignoring the mounds of paperwork required or overlooking the fact that many criminals are never caught. In these shows the victims always come out on top and the criminals always lose. In reality, police do not spend all their time chasing criminals; lawyers do not always find evidence to prove their cases, Perry Mason style, at the last minute; all cases are not neatly tied up with DNA evidence; and many cases are not even brought to trial. PART III: Law and Crime Law consists of a set of rules created by the government in order to establish a means of civil management which directs people to do what is right and to avoid doing what is wrong. Unfortunately, some individuals choose to ignore laws. Nevertheless, such standards as laws provide are necessary for a flourishing and productive society. They supply the structure around which society is built. Without laws preventing people from doing whatever they want, whenever they want, the world as we know it would be in a constant state of chaos. Unlike that of various other countries, the legal system in the United States is a complex and sometimes difficult compilation of rules, regulations, and laws that are a challenge for even the most brilliant legal minds to comprehend. Public safety personnel, in order to efficiently and effectively deliver service, are thus confronted with the need to remain continually cognizant of the wide variety of legal issues they might encounter.
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vii PART IV: Federal and State Courts The differences between federal and state courts are defined mainly by jurisdiction, the sort of cases a particular court is authorized to hear. State and local courts are established by the individual states. (Within states there are also local courts which are established by cities, counties, or other local districts and which we include in the general discussion of state courts.) State courts have broad jurisdiction, so the cases citizens are most likely to be involved in – such as robberies, traffic violations, broken contracts, and family disputes – are usually handled at the state-court level. Federal courts are established under the United States Constitution to decide disputes involving the Constitution and laws passed by Congress, as well as matters which may not be heard in state courts. The latter consists of lawsuits against the United States and those involving certain specific federal laws: federal crimes, antitrust violations, bankruptcies, patent and copyright cases, and some maritime cases. PART V: Civil Law Civil law seeks to remedy non-criminal disputes such as disagreements over the interpretation of contracts, issues of property ownership, divorce, child custody, personal injury, or property damage. A civil court is a place where people in conflict can resolve their problems peacefully. Individuals that seek monetary damages look to the civil courts to assist them in recovery. The burden of proof in a civil case is the preponderance of the evidence. PART VI: Criminal Courts – Prosecutors and Defense Attorneys A government lawyer who investigates and tries criminal cases is known as a district attorney, state’s attorney, or United States attorney. This person, in the name of the government, prosecutes alleged criminals for the crimes they may have committed. Prosecutors may be public or private. The public prosecutor, appointed or elected, serves as the voice of government to take action against all legal offenses; he or she is the attorney general or deputy attorney general. The prosecutor works on behalf of the state with the burden of beyond a reasonable doubt to prove the defendant at question had the mens rea (guilty mind), actus reus (act) plus concurrence of the three. As an officer of the court, the basic duty defense counsel owes to the administration of justice is to serve as counselor and advocate to the accused, rendering effective, quality representation.
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viii Defense attorneys may also be public or private. Because the United States Constitution insists that all defendants have the right to legal counsel, governments are required to provide representation for indigent people accused of crime. Like all members of the bar, including prosecutors, defense counsel are subject to standards of conduct as described in statutes, rules, court decisions, codes, canons, and other standards of professional conduct. Additionally, defense counsel have no duty to execute any directive of the accused which is not consistent with law and such standards. Finally, the courts play a vital part in the criminal justice and legal process. Each stage of a proceeding can determine the outcome of a case that may change the future and bind tradition and history. The courts, crime, and controversies combine the affect of the media and impact of how society views the legal system. Law and crime bind together in bringing remedies for actions that violate social and legal norms. Federal and State Courts were developed to hold court cases in various jurisdictions. In conclusion, civil and criminal courts provide an arena for justice to prevail, fundamental fairness and a means for citizens to giant he ability to remedy a monetary claim or for a state to incarcerate an offender. Courts are the lifeline of the legal system and will continue to provide exciting and vital outcomes for centuries to come. George Ackerman
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About the Author George Ackerman’s life is dedicated to helping victims. As a reserve police officer in Lantana, Florida, Ackerman protects citizens, helps to protect the rights of citizens, and strives to improve his community. Ackerman formerly worked in a legal setting as part of the State Attorney’s Office in Broward County, Florida, advocating for victims’ rights. Presently, he teaches criminal justice and related law courses nationwide and at the Police Academy at Palm Beach State College, Lake Worth, Florida. His objective is to enlighten his students with regard to victims’ rights. Students of criminology and related subjects will make the difference in the lives of victims they encounter as they move on to professional careers. Students today, the professionals of tomorrow, will demonstrate excellence to see that the rights of victims are not overlooked. Prof. Ackerman thanks Cengage for the opportunity to create this volume. He also thanks his family for their continued encouragement through his education and career. Finally, thanks go to Gloryann Torres, a friend who has been supportive in his continued educational endeavors.
ix
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Part I
Overview of Law and Courts
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1 Redefining Criminal Courts: Problem-Solving and the Meaning of Justice James L. Nolan Jr.
F
ew would dispute that there is considerable frustration with conventional practices in the American criminal justice system. Ubiquitous are complaints about overcrowded jails and prisons; the expense and burden of increasing court case loads; the "revolving door" phenomenon of repeat offenders; the impersonal and assembly-line quality of "McJustice," or expedited case management; fatigue and job dissatisfaction among lawyers; the winat-all-costs mentality of modern trial advocacy; and the adjudicative restrictions of hyper-proceduralism and mandatory minimum sentencing guidelines. (1)To remedy these perceived ailments in the system, legal practitioners and academics have proposed, implemented, and theorized about a number of related innovations. This article considers one of these innovations, namely problemsolving courts, focusing in particular on drug courts, the first and most advanced of this new breed of courts. The paper also analyzes some of the theoretical underpinnings, cultural affinities, and unintended consequences of problem-solving courts in the United States. (2) While noting the frustrations cited above, supporters of problem-solving courts and related legal innovations argue that the need for legal change is heightened by the failure of traditional _______________________________________________________
James L. Nolan Jr., "Redefining Criminal Courts: Problem-Solving and the Meaning Of Justice." American Criminal Law Review, Fall 2003, volume 40 issue 4 p. 15411566. Copyright © 2003 Georgetown University Law Center. Reprinted with permission of the publisher.
3
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4 institutions to handle a growing number of social problems. In other words, because of the failure of "traditional nonlegal dispute resolution mechanisms in society," such as "church, community, neighborhood, friends, and family," the legal system now finds itself in a position where it must directly address various social ills. (3) With the weakening of these support structures, advocates of legal change believe that the courts have no choice but to step into the void. As David Rottman and Pamela Casey see it, "the main push for this change came from the societal changes that placed courts in the frontline of responses to substance abuse, family breakdown, and mental illness." (4) Because "courts cannot restrict the flow of such problems into the courtroom" they have essentially been "pulled ... toward a problem-solving, proactive orientation." (5) These are some of the most common reasons offered for the emergence of problemsolving courts. I. PROBLEM-SOLVING COURTS As defined in a 2000 joint resolution by the Conference of Chief Justices and the Conference of State Court Administrators, problem-solving courts "involve principles and methods grounded in Therapeutic Jurisprudence, including integration of treatment services with judicial case processing, ongoing judicial intervention, close monitoring of and immediate response to behavior, multidisciplinary involvement, and collaboration with community based, and government organizations." Problem-solving courts, therefore, involve both a theoretical reorientation and a concomitant structural and processual transformation. Problem-solving courts have emerged in a number of forms, including mental health courts, domestic violence courts, community courts, and drug courts. The latter are the oldest, most visible, widespread, and influential of the problemsolving courts. (6) As Greg Berman and John Feinblatt observe, "the current wave of problem-solving experimentation can be traced back to the opening of the first 'drug court' in Dade County, Florida, in 1989." (7) The Miami court became the essential model for over 700 drug courts established throughout the United States since. While drug courts vary from location to location, they share many of the central principles of problem-solving courts articulated in the 2000 joint resolution. In particular, drug courts offer drug offenders, as an alternative to the normal adjudication process, an intensive court-based treatment program. Participants or "clients" (as they are typically called in drug courts) return regularly to the courtroom, where they directly interact with the judge. They also submit to regular urinalysis tests, receive acupuncture treatment, and
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5 participate in a variety of individual and group counseling sessions, including Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) twelve-step programs. Progress in these various treatment modalities is monitored by the drug court judge, who, during court sessions, offers praise and prizes for success and admonitions and sanctions for noncompliance. Possible sanctions include increased participation in weekly NA meetings, community service, and even several days of incarceration. Clients agree to participate in drug courts with the promise that successful completion will result in dropped charges or an expunged record of arrest. It's a process advertised to take one year, although it often lasts much longer. Drug courts, in many important respects, depart from the practices and procedures of a typical criminal court. Prosecutors and defense counsel, for example, play much reduced roles. In fact, lawyers are frequently not even present during regular drug court sessions. Instead, the main courtroom drama is between the judge and client, both of whom speak openly and freely in the drug court setting. Often, a treatment provider accompanies the client, advising the judge and reviewing the client's treatment progress. Court sessions are characterized by expressive, and sometimes tearful, testimony about the recovery process, punctuated with applause from those in attendance. Once completing the program, clients participate in colorful graduation ceremonies, which involve emotional speeches from graduating clients, the issuing of graduation certificates, and visits from the media and local luminaries. The various problem-solving courts that emerged in the wake of the drug court movement are similarly team-oriented, multidisciplinary, and non-adversarial in approach. They likewise have adopted a style that involves early, intensive, and regular court supervision and coordination of services, aimed at addressing the defendant's underlying problems. Included among these are community courts, of which there are approximately 30 in the United States. The first community court was established in New York City in 1993. (8) New York's Midtown Community Court targets "qualityof-life offenses such as prostitution, illegal vending, graffiti, shoplifting, fare beating, and vandalism." (9) Defendants are required to do community service (such as cleaning a local park or painting over graffiti) and to participate in social services (such as health care, drug treatment, or job training), all in an effort to address the underlying problems that led to the criminal behavior. (10) The problem-solving features of community courts include an "enhanced and on-going judicial role," the extensive use of "personal
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6 background information related to the offender," and judicial coordination of legal and social services. (11) In 1997, four years after the creation of the Midtown Community Court, the first mental health court was established in Broward County, Florida. Since then, twelve other jurisdictions have established mental health courts, and the federal government has authorized the creation of 125 additional pilot programs. These courts are comprised of clients whose "mental illness" has been determined to have "contributed to the commission of the offense." (12) Defendants, who have typically committed lesser offenses such as trespassing or "spitting at people in the street," (13) are given intensive treatment by a multi-disciplinary team, under the close supervision of a judge. The courtroom is informal and therapeutic in orientation, aimed at treating the underlying problems of "mentally disordered" defendants. (14) Like drug courts and community courts, mental health courts are uniquely problem-solving in their approach in that "they attempt to intervene early in the process," and have "developed multi-disciplinary teams which provide for intensive treatment and supervision under the control of the judge." (15) In 1996 the first "domestic violence" court was initiated in Brooklyn, New York. By the end of 2000 there were more than 200 domestic violence courts throughout the United States. Domestic violence courts are characterized by close monitoring and supervision by a specially trained judge, armed with "a range of creative sentencing options," as well as a variety of counseling and substance abuse programs, specifically developed to address the peculiar problems associated with domestic violence. (16) Defendants face mandatory "batterer's treatment counseling" and community service requirements. They may also be required to attend Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) self-help groups or to spend some time in jail; (17) meanwhile, victims are "linked to a variety of services and counseling." (18) Here, as in other problem-solving courts, the judge engages the defendant in a direct therapeutically oriented encounter, and assumes "multiple roles including acting as authority, motivator, problemsolver, and monitor." (19) In addition to drug courts, community courts, mental health courts, and domestic violence courts, more recent versions of problem-solving courts include re-entry courts (which provide recently released prisoners with intensive court oversight as they attempt to return to life in the community), and homeless courts (designed to provide judicial oversight, drug treatment, and other services for homeless repeat offenders). The first
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7 versions of these more recent problem-solving courts were established in 1999. Though targeting different problems and different populations in the criminal justice system, the various problemsolving courts, as Berman summarizes, "all seek to use the authority of courts to address the underlying problems of individual litigants, the structural problems of the justice system, and the social problems of the communities." (20) That problem-solving courts have become an important development in the American criminal justice system is reflected in the endorsement of the model by the Conference of Chief Justices and the Conference of State Court Administrators. The 2000 resolution encouraged the "broad integration over the next decade of the principles and methods employed in problem-solving courts in the administration of justice." Less than a year later, the American Bar Association (ABA) followed suit, adopting a very similar resolution at its annual meetings. The ABA called for "the continued development of problem solving courts" and went so far as to encourage "law schools, state, local and territorial bar associations, and other organizations to engage in education and training about the principles and methods employed by problem-solving courts." Given such strong endorsements for this legal innovation, John Goldkamp may not be overstating matters when he speaks of problem-solving courts as a "paradigm shift," in the American court system. "It's no longer a question of whether they should have been invented," says Goldkamp, "they're here." (21) As noted in the earlier reference to the 2000 resolution, these courts have also been closely associated with, if not in some instances directly inspired by, new theories of justice developed during the last fifteen years. Specifically, problem-solving courts have been closely linked with both "therapeutic jurisprudence" and "restorative justice." (22) II. THERAPEUTIC JURISPRUDENCE AND RESTORATIVE JUSTICE The ideas generated by proponents of restorative justice and therapeutic jurisprudence have supplied practitioners with important justifications for the expansion of problem-solving courts, thus necessitating a better understanding of the defining tenets of these legal theories. In her discussion of the "comprehensive law movement," Susan Daicoff identifies multiple intersecting "vectors," which, in response to the legal system's perceived ailments, endeavor to make the legal system "more humane, therapeutic, beneficial, humanistic, healing, restorative, curative, collaborative, and
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8 comprehensive." (23) Among these so-called vectors are problemsolving courts, therapeutic jurisprudence, and restorative justice. While it's clear that these are related phenomena, for conceptual purposes it is important to distinguish problem-solving courts (a practical legal innovation) from therapeutic jurisprudence and restorative justice (theories of justice generated within the academic world). In other words, it makes more sense to characterize problemsolving courts as a legal innovation, the philosophical justifications for which are drawn from the principles articulated within therapeutic jurisprudence and restorative justice theories, rather than as vectors on the same conceptual plane. Although there are important differences between therapeutic jurisprudence and restorative justice, the two legal theories also have much in common. First, both have a normative dimension; they are not merely analytical frameworks, but propose to alter legal practices in accordance with new ways of thinking about justice. Second, both are therapeutic in the sense that they place an emphasis on emotions, empathy, healing, and the psychological wellbeing of individuals encountering the legal system. John Braithwaite, a leading theorist of restorative justice, notes these similarities: Therapeutic Jurisprudence instructs us on the enormous impact the justice system can have on people's psychological and physical well-being. Understanding this is also a large part of what motivates Restorative Justice. Both traditions share an interest in how to overcome the problem of criminal offenders denying the pain of their victims, both for the sake of healing the offender and preventing further victimization. (24) As intimated in the above passage, both theoretical perspectives support a problem-solving orientation. Indeed, as Braithwaite argues further, "Perhaps the most solid common ground between Therapeutic Jurisprudence and Restorative Justice is that they are both part of a return to problem-oriented adjudication." (25) In a final area of common ground, both theories rhetorically defer to elements of more traditional theories of justice, even while advocating fairly radical changes in the legal system. For example, restorative justice includes among its "priority list of values" the following: "honoring legally specific upper limits on sanctions" and respecting "fundamental human rights." (26) Regarding the former, it should be noted that, though upper limits on sanctions are typically understood within the limiting principle of "just deserts" theory, Braithwaite (along with Philip Pettit in an earlier discussion on the topic) does not attempt to defend it on these grounds. (27) Indeed, as Andrew Von Hirsch and Andrew Ashworth point out, "no persuasive
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9 reason is offered" in their analysis for "why those limits should exist." (28) Nevertheless, Braithwaite maintains that such limits should be sustained and, more generally, he is "happy to retain various due process protections and other fundamental justice values." (29) He notes that his basic position is consistent with the concerns of therapeutic jurisprudence scholars who wish to avoid "subordinating due process and other justice values" in their promotion of therapeutic consequences. (30) Indeed, Bruce Winick and David Wexler, the two most prominent therapeutic jurisprudence scholars, regularly assert that therapeutic values should not "trump" certain traditional values of justice. As Bruce Winick puts it, "Therapeutic jurisprudence has always suggested that therapeutic goals should be achieved only within the limits of considerations of justice.... [L]aw should be applied fairly, evenhandedly, and non-discriminatorily. Legal actors should seek to apply the law therapeutically but only when consistent with these values." (31) With therapeutic jurisprudence, then, rhetorical deference to "just desert" principles appears even more pronounced than it is with restorative justice. Notwithstanding such similarities, therapeutic jurisprudence and restorative justice differ in several important respects. For one, therapeutic jurisprudence scholars are a little uncomfortable with the emphasis on "reintegrative shaming," a concept John Braithwaite has made central to his understanding of restorative justice. (32) In an April 2000 panel discussion at Western Michigan University among Bruce Winick, David Wexler, and two drug court judges, Winick was asked specifically about restorative justice and reintegrative shaming. He acknowledged some compatibilities between the two theories of justice, but thought the term "reintegrative shaming" was "unfortunate." (33) In particular, he thought the word, "shame... throws a lot of people off track." He also feared that the restorative justice emphasis on reintegration may not give enough attention to rehabilitation, and suggested that "more needs to be introduced into the restorative justice paradigm regarding efforts at rehabilitation." (34) A second difference is the broader scope of restorative justice. As noted earlier, both theories have a normative dimension. For therapeutic jurisprudence, specifically, this means that "therapeutic consequences are good, antitherapeutic consequences are bad." (35) According to Braithwaite, restorative justice, in contrast, "is concerned with a much wider net of consequences" and "involves more concrete commitments to just processes and values."
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10 (36) He seems to suggest that the more restricted analytical focus of therapeutic jurisprudence makes the preservation of traditional justice values more difficult. This analysis prompts an important question: With the focus on promoting therapeutic outcomes and discouraging antitherapeutic outcomes, are other justice values unwittingly ignored or disregarded, in spite of the stated wishes by therapeutic jurisprudence theorists to sustain these values? The remainder of this article explores that question. Given the variety of problem-solving courts, and the varying degrees to which they are informed by one or the other theory, I will necessarily limit the discussion to the relationship between therapeutic jurisprudence and drug courts (the most developed and widespread of the various problem-solving courts), while making occasional references to other kinds of problemsolving courts. (37) Before turning specifically to drug courts, it is helpful to consider a therapeutic jurisprudence interpretation of a legal measure relevant to criminal law, namely the 1984 Sentencing Reform Act. Keri Gould acknowledges that the Act was passed and the Sentencing Commission established at a time when the previously dominant rehabilitative ideal in criminal law had been called into question and replaced by a just desert theory of punishment--the publicly articulated goal of the Act. Without overtly disparaging the just desert model, Gould brings the therapeutic lens to bear on that part of the statute which specifically explicates the retributive perspective: the law's endorsement of "the need to reflect the seriousness of the offense, to promote respect for law, and to provide just punishment." (38) To Gould, the most "intriguing" part of this statutory language is the middle phrase, the stated goal "to promote respect for the law." (39) While she concedes that this phrase, in the context of the statute, is a retributive goal, Gould argues that "it makes more sense to extract this goal from its retributive neighbor-phrases and investigate the internalization of a defendant's moral respect and compliance with the legal system." (40) In other words, she wishes to ascertain whether application of the resultant federal sentencing guidelines are "perceived" as fair by individual defendants subjected to them. In her opinion, the manner in which the laws are currently applied "serve[s] to marginalize defendants and inmates" and "ignore[s] differing perceptions of fairness in the law." (41) Guidelines perceived as unfair, according to Gould, can cause "amotivational responses" by defendant-inmates, leading them to feel "helpless, incompetent and 'out-of-control." (42)
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11 Gould proposes a therapeutic jurisprudential approach that would investigate this perceived unfairness and subsequent psychological dysfunction. If "empirically" demonstrated, the approach would then suggest modifications of "the offending legal provisions" in order "to increase the defendant-inmates' perception of fairness and promote cooperation and compliance with socially desirable goals." (43) Such a change is important, from a therapeutic jurisprudence perspective, because "laws which modify behavior or attitudes in a socially acceptable way should receive greater respect from society than laws which merely satisfy a sense of retribution without the concomitant behavioral adaptation." (44) Having established this more therapeutically acceptable legal condition, according to Gould, the law would then satisfy its stated goal of promoting respect for the law. Gould agrees with Wexler and Winick that therapeutic jurisprudential prescriptions should be limited to "boundaries set by principles of justice." (45) Yet, her own analysis essentially redefines the focus, if not the very meaning, of justice-shifting an understanding of what constitutes fairness to the level of individual subjectivity and encouraging legal actions aimed at eliciting particular behavioral responses from defendants. Recent and classical articulations of just desert, it should be noted, have nothing to do with "behavioral adaptation." Indeed, liberal critics of the rehabilitative ideal were strongly opposed to the correctional focus of coercively modifying attitudes and behavior. Gould concedes that her basic critique of the problematic applications of the sentencing guidelines could alternatively be made according to traditional legal principles. One could, for example, question the legitimacy of the federal sentencing guidelines on the grounds that they are unfair--that the defendant-inmates subjected to them are getting more than their just desert. But this is not how Gould approaches the matter. Instead, she focuses on the "offender's emotional and behavioral responses" to the guidelines, on subjective, individual perceptions of fairness, and on legal prescriptions aimed at achieving "behavioral adaptation." That she can reconfigure the statutory provision of the 1984 Act in this way, while at the same time rhetorically defer to the guiding principles of "justice," raises questions about the extent to which advocates of therapeutic jurisprudence are (or will be) restricted to traditional legal concerns. The next section explores this question in the context of the drug court movement.
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12 III. DRUG COURTS: THEORY, PRACTICE, AND CULTURE Judges Peggy Hora and William Schma were among the first drug court judges to recognize the theoretical relevance of therapeutic jurisprudence to the drug court movement. (46) As they observed, the drug court movement and therapeutic jurisprudence theory had "been growing and evolving on parallel courses, yet independently of one another." (47) In May of 1997, Judges Hora and Schma joined David Wexler and Bruce Winick on a panel at the NADCP's annual training conference in Los Angeles. Then, in January of 1999, Hora and Schma, along with John Rosenthal, published in the Notre Dame Law Review a lengthy article relating therapeutic jurisprudence to the drug court movement. Now, as they claim, "these two powerful concepts have been cast together." (48) The Notre Dame Law Review article is relevant to the present analysis in several respects. First, it is the most comprehensive written articulation of the relationship between the drug courts and therapeutic jurisprudence theory. Second, the article anticipates and responds to concerns about drug courts in relationship to more traditional understandings of justice. Third, the article is a celebratory account of drug courts and is recognized by leaders of the movement as a significant and representative work. (49) Finally, the article is widely cited by legal scholars who view it as a classic example of the benefits of therapeutic jurisprudence to criminal law. (50) Not all legal scholars, however, celebrate therapeutic jurisprudence. Some critics question whether therapeutic considerations "should play a dominant (or for that matter any) role in judicial decision making." (51) Therapeutic jurisprudence scholars assume, without explanation, that therapeutic outcomes in the law are necessarily a desired good. As I have argued elsewhere, but will discuss only briefly here, an important reason for the indisputable plausibility of therapeutic jurisprudence is the pervasiveness of a dominant therapeutic sensibility in American culture. (52) This is an aspect of the larger phenomenon that most analysts of problemsolving courts and of therapeutic jurisprudence--in their preoccupation with issues of efficacy--commonly overlook. One exception can be found in a discussion about problemsolving courts held in late 1999 by of group of judges, attorneys, and law scholars. At the gathering, several participants spoke of the difficulties courts face today as a result of the pressures arising from the various social problems discussed at the beginning of this article. In this discussion legal historian William Nelson noted that historically "It]he structures that were there to help these justices engage in improving behavior were family structures, community
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13 structures, and not professional psychiatrists, social workers and the like." (53) Nelson rightly notes a shift in the support systems to which Americans turn to solve their problems. Specifically, drug courts and the other problem-solving courts have turned to the treatment community for support. Yet, deference to the ideas and authority of the therapeutic community is not exclusive to the American judiciary. Indeed, as analyzed by a number of social scientists and cultural critics over the years--including Philip Rieff, Christopher Lasch, Alasdair MacIntyre, John Steadman Rice, Bernie Zilbergeld, and Robert Bellah--a distinctively therapeutic sensibility has triumphed in American culture. (54) Nelson himself seems to recognize this, noting that his comment is "not on the judiciary but a comment on the changing structure of American society." (55) To be sure, this broader acceptance is an important reason why the therapeutic idiom has been readily and thoroughly embraced by some legal scholars. Therapeutic sensibilities are so deeply embedded in American society that therapeutic jurisprudence scholars need not explicitly make the case for the importance of therapeutic ideals. No persuasion is necessary. They need only assert that the law has therapeutic and antitherapeutic outcomes, and expect people to then conclude that the law should be altered in light of these findings. The same kind of reasoning appears to influence the discourse of judicial actors working for change within the system. Thus, common cultural assumptions have influenced both changing judicial practices and the development of new legal theories. In Daicoff's terms, one could argue that both drug courts and therapeutic jurisprudence are vectors generated from the same cultural source, which would explain why they developed simultaneously yet independently (at least initially). Indeed, busy judges and lawyers are not typically inclined toward theoretical ponderings. Judges Hora and Schma, for example, observe that with court calendars overburdened with "drug cases, few early drug court practitioners worried about the jurisprudential theory behind the drug court movement. Drug courts seemed to work, and the absence of analysis or debate coming from the 'ivory towers' of academia ... did not much matter." (56) Nevertheless, both the theory and the practice developed simultaneously within the same broader cultural context. Eventually, the elective affinity between drug courts and therapeutic jurisprudence was discovered, leading both scholars and practitioners alike to see drug courts as a direct application of therapeutic jurisprudence theory. Thus, Judges Hora and Schma observe that
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14 drug courts are a "significant step in the evolution of therapeutic jurisprudence--the evolutionary step from theory to application." (57) Given this archetype of therapeutic jurisprudence, we return to the question of whether the judicial application of a therapeutic perspective can really exist in subjugation to the defining legal principles of rights and justice, or whether, as reflected in Gould's analysis of the federal sentencing guidelines, it ultimately redefines the meaning of justice - rhetorical deference to traditional ideals notwithstanding. Interestingly, when judges actually discuss the notion of justice as it is applied in the drug courts, they express what is clearly a new understanding of the concept. They seem to suggest that within the ether of therapeutic jurisprudence, at least as it is applied in the drug courts, justice has come to mean something altogether new. Consider the comments of one drug court judge, who in conversation with a group of other drug court judges at a national drug court conference in Washington, D.C., conveyed what she saw as the defining qualities of the drug court. She believes that in the drug court "justice is being done." For her, however, "justice isn't imposing punishment and increasing sentences, justice is improving the community, and this [drug court model] is an opportunity to do that." Pointedly, she doesn't argue that the legal goal of "improving the community" should be pursued only inasmuch as it can be achieved within the confines of traditional legal concerns. Rather, she asserts that improvement of the community itself constitutes the essence of justice. This new problem-solving orientation, according to another drug court judge, is "justice in its purist sense." Why so? "Because it is taking a case. It is taking an individual. It is looking at that individual case and it is fashioning a disposition in that particular case that is going to benefit not only society, but that particular individual." The occasional judge who does reflect upon the classical purposes of justice, sees the drug courts as outside the boundaries of these traditional goals. Judge Hora puts it this way: Okay, so traditionally justice is applying the law in an equal and fair manner. Justice is fulfilling sentencing goals such as retribution, rehabilitation, restitution, and so forth. And the way it's redefined [in drug courts] is, the whole idea of this approach, is you have people who have a disease called alcoholism and/or addiction. And what is just is getting them well rather than punishing them for their disease. Significantly, in addition to highlighting the treatment emphasis of the drug court model, she argues that the treatment focus
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15 itself constitutes justice. Healing someone, as it were, is "what is just." Earlier critics of the rehabilitative ideal, it should be noted, would argue that such a position is logically untenable. It is nonsensical, one critic argued, to talk about a "just cure" because "we demand of a cure not whether it is just but whether it succeeds." (58) Drug court judges, apparently, are not constrained by such logic. This is certainly evident in Judge Barbara Beck's take on the matter. Beck poses a question about drug courts by first juxtaposing justice and treatment as if in opposition to one another, "Is it justice or is it treatment?" To which she then answers, "To me treatment is justice." In the drug courts, then, treatment, healing, problemsolving, constitute the very meaning of justice. Given such a redefinition it would not seem that therapeutic jurisprudence, at least as applied in the drug courts, is simply one perspective among others, and one that does not subordinate "due process and other justice values" as therapeutic jurisprudence scholars regularly claim. (59) Instead, it appears to comprehensively reshape the very essence of criminal adjudication and fundamentally redefine the meaning of justice in the process. In such a context, it is now possible to speak of "just treatment." IV. THE CONSEQUENCES OF JUST TREATMENT If justice now means just treatment, what are the consequences of such a radical judicial reorientation? To answer this question, let us consider defenses of the "therapeutic ideal" offered by drug court judges in response to the more theoretically based criticisms previously leveled against the "rehabilitative ideal" in the 1970s. The rehabilitative ideal--commonly associated with the introduction of such practices as probation, parole, and a separate juvenile justice system--came under serious criticism when its characteristic practices of individualized treatment, indeterminate sentences, and unwieldy judicial discretion were increasingly viewed as inconsistent, disproportionate, and unfair. (60) Do drug courts (and problem-solving courts more generally) result in similar unintended consequences --their evident differences with prior rehabilitative practices notwithstanding (61)--and do these consequences challenge fundamental principles of justice? If so, how do judges respond to questions about these possible consequences? Before investigating these questions as they pertain to drug courts, it is worth noting that concerns have been raised by some that problem-solving courts, more generally, might be susceptible to some of the same "abuses" that developed during the rehabilitative
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16 era in such venues as the juvenile delinquency courts. Consider, for example, the reflections of a Minnesota public defender, John Stuart, on this matter: [W]e ought to be cautioned by the example of juvenile court. Juvenile court started off with a lot of the same progressive intentions and a lot of the same kind of happy-faced rhetoric--relaxed procedures, collaboration, seeking the best interests of the youth offender. We know now that the rhetoric did not match the reality. There was a big need for the Supreme Court to announce the decision In re: Gault to cure the abuses that were occurring in juvenile courts. In a sense, juvenile court really was the first problem-solving court. It had good intentions but it also got into some nasty places. (62) And it was precisely because of the "nasty places" it "got into" that the rehabilitative ideal came under such severe criticism in the 1970s and beyond. One of the more important criticisms was the argument that the "helping" emphasis of rehabilitative judicial practices had very coercive consequences. Though supporters of rehabilitative justice spoke of helping, curing, and reforming, the outcomes of such programs and forms were often more severe and punitive than previous practices. Some observers worry that problem-solving courts may have the same tendencies. Richard Cappalli, for example, sees a number of "very serious problems" with problem-solving courts. "One of them is coercion." He adds, "It strikes me that you've got a terrible problem of coercion and consent in problem-solving courts." (63) AS it concerns domestic violence courts more specifically, Wendy N. Davis notes that many defense attorneys fear that "the emphasis on protecting victims has made courts too quick to lock up defendants." (64) Critical assessments of drug courts likewise detect some coercive tendencies. Richard Boldt observes that though defendants in drug court "may receive needed rehabilitative services, they still face potential coercive, even punitive, dispositions." (65) Likewise, William McColl comments that some drug court clients "experience greater criminal justice system involvement than the ordinary nonviolent offender in a like position." (66) Drug court judges do not object to these characterizations. Indeed, the judges themselves highlight the punitive features of the court, and often warn defendants that noncompliance may result in more serious sanctions than would be experienced in a traditional criminal court. (67) How, then, does the drug court judge respond to the argument that such practices are unjust--the basis of earlier critiques of the rehabilitative ideal?
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17 Addressing this question, Judges Hora and Schma acknowledge that drug court "requirements may prove more onerous than the equivalent traditional court sanctions for the same offenses" and that this particular quality of the drug court "tends to disturb defense attorneys." (68) Moreover, they recognize that drug courts "generally obligate a defendant to make more frequent court appearances and force the defendant to undertake forms of treatment which place more burdens on the defendant than normal probation." (69) In response to the criticism that this may be unjust, they simply assert the preeminence of the therapeutic jurisprudence perspective. Accordingly, Hora and Schma maintain that the defense attorney who worries about potentially draconian judicial interventions has "unfounded apprehension" that stems from a "lack of understanding about ... the concept of therapeutic jurisprudence." (70) From the enlightened therapeutic jurisprudence perspective, one understands that the "significant requirements of [the drug court] reflect the court's understanding that drug addiction is a disease and that intense court supervision provides the incentive for the defendant to stay in the program." (71) In other words, the arduous demands of drug court must be considered in the context of the therapeutic benefits it offers the defendant. So complete is this reinterpretation of judicial practices that sanctions themselves get relabeled. As one drug court judge put it, "he did not see himself as 'imposing punishment but as providing help.'" (72) Similarly, Hora and Schma assert that "treatment regimes are not punishment, but the restructuring of the defendant's lifestyle." (73) Notice that these judges do two things. First, they argue that the drug courts are indeed more demanding than the normal court. Second, they assert that these coercive interventions are not really punishment, but a "restructuring of the defendant's lifestyle." One response to this rather remarkable statement is that promoting lifestyle change is not the role of the judiciary. As the American Friends Service Committee argued in their influential 1971 critique of rehabilitative practices, "The whole person is not the concern of law. Whenever the law considers the whole person it is more likely that it will consider factors irrelevant to the purpose of delivering punishment." (74) Furthermore, simply altering the nomenclature (e.g., "lifestyle restructuring" instead of "punishment") does not make therapeutic legal practices any less punitive. Previous critics of the rehabilitative ideal denounced the practice of judicial label changing. Francis Allen, in his 1981 book The Decline of the Rehabilitative
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18 Ideal, derided the rehabilitative relabeling of solitary confinement as "constructive meditation"; of a detention facility as "Cloud Nine"; the disciplinary use of a powerful fire hose on the back of juvenile offenders as "hydrotherapy"; latrine cleaning as "work therapy"; and incarceration as "milieu therapy." (75) Problem-solving courts employ similar euphemisms. One domestic violence court judge uses "constructive intimidation" (i.e., substantial periods in jail) to motivate defendants. In drug courts, short-term incarceration has been called "shock therapy," "motivational jail," and "my motel." The imposition of a "sanction" is not a form of punishment, but a parent-like "response." Indeed, all aspects of drug court are interpreted in terms of their therapeutic effects. Hora and Schma have labeled drug court sanctions, "smart punishment," but even this is qualified. "Smart punishment is not really punishment at all, but a therapeutic response to the realistic behavior of drug offenders in the grip of addiction." (76) Or again, as they put it, sanctions are really just the "restructuring of a defendant's lifestyle." Drug court judges defend compulsory "lifestyle change" on the ground that it is in the best interest of clients, whether or not the client himself realizes it. "These lifestyle changes provide the defendant with the very best chance of avoiding any further contact with the criminal justice system." Therefore, though the drug courts "may appear exhaustive and prohibitive," they "in fact work to ensure that the defendant successfully completes treatment." (77) Because of this benevolent end, defense attorneys should get over their "unfounded apprehension" and embrace their new role of assisting in the "total improvement of the lives of their clients." (78) This, according to Hora and Schma, is defense counsel's "best option," the realization of which simply "requires a therapeutic jurisprudence perspective." Once acquired, they argue, that perspective will enable defense attorneys "to more completely represent their clients." (79) A second and related issue for critics of the rehabilitative ideal was the matter of indeterminate sentences--sentences which varied according to one's performance in rehabilitative correctional settings. Ridding the criminal justice system of indeterminate sentences was one the main goals of the 1984 Sentencing Reform Act. Indeterminacy is also a reality in the drug courts. Most programs are publicly expected to last one year, though they commonly last much longer. In fact, clients are sometimes asked to sign waiver forms permitting the court to keep them in the program for an indeterminate period.
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19 Unlike previous rehabilitative practices, indeterminacy in the case of the drug courts relates not to the length of a prison sentence, but to the amount of time a client spends under the authority of the judge-led drug court program. Therefore, the issue of indeterminacy plays itself out in the adjudicative rather than the correctional setting. This structural relocation may make less apparent and less glaring the issue of indeterminacy in the drug court. Still, recent critics have made the comparison to previous rehabilitative judicial practices. (80) Proponents of drug court have made several responses to criticisms regarding the injustice of indeterminacy. First, as McColl summarizes, "in relationship to the disease theory of addiction, such measures are necessary to break through the mechanism of denial and to institute a feeling of responsibility in otherwise unresponsive defendants." (81) Thus, the therapeutic jurisprudence perspective argues that the length of one's participation in drug court should be evaluated in therapeutic rather than legal terms; under this approach, lengthy participation is justified if it serves to break down denial and contribute to recovery. Additionally, applying the treatment perspective means being patient with relapse. Relapses typically translate into extended periods of program participation. Allowing for relapse, as Hora and Schma argue, represents the "unknowing application of therapeutic jurisprudence in the [drug court] setting." (82) The indeterminate nature of the drug courts is also curiously defended on the zground that indeterminacy and concomitant lengthy periods of participation are evidence that the drug courts are tough on crime. Some prosecutors worry that [drug court] sentencing of a defendant to a treatment program lets the defendant "get away" without accounting for his of her crime. This derivative of the soft on crime idea appears groundless when one compares the length and rigor of traditional incarceration and probation sentences and the length and requirements of [drug court] mandated treatment programs. Recent statistics show that a person convicted of a drug possession offense is just as likely to get probation as jail time and that median length of jail sentence for a drug possession offense is three months, while probation time is twenty-four months. Considering the fact that most [drug court] treatment programs last at least one year, not including recycle periods for relapse, the time commitment for treatment may not be much less than probation and probably will be greater than that of incarceration. (83)
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20 Drug court advocates thus defend indeterminacy by conceding that participation in the program rarely lasts the anticipated one year, and may well include a probation term that lasts two years or longer. This is asserted to fend off potential criticisms that drug courts coddle criminals. William McColl likewise notes that, as with indeterminacy in previous judicial practices, indeterminacy in the drug courts typically leads to longer sentences. (84) Like the drug court judges, he notes that indeterminacy and longer sentences actually provide a defense for drug court activists against the accusation that the drug courts are too easy on drug offenders. "The probability of receiving jail time and years of court-enforced treatment could serve to mollify those who favor punishment over other competing goals." (85) However, while this may assuage the concerns of the "tough on crime" crowd, it also makes the drug court more vulnerable to criticism regarding the unjust nature of indeterminacy--a criticism that plagued previous advocates of the rehabilitative ideal. In this regard, one issue that was taken up by liberal critics of the rehabilitative ideal is that indeterminacy and other features of rehabilitative justice can lead to serious violations of individual rights. Consider, for example, that the defense attorney--whose conventional role is to defend and guard the constitutional rights of his or her client--is compelled, in the context of the drug court's team approach, to put aside some of his or her traditional predilections. The forfeiting of such rights was precisely the kind of thing that bothered earlier critics of rehabilitative justice. These were among the first concerns expressed in opposition to the juvenile courts of the first part of the twentieth century. The lawyers of families involved with the early juvenile courts "questioned the court's right to deprive a child of liberty without due process, to forego trial by jury, to deny the right to appeal, to impose unequal penalties, and to disregard provisions for the equal protection of the law." (86) Recent critiques of the drug court have likewise raised questions about possible violations of individual constitutional rights. Boldt, for example, argues that for many drug court defendants, "the decision to participate in the treatment court process means that they effectively forego the presumption of innocence and the panoply of trial rights guaranteed by the Constitution." (87) In fact, drug court clients typically sign forms waiving a host of constitutional rights in order to participate in drug court, including the right to trial by jury, the right to a speedy trial, the right to a preliminary hearing, and the requirement of probable cause for a search and seizure. (88) Hora and Schma acknowledge that the waiving of "certain legal rights in
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21 order to gain entrance into the treatment program," is "[c]hief among defense attorneys' concerns" with the drug court program. (89) However, they assert that the "preadjudicative model appears most consistent with the therapeutic orientation of the [drug court] concept." (90) This is so because it facilitates the therapeutic goal of getting a client immediately into treatment, even if the client must waive fundamental rights to do so. Another common defense for the drug court's provisional denial of constitutional rights is that participation in the drug courts, at least in preadjudicative programs, is entirely voluntary. In postadjudicative courts, on the other hand, where drug courts can in essence be a rather intensive condition of probation, they are clearly not voluntary. But even in preadjudicative courts, where it is more common for clients to sign waiver forms, there is some evidence to suggest that client participation is not always purely a voluntary decision. Consider one example a drug court judge provided during an interview. Now this morning, for instance, there is this guy who is eligible. I tell him about the program. He says, "Well I'm about to get a job. I'm not interested in that." I said, "Okay, if you want to see a lawyer, that's fine." I said, "If you are going to have a job, you say you want to go through the public defender, well the public defender, unless you are very low income, won't be able to represent you. So do you want to hire a private attorney? Is that what you think you would like to do and then have about 15 pretrials before this finally gets resolved? Or would it be more convenient for you if you are already working and then have to go to jail? Or would you like to come hear about the [drug court] program?" (91) The judge admitted to having pushed this client too hard. "Now I probably pushed too hard on that one. That probably I shouldn't have done, but I felt like doing that this morning. So I did." (92) Consider similar practices in the Washington D.C. community court. As with many drug courts, the D.C. community court is preadjudicative. "In most cases, defendants don't plead guilty. Instead, the charges stand until the court-ordered resolution is completed; then the charges typically are dismissed." (93) Defendants may refuse to participate, but if they are later tried and convicted Judge Noel Kramer takes "their refusal into account at sentencing." (94)
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22 Comments like these suggest that clients may not always have the kind of choice that is commonly asserted by court officials. But the fact that judges help clients to "volunteer" in this manner is actually consistent with the overall therapeutic jurisprudence philosophy and the conviction that treatment is what is best for the client, even if the client doesn't initially realize it. In fact, drug court advocates now have data pointing to the ostensible efficacy of coerced treatment. (95) As reported in one drug court document, "Research indicates that a person coerced to enter treatment by the criminal justice system is likely to do as well as one who volunteers." (96) Coerced treatment is most apparent in postadjudicative assignments to the drug court. According to a 1997 Justice Department survey, in approximately 16 percent of the drug court programs all participating clients are post-plea clients; they enter drug courts before trial, but after a plea of guilty. In another 12 percent, drug court clients participate post-conviction but with deferred sentencing. (97) In the second case, they are simply assigned participation in drug court, with virtually no choice in the matter. Drug court judges admit that "the postadjudicative model does present some problems," and that a client "may also risk waiving certain defenses to charges, as well as the right to a trial." (98) While Hora and Schma see the preadjudicative model as more in keeping with therapeutic jurisprudence theory, they also believe that the postadjudicative model "may have great therapeutic impact." (99) They believe this because having to publicly admit to drug use can force a client out of denial. As they put it, "the court proceedings may force the offender to accept her addiction and may help her overcome denial, one of the hallmarks of drug abuse and addiction." (100) It is admitting to "drug use," not "guilt," that they view as therapeutically beneficial. In fact, inasmuch as the postadjudicative model forces the client to admit guilt, this may be "antitherapeutic because postadjudication [drug courts] which require guilty pleas often meet with resistance." (101) As illustrated in these discussions, the just desert model isn't so much resisted as it is replaced. The judges do not really debate whether certain legal sanctions or methods of adjudication are fair or unfair, too harsh or too lenient, proportional or excessive. Rather, practices are interpreted according to the extent to which they promote or discourage therapeutic outcomes. Inasmuch as therapeutic jurisprudence becomes an increasingly dominant paradigm, debate over the traditional goals of punishment won't so much be resolved as made irrelevant. But will the therapeutic
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23 jurisprudence model ever become that dominant? This question relates to another concern expressed by the earlier critics of the rehabilitative ideal, namely the net-widening tendencies of rehabilitative programs in the judicial system. The net-widening effect has been a defining feature of the drug court movement. Contrary to the typical claims of drug court advocates, drug courts can actually increase rather than relieve the burden of an individual court's heavy caseload. In Denver, Colorado, for example, the number of drug cases grew dramatically after the initiation of drug courts, from 1,135 filed cases in 1993 (the last full year before the implementation of drug court) to 3,223 in 1996 (the second full year of drug court). (102) According to Judge Morris Hoffman of the Denver criminal court, "The very presence of the drug court, with its significantly increased capacity for processing cases, has caused police to make arrests in, and prosecutors to file, the kinds of ten-and twenty-dollar hand-to-hand drug cases that the system simply would not have bothered with before...." (103) The expansion of cases in the Miami drug court led to one of the few critical media accounts of the movement. Reacting to reports on the Miami drug court's inclusion of serious offenders with long criminal histories, Seminole County Circuit Judge O.H. Eaton, Jr., worried that the program was becoming a "dumping ground"; and a Miami drug court prosecutor compared the expansion of the Miami drug court to a "rubber band that is being stretched and stretched and stretched.... [V]ery soon, it may snap." (104) The net-widening qualities of the drug court involve more than programmatic expansion. Therapeutic jurisprudence also allows the court to extend its authority into the lives of drug court clients in unprecedented ways. Consider a discussion among California drug court judges who sought to amend the California penal code so that drug courts might have authority to randomly search drug court clients and their homes. The proposed amendment called for a "requirement that the defendant submit to a search by a probation officer or peace officer of his or her person, personal effects, automobile or home, any time of the day or night, with or without probable cause." Most judges supported the measure. In fact, several admitted to already employing the practice. The one judge who did object to the amendment was offered the following defense of the practice by another drug court judge: I support a search clause for drug treatment court clients because I think a search clause is therapeutic.... Random [urine] testing keeps clients clean and so will a search clause. It also
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24 enables us to do other interventions such as getting a using partner into couples counseling, anger management, etc. and provid[ing] parenting classes if the home situation is not good. It helps keep participants from associating with the "wrong people" and with being in the "wrong place at the wrong time".... I don't see a search clause as a sanction so much as an additional therapeutic intervention that will help them succeed. Notice that the therapeutic perspective not only justifies random searches of the drug court client's person and home without probable cause; it also allows the court to make judgments regarding persons associated with the drug court client, the result of which may be further judicially sanctioned therapeutic intervention (e.g., parenting and anger management classes). V. CONCLUSION In sum, previous critiques of the rehabilitative ideal are relevant to the drug courts in several respects. As with the formerly dominant rehabilitative ideal, the distinction between punishment and treatment "withers away"; (105) participation in the program is of an indeterminate length; individual constitutional rights are waived, albeit "voluntarily," in order to participate in the program; and the model widens the net of judicial oversight. The difficulties associated with these consequences are often addressed by sidestepping the legal issues and asserting the preeminence of a therapeutic jurisprudence perspective. Though therapeutic jurisprudence scholars and drug court judges contend that therapeutic jurisprudence does not trump traditional goals of criminal justice, the application of therapeutic jurisprudence to the drug court setting illustrates how traditional views of justice are marginalized in practice. Thus, though the previous critiques are still logically salient, it seems they have been artfully handled not so much through forceful refutation as through a culturally inspired altering of the terms of debate--a process that portends the eventual dissolution of traditional conceptions of justice. In closing, I wish to take up one final critique of the rehabilitative ideal which, unlike those reviewed above, may not so fully apply to the drug court model. This final issue was anticipated by C.S. Lewis, "an early and forceful proponent of the liberal critique." (106) [O]nly the psychotherapist can tell us what is likely to cure. It will be in vain for the rest of us, speaking simply as men, to say, "but this punishment is hideously unjust, hideously disproportionate to the criminal's deserts." The experts with
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25 perfect logic will reply, "[Blur nobody was talking about deserts. No one was talking about punishment in your archaic vindictive sense of the word. Here are the statistics proving that this treatment deters. Here are the statistics proving that this treatment cures. What is your trouble?" (107) Lewis raises two important points. First, he notes that rehabilitative justice is defended on the basis of program efficacy. Francis Allen similarly identified this tendency as one of the most corrosive features of rehabilitative practices in criminal law. He wrote of the "devastating ... practice of rehabilitationists to seek public support of their agenda by promising savings to taxpayers." (108) Utilitarian concerns have likewise been a consistent justificatory theme legitimizing various forms of drug social control throughout the twentieth century, including most recently the drug court movement. Indeed, drug courts are regularly defended on the grounds of program efficacy and fiscal utility. (109) While the claims of efficacy have proven somewhat dubious, (110) to enter into a debate about whether drug courts are or are not efficacious is to ignore the larger and more important question, which is: What effect does a preoccupation with efficacy have on the meaning of justice? Few, if any, would support a policy of capital punishment for drug offenders. Yet such a policy could conceivably be justified on utilitarian grounds. Such a policy would eliminate all rehabilitation and correctional costs to the taxpayer and it would produce a zero percent recidivism rate. In spite of these utilitarian outcomes, such a policy would be, of course, highly problematic. But it would be so from the standpoint of justice--i.e., because application of the death penalty in such circumstances would not be proportional to the offense. In this light, defenders of classical conceptions of justice might reasonably worry that the continued spread of therapeutic jurisprudence will make less plausible arguments against certain practices that, though less egregious than the example provided here, may be similarly unjust. Consider finally the second point raised by Lewis, namely, the presence, authority, and expertise in the legal setting of those who represent the psychological paradigm. Lewis criticized a legal situation where "only the psychotherapists can tell us what is likely to cure." He anticipated difficulties with objecting to therapeutically justified sanctions because they are classified as "'treatment,' not punishment," and can therefore "be criticized only by fellow experts on technical grounds, never by men as men and on grounds of justice." (111) This was a major concern of other critics of the
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26 rehabilitative ideal, who saw previous forms of rehabilitative justice as providing therapeutic experts greater authority based on their possession of a particular kind of knowledge. Treatment providers certainly play a vital role in the drug courts and other problem-solving courts. Judges regularly employ their services and take their advice in determining how to handle clients. This is an important feature of problem-solving courts and an unprecedented judicial development. However, it is only a small part of a much larger story. More significant than the new role of the therapeutic practitioners in the courtroom is the overall transformation of the adjudicative setting according to the therapeutic paradigm. The roles of all actors in the courtroom drama are being reshaped in accordance with therapeutic themes. As a result, the exercise of power on the basis of specialized therapeutic knowledge is no longer limited to the counselor; instead, it is now available to all actors in the drug court, including the clients. (112) Therefore, while Lewis's skepticism concerning the exclusive and power-granting expertise of the psychotherapist may not be applicable to the contemporary drug court model, his concern regarding the declining salience of protests based "on the grounds of justice" is still a very crucial point. Indeed, in the emerging era of therapeutic jurisprudence, objections rooted in traditional conceptions of justice may be even more difficult to make. Given the cultural dominance of the therapeutic idiom and its widespread accessibility, objections based on classical conceptions of justice become less tenable. Put another way, it is not that arguments based upon justice are refused and ignored by the "experts." Rather, increasingly no one thinks to offer protests on these grounds. They make no sense in a culture and legal world influenced by a therapeutic perspective. Once justice can be plausibly spoken of as "just treatment," any objections based on "just desert" become meaningless. While the pressures on the legal system are undeniably real, and the desire to solve social problems certainly laudable, agents of legal change would do well to understand the substance of the ideological systems they are adopting and the consequences these ideas may have on the meaning and practice of justice. James L. Nolan, Jr., Associate Professor of Sociology, Chair, Dept. of Anthropology and Sociology, Williams College.
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27 Endnotes (1.) See generally MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS HELPING PROFESSION 465 (Dennis P. Stolle, et al. eds., 2000); Arie Freiberg, Problem Solving Courts: Innovative Solutions to Intractable Problems?, 11 J. JUDICIAL ADMINISTRATION 8 (2001). (2.) Parts of this article are derived from revised versions of material in, James L. Nolan, Jr., Preface to DRUG COURTS: IN THEORY AND IN PRACTICE, at vii-xiv (James L. Nolan, Jr. ed., 2002); JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 185-208 (2001). Unless indicated otherwise, all quotes from judges and other drug court practitioners are from the author's ethnographic research conducted between 1994 and 1998. See id. at 11-13 for a full description of research methods. (3.) Daicoff, supra note 1, at 466 & note 8; see also Freiberg, supra note 1, at 9 (arguing that the need for new legal approaches has resulted, in part, from "a breakdown in traditional social and community institutions which have supported individuals in the past"). (4.) David Rottman & Pamela Casey, Therapeutic Jurisprudence and the Emergence of Problem-Solving Courts, NAT'L INST. JUST. J. 13, 13 (1999) (tracing the development of the new problem-solving model). (5.) Id.; see also Greg Berman, What is a Traditional Judge Anyway? Problem Solving in the State Courts, 84 JUDICATURE 78, 80 (2000) (comments of Judge Judith S. Kaye) (offering the perspective of a judge on "the breakdown of the family and of other traditional safety nets"). (6.) See Jeffrey A. Butts, Introduction: Problem-Solving Courts, 23 L. & POL'Y 121, 121 (2001) ("Drug courts are the most visible type of problem-solving court."). (7.) Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer, 23 L. & POLICY 125, 126 (2001). Freiberg similarly notes, "The genesis of modern problemsolving courts can be found in the first drug court experiment in Dade County Florida in 1989." Freiberg, supra note 1, at 12. (8.) Arthur Santana, Behavioral Advice From the Bench: D.C. Court Swaps Jail Time for Life Changes in Misdemeanors, WASH. POST, Dec. 2, 2002, at A10. (9.) BUREAU OF JUSTICE ASSISTANCE, COMMUNITY COURTS: AN EVOLVING MODEL 9 (2000). (10.) Berman & Feinblatt, supra note 7, at 127. (11.) Arie Freiberg, Specialised Courts and Sentencing 5 (2002) (unpublished manuscript, presented at Probation and Community Corrections: Making the Community Safer Conference, convened by the Australian Inst. of Criminology, and the Probation and Cmty. Corr. Officers' Ass'n. Inc.), available at http://www.aic.gov.au/ conferences/probation (last visited Nov. 20, 2003). 12. Freiberg, supra note 1, at 16. (13.) Wendy N. Davis, Special Problems for Specialty Courts, 89 A.B.A.J. 32, 37 (2003). (14.) Id. (15.) Freiberg, Specialised Courts and Sentencing, supra note 11, at 4. (16.) Freiberg, supra note 1, at 18. (17.) Carrie J. Petrucci, Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence, 38 CRIM. L. BULL. 268 (2002).
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28 (18.) Center for Court Innovation, Problem-Solving Courts: Chronology, at http://www.problem-solvingcourts. org (last visited Nov. 20, 2003). (19.) Petrucci, supra note 17, at 288. (20.) Berman, supra note 5, at 78. (21.) Id. at 85 (comments of John Goldkamp). (22.) As Arie Freiberg notes, "the overlay of a philosophical basis on the problemoriented court model came with the development of the concept of 'therapeutic jurisprudence.'" Freiberg, supra note 1, at 11. Rottman and Casey likewise observe: Various approaches are being tested across the country following a variety of principles, including those of therapeutic jurisprudence, which explore the role of the law in fostering therapeutic or antitherapeutic outcomes.... Restorative justice and community justice are related approaches to problem solving that offer the field of therapeutic jurisprudence potential strategies for achieving therapeutic outcomes. Rottman & Casey, supra note 4, at 13. See also John Feinblatt, et al., Judicial Innovation at the Crossroads: The Future of Problem-Solving Courts, 15 CT. MANAGER 28, 30 (2000). Feinblatt et al. note, "Some observers have looked at these kinds of reforms and applied labels like 'therapeutic jurisprudence' and 'restorative justice' to problem-solving courts. And, in fact, problem-solving courts do draw upon some elements of these philosophies." Id. (23.) Daicoff, supra note 1, at 465. (24.) John Braithwaite, Restorative Justice and Therapeutic Jurisprudence, 38 CRIM. L. BULL. 244 (2002). (25.) Id. at 246. (26.) Id. at 247; see also JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 12 (2002). Here Braithwaite asserts, "[I]t should be forbidden for a restorative justice process to impose a punishment beyond that which would be imposed by the courts for that kind of wrongdoing.... Restorative justice processes should be constrained by all the rights that are foundational to liberal legalism." (27.) JOHN BRAITHWAITE & PHILIP PETTIT, NOT JUST DESERTS: A REPUBLICAN THEORY OF CRIMINAL JUSTICE 101-05 (1993). (28.) Andrew Von Hirsch & Andrew Ashworth, Not not Just Deserts: A Response to Braithwaite and Pettit, 12 OXPORD J. LEGAL STUD. 83, 88 (1992). (29.) Braithwaite, supra note 24, at 254. (30.) Id. at 253. (31.) Bruce Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 665 (David B. Wexler & Bruce Winick eds., 1996). (32.) According to Braithwaite, "reintegrative shaming communicates disapproval within a continuum of respect for the offender; the offender is treated as a good person who has done a bad deed." He distinguishes reintegrative shaming from stigmatization, and sees the former a clearly preferable. An "apology" from an offender to a victim, for example, "is a kind of shaming that is morally preferable to stigmatization." Braithwaite, supra note 24, at 257-8. (33.) Bruce Winick, Remarks at the Western Michigan University Forum (April 13, 2000) (videotape on file with author). 34. Id. (35.) Braithwaite, supra note 24, at 247. (36.) Id. at 244. (37.) The article's findings, therefore, axe particularly relevant to drug courts, and are only applicable to the functions and consequences of other problem-solving courts (which can differ considerably from drug courts) in a more limited manner. (38.) S. REP. No. 98-225, at 50 (1983), reprinted in 1983 U.S.C.C.A.N. 3250.
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29 (39.) Keri A. Gould, Turning Rat and Doing Time for Uncharged, Dismissed or Acquitted Crimes, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 189-90 (David B. Wexler & Bruce Winick eds., 1996). (40.) Id. at 190. (41.) Id. at 181. (42.) Id. at 200. (43.) Id. at 197. (44.) Id. at 190. (45.) Id. at 178. (46.) See Judge Sheila M. Murphy, Therapeutic Jurisprudence: Its Time Has Come, TRIAL JUDGES NEWS, Winter 1997/1998, at 3. (47.) Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement." Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, 74 NOTRE DAME L. REV. 439, 441 (1999). Elsewhere Hora and Schma write that after developing "simultaneously but independently," it was eventually discovered that "they were not only compatible but natural companions." Peggy Fulton Hora & William G. Schma, Therapeutic Jurisprudence, 82 JUDICATURE 8, 10 (1998). (48.) Hora et al., supra note 47, at 537. (49.) It was, for example, purchased by the National Drug Court Institute and sent to all members of the NADCP. The cover letter for this mailing presented the article as a "seminal" work and "'an important contribution to the developing drug court literature." (50.) See, e.g., Daicoff, supra note 1, at 467, 483; John Terrence A. Rosenthal, Therapeutic Jurisprudence and Drug Courts: Integrating Law and Science, in DRUG COURTS: IN THEORY AND IN PRACTICE 145, 71 (James L. Nolan, Jr. ed., 2002); David Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 237, 237 (Dennis P. Stolle et al. eds., 2000); David Wexler, Therapeutic Jurisprudence and the Culture of Critique, in PRACTICING THERAPEUTIC JURISPRUDENCE 449, 462 (Dennis P. Stolle et al. eds., 2000). (51.) John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 686 (1996). (52.) See NOLAN, REINVENTING JUSTICE, supra note 2; JAMES L. NOLAN, JR., THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END (1998). (53.) Berman, supra note 5, at 83 (comments of William Nelson). (54.) See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FARRA AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52. (55.) Berman, supra note 5, at 83 (comments of William Nelson).
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30 (56.) Hora et al., supra note 47, at 449. In his assessment of the Baltimore drug court. William McColl notes the same of drug court practitioners. According to McColl, drug court "reform efforts are not guided by theory." Rather, "[p]ractitioners in [drug courts] are guided by what they perceive to be working and they discard what does not work." William McColl, Comment, Baltimore City's Drug Treatment Court: Theory and Practice in an Emerging Field, 55 MD. L. REV. 467,500 (1996). In spite of the lack of guiding theory among drug court practitioners in the early years of the movement, McColl does note that there were "certain underlying beliefs" that informed the drug court movement. And these, according to McColl were primarily therapeutic or medical rather than legal in focus. Id. at 469, 500. (57.) Hora et al., supra note 47, at 448. Also, McColl, though apparently not aware of therapeutic jurisprudence theory, as such, essentially arrives at the same conclusion. He observes that, "more than any other court, [drug courts] are the epitome of a therapeutic or medical approach to crime." See McColl, supra note 56, at 501. (59.) David B. Wexler & Bruce Winick, LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE xvii (David B. Wexler & Bruce Winick eds., 1996). (60.) See generally FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE, A REPORT ON CRIME AND PUNISHMENT IN AMERICA (1971); NORVAL MORRIS & GORDON HAWKINS. LETTER TO THE PRESIDENT ON CRIME CONTROL (1977); ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977). (61.) See NOLAN, REINVENTING JUSTICE, supra note 2, 155-84. (62.) John Feinblatt & Derek Denckla, What Does It Mean To Be a Good Lawyer?: Prosecutors, Defenders, and Problem-Solving Courts, 84 JUDICATURE 206, 214 (2001) (comments of John Stuart). (63.) Berman, supra note 65 at 85 (comments of Richard Cappalli). (64.) Davis, supra note 13, at 37. (65.) Richard Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L.Q. 1205, 1216 0998). (66.) McColl, supra note 56, at 503. (67.) See Nolan, supra note 2, at 51-57. (68.) Hora et al., supra note 47, at 522. (69.) Id. at 523. (70.) Id. (71.) Id. (72.) Sally Satel, Observational Study of Courtroom Dynamics in Selected Drug Courts, 1 NAT'L. DRUG COURT INST. REV. 43, 52 (1998). (73.) Hora et al., supra note 47, at 523. (74.) AMERICAN FRIENDS SERVICE COMMITTEE, supra note 60, at 147. (75.) ALLEN, supra note 60, at 51. (76.) Hora et al., supra note 47, at 470. (77.) Id. at 523. (78.) Id. (79.) Hora and Schma also state, "The defense counsel should view the DTC process as the best method for 'ending the cycle of drugs and crime [which] is in the best interest[s] of the client.'" Hora & Schma, supra note 47, at 523. (80.) Richard Boldt, for example, observes that "variation in outcomes is entirely consistent with the design of modern drug treatment courts, which tend to link decisions regarding the imposition of incarcerative sentences and length of supervision to the performance of offenders in treatment." noldt, supra note 65, at 1932. (81.) McColl, supra 56, at 497.
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31 (82). Hora et al., supra note 47, at 469. (83.) Id. at 518. (84.) "As in other indeterminate sentencing situations, it is a peculiar phenomenon that the time for treatment can be far longer than the jail sentence normally given." McColl, supra note 56, at 503. (85.) Id. (86.) DAVID ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA 232 (1980). (87.) Boldt, supra note 65, at 1255. (88.) See NOLAN, REINVENTING JUSTICE, supra note 2, at 199. (89.) Hora et al., supra note 47, at 521. (90.) Id. at 513. (91.) NOLAN, REINVENTING JUSTICE, supra note 2, at 200. (92.) Id. (93.) Santana, supra note 8, at A10. (94.) Id. (quoting Judge Noel). (95.) For perhaps the most comprehensive discussion of the efficacy of coerced treatment, see SALLY SATEL, M.D., DRUG TREATMENT: THE CASE FOR COERCION (1999). For other discussions of the issue see Sate1, supra note 72, at 53; McColl, supra note 56, at 476. (96.) DRUG COURTS PROGRAM OFFICE, U.S. DEP'T. OF JUSTICE, DEFINING DRUG COURTS: THE KEY COMPONENTS 9 (1997) (citing R. HUBBARD ET AL., DRUG ABUSE TREATMENT: A NATIONAL STUDY OF EFFECTIVENESS (1989)). (97.) CAROLINE S. COOPER, U.S. DEP'T OF JUSTICE, 1997 DRUG COURT SURVEY REPORT: EXECUTIVE SUMMARY 17 (1997). (98.) Hora et al., supra note 47, at 516. (99. Id. at 515. (100.) Id. at 515-16. (101.) Id. at 516. (102.) Morris Hoffman, The Drug Court Scandal, 78 N.C.L. REV. 1437, 1502 (2000). (103.) Id. at 1503. (104.) Jeff Leen & Don Van Natta, Jr., Drug Court Favored by Felons, THE MIAMI HERALD, Aug. 29, 1994, at 1A, 6-7A. For a discussion of this report in relation to the net-widening effect, see also Hora et al., supra note 47, at 519-20. (105.) This terminology cited in McColl, supra note 56, at 493 (citing BARBARA WOOTTON, CRIME, RESPONSIBILITY, AND PREVENTION 169 (1963)) ("Wootton thus recommended that the distinction between criminal justice and the medical system must 'wither away.'"). (106.) Boldt, supra note 65, at 1241. (107.) Lewis, supra note 58, at 226 (emphasis in original). (108.) ALLEN, supra note 60, at 55. (109.) NOLAN, THE THERAPEUTIC STATE, supra note 52, at 101-103. Richard Boldt likewise observes: "Indeed prominent in all of the public efforts to establish and fund [drug courts] has been the rhetoric of utility and savings promised by an approach designed to clear court dockets and relieve prison overcrowding." Boldt, supra note 65, at 1244. (110.) See NOLAN, REINVENTING JUSTICE, supra note 2, at 127-32. (111.) Lewis, supra note 58, at 229.
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2 Conference Report: New York Cityʼs Criminal Courts: Are We Achieving Justice? Martha Rayner
O
n October 18, 2003, at a conference hosted by the New York County Lawyers' Association and the Fordham University School of Law's Louis Stein Center on Law and Ethics, (1) more than one-hundred professionals, having diverse roles, and from the five boroughs of New York City, came together to identify, evaluate, and begin to solve some of the complex problems firmly embedded in the culture, operations, and practice in our City's Criminal Courts. They came together in an effort to enhance justice in New York City's Criminal Courts. In her welcoming remarks, Judge Juanita Bing-Newton, Chief Administrative Judge of New York City's Criminal Courts, (2) emphasized the extraordinary volume of cases that move through the City's Criminal Courts (3) and stressed the importance of justice in any discussion of the Criminal Court as the Criminal Court is where the "Constitution and the public intersect in a dramatic way."(4) Like Judge Newton, Norman L. Reimer, the day's keynote speaker and president of the New York County Lawyers' Association, (5) stressed the overwhelming number of case filings handled by Criminal Court. (6) It is the Criminal Court that forms the _______________________________________________________ This article was originally published in the Fordham Urban Law Journal as “New York City's Criminal Courts: Are We Achieving Justice?” by Martha Raynor. Fordham Urban Law Journal Vol. 31 (2004). Reprinted by permission
33
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34 impression of justice for tens of thousands of our fellow citizens--the accused, the victimized, and their families and friends. Reimer concluded that "all too often it is not a good impression." (7) Addressing prosecutors, public and private defense attorneys, judges, court clerks and administrators, probation officials, policy makers, members of advocacy organizations, academics, and others, he emphasized "our collective responsibility to do something about this" as the Criminal Courts have both the power to "destroy and to save lives." (8) Reimer urged the participants to aim for "a system with all components working at optimum level so that the process of deciding who deserves what result is as reliable as possible, and to see that the proper outcome is available and administered fairly and competently." (9) The conference planners (10) designed the conference to emphasize the collective responsibility each organization has for enhancing justice in New York City's Criminal Courts. The courts do not function in isolation; they are part of a complex system with components parts that are numerous, varied, and often independent of the court. Police, prosecution, defense, probation, and corrections, to name the most prominent, are all integral to the functioning of Criminal Court, yet traditionally, each component takes responsibility for only its own, circumscribed role within the court system. Thus, for example, the persistent, deplorable lack of attorney-client interview space in the courthouses is primarily relegated to defense organizations to solve, while in fact it is a problem that negatively impacts the entire system and is emblematic of the negative impressions formed by at least one sector of Criminal Court "users:" defendants. The conference challenged participants to move beyond their traditional workplace roles in Criminal Court and reflect thoughtfully on difficult, system-wide problems. Though defined by law as "local" courts, (11) New York City's Criminal Courts are commonly referred to as the lower courts or courts with "inferior jurisdiction." (12) Under New York State's "complex, somewhat unique, and in the opinion of many, antiquated" (13) court structure, New York City's Criminal Courts have preliminary jurisdiction over all offenses (14) and trial jurisdiction over misdemeanors and violations. (15) The Criminal Courts in each borough (16) handle the arraignment for all arrests, from subway fare evasion, and the subsequent adjudication of all non-indicted felonies, misdemeanors, and violations. (17) As a result of changes in policing policies, the number of misdemeanor arraignments increased more than sixty percent from 1992 to 2002. (18) In 1993, New York City implemented a policing
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35 strategy that emphasized maintenance of public order, a policy now commonly referred to as quality-of-life policing. (19) The policy mandated zero tolerance for minor misdemeanor crimes (so-called "quality-of-life crimes") and targeted offenses such as turnstile jumping, public drinking, and panhandling. (20) As a result, the number of misdemeanor cases flowing into Criminal Court increased dramatically. (21) At the same time, the number of felony cases decreased significantly. (22) Thus, the Criminal Court caseload has greatly increased with misdemeanor cases accounting for a much higher percentage of the caseload. (23) In 2002, the Criminal Courts handled 327,592 felony and misdemeanor arraignments and the resulting misdemeanor caseload. (24) These massive Criminal Court caseloads present an immense challenge to the achievement of justice. The charge of excessive caseloads has been long leveled at the Criminal Courts. In 1983, the Criminal Courts Committee of the Association of the Bar of the City of New York described the City's Criminal Court as "a system out of control--a crowded, heavily timepressured, continually depressing market place in which the need simply to dispose of cases has overshadowed everything else, and in which it has almost never been possible to use real care in separating out the innocent and imposing sensible penalties on the guilty." (25) In 1989, the Office of Court Administration, in its Annual Report, wrote that the "effect of the incredible caseload pressure in New York City Criminal Court is profoundly troubling." (26) Just over ten years ago, referring to New York City's Criminal Court, a prominent legal ethicist, Harry I. Subin, concluded that the Court was "[h]opelessly awash in a sea of cases" and "unable to administer justice." (27) Presently, the State's Chief Judge has expressed concern about the significant backlogs caused by quality-of-life policing. (28) At the core of this decades-long hue and cry over caseloads is a concern for justice--for individualized justice--and a fear that massive caseloads unacceptably compromise the opportunity for that individualized justice. Implicit in the criticism is the acknowledgement that as case loads rise, court resources fail to rise commensurately. Thus, the equation is simple. Time is limited and higher numbers result in each professional in the criminal justice system having less time to devote to the people involved in each case, whether it be defendant, victim, complainant, or family members. This, in turn, results in professionals having to place a premium on strategies that increase efficiency rather than justice. The
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36 end result: rote, routinized, and perfunctory treatment of people and processing of matters important to defendants, victims, their families, and the public. Yet, individualized justice is a core principle of due process and of our criminal justice system. (29) Judges are required to impose sentences based on individualized assessments of each case. (30) This is also central to the prosecutor's role: "[T]he capacity of prosecutorial discretion to provide individualized justice is 'firmly entrenched in American law." (31) The broad discretion given to prosecutors in deciding who to charge and what to charge allows for individualized justice. (32) And criminal defense attorneys certainly must represent the individual interests of each, client? (33) As to public perception, the terms used to describe that which is antithetical to individual justice--assembly-line justice, wholesale justice--are inherently pejorative and inimical to our system of justice. There is deemed to be a baseline unfairness in a system that does not treat each case individually, thereby undermining public faith in the system's effectiveness. (34) It may be that rapid, efficient case processing is endemic to a system that hears "minor" criminal cases. However, "[t]here will always be too many cases for many of the participants in the system since most of them have a strong interest in being some place other than in court." (35) And this includes defendants who find that the cost, including numerous court appearances, of litigating a criminal case in New York City is simply too high? (36) The traditional attitude that misdemeanors are low-stakes Cases (37) favors a system that values rapid, efficient case processing. After all, thirty percent of misdemeanor cases will result in an Adjournment in Contemplation of Dismissal? (38) In addition, most defendants will not serve additional jail time beyond the twenty-four hour arrest-to-arraignment time. (39) Moreover, it is arguable that the problem-solving courts that have proliferated in New York City in recent years siphon off the case types, such as domestic violence, most in need of individual attention. (40) In considering the calculus between stakes and the individualized attention required on the part of prosecutors, defense attorneys and judges, the growing number of collateral consequences for misdemeanor arrests and convictions must be considered. Collateral consequences have, beginning in the mid-1980s, grown in number and severity, and have continued to impact more and more people as the number of arrests and criminal convictions rose. (41) The consequences of a criminal conviction that in the past were almost exclusively limited to the criminal court sanction now have
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37 the potential to lead to devastating civil consequences, wholly outside the control of criminal court. For example, in 1996 and 1998, Congress passed two laws that gave discretion to local public housing agencies to deny eligibility to anyone with a criminal background. (42) In New York, a person convicted of a simple disorderly conduct violation is presumptively ineligible for public housing for two years. (43) In 1998, Congress passed the Higher Education Act that suspends eligibility for federal student loans, grants, or work assistance to students convicted of a drug-related offense. (44) This includes a conviction for a marijuana violation, a common plea bargain offered by the prosecution and accepted by defendants in the many misdemeanor marijuana cases that are adjudicated in Criminal Court. (45) In New York, pursuant to federal law,(46) a person's driver license is automatically suspended for six months upon a conviction of any drug offense, including misdemeanor marijuana possession. (47) In addition, the impact of misdemeanor convictions on traditional collateral consequences such as immigration has become more severe since passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. (48) There is great tension in a criminal court system premised on the ideal of individualized justice that so often simply does not deliver. Whether because of intense volume or the perceived low stakes of misdemeanor cases, Criminal Court and all its contributing players, including the District Attorney and Public Defender offices, have developed policies and practices that value case processing over justice. There is great value in working hard to describe accurately the policies and practices that have developed, some consciously and thoughtfully designed and others patched together haphazardly, and then to evaluate how these policies and practices hinder or further the ideal of individualized justice. The Criminal Courts Conference was a first step in such a process of analysis. The conference planners focused on five problems that have undermined the pursuit of justice in New York City's Criminal Court system for decades. The first group, Arraignment Norms, Practices and Culture, targeted professionalism and justice at the first and often last court appearance for people arrested and charged with misdemeanor crimes in New York City. The second group focused on the collateral consequences of misdemeanor arrests and convictions, as well as the specialized and problem-solving courts becoming prevalent in the Criminal Courts. The third group, The Impact of Criminal Court on the Marginalized Person Who "Use" the System, took on the highly charged, but fundamentally important,
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38 issue of the intersection of race and New York City's Criminal Courts. The fourth group examined the post-arraignment processing of cases, and the fifth group explored standards, evaluation and monitoring of the many professionals who participate in the functioning of Criminal Court. (49) The conference was to be a first step in a longer term endeavor to improve New York City's Criminal Courts. The New York County Lawyers Association is currently in the process of forming a Criminal Courts Task Force to follow up on the discussions and creative ideas that came out of the conference, to work more closely with Court Administration to explore what can be accomplished, and most importantly, to serve as a facilitator for greater communication between the Courts and those who "use" and practice in them. An executive summary and list of conference participants follows. Detailed reports from each of the five working group are attached as addenda.
I. EXECUTIVE SUMMARY A. Volume and Speed All of the working groups discussed the workload of the criminal court. So many cases are processed and at such rapid speed that there is a lack of individualized attention to cases and a risk of premature and inaccurate disposition. Several recommendations resulted, although not all the participants agreed on the best way to implement the recommendations. 1. Reduce the number of cases processed in the Criminal Court, possibly by issuing more Desk Appearance Tickets (50); declining prosecution; or diverting cases into alternative fora. 2. Add resources to the Criminal Court, to allow professionals to pay more attention to each case. This could be achieved by opening more courts or by reallocating resources between Criminal and Supreme Court on the basis of caseloads rather than status, as has been recently proposed by Chief Judge Kaye. (51) 3. Do not assign Civil Court judges, who are unfamiliar with criminal law and procedure, to arraignments B. Lack of Information Communicated to the Accused, Witnesses, and Victims The potential collateral consequences of a criminal court conviction are significant. Convicted persons may be deported, evicted, or prevented from obtaining licenses and loans. Sentencing in criminal court is more complex than it appears. Convictions may require the payment of fines and fees. Individuals who do not pay may be re-
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39 arrested and jailed. When payment is deferred by the entry of judgment, individuals may unknowingly damage their credit rating. 1. Devise ways to ensure that individuals convicted of offenses and crimes understand fully the ramifications of a plea of guilty. Defense attorneys should learn more about the collateral consequences of convictions and counsel their clients accordingly. Courts could shoulder responsibility for informing the individuals who appear before them. Courts could also experiment with informational leaflets, film clips, and kiosks that could inform arrestees, even before they are arraigned, about what happens in criminal court, potential sentences and alternatives to incarceration. 2. Devise mechanism to keep all professionals who work in the system informed about relevant developments. C. Facilities Every group discussed the deplorable physical condition of the criminal courts, which were described as filthy and infested with vermin. These conditions are unpleasant for the people who work in the court, foster unprofessional attitudes towards work, and, perhaps even more importantly, negatively impact the public. There is little or no case conferencing space for defense attorneys to conference with their clients, for prosecutors to prepare witnesses, or for lawyers to have privacy and quiet to thoughtfully discuss case resolution. Judges complained that in some courthouses, they lack personal chambers. 1. Clean the courts. 2. Include the perspective of the people who work in the courts when planning new facilities. 3. Create private interview space for lawyers to meet with defendants, witnesses and each other. 4. Encourage professional and courteous behavior by court professionals who interact with the public. Disrespect and unprofessional treatment by court personnel and lawyers toward defendants and their families was identified as a dehumanizing aspect of Criminal Court. Group Three in particular recommended training for lawyers and court personnel, as well as a well-publicized complaint process. D. Calendar Control Cases move through the courts at a maddeningly slow pace. The accused often plead guilty because they are tired of missing days of work, and not because they have, in fact, committed a crime. The discovery process is ponderous.
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40 1. Experiment with excusing defendants from some court appearances. A reporting part could permit defendants to check in with the court, maintaining court control over the accused, yet granting those individuals some flexibility in their work, childcare and education obligations. 2. Experiment with a night court session. 3. Experiment with a split calendar. Designating morning and afternoon appearance times may alleviate the delays that result from all cases being calendared first thing in the morning but not heard until much later in the day. 4. Re-think discovery practice. Lack of investigation and refusal to disclose the results of investigation slow the process and result in miscarriages of justice. 5. Experiment with alternatives to the current, almost exclusive, use of cash bail. E. Information Sharing All conference participants expressed frustration with the lack of ability to control their workload. Public safety strategies are implemented without discussing the impact any given strategy might have on the courts. When the police implement a new strategy and decide to target a specific criminal element for arrest, that decision immediately impacts the Criminal Court, without warning to its contributing organizations. 1. Re-establish a regular schedule of meetings to share information and ideas. Members of Group One in particular recalled a series of meetings among representatives of the component organizations working in Criminal Court that succeeded in reducing the time between arrests and arraignment. The group endorsed the idea of resuming a regular meeting schedule to meet ongoing challenges and to foster cooperation and coordination among the many stakeholders in the criminal justice system. 2. Create a mechanism for influencing, or at least hearing about policing decisions. 3. Create a mechanism for influencing legislative decisions. F. Status Group Four, in particular, recognized that Criminal Court is not just "lower" to Supreme Court jurisdictionally, but in many other aspects as well. The group was concerned that the lower pay and status awarded to Criminal Court professionals creates the impression that the work of the criminal courts is unimportant and inferior. Thus many Criminal Court judges seek promotion to Supreme Court as
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41 quickly as possible to achieve improved working conditions, status and perquisites. This attitude is reflected in District Attorney and public defender offices, where new lawyers "cut their teeth" on misdemeanor cases in preparation for the glory of prosecuting and defending felonies. Even the police departments relegate criminal court matters to the back burner. Prosecutors have trouble obtaining police offices as witnesses in misdemeanors. The overall effect is to "de-professionalize" the criminal court. G. Standards, Evaluation and Monitoring Members of Group Five believe that standards could: 1) measure and improve the satisfaction of community members who use the court; 2) ensure efficient use of resources; 3) facilitate better communication among the various groups that interact in the criminal court; and 4) more efficiently use the Criminal Court buildings. Participants: Working Group #1: Arraignment Norms, Practices and Culture Facilitator: Michael Pinard, Assistant Professor of Law, University of Maryland Law School Participants: Michael Bachrach, Esq., Richard, Ware & Levitt; Llinet Beltre, Staff Attorney, Legal Aid Society, Criminal Defense Division, Bronx Hon. John Carter, Judge, Criminal Court, Kings County; Catherine Christian, Director of Legal Training, Office of the Special Narcotics Prosecutor, New York County Michael Coleman, Co-Director, New York County Defender Services Rick Costello, Deputy Chief, Trial Division, The Office of the District Attorney, New York County; Rachel Ferrari, Assistant District Attorney, The Office of the District Attorney, New York County; Peter Kiers, Director, Criminal Justice Agency; Hon. Patricia Henry, Judge, Criminal Court, Kings County; Thomas Litsky, Assistant Solicitor General, Office of the New York State Attorney General; Brian Meagher, Assistant District Attorney, Kings County; Vincent Modica, First Deputy Chief Clerk, Criminal Court, New York County; Diedre Moore, Staff Attorney, Legal Aid Society, Criminal Defense Division, Bronx;
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42 Martha Rayner, Associate Clinical Professor of Law, Fordham Law School; Wayne Saitta, Judge, Criminal Court, Kings County; Susan Tipograph, Law Office of Susan Tipograph; Andrea Umlas, Assistant District Attorney, Office of the District Attorney, Kings County. Reporter: Pat Almonrode, Student, Fordham University School of Law Working Group #2: Resolution of Misdemeanor Cases: Non-Jail Sanctions, Collateral Consequences and Specialized Courts Facilitator: Steve Zeidman, Associate Professor, City University School of Law Participants: Elizabeth Bliss, Bronx Borough Manager, Domestic Violence Police Program, Safe Horizon Toni Bullock Tim Casey, Associate in Law, Columbia University School of Law; Joseph DiFlumeri, Staff Attorney, Legal Aid Society, Criminal Defense Division, Queens; Rhonda Ferdinand, Deputy Chief Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York County; Andrew Hassel, Assistant Deputy Chief Clerk, Kings County; Hon. Diane Kiesel, Judge, Criminal Court, Bronx County; Jerry Lettieri, Assistant District Attorney, Queens County District Attorney's Office; Adam Mansky, Director of Operations, Center for Court Innovation; Carol Morrison, Safe Horizon; Tim Mulligan, Court Operations, CASES; Julie Ryan Hon. Laura Safer-Espinoza, Judge, Criminal Court, Bronx County; Lisa Schreibersdorf, Executive Director, Brooklyn Defender Service; Robin Steinberg, Executive Director, Bronx Defenders. Reporter: Rebecca Cross, Student, Fordham Law School Working Group #3: The Impact of Criminal Court on the Marginalized Persons Who "Use" the System Facilitator: Hon. Cheryl Chambers, Justice of Supreme Court, Kings County Participants: John Brancato, Deputy Bureau Chief, New York County District Attorney's Office; Nahama Broner, PhD, Senior Research Psychologist, Research Triangle Institute International; Daniel Conviser, New York State Assembly, Program Counsel;
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43 Michael Fahey, Esq., Chair, Minorities in the Law Committee, NYCLA; Ronald L. Garnett, Esq., Member, Criminal Justice Section, NYCLA; Maxwell Gould, Staff Attorney, Legal Aid Society, Criminal Defense Division, New York County; K. Babe Howell, Acting Assistant Professor of Law, New York University Law School; Jerome McElroy, Executive Director, Criminal Justice Agency; Leonard Noisette, Executive Director, Neighborhood Defender Service of Harlem; Laura Johnson, Attorney-In-Charge, Criminal Appeals Bureau, Legal Aid Society; Peggy Rodriguez, Supervisor for Witness Aid, Office of the District Attorney, New York County; Jeannette Rucker, Deputy Bureau Chief, Office of the District Attorney, Bronx County; Brian Rudner, Assistant District Attorney, Office of the District Attorney, Bronx County; Irwin Shaw, Attorney-In-Charge, Legal Aid Society, Criminal Defense Division, Manhattan; Hon. Ruth Smith, Judge, Criminal Court, Queens County; Kyeomg-sik Somg, Court Interpreter; Serena Springle, Chief Clerk, Criminal Court, Queens County; Peter Troxler, Assistant District Attorney, Office of the District Attorney, Bronx County; Darrin Wizenberg, Attorney, Legal Aid Society, Criminal Defense Division, Bronx; Reporter: Alison Shilling, Student, Fordham University School of Law Working Group #4: Post-Arraignment Adjudication Facilitator: Ian Weinstein, Professor of Law, Fordham University School of Law Participants: Michael Aronowski, Esq., Battiste, Aronowsky and Suchow; Stanford Bandelli, Esq.; Eric Black, Senior Court Clerk, New York County Criminal Court; Breon Peace, Associate, Cleary, Gottlieb, Steen and Hamilton; Robert Mandelbaum, Law Clerk, Chambers of Hon. Judith S. Kaye; Anne Guttman, Executive Assistant District Attorney, Kings County District Attorney's Office; Larry Fleisher, Esq.; William Knisley, Esq.; Member, Criminal Justice Section, NYCLA;
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44 Janette Jurado, Staff Attorney, Legal Aid Society, Criminal Defense Division, New York County; Scott Leet, Assistant District Attorney, New York County District Attorney's Office; Shari Michels, Assistant District Attorney, New York County District Attorney's Office; Vanessa Merton, Associate Dean for Clinical Education, Pace University School of Law; Jenny Roberts, Acting Assistant Professor of Law, New York University School of Law; Hon. Larry Stephen, Judge, Criminal Court, Bronx County; Hon. Deborah Stevens-Modica, Judge, Criminal Court, Queens County; Richard White, Deputy Commissioner, Department of Probation. Reporter: Gabrielle Ruda, Student, Fordham University School of Law Working Group #5: Standards Evaluation, and Monitoring Facilitator: Meryl Schwartz, Special Counsel, Vera Institute of Justice Participants: Paul Battiste, Esq., Battiste, Aronowsky and Suchow; David Straconi (title/affiliation?) Adele Bernhard, Professor of Law, Pace University School of Law Frank Bress, Professor of Law, New York Law School Miya Bryant (title/affiliation?) Lori Cohen, Esq., Cohen and Funk Robert Crotty, Esq., Kelley Brye and Warren; Mary Farrington, Supervising Appellate Counsel, New York County District Attorney's Office Danielle Follet, Attorney, Legal Aid Society, Criminal Defense Division, Bronx County Andrew Hassell, Assistant Deputy Chief Clerk, Criminal Court, Kings County; Robert Hanophy, Deputy Bureau Chief, Queens County District Attorney's Office; Barry Kamins, Esq., Flamhaft, Levy, Kamins, Hirsch and Rendeiro, LLP Tom Klein, Attorney, Legal Aid Society, Criminal Defense Division, New York County Kevin Pogue, Director of Training, New York County District Attorney's Office Vinnie Revellese, Law Clerk, Chambers of Hon. William C. Donnino Reporter: Dana Irvis, Student, Fordham University School of Law
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45
II. WORKING GROUP REPORTS REPORT Arraignment Norms, Practices, and Culture Working Group One CHARGE: This working group was charged with making recommendations to improve misdemeanor arraignment practice. For many defendants charged with misdemeanors, arraignments will be the first and last court appearance; the vast majority of cases will be resolved at this stage. Yet, the outcome of this rapid first court appearance can have significant and lasting consequences for defendants as well as victims and complainants. And for those cases that are not resolved, judges' bail decisions can have equally significant consequences. The planning group recognized that this stage in the adjudication of misdemeanor cases in New York City's Criminal Courts is critical. Significant increases in the number of misdemeanor cases and changes in the kinds of cases arraigned over the last decade prompted the planning committee to identify important issues. Case volume increased considerably over the last decade. (52) Most of that increase is accounted for by a steep rise in misdemeanor arrests. (53) Felony cases now make up less than twenty percent of the caseload flowing into arraignments, while they accounted for half in 1989. (54) These changes have required all components of the court system to devote considerable attention to decreasing and monitoring the time from arrest to when the defendant comes before the court for arraignment, which has resulted in a generally efficient and timely arrest to arraignment system. (55) In addition, more cases are being resolved in arraignments, (56) and the number of routine, low-level offenses such as subway fare evasion, trespass and possession of marijuana has increased. (57) The result is greater volume of misdemeanor arraignments, highly increased repetition in the kinds of misdemeanors being arraigned, and rapid case processing. These significant changes prompted the planning committee to identify important concerns. How does high volume, repetition of case type and speedy processing impact on professionalism and justice? Does it pressure Criminal Court professionals to approach arraignment practice formulaically, resulting in decreased individualized justice? Is there sufficient information concerning the facts of the charges, the defendants, and the victims to mete out
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46 individualized justice--to make fair and just bail and dispositional decisions? Can truth, guilt, or non-guilt be considered at arraignments when everyone has limited information? Should there be such a high rate of dispositions at arraignments when there is limited information about the accusations and the defendants? Are prosecutors, defense attorneys, and judges meeting their ethical obligations in arraignments? Are the resources available at the arraignment stage conducive or detrimental to quality practice? REPORT: This working group agreed that arraignment practice is very difficult for all involved. High volume, inadequate facilities, and minimal information about individual cases and defendants create unprofessional working conditions that challenge professionals to mete out some semblance of justice. Volume was cited as a primary problem in arraignment practice, and the group was concerned that volume led to a lack of information about individual cases and the premature disposition of cases in some instances. It was noted by the group that the court, prosecutors, and public defenders have no control over intake because arrest volume is determined by policing policies. The group spent time considering alternatives to processing arrestees through the Criminal Courts, such as increased reliance on Desk Appearance Tickets (58) or "outsourcing" certain categories of cases to community or more locally based courts. The group did not reach consensus on these issues, however. There was agreement that prosecutors, defense attorneys, and judges would benefit from having more information about the charges and defendants at arraignments. The group acknowledged that the criminal courts are recipients of summary arrests in which investigation, if it happens at all, will occur much later than the arraignment stage. However, the group recognized the difficulty of gathering more information without increasing the arrest to arraignment time. As a result, there is a strong tension between efficiency and sound decision making. There was agreement that some case types, such as domestic violence offenses, required all involved to have more information at the first court appearance. Without reaching any conclusions, the group discussed the possibility of having domestic violence specialists in arraignment parts. There was strong disagreement as to whether any case and what case type could ever be resolved at arraignments based on the limited information that is currently available to the defense, prosecution, and judges.
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47 The group discussed but came to no consensus regarding the amount of information necessary to dispense justice in criminal court arraignments. Defense attorneys suggested, however, that providing an opportunity to interview clients earlier than immediately before arraignment, as is the current practice, would give defense attorneys time to investigate and pursue other sources of information, and thus allow for more informed counseling and the possibility of bringing more knowledge to the arraignment appearance. The lack of information available at the arraignment appearance includes a dearth of awareness about the various collateral consequences that can attach to misdemeanor convictions. Some in the group noted that, given the swiftness of the arraignment process, the system does not focus on alerting defendants to the various collateral consequences--most notably potential deportation consequences--that can attach to guilty pleas. The group easily agreed that the physical conditions of the criminal courtrooms in New York City are woefully inadequate. Lack of cleanliness and the presence of vermin were noted. In addition, everyone agreed that the attorney-client interview spaces provided in the arraignment parts of the Criminal Courts are deplorable. Again, the lack of cleanliness and vermin were mentioned as serious problems, as well as a lack of privacy, adequate lighting and sufficient interview spaces. Defense attorneys noted that they designated their worst suits for arraignments since the conditions are so foul. The group was concerned about the practice of assigning Civil Court judges to arraignments during certain shifts. There was strong consensus that reliance on Civil Court judges to preside at arraignments is problematic and impractical. Lack of experience and knowledge of the Penal Law and Criminal Procedure Law by Civil Court judges resulted in inappropriate decision making and the inefficient use of court time. The group recommended that if reliance on Civil Court judges must continue, there should be increased training. Concern was expressed by some members of the group about the lack of decision-making discretion exercised by Assistant District Attorneys assigned to arraignment parts, who are usually new lawyers and inexperienced prosecutors. The group discussed a proposal to regularly include senior Assistant District Attorneys to work arraignment shifts. Inclusion of senior prosecutors in arraignments would lead to a greater use of discretion on the part of the prosecutor and more individualized bail and dispositional results.
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48 The group noted the inequitable effect of bail on those who simply cannot afford bail. There was concern that defendants unable to post bail usually pleaded guilty rather than pursue litigation because this option resulted in less time in jail. The group, however, recognized this issue was not easily resolved. The group recommended that the future task force explore the feasibility of the increased use of non-traditional, though statutorily based, bail options, such as secured and unsecured bonds. (59) In addition, the group discussed investigating bail diversion programs and supervised release programs that operate in other states. There was a consensus that judges' bail decisions in misdemeanor cases are widely disparate. Everyone was concerned about this reality, but the group did not reach consensus on a solution; while consistency was appealing, there was resistance to reforms that would require uniformity and thus reduce judicial discretion. There was agreement that many of the issues discussed during this day long conference required further study and thought. Members of the group noted that there is fragmentation in the arrest to arraignment process and many of the institutional stakeholders are unaware of the restrictions and burdens each faces in fulfilling their obligations to the system as well as the individual interests they represent such as defendants, victims and the public in general. Some members of the group noted that in the past there had been on-going meetings among the institutional stakeholders for the purpose of reducing the arrest to arraignment time, and progress was achieved. The group endorsed the idea of resuming these sorts of meetings to take up the many issues being discussed by this group, since like arrest to arraignment time, they require thoughtful consideration by all involved in the arraignment process. REPORT Resolution of Misdemeanor Cases: Non-Jail Sanctions, Collateral Consequences, and Specialized Courts Working Group Two CHARGE: 1. Non-Jail Sanctions and Collateral Consequences Most professionals practicing in New York City's Criminal Courts are expert and facile in the law and actual outcome of misdemeanor jail sentences. As to non-jail sentences and the collateral sanctions resulting from contact with the criminal justice system, however, there is less awareness and expertise. The majority of misdemeanor
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49 case dispositions will not result in additional jail beyond the approximately twenty-four hours of detention between arrest and arraignment, and many misdemeanor cases will result in a noncriminal disposition. (60) Defenders, prosecutors, judges, policy makers, and administrators, however, are not adequately considering significant consequences for many defendants. In addition, with the increase in misdemeanor arrests over the last decade, the number of people with misdemeanor criminal convictions has increased, and the conviction rate for those without criminal records has increased fifty percent, from 23,445 in 1989 to 36,262 in 1998. (61) This working group was asked to consider the following issues: What are the consequences of criminal and non-criminal convictions in Criminal Court--from collateral civil actions to the retention of information on certain government databases? Does the Criminal Court system of adjudicating misdemeanors, as we now know it, adequately take into account collateral consequences? Who has the responsibility for assuring that collateral consequences are adequately considered when prosecutors, defense attorneys, and judges determine justice in individual case dispositions? Are defense attorneys, judges, and prosecutors sufficiently aware of the burden, effectiveness, and value of probation, community service, and other alternatives to incarceration? 2. Specialized Courts Through specialized domestic violence, mental health and drug treatment parts, Criminal Court has sought to address persistent social problems that result in involvement in the criminal justice system. Though the planning committee recognized that problem solving and specialized courts are complex and multi-dimensional topics that have attracted attention and debate on a national scale, the planners determined that the growing number of New York City Criminal Court parts devoted to specialized practices required this working conference to give the topic attention. Originally, most specialized courts in New York City were in Supreme Court, targeting felony cases. Now, many misdemeanor specialized courts are in operation or planned. (62) These courts offer treatment and intensive supervision during the pendency of the case or as a condition of disposition. The path of cases in specialized
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50 misdemeanor parts are strikingly different than those adjudicated in traditional parts: they last longer, require more frequent appearances, involve different and more stringent bail conditions, and call for rigorous scrutiny of the daily lives of defendants by the court and court personnel. In return, they offer defendants a chance at rehabilitation and an end to revolving door incarcerations. This group considered the effects of specialized misdemeanor courts: Effect on defendants. Are defendants who enter these courts, especially domestic violence parts, presumed to be guilty? Does the specialized treatment itself effectuate a significant punishment? Is the "success rate" of treatment courts properly measured and publicized? Are defendants afforded sufficient due process during the plea, treatment, and monitoring stages? Effect on counsel. What is the role of defense counsel and prosecutors? Is it ethical for defense counsel to not appear during the monitoring phases? Effect on the criminal justice system Do treatment courts drain funds from other courts? Is there an adequate pool of interested and competent judges to preside over the expanding use of treatment courts? Should all court parts include rehabilitation in their approach to misdemeanor sentencing? Effect on complainants and the public in general REPORT: The variety and enforcement of collateral consequences based on arrests (63) and convictions, appear to be increasing. The group identified collateral consequences ranging from civil matters such as deportation, eviction from public housing, disqualification from student loans and welfare benefits, to loss of licensing privileges (as needed to be a taxi driver (64) or security guard (65)), as well as negative impacts on employment status due to excessive absences for court appearances. In addition, the group also included more traditional, but less recognized, collateral consequences of convictions such as mandatory surcharges, payment obligations attached to alternatives to incarceration (66) and sex offender registration. (67) The group agreed that there is tremendous variation in the level of awareness and knowledge by professionals involved in the criminal justice system regarding the variety and actual impact of collateral consequences. The group expressed concern about whether and to what extent defendants are being advised of collateral consequences.
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51 The group noted that collateral consequences can be especially problematic in a system of adjudication that resolves the vast majority of misdemeanor cases early, rapidly, and with a minimum of information. Also noted was that, though many cases are resolved at the arraignment stage, defense counsel has very limited time during arraignments to counsel clients about collateral consequences. Civil collateral consequences can work to undo or undermine rehabilitation goals of a criminal case disposition. In addition, the group recognized that the consequences resulting from misdemeanor arrests and convictions are sometimes never intended nor even contemplated by any of the players involved in resolving the case. Thus the group explored the idea of ceding more control over civil consequences with the Criminal Courts. Could Criminal Court judges be given power to remove the risk of certain collateral consequences? The group did not reach consensus on the issue of from whom and how information about collateral consequences should be conveyed to defendants. Judges and prosecutors encouraged defense counsel to take responsibility for educating defendants about collateral consequences because defense counsel is in the best position to access the potential for consequences. For example, defense counsel is best situated to learn of a defendant's immigration status or future goals that could be impacted by ultimate disposition in a criminal case. The group strongly recommended that all professionals in the criminal justice system become better educated in the variety and actual risks of collateral consequences. The group recognized that public defenders, prosecutors and judges could obtain training through their respective institutions, but noted that attention should be paid to providing training to members of the 18-b panel (68) on the topic. The working group also strongly recommended that empirical research be conducted to determine the actual impact of collateral consequences on misdemeanor defendants. It is difficult to access civil collateral consequences because many civil matters take place months or even years in the future and the risk of actual harm is difficult to access. While anecdotal information is enlightening, all agreed that it would be tremendously helpful to obtain concrete and solid information to assist professionals in predicting the future risk of a collateral consequence.
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52 The group noted the hidden problems associated with the imposition of mandatory surcharges upon defendants convicted of noncriminal and criminal offenses. (69) Since judges can no longer waive the surcharge (70) and many indigent defendants cannot pay the surcharge, defense counsel routinely request that judges enter a civil judgment in lieu of actual payment, and judges routinely do so. (71) The impact of such a civil lien on a person's credit report is unknown. Will such people ever be able to obtain loans? Will increased interest rates be imposed? Again, the group expressed the need for concrete answers as to how this actually affects defendants. For defendants who are required to pay the surcharge and are delinquent in doing so, the group expressed concern about the cost of sending warrant squads to arrest defendants for delinquent payments and the wildly disparate treatment accorded to those returned on such warrants. (72) By engaging in political lobbying, this working group recommended that the criminal justice community become involved before additional civil collateral consequences are legislated and consider becoming involved in advocating for changes in those consequences that are already a matter of law. The group challenged a future task force to explore whether Criminal Court prosecutors, defense attorneys and judges might in fact have areas of agreement allowing the criminal justice community to join forces in lobbying efforts. A. Specialized Courts In general, there was vigorous debate about the specialized misdemeanor parts in New York City's Criminal Courts. The group acknowledged that there is much to be valued in problem solving courts; however, defense attorneys expressed concern with the decrease in hearings and trials that challenge police practices and the merits of the prosecution's case. The group also discussed the parallels between specialized courts and quality of life policing. A consequence of quality of life policing is increased citizen police contact. Specialized courts are similar in that there is a closer connection between courts and defendants, i.e. more court appearances, closer court supervision, and increased obligations on the part of defendants The group recognized the Criminal Courts' specialty parts are separate and distinct from borough to borough and even within boroughs. It is important that monitoring and evaluation of the specialized courts and the related therapeutic programs provide solid information to evaluate the goals and effectiveness of these courts.
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53 REPORT The Impact of Criminal Court on the Marginalized Persons Who "Use" the System Working Group Three CHARGE: The vast majority of the people who "use" New York City's Criminal Courts--from defendants, to witnesses, complainants, and family members--are marginalized people in our society, including racial minorities, immigrants and the economically underprivileged. The connection between race and criminal justice in our nation has been much documented and the connection between race and New York City's Criminal Courts is particularly strong. In 1998, those who were arrested for non-felonies were overwhelming African-American and Latino men. (73) The planning committee recognized that the socio-economic identity of non-felony arrestees in New York City, and therefore the identity of those brought into the Criminal Court system, is largely determined by policing initiatives, patterns, and policies--topics beyond the purview of the conference. The perception that racism and indifference plays a role in creating a Criminal Court system that is "used" almost exclusively by those at the edges of our society, however, could not be ignored by the conference planners. This working group was charged with examining the impact that this reality has on the level of professionalism and quality of work performed in the Criminal Courts. The conference planners asked this working group to consider the following: Does the strong connection between race and non-felony arrests undermine the legitimacy of the criminal justice system in New York City and if so, how has this affected the level of professionalism and quality of work in Criminal Court? Do the culture and norms of arraignment and Criminal Court practice perpetuate the perception of racism and indifference in the criminal justice system? Does Criminal Court exacerbate or perpetuate the marginalization and criminalization of large numbers of men of racial minorities?
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54 How do the practices and culture of Criminal Court deal with cultural, sexual, and racial differences? More specifically, how do we as professionals treat, for example, immigrants, the mentally ill, and those of alternative sexual orientations? How are misdemeanor crimes that are so routinely processed in Criminal Court connected to poverty? How sensitive are we to cultural, sexual, and racial differences? Is there a need to increase diversity among the professionals who work in Criminal Court? If so, how could this be achieved? Do we have sufficient numbers and quality of interpreters in the Criminal Courts? What is the impact on a user of the system who does not speak English? Should professionals working in Criminal Court respond to the perception of racism; if so, how? How can individual instances of racism, sexism or indifference occurring in Criminal Court be reported, considered and addressed? What training do Criminal Court professionals, from court personnel to judges, prosecutors, and defense attorneys, receive in connection with issues of race, class, and gender? Is there a need for training? REPORT: This working group agreed that, though they were not there to discuss New York City's policing policies, they could not wholly ignore the issue since the "users" of Criminal Court are largely determined by non-felony arrest policing policies. The group recommended that the future task force consider addressing the issue of New York City's policing policies and how they impact on the City's Criminal Courts. The group agreed that the "dehumanizing" aspects of the Criminal Court system certainly perpetuate the perception that the criminal justice system is one of racism and indifference. The group recommended paying close attention to these dehumanizing parts of the system. In general, there was agreement that improvement in the overall functioning of the system would go a long way in creating a system better poised to deliver justice. Overwhelming volume was identified as one of the dehumanizing characteristics of the City's Criminal Courts. The
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55 group noted that the sheer number of cases required professionals to value speed and efficiency over individualized justice. The "conveyer belt," "factory-like" operation of the courts means "no one looks up to see the person who is standing there." The group expressed concern that the emphasis on speed can result in the rapid resolution of cases without judges, prosecutors and defense lawyers having enough information. The group noted that with the rise in collateral consequences, the need for careful deliberation and individualized attention is even more necessary. In addition, the group noted that the problems associated with lack of information are exacerbated for defendants who are mentally ill and immigrants who have little familiarity with United States' system of criminal justice. The group discussed allowing earlier and increased discovery in non-felony cases to enhance well-informed decision making, but no consensus was reached. The group agreed that a future task force should explore the issue further. To ameliorate the routine processing of cases and to enhance individualized treatment of non-felony cases, the group recommended that case volume be reduced. The group suggested several ways to reduce volume, such as encouraging prosecutors to decline prosecution in more cases at the early case assessment stage, before charges are filed, and increasing the use of Desk Appearance Tickets, (74) at least in approved categories of non-felony offenses that would be amendable to an Appearance Ticket alternative. Another troubling feature of the Criminal Courts, identified by this group, was the burden on defendants to make numerous mandatory court appearances to resolve cases. Some group members urged system to recognize this burden on defendants and their families. The group noted that the duty of many court appearances results in pressure on defendants to plead guilty to end the court appearances. Some group members recommended that a future task force consider the feasibility of spacing out court appearances over the course of each day rather than requiring all defendants to appear in court at the same time, as is the current practice. The group discussed but did not agree on a greater use of judicial discretion in excusing defendants from calendar calls at which it is clear there would be no resolution of the case. Disrespect and unprofessional treatment by court personnel and lawyers toward defendants and their families was identified as another dehumanizing aspect of Criminal Court. To address this problem the group recommended training for lawyers and court personnel. The group also recommended clearly posting information about how to make
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56 complaints that invited comments about treatment by court personnel. The conditions of confinement and attorney-client interview space for incarcerated defendants were deemed to be yet another dehumanizing aspect of New York City's Criminal Courts. Once again, the group concluded that this communicated disrespect and disregard for the people who must use the facilities. The group agreed that the prevalence of unsanitary courtrooms communicated the same message. As one group member stated: "How can the court be respected if it is not a respectful place for those who use it?" The group agreed that another way to improve the overall atmosphere and functioning of Criminal Court was to increase "users" access to information about the system and how it functions. The Group recommended increased use of technology to provide information to "users" of the system. This working group suggested a future task force explore the current use of bail in misdemeanor cases and how it impacts on economically underprivileged defendants. REPORT Post-Arraignment Adjudication Working Group Four CHARGE: In New York City, misdemeanor cases that are not resolved at arraignment, the first court appearance, are adjourned to later dates and other courtrooms for a variety of purposes: possible disposition, motion practice, obtaining a sufficient accusatory instrument, (75) and even, at times, trial. Many Criminal Court professionals find, however, that these adjournments are in practice the beginning of a post-arraignment process that is a game of endurance--which side can endure the numerous and mostly pointless court appearances-and thus a trivialization of the process. The conference planners posed a number of questions for the working group to consider. Has the endurance game so infected the post-arraignment process that the resolution of cases on individual merits is the exception rather than the rule? Do the numerous court appearances necessary to resolve a misdemeanor case post-arraignment essentially constitute a defendant's punishment? Is the post-arraignment adjudication system meeting the needs of law enforcement, the public and the constitutional guarantees of defendants? How can professionals, invested in the
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57 system, enhance the quality of justice meted out in the postarraignment adjudication of misdemeanors? The conference planners asked this working group to address a host of issues under the broader topics of Facilities and Resources, Ethics, and Volume: A. Facilities and Resources Are there enough courtrooms, judges and attorneys to handle the volume of misdemeanor cases? Is the use of Judicial Hearing Officers an effective use of resources? Is there an inferior status to all professionals working in the Criminal Courts from interpreters to judges? Is the adjudication of misdemeanors less important than the adjudication of felonies? Should the need for "Acting Supreme Court Judges" be reevaluated if justice is truly delayed by volume in Criminal Courts? (76) Are police officers following through on the prosecution of the "quality of life" arrests by responding to prosecutors' requests to appear in court? B. Ethics Is it appropriate to use Criminal Court as a training ground for new attorneys? What impact does the perceived use of less experienced attorneys have on the perception of justice by defendants, juries and complainants? Are prosecutors and defense attorneys carrying inappropriate caseloads? Is this monitored? Should it be, and how? Are misdemeanor cases being investigated and prepared for trial by prosecutors and defense attorneys?
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58 C. Case Volume Has volume eradicated the opportunity for a timely jury trial? Is the routine reduction of charges to B misdemeanors an appropriate tool to facilitate trials? What is the goal of this practice and is it working? (77) Should greater attention be given to persistent misdemeanor offenders? (78) REPORT: The working group identified several core problems: inadequate space and poor physical conditions of the Criminal Courts; disparity between Supreme Court and Criminal Court in the status of personnel, space and resources; and the multiple court appearances in which little substantive legal work is accomplished leading to a trivialization of the post arraignment adjudicative process. Inadequate conditions include a lack of case conferencing space both for prosecutors and defense attorneys as well as defendants and defense counsel to consult. It was noted that Criminal Court judges do not have their own chambers in some boroughs. There was agreement that there is an overall lack of cleanliness and neglect of maintenance in Criminal Court. Finally, the group agreed that more courtrooms should be devoted to the hearing of misdemeanor cases. An insufficient number of courtrooms were one outcome of what the group characterized as the subordination of criminal court facility management to supreme court facility management. It was noted that in Queens, for example, the Supreme Court takes up six floors of the courthouse, while the Criminal Court is relegated to two floors. Other group members asserted that the boroughs in which they work face similar inequities. The group recognized that Criminal Court is not just "lower" to Supreme Court jurisdictionally, but in many other aspects as well. The group was concerned that the lower pay and status that is awarded to Criminal Court professionals creates the impression that the work of the criminal courts is unimportant and inferior. The group noted that many Criminal Court judges see their work as inferior to Supreme Court judges, and their main goal is to be
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59 "promoted" to Supreme Court and thus move up within the hierarchy of the court system. This career path is similar within District Attorney Offices and public defender offices, where new lawyers are required to "cut their teeth" on misdemeanor cases in preparation for the "big time" of prosecuting and defending felony matters. In addition, it was noted that this attitude is prevalent even in the Police Department as demonstrated by the difficulty faced by prosecutors in obtaining the court appearances of police offices in misdemeanor matters. The overall effect is one in which those who work and practice in Criminal Court are not perceived or even expected to be full professionals and thus many do not behave as such. The large, daily dockets in most Criminal Court courtrooms prevent meaningful progress on individual cases. This leads to multiple, often unnecessary, adjournments forcing defendants and their lawyers to make time-consuming appearances in court. Though the burden of multiple appearances may be less on prosecutors, it still takes a toll since several prosecutors must staff the many criminal court parts for long parts of the day creating numerous "institutional" burdens on prosecutors' time. (79) The same is true for judges. Handling large dockets takes time away from focused and thoughtful attention to deciding substantive legal issues. The burden of court appearances contributes to the fact that investigations into the merits of cases are the exception rather than the rule for both the defense and prosecution. The working group noted that this practice continues while the volume of cases on the docket in Criminal Court far outnumbers the volume of cases in Supreme Court. This working group cited four goals that informed their recommendations: create more opportunities for trials, increase the likelihood that cases will be resolved on the merits rather than through the endurance game, decrease the time period it presently takes to resolve cases post-arraignments, and in general increase the perception and reality of justice in Criminal Court. This working group sought out solutions to these central problems with the above goals in mind by dividing their discussion into two categories: resources and docket control. A. Resources The working group suggested moving some misdemeanor cases to Supreme Court to ease the volume in Criminal Court. Group members queried whether this would require the "unification" of Criminal and Supreme Court and the feasibility of such a plan. (80) In the alternative, the group recommended a reallocation of court
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60 facility resources between Criminal and Supreme Court on the basis of need driven by case loads rather than status. This reallocation should lead to space for conference rooms, Criminal Court judges' chambers and, perhaps, child care areas. The group recommended equalizing the salary scale between personnel working in Criminal and Supreme Court, including judges and other employees such as court officers and stenographers. This would allow increased interchangeability between court employees working in both court systems. This may allay some of the emphasis on the unspoken hierarchy that exists, and allow for increased respect between and among personnel of both courts. The practice of assigning Civil Court judges to arraignment parts was cited as a concern due to the judges' lack of experience in criminal law and procedure. The group suggested supplemental training for Civil Court judges if this practice continues. The group strongly recommended improved cleaning and maintenance of Criminal Court. B. Docket Control Several solutions were offered by group members to combat the problem of caseload volume and unnecessary court appearances. Offering the option of evening court appearances was one suggestion. This would help ease overcrowded calendars during the day and accommodate working defendants and defendants who are full time students. Another idea considered by the group was to excuse defendants from routine, non-substantive appearances. The group proposed limiting the number of cases on each Criminal Court Part calendar to decrease the time devoted to calling cases and to increase the time available to take action on each case thus promoting the accomplishment of meaningful work. To achieve this, the group suggested that court administrators explore the feasibility of establishing "monitors" to allow for off-calendar, administrative adjournments when it is clear no substantive progress will be made during a court appearance. Other ideas discussed, but not agreed upon by this working group, included setting a fixed number of court appearances that would force both parties to either achieve disposition or go to trial and exploring avenues to achieve more effective case screening within the District Attorneys offices. There was discussion about the need for increased judicial control of the post-arraignment process to alleviate unnecessary court appearances, the waiting time involved in calling a case in Criminal
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61 Court and overall delay. Without reaching any consensus, ideas proposed included limiting the number of appearances made by defendants and scheduling cases to be heard at specific times during the day rather than scheduling the entire calendar for 9:30 A.M., as is the present practice. There was lengthy discussion about the range of discovery policies utilized by prosecutors in each borough. The focus was on whether or not the provision of early, open file discovery could alleviate the need for some court appearances and contribute to earlier resolutions of cases based on the merits. Some prosecutor's offices provide early discovery, others do not. The group did not reach any consensus on this controversial topic; however, the group urged a future task force to continue exploring the topic and create an open dialogue regarding the problems and barriers to instituting early, open-file discovery in misdemeanors cases city-wide. REPORT Standards, Evaluation, and Monitoring Working Group Five CHARGE: Criminal court is a complex creature. Many organizations participate in the operation of the court and each works in connection with the others, sometimes in opposition and other times in support. The court's effective functioning depends on the collaboration of multiple groups, employed by different entities, each with its own separate goals. Any change implemented by one organization often impacts all the others. The planning committee was interested in learning whether standards are used by any of the organizations involved and how useful standards might be in an effort to improve the performance of the Criminal Courts. Businesses use standards as a yardstick against which to measure performance. The American Association of Law Schools, for example, accredits law schools by comparing the school being evaluated to a set of standards. In the wake of scandalous revelations about the incompetence of crime laboratories, (81) the relevant community is writing standards that will be used to fund and evaluate laboratories. With this in mind, the planning committee charged the working group with exploring standards, evaluation, and monitoring. This included considering what standards exist for defense attorneys, prosecutors, judges, and other professionals working in Criminal
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62 Court such as court officers, interpreters, and probation officers, both within each professional's own organization and within the profession as a whole. The group was also asked to consider how the different standards are used and to what effect. In addition, the group was asked to consider models of evaluation. Finally, the planning committee requested the group to consider how the entities that make up the Criminal Court system hear and take into account the opinions of the "users" of the systemBthe accused, victims, witnesses and their families. REPORT: In retrospect, the planning committee probably should have asked the working group to bifurcate its discussions: to begin by looking at how individual professions and organizations use standards and how each conducts internal monitoring and evaluation. Exploring how the Court, as an independent organism made up of separate and distinct parts, uses standards and whether it engages in monitoring and evaluating should have been tackled only after a review of the entities that make up the whole. That was not done and, as a result, the group struggled with its mission, lurching between a consideration of internal standards and a broader perspective. Few of the participants wanted to discuss their own organizations' internal procedures for monitoring and evaluating staff. The subject seemed private and off limits for a general public discussion, especially with traditional adversaries in the room. Yet, it became clear over the course of the day that there is no meaningful way to evaluate the operation of the Court separate and apart from an evaluation of each of the participant organizations. For example, when members of the group focused on the operation their own organization, representatives acknowledged the importance of internal standards. Everyone was comfortable with standards that would require training for new lawyers, new judges, and new judicial hearing officers, for example. When the group tried to address ideas relating to standards, monitoring, and evaluation that might improve the overall functioning of the court, however, each organization's sense of autonomy and resistance to collective decision-making derailed any progress. For example, it was thought that returning experienced lawyers to the arraignment and misdemeanor parts where currently only very new attorneys work might improve the functioning of the arraignment parts--ensuring sufficient attention to all accused individuals. This suggestion was resisted by prosecutors and
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63 defenders who maintained that their offices did not have sufficient resources to meet this goal. Members of the working group expressed their belief that standards could be useful in: 1) measuring and improving the satisfaction of community members who use the court; 2) ensuring efficient use of resources; 3) facilitating better communication among the various groups that interact in the criminal court; and 4) more efficiently using the Criminal Court buildings. Each category will be discussed in turn below. 1. User satisfaction. A majority of group members discussed their belief that user satisfaction standards should measure the satisfaction of all those who use the courthouses, including lawyers, court personnel and the parties. Members disagreed about how satisfaction would be measured. Several individuals suggested using surveys, while others suggested that lawyers question their clients directly about their satisfaction with the courthouse and the adjudication process. 2. Better communication among court players. There was a great deal of concern over how slowly cases are resolved in the Criminal Court. Members of the working group contemplated whether mandatory, thorough reviews of cases might weed out those that can be adjudicated quickly, and permit greater attention to those than can not be easily resolved. A thoughtful review would necessitate early open file discovery, and some mechanism to facilitate conversation between adversaries. 3. More efficient use of the Criminal Court buildings. Many group members expressed frustration over the lack of available trial parts in the Criminal Court. Members believed, however, that the difficulty results from a lack of funding rather than a lack of standards. A majority of members agreed that it is essential for the Criminal Court to have standards set in place--standards that can be created or improved upon through a consensus of court personnel, the attorneys, and the individual parties. Many members, however, expressed the belief that this undertaking is doomed to fail if the state is unwilling, or unable, to dedicate the appropriate resources to achieve, and maintain, these standards. 4. Better utilization of lawyers' and parties' time. A majority of group members expressed a need for better scheduling of cases,
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64 especially during calendar calls. Suggestions included implementation of a system of morning and afternoon calendar calls, which would assist lawyers and parties. Group members acknowledged that because of volume, this suggestion may not be feasible at the present time. Because no consensus developed on any particular issue, the working group was unable to formulate resolutions or recommendations, apart from the recommendation that a future task force agree to meet regularly to discuss issues raised during the day's conversation and that this group be comprised of people who have the power to effect change within their offices. It was also suggested, but not agreed, that in preparation for those follow-up meetings, representatives of the various organizations encourage their own offices to undergo self-reflection and return to the group having identified specific areas within their organization where improvement is necessary. Overall, the group had little faith in the helpfulness of standards. They agreed that standards exist, but felt that they do not address the realities of practice, and, furthermore, attorneys cannot meet whatever standards are relevant to their practice due to a lack of resources. Hence, group members asserted that changing practice standards is not going to alter the Criminal Court system. Members agreed that, yes, there are numerous problems within the Court system and that if these problems were fixed, then we--the collective "we"--could expect lawyers and court personnel to perform at a higher level. As the system is currently set up, however, performing at that "higher level" would, as one group member put it, "bring the Criminal Court system to its knees" in less than a week. Because individual players are unable to perform at this higher level, group members agreed that trying to institute a system to monitor and evaluate standards would be counter-productive. Martha Rayner Associate Clinical Professor, Fordham University School of Law. This report is based on the very hard work of the conference planning committee, facilitators, speakers, reporters, and participants. Thank you to Professor Bruce Green, Fordham University School of Law's Louis Stein Center on Law and Ethics, and the New York County Lawyers' Association's Justice Center and Criminal Justice Section. I am very grateful for the research assistance provided by Cassandra Abodeely, Diana Rubin, and Alison Shilling.
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65 Endnotes (1.) The event was co-sponsored by City University of New York School of Law, Columbia University School of Law, New York Law School, New York University School of Law, and Pace University School of Law. (2.) Judge Juanita Bing-Newton addressed the participants via video due to a conflict. See Judge Juanita Bing-Newton, Welcome Address at New York City's Criminal Courts: Are We Achieving Justice Conference (Oct. 18, 2003) (on file with the author and the New York County Lawyers Association ("NYCLA")). Welcome remarks were also provided by John Feerick, Chair, NYCLA Justice Center and Professor, Fordham University School of Law, and Susan J. Walsh, Co-Chair, NYCLA Criminal Justice Section. Video recordings of the proceedings are available from the author and the NYCLA. (3.) The Criminal Court oversees 325,000 docketed cases, 500,000 summons cases and has a backlog of approximately 100,000 cases. See id. (4.) Id. (5.) He was President-elect at the time. (6.) See Norman L. Reimer, Keynote Address at the New York City's Criminal Courts: Are We Achieving Justice Conference (Oct. 18, 2003) (copy of speech on file with the author); see also supra notes 2-3 and accompanying text (Bing-Newton indicating that Criminal Court handled more than 325,000 docketed cases and 500,000 summonses in 2002). (7.) See Reimer, supra note 6. (8.) Id. (9.) Id. The conference's afternoon speaker was Freda F. Solomon, Ph.D., author of The Impact of Quality of Life Policing: How the NYPD's New Policing Strategy of the 1990s affected Arrests, Defendant and the Criminal Courts, CJA RESEARCH BRIEF (N.Y. Crim. Just. Agency, Inc., New York, N.Y.), Aug. 2003 [hereinafter CJA RESEARCH BRIEF]. (10.) The Conference Planning Committee consisted of Adele Bernhard, Associate Professor, Pace University School of Law; Joel Copperman, Executive Director, CASES; Catherine Christian, Director, Legal Training, Special Narcotics Prosecutor, New York County; Mike Fahey, Esq., Chair, Minorities & the Law, NYCLA; Ronald Garnett, Esq., NYCLA, Criminal Justice Section; Florence Hutner, General Counsel, New York City Department of Corrections; Laura R. Johnson, Attorney-In-Charge, The Legal Aid Society, Criminal Appeals Bureau; Nathaniel Kiernan, Assistant District Attorney, Queens County; William Knisley, Esq., NYCLA, Criminal Justice Section; Michele Maxian, Director, Special Litigation, Criminal Defense Division, The Legal Aid Society; Shari Michels, Assistant District Attorney, New York County; Deidra R. Moore, Attorney, The Legal Aid Society, Criminal Defense Division, Bronx County; Tim Mulligan, Court Operations, CASES; Martha Rayner, Associate Clinical Professor, Fordham University School of Law; Susan J. Walsh, Co-Chair, Criminal Justice Section. (11.) N.Y. CRIM. PROC. LAW [section] 10.10(3) (McKinney 2003). (12.) Quintin Johnstone, New York State Courts: Their Structure, Administration and Reform Possibilities, 43 N.Y.L. SCH. L. REV. 915, 916 (2001). [t]here are eleven different types of trial courts in the New York State court system, some of general jurisdiction, some with jurisdiction of only a specialized field of law, some with broad but inferior jurisdiction.... Courts of inferior jurisdiction, those that may generally hear only what are considered less serious matters, are the ... New York City Criminal Court.... Id. (13.) Id.
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66 (14.) Pursuant to New York Criminal Procedure Law ("N.Y. CPL") [section] 10.30(2), the New York City Criminal Court may arraign all felony matters and retain jurisdiction until the matter is indicted and transferred to Supreme Court. See N.Y. GRIM. PROC. LAW [section] 10.30 (2). (15.) In New York State, "'Violation' means an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. 'Misdemeanor' means an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed." N.Y. PENAL LAW 10.00(3)-(4) (McKinney 2004). (16.) According to data provided by the Office of the Court Administration, on file with the author, there are nineteen Criminal Court Parts in Manhattan, seventeen in Bronx County, twenty-three in Kings County, thirteen in Queens, and one in Richmond County (Staten Island). (17.) This includes summons tickets issued by the police, the bulk of which are adjudicated in "Summons Appearance Parts." For 1998, New York City Criminal Courts had 309,261 summons cases filed with 273,009 dispositions; for 1999, 392,348 summons cases fixed with 324,591 dispositions; and for 2002, 505,331 summons cases filed with 339,792 dispositions. See N.Y. State Unified Ct. Sys., New York City Criminal Court Caseload Statistics 2002, at http://www.courts.state.ny.us/courts/nyc/criminal/caseloadstatistics.shtml (last visited May 17, 2004); OFF. OF CT. ADMIN., N.Y. STATE DIV. OF GRIM. JUST. SVCS., CASELOAD ACTIVITY REPORT FOR 1999, available at http://criminaljustice.state.ny.us/crimnet/ojsa/cja_99/oca.pdf (last visited May 17, 2004); OFF. OF CT. ADM1N., N.Y. STATE DIV. OF CRIM. JUST. Svcs., CASELOAD ACTIVITY REPORT FOR 1998, available at http://criminaljustice.state.ny.us/crimnet/ojsa/cja_98/oca.pdf (last visited May 17, 2004). Though commonly referred to as "summons cases," a summons may only be issued by a local criminal court, N.Y. CRIM. PROC. LAW [section] 130.10 (McKinney 2003), not the police, and thus despite its name, such tickets are in fact appearance tickets, N.Y. GRIM. PROC. LAW [section] 150.50 (McKinney 2003), and commonly referred to as Desk Appearance Tickets ("DATs"). An appearance ticket must be replaced by a local criminal court accusatory instrument, Id. [section] 150.50(1); simplified information is permitted only in cases charging traffic offenses, parks offenses or environmental conservation offenses. N.Y. CRIM. PROC. LAW [sub section] 100.10, 100.25 (McKinney 2003). (18.) According to data provided to the author by the New York State Office of Court Administration, a total of 144,124 misdemeanor cases were arraigned city-wide in 1992; the number increased sixty-four percent, to 236,916, in 2002. (19.) See Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, The Broken Windows Theory, and OrderMaintenance Policing New York Style, 97 MICH. L. REV. 291, 292 (1998); see also James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Feb. 1989 ("sometimes 'fixing broken windows' does more to reduce crime than conventional 'incident-oriented' policing."). (20.) Harcourt, supra note 19 at 292; Wilson & Kelling, supra note 19. (21.) Harcourt, supra note 19 at 298-99, 340 (describing that quality-of-life policing resulted in a fifty percent increase in misdemeanor arrests, from 133,446 in 1993 to 205, 277 in 1996, while the number of misdemeanor complaints remained relatively stable: 421,116 in 1993 as compared to 424,169 in 1996). (22.) As to whether quality-of-life policing was responsible for the decrease in the felony crime rate, see id. at 292 (scrutinizing and critiquing the widely accepted theory that the quality-of-life initiative was the cause of the precipitous drop in New York City's crime rate since 1993). Compare Dan Hurley, Scientist At Work--Felton Earls;
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67 On Crime As Science (A Neighbor At a Time), N.Y. TIMES, Jan. 6, 2004, [section] F, at 1 (quoting James Q. Wilson, one of the two original architects of the Broken Windows theory as saying "'I still to this day do not know if improving order will or will not reduce crime,' ... 'People have not understood that this was a speculation.'"), and Gordon Witkin, The Crime Bust, U.S. NEWS & WORLD REP., May 25, 1998, at 33 (finding that new police tactics were probably not "not the key factor nationwide" and that the settlement of crack turf battles probably played a much larger role in reducing urban crime), with Dan M. Kahan, Between Economics and Sociology: The New Path of Deterrence, 95 MICH. L. REV. 2477, 2488 (1997) (order maintenance policing "has been used with startling successful results in New York City"), and William J. Bratton, Editorial, New York's Police Should Not Retreat, N.Y. TIMES, Aug. 19, 1997, at A27 (Former N.Y. City police commissioner crediting quality of life initiatives for failing crime rates in New York City). (23.) According to the Office of the Court Administration, misdemeanors accounted for fifty-four percent of all cases arraigned in 1992 and rose to seventy-one percent in 2002. The Office of the Court Administration is on file with author. (24.) Adjudication of summons, as compared to online arrests, constituted approximately 61 percent of the criminal filings citywide (505,331 of a total 830,010 filings) and approximately 51.1 percent of the dispositions citywide (339,792 of a total 664,985 dispositions). See N.Y. State Unified Ct. Sys., supra note 17. (25.) ASS'N. OF THE BAR OF THE CITY OF N.Y., SAVING THE CRIMINAL COURTS: A REPORT ON THE CASELOAD CRISIS AND ABSENCE OF TRIAL CAPACITY IN THE CRIMINAL COURT OF THE CITY OF NEW YORK 2 (1983) [hereinafter SAVING THE CRIMINAL COURTS] (26.) Harry I. Subin, The New York City Criminal Court: The Case for Abolition, 12 N.Y.U. CTR. FOR RES. IN CRIME & JUST. 9 (1992) (citing the Office of Court Administration's Annual Report). (27.) Id. at 8. Subin saw the New York City Criminal Court as so overburdened with cases that the only solution was to abolish the Court: "Hopelessly awash in a sea of cases, the Court is unable to administer justice. Recognizing that, it has redefined its mission. The measurement of success is the disposition rate, how many cases can be moved in and out of the court, without regard to how they are moved." Id. Subin reported that approximately 213,000 cases were processed in the New York City Criminal Court in 1990 at an average of five minutes for each case. Both prosecutors and defense counsel have almost no time to investigate the facts of cases and instead end up relying upon the facts as set forth in the police reports. See id. at 6-7. "The perAssistant [District Attorney] investigative caseload is nearly 1,700 cases a year .... This comes to 7 cases a day, or little more than an hour or so that can be devoted to the investigation of any case." Id. at 1. The defense side is confronted with similar time constraints: The initial, and often only, interview of the defendant is conducted under great time pressure, and in conditions not conducive to learning the client's name, let alone whether he or she might have a defense. And with so many pending cases to deal with, and so little ability to predict which will survive long enough to require investigation, a minimal amount of out-of-court work is undertaken." Id. at 1, 6-8. (28.) Judith S. Kaye, The State of the Judiciary (Feb. 9, 2004), in JUDITH S. KAYE, THE STATE OF THE JUDICIARY 7 (2004), available at http://www.courts.state.ny.us/ctapps/SO J04.pdf (last visited May 17, 2004). In her remarks, Judge Kaye had this to say: Nowhere is the misdemeanor backlog more apparent than in New York
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68 City. In part because of the continuing emphasis on prosecuting quality-of-life offenses, thousands of defendants and crime victims face long delays in our criminal courts. Despite herculean efforts of our judges and staff, tens of thousands of misdemeanor cases remain pending for months, even years, while felony filings decline. Id. (29.) See McClesky v. Kemp, 481 U.S. 279, 311-12 (1987) (quoting 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE [section] 13.2(a) (1984)); United States v. Williams, 65 F.3d 301,310 (2d Cir. 1995) (noting that "district courts should not hesitate to use their discretion in devising sentences that provide individualized justice"); United States v. Willoughby, 27 F. 3d 263, 268 (7th Cir. 1994) ("This is the essence of our system of individualized justice."); Rachel E. Barkow, Recharging the Jury: the Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 127 (2003) (discussing the ramifications of mandatory sentencing as they relate to individualized justice); Debra Lyn Basssett, In the Wake of Schooner Peggy: Deconstructing Legislative Retroactivity Analysis, 69 U. CIN. L. REV. 453, 53031 (2001) ("Our government is built on a system of individualized justice"); see also PHILOSOPHY OF LAW 51 (Joel Feinberg & Jules Coleman eds., Wadsworth 7th ed. 2004) ("A principle of our liberal tradition justice, fairness and equality"). (30.) See Republican Party of Minn. v. Kelly, 63 F. Supp. 2d 967, 977 (D. Minn. 1999) ("The judicial system is based on the concept of individualized decisions on challenged conduct and interpretations of law enacted by the other branches of government." (citing Stretton v. Disciplinary Bd. of the Sup. Ct. of Pa., 944 F.2d 137, 142 (3d Cir. 1991))); see also Lockett v Ohio, 438 U.S. 586, 602-03 (1978) ("individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country."); William v. New York, 337 U.S. 241, 247 (1949) ("Highly relevant--if not essential--to [a judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics."); United States v. Flores, 336 F.3d 760, 76568 (8th Cir. 2003) (Bright, J., concurring) (critiquing failure of Federal Sentencing Guidelines to provide sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors); Leslie Eaton, Panel Urges Judge's Removal, N.Y. TIMES, Apr. 6, 2004, [section] B, at 8 ("The State Commission on Judicial Conduct has recommended that an upstate judge be removed from office, saying that he meted out what it called assembly-line justice."). (31.) McClesky v. Kemp, 481 U.S. 279, 311-12 (1987) (quoting 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE [section] 13.2 (a) (1984)). (32.) Peter Krug, Prosecutorial Discretion and Its Limits, 50 AM. J. OF COMP. L. 643, 645-46 (2002) (describing the concept of individualized justice as justification for courts and legislatures not interfering with prosecutorial discretion) (33.) See Suzanne E. Mounts, Public Defender Programs, Professional Responsibility, and Competent Representation, 1982 Wis. L. REV. 473,489-500 (1982) (describing the various theories of jurisprudence regarding defendant representation and detailing the necessary individualized treatment); see also Symposium, Impact of Problem Solving on the Lawyer's Role and Ethics, 29 FORDHAM URB. L.J. 1892, 1920 (2002) ]hereinafter Symposium, Impact of Problem Solving] (transcribing Susan Hendricks of The Legal Aid Society as saying: "Defense attorneys have an ethical duty to zealously advocate on behalf of individual clients, and this duty particularly requires them to defend their client's liberty interest, that is, their desire to remain in the community in lieu of a jail sanction."). See generally Richard Klein, Eleventh Commandment: Thou Shalt Not Be Compelled to Render The Ineffective Assistance of Counsel, 68 IND. L.J. 363 (1993) (examining potential remedies for counsel
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69 working within a system that fails to provide enough funding to ensure constitutionally mandated effective assistance of counsel); Richard Klein, The Emperor Gideon has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625 (1986). (34.) See Ronald Wright & Marc Miller, The Screening/bargaining Tradeoff, 55 STAN. L. REV. 29, 34 (2002); Charles Levin, County OKs $1.25 billion budget with cuts for most; Sheriff and district attorney get increases; 267 jobs slashed, VENTURA COUNTY STAR, June 17, 2003 at A1 (country district attorney complaining that county budget cuts to his office would result in assembly-line justice that undermines public safety). But note that though typically pejorative, "assembly-line justice" is a system affirmatively, endorsed in a crime control model of criminal case processing. In his landmark book, Packer describes two models of the criminal process: the "Crime Control Model" and the "Due Process Model." See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 153 (1968). The "Crime Central Model" assumes large caseloads and limited resources, is administrative and managerial in nature, and values efficiency (which requires informality and uniformity) and finality (which requires minimizing the occasions for litigation or challenge). See id. at 158-59. Whereas, Packer explains, "[i]f the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course." Id. at 163. The Due Process Model consists of many underlying pressures to get at reliable truths and the appropriate formal proceedings used to do that. See id. at 163-65. Moreover, Packer notes that this model's "values can be expressed in "the concept of primacy of the individual and the complementary concept of limitation on official power." Id. at 165. (35.) MALCOLM FEELEY, PROCESS Is THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT 261 (1992). In his study of criminal courts, Feeley challenged the widely-held belief that the perfunctory processing of criminal cases is due to heavy caseloads. He compared a high volume urban court to a light caseload suburban court. Both courts processed their cases in a rapid and perfunctory manner, spending approximately the same amount of time per case. Id. (36.) See Feeley, supra note 35, at 277 (noting that the "cost of invoking one's rights is frequently greater than the loss of the rights themselves"). (37.) See Kirsten Howe, Note, Criminal Nonsupport and a Proposal for an Effective Felony-Misdemeanor Distinction, 37 HASTINGS L.J. 1075, 1091 (1986) (stating that "[m]isdemeanors are given low priority by overburdened law enforcement agencies. One investigator, commenting on the low priority given child support investigations by an understaffed district attorney's office, said, 'After all, it's only a misdemeanor. It's not in the same class with a burglary.'"). (38.) See CJA RESEARCH BRIEF, supra note 9, at 5. (reporting that in 1998, thirty percent of misdemeanor cases were disposed of by ACDs, compared to eleven percent in 1989). An adjournment in contemplation of dismissal is "an adjournment of the action [for six or twelve months] . . . with a view to ultimate dismissal ... in the furtherance of justice." N.Y. CRIM. PROC. LAW [section] 170.55 (Mckinney 2004). Note that many ACDs have an accompanying order of protection requiring the defendant to refrain from certain conduct for the duration of the adjournment. In addition, many ACDs require the performance of community service or completion of a rehabilitation program as a condition of the ultimate dismissal. (39.) Id. at 6 (reporting that fifty percent of convicted defendants received a jail sentence with a median length of seven days compared to fifty-eight percent in 1989 with median length of twenty days). (40.) For a discussion of how these problem-solving courts deliver the special attention some defendants require, see generally Jeffrey Fagan & Victoria Malkin, Theorizing
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70 Community Justice Through Community Courts', 30 FORDHAM URB. L.J. 897, 930 (describing Redhook Community Court in Brooklyn, N.Y. as "a more responsive Court built on individualized justice and provision of social services.); The Effectiveness of the Broward Mental Health Court." an Evaluation, POLICY BRIEF (Louis de la Parte Fla. Mental Health Inst., Tampa Fla.), Nov. 2002 (reporting that defendants appearing before Broward County, Florida's Mental Health Court are more likely than regular defendants to describe the court as fair and non-coercive and are more likely afterwards to obtain social services), available at http://www.fmhi.usf.edu/ institute/pubs/newsletters/policybriefs/issue016.pdf (last visited May 18, 2004). In addition, Judge Judy H. Klugers has noted that: There are over 500 drug courts nationwide, as well as domestic violence courts, mental health courts, community courts, parole reentry courts, all focused on doing more than just adjudicating the facts of the individual case, but rather trying to address the underlying problems that brought the defendant, this particular individual, before the court. Symposium, Impact of Problem Solving, supra note 33, at 1893. (41.) See Jeremy Travis, Invisible Punishment in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 15, 18 (Marc Mauer & Meda Chesney-Lind eds., 2002). New laws enacted by congress since the 1980s, coupled with the fact that 47 million people--approximately twenty-five percent of the nation's adult population--have criminal records, means that collateral consequences, or "invisible punishments" as Jeremy Travis calls them, "reach deep into American life." See also Debbie Mukamal & Paul Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1502 (2003). (42.) See Housing Opportunity Program Extension Act of 1996, Pub. L. No. 104120, 110 Stat. 834 (1996); Veteran Affairs and HUD Appropriations Act, Pub. L. No. 105276, tit. V, 112 Stat. 2461 (1998); see also Mukamal & Samuels, supra note 41, at 1506. (43.) See N.Y. CITY HOUS. AUTH., DEPARTMENT OF HOUSING APPLICATIONS MANUAL (2003) (the Manual's "Standards for Admission: Conviction Factors and End of Ineligibility Periods--Public Housing Program" details this two-year bar); OFF. OF N.Y. CITY COMPTROLLER WILLIAM C. THOMPSON, JR., AUDIT REPORT ON THE NEW YORK CITY HOUSING AUTHORITY'S PROCESS FOR DETERMINING TENANT ELIGIBILITY 6, 20 (2003), available at http://comptroller.nyc.gov/bureaus/audit/PDF_FILES/MG03_080A.pdf (last visited May 18, 2004). (44.) 20 U.S.C. [section] 1091(r)(1) (2004) ("A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance...."); 21 "); 21 U.S.C. [section] 812(c) (2004) (defining a controlled substance as including marihuana). (45.) 20 U.S.C. [section] 1091(r)(1); 21 U.S.C. [section] 812(c). (46). See 23 U.S.C. [section] 159 (2004) (requiring the federal government to withhold a portion of a state's federal highway grant if the state does not suspend state-issued driver's licenses for controlled substances convictions); see also Mukamal & Samuels, supra note 41, at 1515 (describing the operation of this federal law and the states' response to it). (47.) See N.Y. VEH. & TRAF. LAW [section] 510(2)(b)(v) (McKinney 2004) (suspending a driver license for any violation of the Controlled Substances Act, 21 U.S.C [section] 801 (2004), including marijuana possession).
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71 (48.) See Nora Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 154 (1999). ("The number and scope of such adverse consequences tend to be unknown even to participants in the criminal justice system, often because they are scattered throughout different bodies of law."); Lea McDermid, Deportation is Different: Noncitizens and Ineffective Assistance of Counsel, 89 CAL. L. REV. 741 (2001); see also Margaret Colgate Love, Deconstructing the New Infamy, 16 CRIM. JUST. 30, 30-35 (2001) (explaining why collateral consequences should be a concern to prosecutors and the criminal justice system). (49.) Before the conference, participants were assigned to a working group and provided with the group's "charge" and background reading, which included SAVING THE CRIMINAL COURTS, supra note 25; Subin, supra note 26; statistics from the Office of Court Administration, supra note 17; and CJA RESEARCH BRIEF, supra note 9. Participants, led by a facilitator, met in a morning and afternoon session. Everyone reconvened at the end of the day for oral reports from a member of each working group. (50.) See supra note 17. (51.) Since the conference, Chief Judge Kaye has announced a pilot project in Bronx County that will combine the Criminal Court with the Criminal Term of Supreme Court into a single consolidated criminal trial court. See Kaye, supra note 28, at 8. (52.) Arrest volume increased by twenty-two percent from 1989 to 1998. See CJA RESEARCH BRINY, supra note 9, at 1. (53.) Twice as many people were prosecuted for non-felony arrests in 1998 than in 1989 (176,432 versus 86,822, respectively). CJA RESEARCH BRIEF, supra note 9, at 2. That number increased to 189,703 in 2002. (54.) In 1998, one third of arrests were for felonies; in 1989, fifty percent of all arrests were for felonies. CJA RESEARCH BRIEF, supra note 9, at 1. In 2002, less than twenty percent of all arraignments contained felony charges. Crim. Ct. of the City of N.Y., Executive Summary for Judicial Year To Date Ending Sunday, December 29, 2002 (2003). (55.) See N.Y. CRIM. PROC. Law [section] 140.20 (Mckinney 2004); People ex rel. Maxian v. Brown, 570 N.E.2d 223 (N.Y. 1991) (holding that a delay in arraignment of more than twenty-four hours is presumptively unnecessary and unless explained, requires an arrestee's immediate release). (56.) In 1998, seventy-three percent of non-felony cases had a determinative outcome in the Criminal Court arraignment, compared to sixty-two percent in 1989. CJA RESEARCH BRIEF, supra note 9, at 5. But note that there has been an increase in Adjournments in Contemplation of Dismissal in arraignments. In 1998, thirty percent of all misdemeanor cases resolved by a prosecution offer and defendant acceptance of an ACD, with eighty percent of those at the arraignment stage. In 1989, this was true in eleven percent cases and slightly more than half at arraignments. Id. at 5. (57.) See id. at 2. N.Y. CRIM. PROC. LAW [section] 150.10(1) (Mckinney 2004) authorizes the issuance of an appearance ticket by the police "directing a person to appear in a ... local criminal court at a ... future time in connection with his alleged commission of a designated offense," thereby allowing for release from a police precinct and eliminating the additional incarceration time involved in waiting to being arraigned in Criminal Court (usually twenty-four hours). Id. An appearance ticket may be issued to a person charged with misdemeanors and certain class E felony offenses. [section] 150.20. The use of DATs has diminished significantly: in the first half of 1998, there were a total of 39,045 docketed DAT arraignments, in the first half of the next year, there were only 7,395. Since then, the number of docketed arraignments in the first half of any year has not risen above the high of 11,362 in 2003. This
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72 calculation of docketed arraignments is derived from the New York Criminal Justice Agency, Inc.'s Semi-Annual Report series covering the period from 2003 to 1998. All of the reports are available online at http://www.cjareports.org (last visited May 18, 2004). (58.) See supra note 57. (59.) See N.Y. GRIM. PROC. LAW [sub section] 510.10, 520.10(1)(h) (Mckinney 2004). (60.) In 1998, thirty percent of misdemeanor cases were disposed of by an Adjournment in Contemplation of Dismissal compared to eleven percent in 1989. In 1998, forty-three percent of those convicted of a misdemeanor served jail time beyond the twenty-four hour arrest to arraignment time, compared to thirty-seven percent in 1989. See CJA RESEARCH BRIEF, supra note 9, at 5. (61.) Id. at 6. (62.) There are a total of twenty-six specialized, or "problem-solving," courts throughout the five boroughs of New York City: nine adult drug courts; two family drug courts; five misdemeanor domestic violence courts: two felony domestic violence courts; three integrated domestic violence courts (Bronx, Queens, Staten Island); three community courts; two mental health courts. See Telephone Interview with Aubrey Fox, Associate Director of Special Projects, Center for Court Innovation at the Center for Court Innovation (facts on file with the author). (63.) An arrest without a subsequent conviction can trigger significant civil consequences. For example, defendants residing in public housing can be evicted for conduct underlying a misdemeanor arrest even when the criminal case is dismissed or resolved with a plea to a non-criminal offense. See, e.g., Pearl White Place, HDFC v. Clinkscales, N.Y.L.J., Apr. 10, 2002, at 21 (Bronx County Hous. Ct.). In this case, the New York City Housing Court judge held that illegal use--in this case, tenant's son's plea of disorderly conduct arising from his possession of a controlled substance inside a Section 8-subsidized home--terminates lease as a matter of law, obviating need for notice of termination. See id. (64.) See N.Y. CITY CODE, CHARTER & R. tit. 35, [sub section] 2-02, 2-63 (2001) (requiring "good moral character" of taxi license applicants and for taxi license holders to report any criminal convictions to the N.Y. City Taxi & Limousine Comm'n). (65.) N.Y. GEN. Bus. LAW [section] 72 (Mckinney 2004). (66.) See infra notes 69-71 and accompanying text. (67.) See Sex Offender Registration Act, N.Y. CORRECT. LAW [section] 168 (Mckinney 2004) (68.) See N.Y. COUNTY LAW [section] 722 (McKinney 2004) (requiring each county to have a plan for providing counsel to indigent defendants). The indigent defense plan must either provide for representation by a public defender, representation by a private legal aid bureau or society, representation by private counsel which is rotated and coordinated by a county or city bar association, or a combination thereof. Id. (69.) See N.Y. PENAL LAW [section] 60.35(1)(b)-(c) (McKinney 2004) (requiring a mandatory surcharge for a defendant convicted of a violation of $75 and a crime victim assistance fee of $20; further requiring a surcharge for a misdemeanant of $140 and a crime victim assistance fee of $20). (70.) Compare N.Y. CRIM. PROC. LAW [section] 420.35(2) (McKinney 1995) (effective July 1, 1995) ("Under no circumstances shall the mandatory surcharge or the crime victim assistance fee be waived."), with [section] 420.35(2) (repealed 1995), stating that: In any case where a person is guilty of any offense for which a mandatory surcharge shall be imposed ... the judge or hearing officer may waive all or any part of the mandatory surcharge where, because of the indigence of the offender, the payment of
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73 said surcharge would work an unreasonable hardship on the person convicted or his or her immediate family. (71.) N.Y. CRIM. PROC. LAW [section] 420.40 (Mckinney 2004) (Allowing a judge to defer the obligation to pay all or part of the mandatory surcharge.) Subection 5 provides: "Any unpaid balance of the mandatory surcharge may be collected ... in the same manner as a civil judgment." [section] 420.40(5). (72.) Participants reported that police warrant squads bring in dozens of delinquent defendants per day; some judges immediately enter civil judgment and release defendants, while other judges incarcerate defendants for up to two weeks. (73.) Eight-three percent were male and eighty-four percent were African-American or Latino. CJA RESEARCH BRIEF, supra note 9, at 4. (74.) See supra note 51. (75.) The accusatory instrument filed at the arraignment appearance is frequently a complaint sworn to by the arresting police officer based on hearsay. Absent waiver by a defendant, a sufficient accusatory instrument is an information containing nonhearsay factual allegations. See N.Y. CRIM. PROC. LAW [section] 100.40 (Mckinney 2004). (76.) In all counties of New York City except Staten Island, many Criminal Court judges were elevated to Acting Supreme Court Judges to handle the large volume of felonies that once existed. As of January of 2004, fewer than twenty percent of all arraigned cases are felonies, yet, city-wide, there are seventy-five percent more judges hearing felony matters than misdemeanor matters (seventy-five in Criminal Court and 125 in Supreme Court). In Bronx County, where only eighteen percent of the caseload is felonies there are hundred percent more judges hearing felony matters (seventeen in Criminal Court, thirty-three in Supreme Court). N.Y. State Off. of Ct. Admin., Judges Sitting In Courts Of Criminal Jurisdiction (Jan. 8, 2004). (77.) A defendant has a right to a jury upon trial for a class A misdemeanor, but no such right exists for a class B misdemeanor. N.Y. CRIM. PROC. LAW [section] 340.40 (Mckinney 2004). (78.) In 2002, New York City instituted Operation Spotlight, which would focus attention on "chronic misdemeanants" through specialized courts in all five boroughs solely to hear "Spotlight cases." Press Release, Off. of N.Y. City Mayor Michael R. Bloomberg, Mayor Michael R. Bloomberg Outlines Public Safety Accomplishments In 2003 (Dec. 17, 2002). "Since the launch of the initiative, there have been more than 18,000 arrests and the percentage of defendants receiving jail sentences has increased forty-eight percent, with sentences of more than thirty days increasing seventy-five percent. The percentage of defendants detained on bail has increased nearly twenty percent." Id. (79.) Most assistant district attorneys do not appear in court to "cover" their cases; rather, the day's docket is handled by ADAs assigned to a courtroom part who rely on written instructions provided by the ADA assigned to each respective case. (80.) Since the October 18, 2003 conference, Chief Judge Kaye has proposed just that. See Kaye, supra note 51. (81.) See, e.g., OFF. OF INSPECTOR GEN., U.S. DEP'T OF JUST., THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES (1997) (investigating and substantiating some of a whistleblower's claims that personnel at the FBI Laboratory mishandled evidence and provided inaccurate testimony, including evidence used in the 1993 World Trade Center Bombing and Oklahoma City bombing), available at http://www.usdoj.gov/oig/special/9 704a/index.htm (last visited May 20, 2004).
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75
3 The Criminalization of Poverty Kaaryn Gustafson
T
he welfare system and the criminal justice system in the United States are becoming ever more tightly interwoven. Scholars, however, have not yet examined the processes involved in these developments and what these developments mean for both the welfare system and for criminal jurisprudence. Many people, including welfare recipients, treat the welfare and criminal justice systems as analytically distinct. As a practical matter, however, the systems now work in tandem. This Article maps the criminalization of welfare. First, this Article describes the social construction of welfare fraud, tracing how "welfare queens" and welfare cheating came to be the targets of much governmental attention and resources. The Article then describes the various ways that criminal justice goals and strategies have become embedded in the welfare system, as well as the ways that the welfare system has become a tool of law enforcement. Next, the Article examines the treatment of welfare recipients in the courts, where the poor have been relegated to an inferior status of rightsbearing citizenship, a status on par with parolees and probationers. In the end, the Article encourages more careful policy analysis of these criminalizing practices, proposes a de-coupling of the economic security and crime control functions of the state, and offers recommendations for ensuring the constitutional rights of welfare _______________________________________________________ Kaaryn Gustafson. "The Criminalization of Poverty." Journal of Criminal Law and Criminology, Summer 2009 volume 99 issue 3 p. 643-717. Copyright © 2009 Northwestern University, School of Law. Reprinted by special permission of Northwestern University School of Law.
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76 recipients. Specifically, administrative and criminal procedures must adapt to the transformations in welfare law to ensure that welfare recipients enjoy basic constitutional protections. More research is suggested to measure the unmeasured and the externalized costs associated with the criminalization of welfare.
I. INTRODUCTION The word welfare is now commonly used pejoratively--as in "welfare mother" or "welfare queen." We often hear the word welfare used to describe a bureaucratic mess or to describe economically and socially marginalized populations. Lost in these contemporary understandings of welfare is the association of welfare with wellbeing, particularly collective, economic wellbeing. Many of the current welfare policies and practices are far removed from promoting the actual welfare of low-income parents and their children. The public desire to deter and punish welfare cheating has overwhelmed the will to provide economic security to vulnerable members of society. While welfare use has always borne the stigma of poverty, it now also bears the stigma of criminality. This change in perspective has under-examined implications for both welfare law and criminal law. This Article examines those implications. Over the last several decades, criminal law enforcement goals, strategies, and perspectives have grown entangled with the welfare system, a putatively benevolent arm of the state. Government welfare policies increasingly treat the poor as a criminal class, and the treatment of low-income women as criminals has occurred at all levels of government--federal, state, and local. The 1996 federal welfare reform legislation required states to implement measures to control welfare fraud. (1) While states have approached the policing of welfare fraud with varying levels of zeal, there is a clear trend toward toughness on welfare recipients who run afoul of regulations or who fail to comply with welfare rules. (2) Perhaps no state has been tougher on welfare fraud than California. California is one of the most aggressive states not only in investigating and prosecuting welfare fraud cases, but also in welcoming law enforcement into the welfare system. (3) Even before receipt of a first issuance of a grant, an applicant for welfare is reminded of the welfare system's punitive rules and undergoes state scrutiny otherwise limited to criminal offenders. A welfare recipient has likely signed documents informing her that her welfare grant will be reduced or terminated if she has a boyfriend move in without informing the state, if she fails to vaccinate her children, or if she is convicted of a drug charge. She has probably signed a document
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77 stating that any child she conceives and gives birth to while on welfare will be excluded from calculations of household financial need. Her Social Security number has been matched against state and national criminal records to make sure that she is not someone who should be incarcerated, that she does not have an outstanding arrest warrant, and that she has not been convicted of a drug-related crime. The financial information she has provided has been matched against various employment databases, IRS records, and Franchise Tax Board records to see that her lack of income is verifiable. Her personal information has been entered into the welfare system's database, which may be accessed by law enforcement officers without any basis for suspicion that she has engaged in any wrongdoing. She has been photographed and fingerprinted. And all of this has occurred before she has received a single welfare check. Particular California counties are especially zealous in policing welfare fraud. San Diego, for example, takes a more proactive approach to welfare cheating than other California counties. In 1997 the County established a program known as Project 100%. (4) Under the program, all individuals who apply for California's welfare program, known as CalWORKs, are subject to an unannounced home visit by a plain-clothed welfare fraud investigator, who is deputized and employed by the local prosecutor's office. (5) Home visits occur before benefits are issued, and consist of an interview and a walk-through of the home. Investigators may, and do, look inside closets, bathroom cabinets, laundry baskets, and trash cans during the walkthrough. (6) Welfare applicants are informed that the home visits are designed to verify their eligibility. (7) Anyone who refuses consent for the interview or walk-through will automatically have her welfare application denied. (8) If the home visit and walk-through reveals any evidence of criminal activity, the county investigator may make a referral for criminal investigation. (9) San Diego County's practices, some of the most aggressive in the country, are emblematic of the broader trends in both welfare provision and the intermingling of the welfare and criminal justice systems. Nationwide, welfare applicants are treated as presumptive liars, cheaters, and thieves. Low-income families find their lives heavily surveilled and regulated--not only by welfare officials, but also by the criminal justice system. And low-income individuals may not be aware of the complex rules and regulations that take effect when applying for government benefits or of the many ways the government surveilles their actions. Policing the poor and protecting taxpayer dollars from misuse have taken priority over providing for
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78 the poor. Regulating the behavior of the poor and deterring fraud are now the objects of political attention and government resources, even when the goals of such regulation are unclear and the methods of deterrence are unevaluated and costly. More than forty-five years ago, Professor Charles Reich wrote that it would undermine the fundamental purposes of welfare provision to "violate the sanctity of the home and degrade and humiliate recipients." (10) Yet today, some of the key purposes of welfare policies are to regulate the home and to degrade welfare recipients to such a degree that they are deterred from using welfare. (11) The term criminalization is used in this Article to describe a web of state policies and practices related to welfare. (12) There are several different kinds of criminalizing policies and practices. First, there are a number of practices involving the stigmatization, surveillance, and regulation of the poor. (13) These practices are historically embedded in aid programs to the poor. As Part II of this Article describes, the welfare reforms implemented near the end of the twentieth century raised these practices to a new level. Second, many of the policies written into the federal and state welfare reform laws assumed a latent criminality among the poor. The welfare reform measures were aimed at excluding welfare recipients who had engaged in illicit behavior (such as drug use or possession) in the past, and were aimed at imposing harsh penalties on welfare recipients who engaged in illicit behavior while receiving government benefits. (14) These policies engaged the get-tough-oncrime approach used by the criminal justice system. The third type of criminalizing practices involved the growing intersection between the welfare system and the criminal justice system. This intersection includes not only overlapping goals and attitudes toward the poor, but also collaborative practices and shared information systems between welfare offices and various branches of the criminal justice system. Both these systems are now preoccupied not with addressing social ills, but rather with reducing the risks associated with social ills. Very concrete examples of this criminalization exist in the welfare system--most notably, aggressive investigations into and increasing prosecutions for welfare fraud. (15) These government practices, which involve both the welfare offices and the criminal justice system, are leaving a large and growing number of parents with criminal records and paying criminal penalties. More troubling, the policing of welfare fraud typically occurs at the local level, so that dramatically disparate rates of investigation and prosecution appear to exist among counties, even those in a single state. (16)
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79 The following Part of this Article describes the historical and political progression through which welfare fraud and welfare cheats became such a concern in the United States. Part III then details some of the federal programs and state and local practices that have in recent years contributed to the criminalizing trends. That Part also examines the movement away from civil penalties for welfare cheating and the increasingly aggressive pursuit and punishment of welfare cheating as a felony crime. Part IV examines the tenuous and troubling state of constitutional protections for the poor under recent case law. Finally, Part V proposes some policy changes to address the problematic convergence of the welfare and criminal justice systems. It also considers why legal scholars should become more attentive to the intermingling of government programs and strategies and, more specifically, attentive to the poor.
II. THE HISTORY OF THE CRIMINALIZATION OF POVERTY A. FROM 1935 THOUGH THE 1960S: CHANGES IN WELFARE DEMOGRAPHICS AND THE RISE OF MIDNIGHT SEARCHES The criminalization of welfare recipients entails a long historical process of public discourse and welfare policies infused with race, class, and gender bias. (17) State and federal government aid programs developed in the first half of the twentieth century supported white, male workers and the white women and children dependent upon their wages while they excluded a huge segment of poor women of color and their children. (18) The Social Security Act created Aid to Dependent Children (ADC), a program specifically designed for poor mothers and their children and originally intended to support the widows of working men. (19) After World War II, the ADC rolls grew--from about 900,000 individuals in 1945 to approximately three million in 1960. (20) The proportion of families headed by divorced or unmarried mothers grew, while the proportion of families headed by widows declined. (21) In addition, the number of African-American families receiving welfare rose, especially as poor African-American families, seeking economic opportunity, migrated from southern agricultural areas to the industrial hubs of the North. (22) Welfare offices in many states and locales adopted "suitable home" and "substitute parent" rules, which were essentially morality standards, and which were arbitrarily and discriminatorily applied, and commonly excluded women of color from the welfare rolls,
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80 especially in the South. (23) Notwithstanding a 1961 rule issued by the Secretary of Health, Education and Welfare barring the arbitrary application of suitable home requirements, many welfare offices continued to engage in midnight raids on the homes of ADC recipients in order to police "man in the house" rules. (24) The stated reason for surprise visits was to catch men sleeping in the homes of women receiving welfare. Unmarried women with men in their beds were deemed morally unfit and their households therefore unsuitable for assistance. (25) In addition, the men discovered in the homes were considered household breadwinners who had hidden their income support from the aid office. (26) The unstated but underlying goals of the rules were to police and punish the sexuality of single mothers, to close off the indirect access to government support of able-bodied men, to winnow the welfare rolls, and to reinforce the idea that families receiving aid were entitled to no more than neardesperate living standards. Midnight raids on welfare recipients continued for most of the 1960s. (27) During that time, a number of publicized cases of welfare fraud charges resulted from the raids. (28) In many of those cases, though, the men, not the women, were charged with fraud. Men found residing with women receiving welfare aid were treated as the welfare cheats. (29) The prosecutions of men, rather than women, suggest that the welfare and law enforcement officials considered women to be easily manipulated by the men, but ultimately blameless in the cheating. This view of the innocence of women, however, changed over time. By the mid-1960s, low-income women of color were being blamed for all sorts of social problems. An oft-cited 1965 report by Daniel Patrick Moynihan promoted the idea that the problems of inner cities--poverty, joblessness, and crime--could be traced to a "tangle of pathology" perpetuated by unmarried black mothers. (30) The Moynihan Report identified family disorganization and disintegration among poor African Americans as a source of social, moral, and economic instability in the United States. (31) The report stated that "[a]s a direct result of this high rate of divorce, separation, and desertion, a very large percent of Negro families are headed by females. While the percentage of such families among whites has been dropping since 1940, it has been rising among Negroes." (32) Even worse, according to the report, many of the children in femaleheaded households received Aid to Families with Dependent Children (AFDC, formerly ADC), a program originally designed for widows and orphans. (33) In Moynihan's popular portrayal, lowincome African-American mothers were a social threat because they
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81 gave birth to and raised sons who became the criminal, urban underclass. In 1968, the Supreme Court handed down a decision that halted the "substitute father" rule, which had stipulated that any man cohabiting with a mother should be considered a substitute father and should be held responsible for supporting the entire family. (34) While the decision lifted the stigma of welfare cheating from fathers and boyfriends, it also intensified the stigma on mothers. The Supreme Court held in King v. Smith that the substitute-father presumption was inconsistent with the intent of the Social Security Act to provide for needy children. (35) The plaintiff, Sylvester Smith, was an African-American widow and mother of four whose welfare case had been closed when the welfare department found that a man (who was married with nine children of his own) sometimes spent the night in her house. (36) As a result of King v. Smith, welfare offices devoted markedly less attention to the men involved in the lives of women receiving welfare. Policymakers instead turned their full attention to welfare mothers. B. THE 1970S: GROWING CONCERNS ABOUT GOVERNMENT WASTE AND ABOUT CRIME Beginning in the 1970s, it became more difficult for welfare recipients to live on their welfare grants. Throughout the 1970s, '80s, and '90s, the value of the welfare grant, adjusted for inflation, declined dramatically. The weighted average maximum benefit per three-person family was $854 in 1969 (in 2001 dollars), but plummeted to $456 by 2001. (37) It became increasingly hard for welfare recipients to cover their most basic expenses--food, clothing, and rent--with their welfare grants. Unable to survive on welfare checks and facing barriers to employment, many welfare recipients turned to other sources of income, whether help from kin or participation in underground labor markets, and attempted to hide those sources from the welfare office for fear of losing the small checks they received. (38) Also in the 1970s, as a part of welfare reforms under President Richard Nixon, the AFDC system became more bureaucratic. (39) The practice of social workers visiting the homes of welfare recipients and verifying financial need ended. (40) Office caseworkers, hired to replace the social workers, processed the routine paperwork that welfare recipients regularly submitted to the office to document their continuing financial need. In a process known as "churning," the federal government increased the amount of information and paperwork required to determine welfare
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82 eligibility, and denied benefits to low-income families who failed to keep up with the paperwork. (41) Income-eligible families were removed from the aid rolls for their failures to provide verification documents in a timely manner. (42) Home visits by welfare caseworkers, particularly unannounced visits, virtually stopped during the 1970s. (43) During that period, welfare recipients gained greater expectations of privacy in their own homes. Governmental scrutiny of administrative records, however, increased. Particularly during the Carter Administration, the news media brought greater attention to fraud in government spending, a concern that first arose in the context of military contracts after glaring examples of waste and abuse were exposed. (44) Congress passed, and President Carter signed, the Inspector General Act of 1978, which authorized the President to appoint Inspector Generals to twelve federal administrative agencies. (45) Data collection and analysis were increased throughout government programs. (46) In the 1970s, the image of low-income mothers took a particularly negative turn. As discussed below, California Governor (later President) Ronald Reagan used the symbol of the "welfare queen" to propel his ideas on limited government and increased crime control. (47) Reagan used references to the welfare queen to portray an image of widespread depravity and criminality among low-income women of color. (48) Despite the factual inaccuracies of Reagan's descriptions, the symbol of the welfare queen resonated with the public. Welfare cheating had always been an issue in poverty politics. Senator Robert Byrd made a highly publicized investigation of welfare fraud in Washington, D.C. in 1962. (49) In 1972, when President Richard Nixon was considering an overhaul of the welfare system, Senator Russell Long of Louisiana declared that "the welfare system, as we know it today, is being manipulated and abused by malingerers, cheats and outright frauds." (50) While distrust of those low-income adults unattached to the wage labor market had always existed in the United States, it appeared to grow throughout the 1970s. Concerns about welfare cheats, in particular, began to rise. Beginning in 1977, those who applied for food stamps had to disclose their Social Security numbers to receive benefits. (51) This marked the first use of an extensive data exchange using Social Security numbers among government agencies, and the beginning of computer data tracking of the poor. That is not to say that there were not individuals who defrauded the welfare system. In the late 1970s and early 1980s, there were a few particularly notable cases of welfare fraud in large U.S. cities. (52) It was not happenstance that a number of welfare
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83 fraud cases involving double-dipping crooks were uncovered in the late 1970s, as it was then that the AFDC system was computerized and that identifying and documenting cases of fraud became much easier for welfare officials. (53) What may have appeared to the public and to policymakers to be a spike in cases of welfare fraud was actually a sudden improvement in the ability of officials to root out fraud effectively. And while this transformation--the computerization of the system--might have been heralded as a means of both providing aid more efficiently and policing fraud more effectively, the transformation marked instead a period of zealous attacks on welfare recipients and a public perception that welfare cheating was on the rise. C. THE 1980S: THE RISE OF THE WELFARE QUEEN The election of Ronald Reagan as President in 1980 marked a significant transition in public opinions towards the poor and in government services for the poor. From the first moment of his bid for presidential election, Ronald Reagan used anecdotes about welfare queens to exemplify everything he believed was wrong with government programs--excessive spending on domestic programs and misuse of government money. (54) Reagan apparently merged the identities of two well-known women convicted of welfare fraud-Linda Taylor, the Chicago "welfare queen," and Barbara Jean Williams, the Cadillac-driving "Queen of Welfare" from Compton-into a single persona who starred in an often-used anecdote. Reagan regularly exaggerated the number of aliases used by these women so that his welfare queen had 100 of them. (55) The welfare queen played a prominent role in Reagan's presidential campaign. Programs providing assistance to the poor changed after Reagan took office. Whereas Nixon, during his 1973 State of the Union Address, proudly stated that federal spending on food assistance programs had tripled during his presidency, Reagan regarded those same programs as government waste. (56) Under Reagan's direction, the federal government cut funding for food stamps in 1981. (57) The federal government also tightened the eligibility requirements for the federal school lunch program, eliminating 2.6 million children from the program. (58) Reagan also began a government crackdown on "waste, fraud and abuse"--a phrase that became a dominant theme in his second campaign. The crackdown, however, was targeted rather than universal. Upon taking office, Reagan abruptly fired all of the Inspectors General. (59) Rather than focusing on waste and fraud throughout federal government, President Reagan focused instead on
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84 welfare fraud, particularly on fraud committed by welfare recipients. In Reagan's view, the poor, and not the welfare bureaucracies, were the sources of fraud and waste. In the 1980s, some Democrats began accusing Republicans of using "[w]aste, fraud and abuse" as code words for "a budget-cutting program that would take more money away from poor blacks and Hispanics, and relatively less from middle-class whites." (60) Republicans replied that the disparate racial effects of the policies were not intentional. (61) Despite the congressional concern about welfare fraud by recipients, the Washington Post reported that an audit of the Department of Health and Human Services (formerly Health, Education and Welfare) released shortly before Reagan fired its Inspector General found that "[t]he greatest cheaters ... are not individual welfare or health care recipients, but doctors and pharmacists and other providers of services who overbill the government." (62) Again, that is not to say that cheating welfare recipients did not exist. (63) But rather than treat a few exceptional instances of criminal activity as the exceptions they were, politicians--and the media and public, as well-adopted these cases as typifying poor, African-American women on welfare. These "welfare queens" were treated not merely as stereotypes of poor black mothers on aid, but as archetypes--perfect examples of what welfare recipients become over the course of years on the dole. (64) And Ronald Reagan's re-election campaign was spearheaded by an attack on waste, fraud and abuse in welfare programs. (65) Just as in President Reagan's first bid for the White House, the welfare queen became a powerful symbol in the 1984 presidential campaign. (66) Where the welfare queen stereotype was accurate was in its characterization of poverty and welfare as women's issues. Indeed, in 1984, two-thirds of the adults living below the poverty line were women, and households headed by single mothers were five times more likely to live in poverty than two-parent families. (67) Moreover, with rising divorce rates and an increasing number of nonmarital births in the United States, the disproportionate representation of women and their children would become a growing trend. D. THE 1990S: WELFARE REFORM AND THE CONVERGENCE OF THE WELFARE SYSTEM AND THE CRIMINAL JUSTICE SYSTEM Vilifying the low-income mothers receiving welfare became a bipartisan project in the 1990s. Survey research revealed that Americans associated welfare with African Americans and viewed the welfare system as a program that rewarded laziness among
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85 African Americans. (68) "Welfare dependency" became a keyword associated not only with economic risk and social disorder, but also with crime. (69) In the 1990s, states began to attack welfare recipients through aggressive welfare fraud investigations and criminal prosecutions. (70) California again became a leader in these new punitive approaches to welfare reform. (71) By 1993, twenty-six other states had joined California in establishing pre-eligibility fraud investigation units, which conducted investigations of individuals applying for cash aid. (72) The pre-eligibility fraud investigation units checked on welfare applicants' assets, sources of property, household composition, and address. (73) Investigators conducted their investigations by interviewing relatives, friends, neighbors, employers, and landlords of welfare applicants; visiting and conducting surveillance of applicants' homes; investigating financial resources through database searches; and interviewing the welfare applicants themselves. (74) In 1995, all of the states that had established welfare fraud investigation units housed them separately from the eligibility workers in order to avoid conflicts of interest between government employees trying to provide for the poor and those focused on deterring and capturing welfare fraud. (75) California continued its leadership on "get-tough-onwelfare" reforms. California's Republican governor, Pete Wilson, reduced the welfare grants to needy families and increased the number of welfare fraud investigators in the state. (76) In 1994 Governor Wilson authorized the electronic fingerprinting of welfare recipients, even though legislative analysts, state budget officials, and welfare officials said doing so was both costly and unnecessary to address welfare fraud. (77) In 1996, California legislators stiffened the penalties for welfare fraud. Legislators passed bills that would permanently disqualify individuals convicted of welfare fraud from ever receiving welfare again. (78) At the same time, they voted to reduce welfare benefits. (79) California also began shifting the investigation and punishment of welfare cheating from the welfare office to district attorneys. Beginning in July 1996, district attorneys rather than staff from public social services agencies assumed the role of conducting welfare overpayment investigations. (80) Functionally, California-like many other states--made it increasingly difficult for welfare recipients to survive on their welfare grants alone, and shifted state money from aiding low-income women to policing and punishing them through the criminal justice system when they sought unreported income.
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86 Then came an overhaul of the welfare system at the federal level. In the debates leading up to the votes on the welfare legislation, federal lawmakers employed dehumanizing rhetoric to describe welfare recipients. (81) In a particularly vivid example of the dehumanization of welfare recipients, John Mica, a Republican Congressional Representative from Florida, held up a sign during a congressional debate that read, "Don't feed the alligators." (82) On the House floor, Mica argued that providing aid to poor women would do nothing but spur them to reproduce, entice them to return for more free handouts, and threaten the general public safety. (83) Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act in 1996. (84) The legislation eliminated the broad, federally-governed AFDC program and ended cash aid as a federal entitlement to all income-qualified families. (85) Replacing AFDC entitlements, the federal government distributed state block grants through a federal program known as Temporary Assistance for Needy Families (TANF). (86) The new welfare policies threatened that those who failed to play by the rules--by meeting mandatory work requirements, by abiding by behavior reforms, and by reporting all details of income and household composition--would be harshly punished with new penalties. (87) In addition, states were allowed to place their own conditions upon receipt of welfare and could establish time limits even shorter than the federal ones. (88) Those welfare recipients who failed to meet their obligations under the new system would be excluded from benefits and have the safety net pulled out from under them--in some cases permanently. E. ESCALATING ADMINISTRATIVE SANCTIONS During the welfare reform debates of the mid-1990s, politicians and the public repeatedly championed the "carrot and stick" approach to welfare. (89) The new welfare system would not only include incentives, but would also create a new system of disincentives and punishments. The approach was designed to coax welfare recipients who were not participating in the formal wagelabor market to seek steady employment and leave the welfare system. (90) There were a few incentives: increased earnings disregards, increased availability of child care subsidies, and an increased Earned Income Tax Credit for the working poor. The true underpinning of reform, however, came in the form of sanctions. A welfare recipient's failure to comply with welfare rules and regulations can result in a reduction or termination of the family's welfare benefits; this is known as a sanction. Failing to comply can mean violating welfare-to-work requirements, failing to
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87 fulfill the number of work hours required, or merely missing a scheduled meeting at the welfare office. (91) One study of the sanctions imposed in three major cities found that such missed appointments were the most common triggers for sanctions. (92) In California, the result of a sanction is a reduction of the adult's portion of aid from the grant check; in 2008, this reduction amounted to $139 for a family of three--a significant sum for a family living in poverty. (93) While many people assume that transitions from welfare to work account for dramatic decreases in welfare caseloads, a number of studies indicate that sanctions actually account for much of the decline. (94) Research by Sanford Schram found evidence that "gettough policies, especially strict sanctions, have contributed to the roll declines and may have done so in ways that forced people off even while they still needed assistance." (95) Like most policies under welfare reform, the policies regarding sanctions vary dramatically from state to state. While some states, like California, only reduce the adult's portion of aid under a sanction (known as a "partial sanction"), thirty-six states implemented "full family sanctions," meaning that if a parent fails to meet his or her work requirement, cash aid to the entire family is cut off. (96) In seventeen of these states, full-family sanctions are immediate upon noncompliance with the welfare rules; in the remaining nineteen states, full-family sanctions are only instituted after multiple instances of non-compliance (referred to as a "gradual full-family sanction"). (97) Wisconsin determines sanctions based on the number of hours a welfare recipient has failed to perform. (98) In addition, nineteen states eliminate food stamp benefits if an adult is non-compliant, and twelve states eliminate Medicaid benefits to noncompliant adults. (99) Sanctions are a routine occurrence. Researchers estimate that between 33% and 52% of TANF recipients have been sanctioned. (100) More than half of a million families were subject to full-family sanctions from 1997 through 1999. (101) Schram has shown that those states that have instituted the punitive full-family sanctions are those with the largest populations of African Americans. (102) Other researchers examining TANF sanctions found that "limited education and being African American predict sanctioning when [one] control[s] for a wide range of other personal and demographic characteristics." (103) In short, it appears the "carrot and stick" approach is overwhelmingly being used as a stick against some of the most marginalized and vulnerable populations-women of color and their children.
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88 As troubling as the effects of sanctioning practices are, the sanctions raise other concerns. For example, a study conducted by Yeheskel Hasenfeld found that approximately half of the sanctioned adults surveyed did not know they had been sanctioned. (104) For these families, the welfare system may seem so complex, arbitrary, and mystifying that they cannot determine why their benefits are fluctuating. This suggests that rather than creating a set of incentives that will "make work pay," the current welfare system is simply punishing people who cannot figure out how the system works. (105)
III. THE CRIMINALIZATION OF POVERTY TODAY Welfare reform not only produced punitive policies, but also established a system that blurred the boundaries between the welfare system and the criminal justice system. Until the 1990s, the welfare system was relatively simple and self-contained. The rules of AFDC and Food Stamps were handed down by the federal government, and eligibility rules and violations of welfare rules were consistent from state to state. If families were found ineligible for aid, they were given notice and their benefits ended. If they were found cheating-for example, underreporting their income or failing to report a change of household composition--but were still income-eligible for aid, then the penalties were civil: their welfare benefits would typically be reduced by a certain percentage each month until any overpayments were recouped by the state. (106) As a result of the reforms, the federal government and the states instituted policies and practices that burdened welfare receipt with criminality; policed the everyday lives of poor families; and wove the criminal justice system into the welfare system, often entangling poor families in the process. David Garland notes that the "themes that dominate crime policy--rational choice and the structures of control, deterrents, and disincentives, the normality of crime, the responsibilization of individuals, the threatening underclass, the failing, overly lenient system--have come to organize the politics of poverty as well." (107) The welfare reform policies were designed to punish the poor; to stigmatize poverty, particularly poverty that leads to welfare receipt; and to create a system of deterrence aimed at the middle class. A vast regulatory and punitive system developed under welfare reform. The welfare policies the states instituted after welfare devolution included a broad range of punitive approaches to the poor designed not only to punish poor adults who failed to transition from welfare to work, but also to punish entire families where the head of
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89 the household failed to live up to governing standards of morality. (108) The reforms not only ended aid to families as a federal entitlement, they allowed states to develop their own rules about who was entitled to aid and their own regulations and practices around removing families from the aid rolls. More importantly and less wellknown, however, the reforms of 1996 produced a system that blurred the boundaries between the welfare system and the criminal justice system. The welfare system is increasingly used by the government to police crimes, both those involving welfare and those unrelated to welfare. As the next Part illustrates, the welfare system is now being used to catch criminals, and restrictions on aid are being used to punish individuals who have been convicted of crimes. A. THE WELFARE SYSTEM AS A TOOL OF LAW ENFORCEMENT The fugitive felon prohibitions, Operation Talon, and the drug felony lifetime ban have little to do with aid to the poor. These rules and programs are essentially new ways for the criminal justice system to make use of welfare administrative data to capture poor individuals who are also wanted by the criminal justice system. Through changes in statutes and practices, then, the welfare system has become an extension of the criminal justice system. 1. Fugitive Felon Prohibitions The federal welfare legislation of 1996 included a provision that prohibited any individual who is wanted by law enforcement officials for a felony warrant or for violating the terms of parole or probation from receiving government benefits, including not only TANF benefits, but also food stamps, SSI, and housing assistance. (109) The fugitive felon provisions allow the criminal justice system to side-step privacy protections that apply to government and financial information belonging to citizens who are not receiving welfare. According to a 2002 report by the then-General Accounting Office (GAO) (now the Government Accountability Office), "about 110,000 beneficiaries [were] identified as fugitive felons and dropped form the SSI, Food Stamp, and TANF rolls." (110) While government officials claim that fugitive felon rules remove dangerous criminals from the streets, (111) it is not clear that dangerous criminals are those who are ensnared by the effort. According to the GAO report, more than one quarter of the SSI recipients excluded from aid under the rule were dropped because of parole or probation violations; in more than 37.4% of the cases, the
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90 offense on the warrant was not indicated in the data. (112) Not all parole or probation violations, however, are direct threats to public safety. An individual may have a warrant issued for arrest for parole or probation offenses that, while they may be violations of parole, are not criminal acts. For example, an individual may have a warrant issued for missing a meeting with a parole or probation officer, missing a substance abuse meeting, or being determined to be psychologically unstable. Thus, it is not clear whether this rule is reining in threatening criminals and keeping public housing safe, or instead merely reducing the government's costs for providing aid to individuals with outstanding warrants. Excluding felons--even those who have served their sentences--from the full benefits available to citizens without felony convictions certainly draws upon precedents under some state laws. A number of states exclude convicted felons, including those who have completed their sentences, from voting. (113) However, the drug felony exclusion and the fugitive felon rules extend beyond political disfranchisement to encompass deprivations of economic citizenship. While withdrawing the right to vote may have little impact on an individual's daily life, economic disfranchisement can substantially and detrimentally affect not only daily life, but also physical well-being. In short, the fugitive felon provisions raise several concerns: first, the denial of benefits to needy adults and their children; second, the suspension of procedural rights within the welfare system for individuals who have been involved in the criminal justice system; and third, the denial of economic citizenship. 2. Operation Talon The federal welfare legislation also loosened the confidentiality that once protected poor families' personal and financial information. (114) Before 1996, law enforcement officers could only access welfare records through legal process, but now welfare records are available to law enforcement officers simply upon request--without probable cause, suspicion, or judicial process of any kind. (115) The scope of an individual's rights to financial privacy under the U.S. Constitution is narrow, (116) but California protects individuals who are affluent enough to have bank accounts from state actors conducting fishing expeditions in their financial records. (117) Under the federal regulations, both welfare offices and public housing agencies are required to "furnish any Federal, State, or local law enforcement officer, upon the request of the officer, with the current address, Social Security number, and photograph of any recipient of assistance." (118) This exchange of information is not merely available to law enforcement officials when the welfare
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91 recipient herself is suspected of violating the law, but rather more generally when an officer believes the aid recipient, or anyone in her household, "has information that is necessary for the officer to conduct an official duty." (119) The information exchange between welfare offices and law enforcement, however, has expanded beyond mere investigatory use. Under a program titled "Operation Talon," food stamp offices are used as the sites of sting operations for arresting individuals with outstanding warrants. (120) People with warrants who receive food stamps typically receive a call telling them to report to a welfare office at a designated time to resolve a problem with their benefits or receive some kind of bonus. (121) When they show up, an officer from the sheriff's department is waiting to do the arrest. Thousands of low-income citizens have been rounded up under the program. Operation Talon was a program developed under the Office of Inspector General to expedite enforcement of the fugitive felon rule. (122) Then-Vice President Al Gore served as spokesperson for the program. (123) As a result of the 1996 federal rule changes, law enforcement officers now actively use the food stamp records of local social service agencies to locate and apprehend individuals with outstanding arrest warrants. (124) Operation Talon transformed food stamp offices into the sites of sting operations for arresting aid recipients with outstanding arrest warrants and facilitated use of welfare administrative data to capture low-income individuals who are wanted by the criminal justice system. Through this program the welfare system has become an extension of the criminal justice system, transforming the welfare system into a trap for hungry lawbreakers. Between early 1997 and September 2006, Operation Talon led to the arrest of 10,980 individuals across the country. (125) While the Inspector General's Year 2000 Update on Operation Talon indicates that some individuals arrested under the program faced charges for violent or serious crimes, many others did not. For example, 31% were for offenses known as "Group B offenses," such as writing bad checks, which are considered less serious. Many of the Group A arrests were for non-violent offenses: 11% were for fraud charges and 10% were for larceny/theft offenses, categories which may include welfare fraud; 23% were for drug-related crimes. (126) Various states seem to have targeted different types of felony offenders under the program. For example, while two-thirds of the individuals caught in the Illinois program instituted under Operation Talon had outstanding warrants on drug-related charges, more than three-fourths of the California offenders had fraud
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92 warrants (which include but are not limited to welfare fraud charges). (127) Thus, it is not clear whether this program is protecting public safety by reining in violent criminals or simply providing law enforcement officers a new tool in carrying out arrests. Government costs--and any cost savings--associated with administering the program are unclear. In testimony before the U.S. House of Representatives Committee on the Budget, Inspector General Phyllis Fong stated that: "It is difficult ... for most States to determine costs savings because even though fugitives are removed from the food stamp eligibility roles, they may be only one member in an entire household that continues to be eligible." (128) Researchers have yet to explore the effects of this program on the families who receive food stamps and other benefits. The big value for the federal government and for localities seems to rest in the numerous press releases celebrating the number of arrests made through use of Operation Talon. 3. The Drug Felony Lifetime Ban The federal welfare legislation encourages states to adopt rules excluding adults with drug felony convictions from receiving aid. As of December 2001, forty-two states had adopted the drug felony ban either in part or in full. (129) By 2005, the number of states that adopted the drug felony ban had dropped to thirty-two. (130) The states themselves chose the criteria they use to determine whether an individual is ineligible for government aid based on a past drug conviction. These criteria vary dramatically. In fifteen states, all drug related charges--from possession of small quantities to major trafficking--disqualify an individual from welfare receipt for life. (131) Poor adults in these states may receive neither cash aid nor food stamps. The other states that exclude convicted drug felons from public assistance have modified their exclusions in various ways. For example, some of the states disqualify individuals convicted of manufacturing or distributing drugs, but allow those who have been convicted of using drugs to remain on aid. (132) Some states allow parents who are participating in or who have completed drug treatment programs to re-qualify for aid. (133) In some states adults are ineligible for aid for the first twelve months after incarceration, but are eligible thereafter. (134) Only fifteen states bar those convicted of drug offenses from receiving food stamps for life. (135) As well as anyone has been able to measure, approximately 92,000 adults had been removed from the welfare rolls because of their felony drug convictions between 1997 and 2002. (136) According to data analysis by Patricia Allard at the Sentencing Project, California disqualified 37,825 adults from welfare receipt
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93 under the felony drug exclusion between 1996 and 1999. (137) (Thus, as the numbers above show, California accounted for more than one-third of the families excluded under the felony drug exclusion nationwide.) California modified its food stamp ban in 2004, (138) but maintained its ban on TANF benefits. While California's TANF program was supposed to make substance abuse treatment available to individuals who needed it in order to become work-ready, it is unlikely that mothers with substance abuse problems who know about the felony drug exclusion would reveal this to their caseworkers given the penalties. Rather than deterring welfare recipients from drug use, these rules-assuming they are known and understood by welfare recipients--may have the counter-effect of discouraging mothers with drug problems from inquiring about or seeking out help with their problems. It could be argued persuasively that the drug felony ban is unfair--that it punishes not only parents, but also their children. (139) It is also a harsh punishment for first-time petty drug offenders. (140) Furthermore, as others have noted, it is arbitrary to target drug offenders when individuals convicted of other crimes, such as homicide and rape, can receive benefits after serving their sentences. (141) Given the limited knowledge of the elements of welfare reform among welfare recipients, (142) most recipients are likely unaware of the felony drug exclusion. This lack of knowledge and the diversity of rules nationwide make it difficult for the felony drug exclusion to serve as a clear, unwavering deterrent to drug use. In some states the rules are so complex that it is unlikely any welfare recipient knows or fully understands them unless or until she finds herself subject to them. The drug felony lifetime ban again makes the welfare system an instrument of the criminal justice system. Here, again, the policies push those who are already economically marginalized to the periphery of society. B. CONFLATING POVERTY AND CRIME 1. Biometric Imaging and Data Sharing Between the Welfare and Criminal Justice Systems To prevent fraud, welfare administrators collect vast amounts of information about welfare recipients and their families. (143) Those who want to receive welfare have to fill out extensive paperwork at the time of their initial application and again every twelve months for their annual renewal of aid. In addition, they have to submit monthly and quarterly forms describing any changes in
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94 their income or household circumstances. Problems with paperwork routinely tie up assistance payments for recipients. (144) In the late 1990s some federal studies began to examine welfare cheating and welfare overpayments. Studies found that there were some individuals receiving food stamp benefits in more than one state and that it was possible some individuals might be collecting cash aid in multiple states. (145) There were also reports that government benefits were flowing to men and women who were incarcerated. (146) The 1996 federal welfare reform legislation required states to institute fraud prevention programs. (147) The legislation did not, however, specify what the fraud prevention programs should look like. The three most populous states--California, New York, and Texas--as well as some other states instituted biometric imaging, in most cases fingerprint imaging programs, as part of their welfare fraud control measures. These biometric data collection requirements have been applied, depending on the state, to recipients of food stamps, TANF grants, and General Assistance grants (available to indigent adults without children). Individuals who apply for cash aid or food stamps in these states are required to submit fingerprints--and sometimes photographs--through an electronic imaging system. New fingerprints are cross-checked with those on record to identify cases where a person might have tried to apply for aid in two different welfare offices. The stated goals of these programs are to deter and catch individuals who might attempt to "double-dip" by using aliases to open welfare cases. While there were several well-publicized California and Illinois cases of double-dipping welfare fraud between 1975 and 1983, discussed in Part II, infra, in all of those cases the welfare recipients had first signed up for aid before applicants were required to submit Social Security numbers and before extensive computer verification systems existed. With computerization in place, individuals would have great difficulty opening multiple cases: even if they used fake Social Security numbers, computer checks on the numbers would be likely to reveal earnings or assets associated with those numbers. The fingerprint imaging systems, then, are largely superfluous to existing efforts to reduce fraud. (148) But fingerprint imaging serves another purpose: the collection of biometric data scrutinizes and stigmatizes low-income adults in a way that equates poverty with criminality. In states with biometric imaging, applying for welfare mirrors the experience of being booked for a crime: after being interrogated about family and finances, individuals are photographed and fingerprinted. The fingerprint images are entered into statewide
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95 computer systems and then used to check for duplicate applications. Few duplicates--indicating one person submitting more than one welfare application--are found. In California, for example, the state identifies only three matches per month and typically refers only one of these cases per month for more extensive fraud investigation or prosecution. (149) A report by the California State Auditor in 2003 berated the Legislature for the fingerprint imaging system, stating it was impossible "to determine whether SFIS [State Fingerprint Imaging System] generates enough savings to cover the estimated $31 million the State has paid for SFIS or the estimated $11.4 million the State will pay each year to operate it." (150) Policymakers claim that the real motive behind fingerprint imaging is deterring, not merely catching, acts of fraud. There is, however, evidence that procedures deter not only fraudulent applications, but also legitimate applications by needy families, particularly eligible immigrant families. (151) The fingerprint imaging requirements create another hurdle that poor adults must clear in what is an otherwise demanding application process. In some counties in California, fingerprint imaging is done only on certain days, sometimes requiring aid applicants to make an additional trip to the welfare department and delaying the time between initial application and first day of aid receipt. (152) Individuals who apply for welfare but who choose not to follow through with the applications by providing their finger images may do so as an act of resistance to government authority, but may unwittingly be opening themselves up to additional government scrutiny. (153) While lawmakers and the public seem unwilling to devote tax dollars to providing cash benefits to the poor, there seems to be great willingness to spend money to police the poor--even when doing so appears economically inefficient or ineffective. Separate audits of the fingerprint imaging systems in New York, (154) Texas, (155) and California (156) determined that the systems were costly, caught few (if any) cheats, and served as both a hurdle and a deterrent to poor families in need of aid. In each case, less than onehalf of 1% of the new and recertified cases triggered a match--0.44% in Texas. (157) By instituting these programs, states signaled that crime control--specifically preventing the receipt of excess government benefits--takes priority over relieving poverty, relieving food insecurity, and containing state administrative costs. The fingerprinting programs, which contribute to the stigma of receiving government aid, may also deter needy families from applying. (158) It is generally true that only a fraction of those families eligible for food stamps receive them. (159) Still, most of
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96 the states with fingerprint imaging requirements in 2006 had fewer eligible families receiving food stamps than the national average. (160) Nationwide, in 2006, 67% of those individuals eligible for food stamps participated in the food stamp program. (161) The only states that employed fingerprint imaging and had a higher-than-average food stamp participation rate were Illinois, with a participation rate of 79%, and Pennsylvania, with a participation rate of 75%. The other five states that that required fingerprinting for food stamp participation had participation rates between 50% (in California) and 65% (Connecticut). (162) As the following Part illustrates, fingerprinting is by no means the most invasive proposal for regulating welfare recipients. 2. Drug Testing The welfare system is moving beyond efforts to punish drug use when it comes to the attention of law enforcement officers. Some states are becoming invasive in their search for drug-use among the welfare poor, and penalties against drug-users do not apply only to those actually convicted of drug-related offenses. Michigan, for example, instituted "a pilot program of substance abuse testing as a condition for family independence assistance eligibility in at least [three] counties, including random substance abuse testing." (163) Under the plan, all adults who applied for welfare were to be tested as part of the application process. In addition, every six months 20% of the recipients would be randomly tested. According to the Family Independence Program's Eligibility Manual: [A]pplicants who refuse to take the drug test without good cause and applicants who fail to complete the assessment process or do not comply with a required treatment plan within two months will be refused benefits. Aid recipients who refuse to submit to the random drug testing will lose a percentage of their benefits each month; after four months of failure to cooperate in the testing, such recipients will have all benefits withheld. (164) The drug testing pilot program was challenged even before it was implemented. A federal district court in Michigan preliminarily enjoined implementation of the pilot program in 1999 as constituting an illegal search, a violation of Fourth Amendment rights, because the testing was done even where there was no "particularized suspicion" of illicit behavior. (165) Between 1999 and 2002, however, the Supreme Court issued a ruling allowing suspicionless drug testing in public schools and broadening the category of "special needs" that might justify suspicionless searches. (166)
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97 In 2002, the Sixth Circuit lifted the district court's injunction, allowing Michigan to proceed with its drug testing program. (167) The Sixth Circuit extended the definition of a "special need" justifying suspicionless searches by grouping a number of social concerns into a special need among welfare recipients. (168) These concerns included "the safety of the children of families" receiving aid, "the risk to the public from the crime associated with illicit drug use and trafficking," and the need to insure that cash is "used by the recipients for their intended purposes and not for procuring controlled substances." (169) The Sixth Circuit decision declared that the drug testing did not intrude into welfare recipients' privacy interests because "it is clear that the plaintiffs have a somewhat diminished expectation of privacy.... [W]elfare assistance is a very heavily regulated area of public life with a correspondingly diminished expectation of privacy." (170) Indeed, welfare recipients have had very little privacy under U.S. welfare policies. Still, using these past government refusals to recognize the privacy rights of welfare recipients as justifications for further invasions placed the argument on a shaky legal foundation. The Sixth Circuit opinion stood in stark contrast to the welfare rights cases from the early 1970s, which suggested that the poor do not lose their fundamental rights even when their "brutal need" leads them to seek government aid. (171) Judge Batchelder's majority opinion in Marchwinski made clear that the government's desire to "get tough on drugs" outweighs both the needs of the poor, who will be dissuaded from seeking aid merely by the humiliation of the experience, and their privacy rights, as they lack the full rightsprotections of other citizens. When the Marchwinski case was reheard en banc, the panel of the Sixth Circuit Court judges evenly split on the decision. (172) By default, the original injunction granted by the federal district court was reinstated. Michigan's drug testing program was enjoined. (173) The possibility exists, however, that other states may attempt to develop such programs. The drug testing of welfare recipients particularly highlights the conflation of poverty and crime and the widespread assumption that poor women of color are the causes of crime. There is some dispute as to whether welfare recipients have higher drug use and dependence than the population at large. (174) Drug use among welfare recipients appears to be higher than drug use in the general population, but drug dependence, which interferes with relationships and work, may not be higher. (175) Further, even if some welfare
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98 recipients use drugs, statistics indicate that the vast majority of those who might be subjected to drug testing do not. (176) C. WELFARE FRAUD INVESTIGATIONS AND PROSECUTIONS Unlike sanctions and family cap rules, which are policed by welfare administrators, welfare fraud prosecutions rest mainly within the domain of the criminal justice system. For this reason, welfare fraud policies stand apart. Poor families usually turn to the welfare system only when they are in desperate need and cannot find employment to provide their most basic needs. However, the cash benefits available under TANF are too low to sustain a family. The gap between resources and need often leads welfare recipients to seek income to supplement their welfare benefits and to hide that income from the welfare office. In all states, a family who receives TANF and food stamps as its only source of income will find itself living well below the poverty threshold. In California, the maximum aid payment available to a family of three living in a high-cost county is $723 in TANF cash assistance and $361 in food stamps, for a total of $1,084. (177) These amounts would place the family at only 73% of the poverty threshold. (178) Because welfare recipients are required to work, many combine earnings and welfare benefits. In November 2007, the average TANF cash aid grant to California families was $528 and the average food stamp amount $126. (179) When it comes to violating the welfare rules, most welfare recipients are damned if they do and doomed if they don't. In short, the U.S. system both produces and punishes lawbreakers. As several studies have found, families relying on the welfare system cannot live on their cash aid alone. Because welfare benefits are so low, most welfare recipients have to rely on other sources of income to make ends meet. (180) As a result, almost all recipients engage in some kind of income-generating activity that they hide from the welfare office, and that could therefore be deemed fraud. This difficulty--perhaps impossibility--of living on welfare grants alone means that for many families receiving government assistance, their everyday activities of making ends meet amount to crime. California county welfare agencies are given the duties of identifying and reclaiming overpayments from recipients, whether those overpayments are due to recipient error or office error. The federal regulations require welfare offices to notify clients within forty-five days of becoming aware of a likely overpayment, (181) though this notice rule has regularly been violated by the counties.
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99 An overpayment to a family still on aid results in a 10% reduction of the family's future grants until the overpayment is reclaimed by the county. (182) The counties pursue cash repayments from individuals who are no longer receiving aid. When those repayments are not forthcoming, the counties may pursue a collections process, sometimes leading to wage garnishment for newly-employed former welfare recipients. Welfare cheating typically takes one of several forms. (183) The first involves working at a legitimate job, but failing to report all of the earnings to the welfare office. The second type involves "side jobs": under-the-table employment for cash that is not reported either to the welfare office or to tax authorities. A third type of fraud occurs when welfare recipients fail to report to welfare officials the presence of wage-earners in their household. Other fraudulent activities may include receiving aid for a child no longer in the household or, in rare cases, establishing false identities to collect aid for non-existent persons. 1. Welfare Fraud Investigations Welfare agencies aggressively investigate fraud before and after applicants receive benefits. Alameda County, like other California counties, conducts what is known as Early Fraud Prevention (EFP) by screening welfare applicants for possible fraud before a case is even opened and a check issued. Alameda County, however, engages in fewer EFP measures than some other California Counties. Orange County California, for example, has aggressively investigated applicants through EFP policies since the early 1980s. The county's fraud prevention efforts set the standard for the rest of the country. In fiscal year 1992-1993, 21% of the applicants for AFDC and food stamps in Orange County were referred for fraud investigation. (184) Welfare fraud investigations occurring after a case is open can be triggered in one of several ways. First, an investigation may be triggered when a data exchange based on a recipient's Social Security number identifies an inconsistency in information. Second, an investigation may be initiated by a welfare caseworker who suspects a problem. Third, an investigation may be triggered by an anonymous call to one of the state or county welfare fraud hotline numbers, or by any other form of tip provided to the welfare office. Most investigations in California are triggered by either a flag in the quarterly income verification done through the income eligibility database or by tips to the state or local welfare fraud hotlines. Welfare fraud investigations are commonplace. California investigated 2.44% of its TANF aid caseload each month between
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100 October and December 2007, though in some counties the rates of investigation were much higher. (185) Investigations may delve deeply into the lives of welfare recipients. While overstepping the welfare rules is a common practice among welfare recipients, welfare fraud investigators cast their nets broadly, routinely investigating welfare recipients who are not determined to be engaged in fraud. A 1999 Los Angeles Grand Jury Report found that "the statewide rate for the number of completed investigations with allegations unfounded or insufficient evidence was 52.3[%]." (186) A 2003 Los Angeles audit found only 34% of statewide fraud investigations and 30% of Los Angeles fraud investigations produced evidence of fraud. (187) California averaged just under 464,000 families receiving aid in the last quarter of 2007 and had a severe backlog of pending welfare fraud investigations--more than 52,000 as of the same quarter. (188) The delay in investigating cases means that overpayments to welfare recipients may continue and accumulate during the interim period between the county or state's first identification of problems with the case and the point at which the client is notified of a problem. (189) As a result, most of the overpayments attributable to client failure to report income easily trigger felony fraud charges since the accumulated overpayments usually surpass the dollar threshold for a felony, versus misdemeanor, charge. The line between administrative and criminal penalties for welfare cheating has become increasingly blurry. Federal welfare legislation (the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996, hereinafter PRWORA) greatly increased administrative penalties. PRWORA states that if an individual loses benefits in any federally funded, means-tested program due to fraud, she or he will not only lose benefits under that program, but also become ineligible for increased benefits under any other program. (190) In other words, if a welfare recipient is found to be engaged in cash aid fraud by virtue of failing to report all of her income, she will lose cash aid, and her household will see no increase in food stamps or housing assistance to offset the decrease in aid. As states implemented rules under federal welfare reform, many stiffened their own civil and criminal penalties for government aid recipients who cheat. California, for example, adopted a "three strikes and you're out" rule for intentional program violations determined by the administrative agency. (191) In addition to civil penalties, California imposes stiff criminal penalties for welfare fraud, including permanent exclusion from aid. This comes on top of any penalties that the criminal justice system might impose for a
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101 conviction of fraud or perjury. Welfare fraud charges are available to prosecutors when welfare recipients receive undeserved benefits as a result of making any kind of intentional misstatement. (192) The legislative drive to punish welfare cheaters has created some problems. In many California counties the physical boundaries between welfare administration and criminal fraud control efforts have disappeared. Of California's fifty-eight counties, only twentyeight have the county welfare departments conduct welfare fraud investigations. (193) The remaining counties have moved their fraud investigators to law enforcement, with twenty-one counties housing their fraud investigation units in the offices of the District Attorney (DA), nine situating satellite DA's offices in the welfare office, and two placing fraud investigations in the hands of local sheriff's offices. (194) The close relationship between officials who administer aid and those who police cheating raises some troubling issues. Welfare recipients identified as having received overpayments as a result of their failing to report earnings are notified by letter that they must attend a meeting with an official, and many of these officials share office space with case workers. Although these officials are criminal fraud investigators or members of the County DA's office, many welfare recipients do not realize that these officials are part of the criminal justice system rather than the welfare system. (195) As a result, they attend the meetings without consulting or bringing legal counsel. California welfare recipients suspected of fraud and called into meetings with fraud investigators are asked to sign disqualification consent agreements. These agreements are basically admissions that the recipients did not state all necessary facts in their monthly reporting forms or in their (re)applications for aid. By signing one of these agreements, a welfare recipient waives any available administrative remedies. (196) Before asking an individual to sign a disqualification consent agreement, counties are required to give the individual a notice including the following statements: (1) [T]he accused understands the consequences of signing the consent agreement; (2) consenting to the disqualification will result in a reduction in benefits for the disqualification period; (3) the actual disqualification penalty to be imposed; and (4) any remaining members of the [family] may be held liable for any overpayments that the accused has not already repaid. (197) The procedures do not specify how far in advance the recipient must be given this notice, so it is conceivable that the
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102 individual receives notice only minutes before signing what amounts to an admission of criminally culpable behavior. Other research suggests that welfare fraud suspects sign these agreements believing that they will be asked to repay money to the welfare office, but are unaware that the consent agreements may be, and often are, used as the basis for felony criminal charges brought against them later. (198) In other words, they sign the agreements with far less than complete knowledge of the consequences of doing so. Welfare recipients continue to treat the welfare and criminal justice systems as distinct, unaware that the two are merging. The welfare reforms expressed a popular notion, namely, that individuals who fail in the free market economy and turn to government assistance programs lose the full benefits of citizenship. They become the objects of unrelenting social control. At the same time, their everyday activities and omissions--taking "side jobs" to supplement their income, allowing boyfriends to move into the household, and failing to report all of their earnings to the welfare office in writing--become subject to punishment under criminal law. 2. Criminal Prosecutions Failing to report all sources of income and support to the welfare office can result in criminal charges. District Attorneys may bring charges of welfare fraud and even perjury against welfare recipients who earn income through work but do not accurately report all of their income or their household composition on their monthly reporting forms. (199) There is a demographic arbitrariness to welfare fraud prosecutions, with some locales (and states) investigating more rigorously than others, and with some locales prosecuting at higher rates than others. (200) Five of the six largest counties in California have welfare caseloads of comparable size and are presented for comparison in Table 2, infra. (Los Angeles County, which is much larger, is excluded from the table.) The table demonstrates that investigation and prosecution rates vary dramatically. Prosecutions generally require the collaboration of welfare officials and local prosecutors, meaning that much of the politics around welfare fraud is local. Moreover, some states have made efforts to create general policies or centralize control over welfare fraud investigations and prosecutions, while others have left the decisions to localities. As a result, an individual welfare recipient's chances of being investigated and prosecuted for welfare fraud depend largely on where she lives. There is a push to bring criminal rather than administrative penalties against welfare cheats in California. In the fourth quarter of 2007, 417 cases were referred for criminal prosecution in California
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103 while only 43 cases were referred to Administrative Disqualification Hearings. (201) The disparities among counties in practices and outcomes may reflect differences in the county welfare populations or differences in prosecutorial enthusiasm on the part of county authorities. Research and evaluation are clearly needed on the dramatic disparities among counties, and states, in rates of welfare fraud prosecution 3. The Unmeasured Costs (and the Fuzzy Math) of Pursuing Welfare Fraud The drive to punish welfare cheats and to increase the administrative and criminal penalties for those who are caught cheating seems to prevent policymakers from analyzing the goals, effects, and costs of punishing welfare cheats. Many prosecutors' offices across the county have pursued individuals (mostly women) for welfare fraud with a zealotry that belies the actual public threat or criminal intent associated with this problem. In 1997, Erik Luna, then a Deputy District Attorney in San Diego and now a law professor, wrote a law review article declaring, "Welfare fraud is an epidemic." (202) That view, however, assumes that the problem of individuals making misrepresentations to the welfare office and receiving some level of benefits to which they are not entitled outweighs the problem of poverty in the United States. While a public conversation about the relative weights of these problems has not occurred, the policies being proposed, and often implemented, commonly reflect assessments like Luna's. With 9.8% of U.S. families falling below the poverty level in 2006, (203) many might argue that poverty itself remains a chronic condition and a concern of government. One of the difficulties in evaluating the success of punitive and criminalizing approaches to welfare is that the goals of these strategies are often unstated, multiple, and even contradictory. According to welfare officials, welfare fraud measures are designed to achieve several goals: to catch welfare cheats, to deter would-be and actual welfare cheats, and to reduce governmental costs. The first goal, catching cheats, is one that the system is certainly achieving. The problem, however, is that the vast majority of welfare recipients are technically welfare cheats. If they were not, they would be unable to survive. Whether fraud is actually deterred cannot be easily measured. As Professor Dan Kahan writes, "Empirically, deterrence claims are speculative." (204) Deterrence theory assumes that individuals can foresee the penalties of rule-breaking. But research has revealed that the harsh penalties for welfare cheating are largely
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104 unknown by welfare recipients. (205) Unless welfare recipients are aware of the severe consequences for rule-breaking, those can have no deterrent effects on welfare recipients' actions. Cesare Beccaria, who wrote On Crimes and Punishment in the mid-eighteenth century, called for a rational system of criminal punishment. (206) Under this system, individuals must be informed of both the rules and the consequences of violating the rules. (207) With this knowledge, Beccaria theorized, individuals would be able to weigh the costs of rule-breaking and opt to follow the rules rather than risk the longterm consequences of pursuing short-term gain. This cost-benefit system of deterrence, however, cannot function where neither the rules nor the consequences of rule-breaking are known by individuals. (208) The system also cannot function where immediate needs actually do outweigh the risks of long-term suffering. When I interviewed an Assistant District Attorney (ADA) who headed the welfare fraud investigation unit in a Northern California county, even he questioned the deterrent and retributive aspects of the push to punish welfare cheats in the criminal system. When interviewed by phone in March of 1999, the ADA said that his office at that time filed about 100 to 110 felony welfare fraud cases a month. (209) He criticized the state standard for fraud, saying that "it targets the wrong people," adding that the system "traps and punishes the least culpable culprits." (210) He recognized that it was hardworking and financially-strapped mothers who were hardest hit by these policies and practices. The ADA explained that while his office pursued cases identified through computerized income matching, the office also pursued a lot of cases that were reported anonymously through the welfare fraud hotline. The hotline paved an arbitrary track to welfare investigations for many people. The ADA said that the hotline was used by individuals in personal disputes: "No one can snitch you off like your ex or your ex's girlfriend or your neighbor or your landlord." (211) At the time of our interview, the ADA said the investigators had 300 to 500 hotline tips backlogged for investigation; hundreds of poor individuals were awaiting an unpleasant surprise. The effects of deterrent criminal policies are generally elusive. How does one measure what is not happening? Many state officials calculate the costs and savings of fraud deterrent measures by employing models that involve questionable speculations. Estimations of any state savings in aggressive fraud control policies are usually based on either: (1) assumptions that anyone removed from the welfare rolls would have been receiving full benefits indefinitely, or (2) assumptions that declines in welfare caseloads are
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105 attributable only to fraud deterrence measures and that the caseload would otherwise have remained constant. Welfare officials and local prosecutors often request increased funding for welfare fraud prosecution, arguing that by ending payments to those convicted and making claims for overpayments, the state makes money. Most of the overpayments (80% statewide according to the ADA) are reclaimed from the payments that continue to children, not through actual payment by the welfare recipient. (212) In other words, dollars recouped generally come out of the government benefits flowing to children. Actual recoupment of dollars through direct payments from cheating welfare recipients is quite low. (213) Many assume that disqualifying a parent or family from TANF aid ultimately reduces government costs, but this is not necessarily true. For example, California Governor Arnold Schwarzenegger's 2007-2008 Budget proposed changes to state administrative rules of welfare receipt so that: (1) where a parent was found to be in noncompliance with program rules for more than 90 days, the family would lose their entire cash grant, not just the parent's portion of the grant; and (2) aid would be limited to sixty months for TANF child-only cases--cases where children qualify for cash aid, but where parents are disqualified either because they are immigrants (legal or undocumented) or because they have been convicted of drug offenses. (214) These families would receive no cash benefits, though most would be entitled to some amount of food stamps. The budget itself estimated that the full-family sanctions would increase state costs by $11.4 million during the fiscal year. (215) And while the Governor's budget estimated that the exclusion of child-only cases would save the state $160 million, (216) analysis by administrators for Los Angeles County concluded that if even half of the excluded children in Los Angeles subsequently applied for county-provided General Relief, for which they would qualify, welfare cost in that county alone would rise between $74.2 to $103.2 million. (217) In short, the proposal would have raised government costs throughout the state, though shifting costs from federal and state funding streams to county coffers. The legislature voted down the proposal, but the very same proposal appeared again in the Governor's 2008-2009 Budget. (218) The government costs associated with policing and prosecuting welfare fraud are high and are often underestimated. (219) In addition to the costs of overpayments, costs of investigations, and costs of prosecutions, there are a number of other unmeasured costs of aggressively prosecuting welfare fraud. One of those costs is the cost to families. (220) Low-income families that
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106 include an adult charged with welfare fraud not only lose access to government benefits, they also gain an adult with decreased earning capacity as a result of the criminal prosecution. There are still other unmeasured costs to welfare fraud prosecution. When a welfare recipient is charged with fraud, she adds costs to the criminal justice system. In addition to the costs of investigation, the county has to pay for the time of both a prosecutor and public defender. If the recipient goes through a welfare fraud diversion program (discussed more in the following Part), the county bears continuing administrative costs for collecting payments and monitoring her progress in the diversion program. If the welfare recipient is convicted and sent to jail or prison, then government costs soar. The California Department of Corrections estimates the annual cost of housing an inmate at $35,587, (221) much more than an entire family receives per year through the welfare system. (222) If the head of a household does end up serving time in jail or prison, her children may be placed in the foster care system, where much more money will be spent on the children than under the welfare system. Finally, if the welfare recipient receives probation, the county must cover the wages of the probation officer. All of these costs are ignored in calculations of the costs of investigating and prosecuting welfare fraud. In sum, the government cost savings that policymakers associate with punitive and criminalizing welfare policies may actually only be cost- shifting--either between federal, state, and local coffers; or from the welfare system to the criminal justice and foster care systems. 4. Recent Trends Criminal prosecutions in California have become less vigorous in the last few years. In 1998, the State of California incentivized welfare prosecutions by the counties by rewarding them (at 25% of any overpayment determined) for prosecutions. (223) The 2002-2003 California Budget, however, eliminated the $5.1 million welfare fraud incentive payments that had been provided to counties. (224) Since then, fraud prosecutions have dropped significantly. In the third quarter of 2001, prosecutions were filed in 19% of all the investigations referred to prosecutors; by the same period in 2005, 15% were filed; in the same period in 2007, 8% were filed. (225) Over the last four years, while California counties have become more aggressive in investigating welfare recipients for fraud-particularly at the time of application for aid--the State appears to be scaling back on criminal prosecutions. (226) This decline cannot be attributed solely to the declining welfare caseload and increased investigations at the time families apply for benefits. The reduced
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107 state incentives to counties for identifying and recovering overpayments, (227) and the county-borne costs of aggressive investigation and prosecution, are also likely contributors to the decline. At the same time that prosecutions appear to be declining in California, other states are apparently becoming more willing to bring criminal rather than civil sanctions, though few cases nationwide seem to go to trial. (228) The amount of tax dollars devoted to policing welfare fraud is also on the rise. (229) In large part, the costs are rising because the number of welfare fraud investigators is rising. Two reasons appear to account for the rising number of welfare fraud investigators in a period in which welfare caseloads are declining. First, much of the welfare money that flows to states and counties is federal money. If that money is not spent, the states and counties lose it; rather than laying off government employees and losing the stream of federal funding, many counties are transferring former welfare caseworkers and civil fraud investigators into positions as deputized welfare fraud investigators. (230) Second, the welfare fraud investigators are gaining political leverage. Welfare fraud investigators are unionizing. (231) In many states they have formed associations and even hired lobbyists. (232) These associations urge legislators to step-up efforts to investigate and prosecute welfare fraud and to move investigations from the civil to the criminal arena. (233) Whether these efforts to criminalize welfare fraud investigations are in the real interests of the public or merely an example of the power of self-interested bureaucrats remains an open question.
IV. CONSTITUTIONAL RIGHTS AND THE CRIMINALIZATION OF POVERTY Substantively, the government is treating welfare recipients as criminals. Procedurally, welfare recipients are treated as individuals who have already been convicted rather than individuals who are presumed innocent. Over the last four decades, the welfare system has been a place where rights are denied. Throughout the 1960s, welfare recipients and advocates fashioned a litigation strategy aimed at having the Supreme Court recognize a right to subsistence rooted in the U.S. Constitution. (234) The Supreme Court, however, refused to recognize a fundamental right to subsistence. The Court held that public assistance to the poor was merely a statutory entitlement, to be given and withheld as legislators pleased, so long as terminations of individual benefits are preceded
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108 by notice and an opportunity for hearing. (235) While the Court did articulate minimal due process rights, even those rights have proved elusive. A. THE EROSION OF FOURTH AMENDMENT RIGHTS Welfare recipients are denied basic rights of citizenship, including rights to privacy and to adequate due process. The Fourth Amendment of the U.S. Constitution protects the right of people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." (236) The Fourteenth Amendment has been found to guarantee individuals a right to privacy. (237) The scope of Fourth Amendment freedoms and privacy rights has been a recurrent issue in the federal courts for the last four decades, and Fourth Amendment claims that would seem reasonable among members of the general populous have been evaluated differently for welfare recipients. Intrusions into the daily lives of welfare recipients have always been a part of the welfare system. Even after the Department of Health, Education, and Welfare prohibited welfare offices from implementing the "substitute father" rule and the U.S. Supreme Court found the "substitute father" presumption inconsistent with the statutory aims of the Social Security Act to provide assistance to needy children, (238) warrantless searches--and even midnight raids-continued to be conducted on welfare recipients. From the 1970s until the late 1990s, however, welfare recipients were generally not subject to routine home visits by welfare officials. The personal intrusions involved demand that the details of personal life be recorded on paper, not that the details of daily home life be viewed by the government. It is important to note that since the federal welfare reforms of 1996, many welfare advocates have actually encouraged more home visits (though not home searches) of welfare recipients. (239) These advocates argue that caseworkers are failing to identify and serve welfare recipients who have disabilities, particularly in the form of mental illnesses, (240) as well as those who are the victims of domestic violence. Both categories of recipients are usually entitled to both additional services and exemptions from certain welfare rules, including work requirements and time limits. These advocates are pushing for visits by community organizations or social workers trained to identify signs of disability and domestic violence, not visits by law enforcement officers. (241) Social workers are mandatory reporters of child abuse and neglect, but are not mandatory reporters of welfare fraud. Moreover, the advocates are seeking consensual, not mandatory, visits.
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109 The level of privacy that welfare recipients enjoy in their homes has been an issue of controversy for years, particularly in California. During the 1960s, California welfare offices conducted mass morning raids on the homes of AFDC recipients to determine program eligibility. (242) The California Supreme Court, in Parrish v. Civil Service Commission, ruled that unannounced, early-morning visits of welfare caseworkers to the homes of welfare recipients "transgressed constitutional limitations." (243) The searches involved "thorough searches of the entire dwelling." (244) The court found that the majority of the searches were conducted when there was no suspicion at all of wrongdoing, much less probable cause. (245) The County argued that the searches were intended to determine welfare eligibility and not to search for evidence of crimes, and that the searches therefore did not have Fourth Amendment implications. The California Supreme Court rejected this argument, stating that evidence of welfare cheating could be used in criminal prosecutions and that the loss of benefits amounted to a forfeiture of property. (246) The California Supreme Court in Parrish also ruled that unannounced searches could not be considered consent-based. The ruling states: The persons subjected to the instant operation confronted far more than the amorphous threat of official displeasure which necessarily attends any such request. The request for entry by persons whom the beneficiaries knew to posses virtually unlimited power over their very livelihood posed a threat which was far more certain, immediate, and substantial. These circumstances nullify the legal effectiveness of the apparent consent secured.... (247) In short, there could be no valid waiver of constitutional rights under such coercive circumstances. In Wyman v. James, the U.S. Supreme Court considered the issue of home visits to welfare recipients. (248) A majority of Justices ruled that mandatory home visits by social workers from the welfare department did not violate the Fourth Amendment freedom from unreasonable searches or the Fourteenth Amendment right to privacy. (249) In that case, however, the visits: (1) were announced, (2) did not involve full searches of the home, (3) were conducted by social workers, not law enforcement officers, and (4) resulted in civil rather than criminal penalties where welfare recipients were found to be violating the rules.
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110 Justice Blackmun, writing for majority in Wyman, distinguished the New York home visits at issue from the searches described in Parrish. Justice Blackmun wrote: The State, working through its qualified welfare agency, has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses. Sure it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application, of achieving that assurance. (250) The home visits, of which the welfare recipient was given written notice for the specific date of the visit and which were conducted by welfare social workers, (251) were gentle and limited. No law enforcement officers were involved. (252) Blackmun pointed out that the plaintiff offered "nothing that supports an inference that the desired home visit had as its purpose the obtaining of information as to criminal activity." (253) Blackmun clearly stated that the home visit in Wyman, unlike the home search in Parrish, was a reasonable one because it was "not a criminal investigation, d[id] not equate with a criminal investigation, and despite the announced fears of Mrs. James and those who would join her, [wa]s not in aid of any criminal proceeding." (254) Justice Douglas's dissent in Wyman-joined by Justice Marshall--expressed concern that the home visits, whether targeting criminal activity or not, infringed on fundamental constitutional rights, particularly the right to privacy, (255) Douglas suggested that government officials should only enter a home with either valid consent of the resident or with a warrant; to do otherwise runs counter to Fourth Amendment protections. (256) Justice Marshall, in a separate dissenting opinion, wrote that it was disingenuous to describe home visits as something other than criminal investigations when visits were partially motivated by a desire to find evidence of fraud and child abuse (both felonies) and to eliminate benefits, which he viewed as a civil forfeiture. (257) Although Wyman v. James upheld home visits, home visits ended in most locales following federal policy changes requiring welfare offices to devote more resources to gathering paper records that verified eligibility. The San Diego home searches of welfare recipients, begun in 1997, marked a dramatic return to old practices. Los Angeles County soon followed, implementing home visits in 1999 after a television broadcast raised concerns about welfare fraud in the county. (258) Los Angeles County officials claimed that the
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111 purpose of the home visits was twofold: to eliminate fraud and to identify individual needs for supportive services. (259) Under that home visit program, soon after a new welfare case was opened, an Eligibility Worker, specially trained in the details of supportive services and identifying potential fraud, made an announced visit to the home of the applicant. (260) Welfare recipients were notified that the visits would occur between 8:00 a.m. and 5:00 p.m. during the ten days following notice. (261) The home visits lasted from around thirty to forty-five minutes and included a one- to two-minute walkthrough of the home. (262) Where the Eligibility Workers found the applications to be fraudulent, they denied benefits, but did not refer individuals for criminal prosecution. (263) A group of welfare applicants filed a petition for a writ of mandamus challenging the home visits, but the California Court of Appeals, in Smith v. Los Angeles Board of Supervisors, dismissed the action. (264) The court ruled that the home visits did not contradict the purpose of the state welfare statute because the purpose of the searches was to determine eligibility. (265) The judges also pointed to evidence that welfare home visits had occurred in the past in California, though they failed to note that such visits had generally not occurred for close to thirty years. (266) The decision noted that the petitioners had not offered evidence that there was a method other than a home search to verify a welfare applicant's address or to determine the presence of an undisclosed adult in the household. (267) The judges did not address the fact that neither of these determinations required actual entry into the home. (268) The judges also concluded both that searches of welfare recipients' homes do not substantially intrude on their privacy (269) and that home visits, if they are searches at all, fall within the "special needs" exception to the Fourth Amendment. (270) During the 1980s, the U.S. Supreme Court handed down a series of decisions allowing the government to conduct suspicionless searches of individuals where particular safety concerns were at issue. (271) Most special needs cases have arisen in the contexts of drug and weapons smuggling--both of which pose serious safety concerns--in settings such as jails, prisons, and schools. Additionally, the cases have generally involved individuals who are under state control because of their vulnerability--for example, minor students (272)--or individuals who are either suspected or convicted of criminal activity. At the time Smith was decided, all of the home searches that the U.S. Supreme Court had approved under the special needs exception involved parolees and probationers (273)--individuals convicted of criminal wrongdoing. (274)
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112 San Diego's home searches are more intrusive than any other program challenged in the courts. The searches are unannounced full searches of private dwellings; they are conducted by deputized law enforcement officers, and they occur before a welfare applicant ever receives a check. The American Civil Liberties Union, representing a number of welfare recipients in San Diego, brought claims in federal district court challenging San Diego's practices. (275) The case was appealed to the Ninth Circuit Court of Appeals where, in 2006, two of the three sitting judges agreed that the home searches were lawful. (276) Judge Tashima, writing for himself and Judge Kleinfeld, concluded that the home searches were not searches under the Fourth Amendment because "the home visits are conducted with the applicant's consent" and because "there is no penalty for refusing to consent to the home visit, other than denial of benefits." (277) Acknowledging that recent Supreme Court case law had recognized consensual administrative searches as covered by the Fourth Amendment, (278) he then reasoned that even if the San Diego home visits were searches, they were reasonable ones. He further argued that any intrusions into a welfare applicant's privacy were outweighed by important government interests, namely the public's "strong interest in ensuring that aid provided from tax dollars reaches its proper and intended recipients." (279) Judge Tashima went on to argue that the San Diego home visits properly fell under the "special needs" exception to the warrant requirement. (280) Tashima concluded that verifying welfare eligibility was a special need akin to that of supervising probationers and minor student athletes, without explaining why those groups of individuals were analogous. (281) Tashima also wrote that while information gathered by welfare fraud investigators might be used for general law enforcement purposes, (282) the primary use was for verification of eligibility and prevention of fraud. While he acknowledged that welfare recipients have a right to privacy, he wrote that a welfare recipient's "relationship with the state can reduce that person's expectation of privacy even within the sanctity of the home," (283) and that the state need not use less intrusive measures, even when they are available. (284) Judge Fisher's dissenting opinion in Sanchez focused on Wyman v. James and distinguished the unannounced, full home searches by deputized officers from the brief, pre-announced visits by social workers in Wyman. Fisher wrote: "Neither Wyman nor the special needs doctrine renders constitutional the entry and inspection of homes ... by agents of the district attorney without warrants, probable cause or individualized suspicion of ineligibility or fraud."
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113 (285) Fisher expressed particular dissatisfaction with the arguments that welfare recipients have lower expectations of privacy in the home than anyone else and that the special needs exception to the warrant requirement should apply in this case. (286)
Though the welfare applicants sought to have the issue reheard by the full panel of Ninth Circuit judges, less than a majority of the judges thought the issue merited a rehearing. (287) Eight of the judges who favored a rehearing joined their voices in a dissent authored by Judge Harry Pregerson. The dissenting opinion stated in part: "The government's general interest in preventing fraud cannot justify such highly intrusive searches of homes where no grounds for suspicion exist. Welfare applicants are ordinary people who, due to lack of adequate funds, find themselves applying for life-sustaining government benefits." (288) Increasingly, however, judges, policymakers, and everyday individuals do not view welfare recipients as ordinary people. Pregerson's dissenting opinion appropriately labeled Judge Tashima's majority opinion as "an [a]ssault on the [p]oor," (289) for an assault it surely was. There is no legitimate consent in the case of San Diego welfare recipients; (290) rather, the recipients are placed
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114 in coercive situations where they must make choices based on "brutal need." (291) Nonetheless, the majority in Sanchez rejected the argument that San Diego's welfare office placed unconstitutional conditions upon receipt of welfare by forcing welfare applicants to give up their Fourth and Fourteenth Amendment rights. (292) While individuals regularly endure government intrusion into their lives, such as when they receive driver's licenses or student loans, (293) those who are not suspected or convicted of criminal activity are understood to enjoy protections from government intrusion into their dwellings. The reality that individuals forfeit these protections once their incomes drop below a certain floor is deeply troubling. Recent California case law involving searches of welfare recipients' homes have described the intrusions as "minimal." (294) The conclusion that these intrusions are minimal stands in contrast to much of Fourth Amendment case law, which treats the home as a special place where government authorities may not intrude without either consent or a warrant supported by probable cause. For citizens other than welfare recipients, the Supreme Court has been particularly protective of the home, handing down a series of recent decisions holding that search of a home must be either clearly consensual or based on probable cause. (295) For welfare recipients, however, the privacy protections of the home are dismissed or diminished by the courts. (296) While some judges have argued that home searches by welfare fraud investigators should not be viewed as searches under the Fourth Amendment, these searches are properly viewed as searches under established Fourth Amendment case law. Since the 1970s, welfare recipients have typically had very little interaction with government officials in their homes. While information gathering about the recipient increased in the form of written and electronic information, welfare recipients began to expect freedom from government intrusion into their homes. Under the two-pronged Katz standard, welfare recipients certainly had a subjective expectation of privacy from government intrusion in their own homes. Supreme Court cases handed down over the last decade would suggest that welfare recipients, like everyone other than parolees and probationers, (297) enjoy a reasonable expectation of privacy within the home. In addition, the Supreme Court has also handed down cases making it clear that law enforcement officers may not go fishing for criminal activity among ordinary citizens going about their everyday lives. (298) Searching the homes of welfare applicants, and drug testing welfare recipients, is nothing but fishing for wrongdoing. Welfare recipients are not treated as ordinary citizens, but rather as
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115 presumptive criminals. For instance, Judge Tashima's opinion for the majority in Sanchez cites Samson v. California, where a Supreme Court majority of five upheld suspicionless home searches of parolees based on the history of criminal activity and the assumption that because of their status, parolees are more likely than ordinary citizens to break the law. (299) The special needs analysis applied in Sanchez seems particularly wobbly. There is nothing "inherently dangerous" about welfare receipt as there is in some of the other cases justifying special needs searches. (300) If the weighty governmental need underlying suspicionless searches is "program integrity," then suspicionless searches of any recipients of government benefits amounts to a special need. (301) The Sanchez decision, though, cites no basis for assuming that applicants for welfare are more likely to violate the law and cheat the government out of money than other ordinary citizens. Moreover, welfare recipients are not "wards" of state institutions like prisoners or minor students, two populations who have been found subject to special needs searches. (302) And outside of parolees and probationers, the special needs exception had never, until Sanchez, been extended so far as to allow government searches of individuals' homes. The lack of privacy rights afforded welfare recipients mirrors the limited freedoms of parolees and probationers. In written opinions, judges have been uncritical about how analogizing the status of welfare recipients to parolees and probationers stigmatizes the poor and equates poverty with criminality. The balancing of government interests in this context is essentially a weighing of the interests of the taxpaying "haves" over the privacy interests of the "have nots." In the end, the Fourth Amendment's protection from search and guarantee of privacy in the home do not appear to apply to welfare recipients. Christopher Slobogin has written that there is a "poverty exception" to the Fourth Amendment. (303) Welfare recipients hold a special, and inferior, status under the law--a status that positions them much closer to probationers and parolees than to law-abiding citizens. But the decision in Sanchez goes further: one need not be an actual recipient of welfare to suffer these constitutional impairments. Simply applying for TANF benefits and food stamps, before ever receiving them, curtails an individual's Fourth Amendment rights. (304)
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116 B. THE EROSION OF PROCEDURAL RIGHTS Rules of procedural fairness have been denied to welfare recipients. (305) The crackdown on welfare cheats has raised concerns about a lack of notice that criminal proceedings have begun, and a lack of clarity as to when the investigative process ends and the adversarial process begins. Because the line between the welfare system and criminal justice system has blurred, many questions arise about when a criminal investigation has begun, when a criminal interrogation has begun, and perhaps even when charges are being brought. (306) Several concerns arise about the recent criminalization of welfare offices. First, merging the physical space between welfare administrators and fraud investigators, as well as the movement of personnel between the two roles, creates confusion for welfare recipients, who cannot separate the welfare system from the criminal justice system in their interactions with the state. It also creates conflicts of interests where government employees may not be clear whether their primary mandate is to provide for or to punish the poor. Second, it is no longer clear when criminal proceedings have begun and, therefore, when a welfare recipient should have access to legal counsel to ensure fairness. In Goldberg v. Kelly, one of Justice Black's bases for dissent was that a fight to a fair hearing would ultimately require a fight to government-paid counsel. (307) Currently, however, welfare recipients are not provided counsel in administrative hearings, even when those hearings have direct criminal consequences. (308) Finally, states often prefer criminal remedies even where both civil and criminal remedies are available. In California, collateral estoppel precludes the State from prosecuting welfare recipients who have been exonerated of welfare fraud in an administrative hearing. (309) In many instances, the State avoids collateral estoppel by going straight for criminal prosecution unless the welfare recipient herself files for an administrative hearing. In other instances, the State apparently ignores stated law and attempts to take a second bite at the apple even after losing an administrative hearing. (310) In a recent, lengthy California Supreme Court dissent, Justice Ming Chin argued that clear and strong legislative preferences for criminal resolution of welfare fraud cases should serve as an exception to the rules of collateral estoppel. (311) He also noted that informal administrative hearings merely create additional risks for welfare recipients whose testimony may be used against them in later criminal proceedings. (312) Clearly, the criminalization of the welfare system is raising complicated issues of procedural justice that are being inadequately
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117 addressed. Charles Reich wrote in 1964 that "higher standards of procedural fairness should apply when government action has all the effects of a penal sanction." (313) Welfare hearings not only hold the potential for penal sanctions, but increasingly lead straight to penal sanctions. Welfare recipients should therefore be given clear notice, both written and verbal, that statements they make during administrative appeals may have criminal implications. They should also have access to government-paid legal counsel in all proceedings that have the potential to lead to serious criminal action.
V. POLICY RECOMMENDATIONS AND CONCLUSIONS The scope of this Article does not extend to recommendations for systemic reform of the welfare and criminal justice system. But the problems explained in the preceding Parts suggest some modest approaches to reform. A. DE-COUPLE WELFARE FRAUD INVESTIGATIONS FROM WELFARE PROVISION Federal, state, and local governments should maintain a welfare administration that is separate from welfare fraud investigation and prosecution agencies. The combination of the two functions--providing and investigating--creates conflicts of interests, with welfare administrators focused on withholding benefits and catching cheats rather than providing for the poor. Welfare caseworkers should be housed in facilities separate from fraud investigators and prosecutors. This physical separation will give notice to welfare recipients when they become the subjects of criminal investigations. Low-income families may be confused by the deputizing of welfare fraud investigators; they may encounter the same individual as a benefits caseworker one month and as a deputized fraud investigator the next. As a result, welfare recipients may often be unaware when criminal investigations are underway. B. AFFIRM THE PRIVACY RIGHTS OF WELFARE RECIPIENTS IN INVESTIGATIONS Judges and legislators should recognize that being poor does not relegate an individual to second class citizenship. Fourth Amendment protections should apply to all citizens, whether rich or poor. Professor Christopher Slobogin wrote that if there is a "poverty exception" to the Fourth Amendment, it exists not because the Supreme Court Justices hold animus toward the poor, but because
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118 they are blind to the interests of the poor, and are instead concerned-perhaps overly so--with issues of crime control. Slobogin argues that if "the Court thought more about the interests of the poorer segments of society when deciding its cases, it would have structured a Fourth Amendment that is more protective of us all." (314) Protecting welfare recipients' privacy in the home from unreasonable searches is an issue of concern to more than just the judiciary. Legislators could move closer to guaranteeing basic privacy rights by repealing the federal welfare provisions that allow law enforcement officials to access welfare records and states to drug test welfare applicants. As the boundary between public and private life is blurred, and as issues of consent lose clarity, the probable cause doctrine is the only tool that can protect the poor from being treated like criminal convicts and becoming subject to state control. C. ENSURE PROCEDURAL FAIRNESS IN THE HEARING PROCESS As the welfare system becomes more and more like the criminal justice system, procedural protections for welfare recipients should be adjusted to keep pace. In particular, when welfare recipients are notified that they have overpayments due to their own errors or misrepresentations, they should also be notified that overpayments based on knowing misrepresentation may result in criminal charges. Welfare recipients should be informed that written and oral statements they make in response to administrative notices may be used against them in criminal proceedings. Likewise, they should be informed that any facts established in administrative proceedings can be used as settled facts for any subsequent criminal proceedings. Welfare recipients suspected of cheating should also be clearly informed of their right to counsel during administrative proceedings. Moreover, given that negative findings in an administrative hearing may carry the possibility of criminal charges and collateral lifelong exclusion from welfare programs, welfare recipients facing overpayment claims should have a right to government-appointed counsel. D. CLARIFY FRAUD STATUTES AND ESTABLISH STANDARDS FOR PROSECUTIONS The criminal statutes used to prosecute individuals of welfare fraud, and the standards used to determine which cases deserve criminal treatment, differ drastically between states. Many states do not have statutes specific to the crime of welfare fraud.
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119 (315) Model welfare fraud codes should be developed to encourage consistency among states and to make it easier for the Bureau of Justice Statistics to track welfare fraud as a specific category. (316) Likewise, when reviewing fraud statutes, state legislatures should take care to clarify that welfare fraud requires specific intent to receive benefits to which one is not entitled, thereby distinguishing welfare fraud from perjury. Zealous prosecutors are currently using this statutory ambiguity to the disadvantage of welfare recipients who might have unwittingly overstepped the complex rules and who might legitimately argue mistake of fact as a defense. Some states have created guidelines for pursuing cases in the criminal rather than the administrative realm, while others have not. As a result, the system has become arbitrary. Where prosecution decisions are left to the discretion of local prosecutors, and where limited benefits prompt widespread cheating throughout the welfare system, local discretion can lead to both selective enforcement and racial discrimination. Wisconsin, a state with some of the harshest welfare policies, has virtually de-criminalized welfare fraud. For the last decade, the Wisconsin Department of Health and Family Services has encouraged counties to pursue administrative remedies or sanctions rather than refer cases to county District Attorneys for prosecution. Since the early 1980s, Wisconsin prosecutors have been reluctant to take welfare fraud cases and, when they do, almost always resolve them through pre-charge or pre-trial diversion programs. This reluctance is particularly interesting given that Wisconsin district attorneys are locally elected and therefore vulnerable to the influence of public opinion. Officials there have apparently decided that welfare benefits are so limited and that prosecutions and restitution efforts are so costly that criminal prosecutions are neither cost-effective nor effective in deterring fraud. More extensive data collection and analysis within and across states may help policymakers to evaluate the effects of criminalization and de-criminalization of welfare fraud. E. EVALUATE COSTS Policymakers, agency officials, and academics need to consider how to measure those welfare system costs that are externalized to the criminal justice system. Numerous studies have questioned the community and fiscal benefits of fingerprint imaging, welfare sanctions, lifelong welfare exclusions, and criminal welfare prosecutions. (317) Local studies of the savings associated with reducing the number of welfare recipients fail to assess the costs that
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120 are externalized to other government programs. Moreover, many fiscal studies fail to measure costs such as the effect of punitive policies on families and communities, costs associated with increasing the number of parents in the criminal justice system, the cost to state and local governments of policing the poor, and the long-term costs of stigmatizing government assistance and allowing poverty to go unalleviated. Evaluators should develop a holistic accounting method that examines both cost-shifting and the human costs of criminalization. F. RECOGNIZE THE STRUCTURAL AND SYMBOLIC SIGNIFICANCE OF CRIMINALIZING POVERTY While the intermingling of the welfare system and the criminal justice system has largely gone unnoticed by the public, it has been applauded by policymakers and approved by the courts. Nonetheless, this Article seeks to highlight some of the practical, economic, policy, and constitutional problems associated with the criminalization of poverty. The recommendations above may give the impression that if the government simply provides move procedural and constitutional safeguards for welfare recipients, then all will be well. While the government should employ appropriate procedural safeguards, this discussion of rules, regulations, and procedures may distract governments and policymakers from larger issues of power, ideology, and the individual's relationship with the state. (318) Though it may be impossible to pay heed to the "pull of the policy audience" (319) and at the same time remain a critical outsider to that audience, there is something about the criminalization of poverty that demands both policy reforms and a larger analysis of the flow of state power. The criminalization of poverty highlights economically and legally institutionalized ideologies of neo-liberalism, racism, sexism, and the dehumanization of the poor. The growth of punitive welfare policies and the policing of welfare fraud add up to something more than the policing of crime. These policies and practices are rooted in the notion that the poor are latent criminals and that anyone who is not part of the paid labor force is looking for a free handout. In many ways, the policy goals of punishing non-working welfare recipients, welfare cheats, and aid recipients who engage in unrelated crimes has overwhelmed the goal of protecting poor families, adults, and children from economic instability. But adults as well as children are being harmed. More than forty years ago, Charles Reich expressed concerns that the individual's dependence upon the state was leading to the erosion of
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121 constitutional rights and protections. (320) Time has brought the realization of those fears. Social factors and problems, and the ways in which we understand them, change over time. (321) The language of pathology and crime has become central to discussions of welfare policy, while the word "poverty" has fallen out of use in the literature. The use of the term "welfare dependency," now commonplace in public and policy discussions of aid programs, (322) has assumed a thoroughly negative connotation (323) and is more often used than the more neutral term "welfare use." In addition, the federal and state governments and an expanding group of social scientists and policymakers now use the term "recidivism" to describe a family's departure from and return to the welfare system. (324) Once a term generally limited in use to describe an individual's repeated involvement in crime, recidivism is now the word that has displaced the neutral term "welfare cycling," which most social scientists used before welfare reform. (325) There is something fundamentally and morally different between imposing criminal penalties versus other types of penalties. Criminalizing behavior serves an expressive social function. (326) Given recent case law, it seems there is little to prevent the expansion of the criminalizing of behaviors and practices beyond the welfare poor. For example, what is to prevent the same types of invasive and punitive reform associated with TANF "program integrity" from being employed by the Social Security Administration or by state departments of motor vehicles? Perhaps the irrational animus now targeted at welfare recipients will not spread and economically and racially privileged individuals will escape the creep of criminalization. Today, when the U.S. economy is in decline, a growing number of Americans are in peril of becoming not just economically poor, but fights-poor as well. Indeed, the Fourth Amendment itself is being compromised by the criminalization of poverty. Universal protections--whether economic or constitutional-are meant to benefit us all. To ensure those protections, we must disentangle the welfare and criminal justice systems from root to tip.
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122 Table 1 State welfare programs that require the collection of biometric data from welfare recipients (1) State Arizona California Connecticut Illinois Massachusetts New York Pennsylvania Texas
TANF X X X X X X X
Food Stamps X X X X X X
Notes: (1.) Information gathered from WILLIAM S. BORDEN & ROBBI L. RUBEN-URM, U.S. DEFT OF AGRIC., REPORT NO. FSP-02CM, AN ASSESSMENT OF COMPUTER MATCHING IN THE FOOD STAMP PROGRAM: VOLUME 1--SUMMARY OF SURVEY RESULTS (2002. University of Connecticut Law Professor Todd Fernow pointed out to me the irony of Connecticut's finger printing program for welfare recipients, where state statute recognizes criminal mugshots and fingerprinting to be invasions of privacy and provides individuals a right to have records erased from criminal justice system databases when individuals are found not guilty or where the cases are dismissed, whether outright or through none prosequi. CONN. GEN. STAT. [section] 29-15(a) (West 2003 & Supp. 2008).
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123 Table 2 Comparison of Selected California Counties—Welfare Caseloads, Fraud Investigations, Evidence of Fraud Prosecutions Filed, Overpayments Collected (1)
County Riverside San Diego Fresno Sacramento San Bernardino Riverside County Riverside San Diego Fresno Sacramento San Bernardino Riverside
CalWORKs caseload 22,005 24,070 24,988 28,960
Number of fraud investigations 4,743 3,854 195 610
Evidence to support fraud 507 1222 107 449
34,184 22,005
1,550 4,743
718 507
Prosecutions filed 51 11 8 20
Overpayments collected $303,061 $104,425 $96,299 $220,510
5 51
$117,238 $303,061
Notes: (1.) Information gathered from CAL. DEPT of SOC. SERV., supra note 185, at 5 tbl.1, 7 tbl.3, 10 tbl.6. Kaaryn Gustafson, Associate Professor, University of Connecticut School of Law. Many thanks to the following people for their comments and criticisms: Mario Barnes, Jon Bauer, Frank Rudy Cooper, Zanita Fenton, Todd Fernow, Michael Fischl, Alexandra Lahav, Leslie Levin, Eric Miller, Len Orland, and Jim Stark. Even more thanks to several research assistants: Sri Chalasani, Elizabeth Martinez, and Tovah Ross. Sincere thanks also to research librarian Lee Sims. This Article benefited from discussion at the Association of American Law Schools 2008 Annual Meeting's Workshop on Gender and Class, and from generous comments from my colleagues during a University of Connecticut Law Faculty Workshop.
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124 Endnotes (1) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title IX, [section] 911, 110 Stat. 2105, 2353 (codified as amended at 42 U.S.C. [section] 608(a) (2006)); see also H. COMM. ON WAYS & MEANS, 1996 GREEN BOOK: BACKGROUND MATERIAL AND DATA ON PROGRAMS WITHIN THE JURISDICTION OF THE COMMITTEE ON WAYS AND MEANS, WMCP 104-14, app. L (104th Cong., 2d Sess. 1996) (summarizing, inter alia, the fraud control requirements for states). (2) See infra notes 89-105 and accompanying text (discussing state sanction rules for welfare recipients in California and other states). (3) See infra notes 242-276 and accompanying text (discussing history of home searches of welfare recipients in California); note 201 and accompanying text (discussing the preference for criminal penalties over civil penalties for welfare cheating in California). (4) Sanchez v. County of San Diego, No. 00 CV 1467 JM(JFS), 2003 U.S. Dist. LEXIS 27538, * 2 (S.D. Cal. Mar. 7, 2003). (5) Id. at *5-6. (6) Sanchez v. County of San Diego, 464 F.3d 916, 919 (9th Cir. 2006). (7) Id. (8) Id. (9) Id. at 919 n.3. (10) Charles A. Reich, Midnight Welfare Searches and the Social Security Act, 72 YALE L.J. 1347, 1360 (1963). (11) Norma M. Riccucci, Street-Level Bureaucrats and Intrastate Variation in the Implementation of Temporary Assistance for Needy Families Policies, 15 J. PUB. ADMIN. RES. & THEORY 89, 102-03 (2005) (finding that frontline welfare administrators in Michigan view reducing the number of people on welfare to be a state policy priority). (12) The term criminalization of poverty is frequently used by advocates for the homeless to describe ordinances, such as panhandling statutes and anti-loitering statutes, and selective enforcement targeting homeless individuals. See, e.g., METRO ATLANTA TASK FORCE FOR THE HOMELESS, THE CRIMINALIZATION OF POVERTY (1993); David M. Smith, A Theoretical and Legal Challenge to Homeless Criminalization as Public Policy, 12 YALE L. & POL'Y REV. 487 (1994). I use the term more broadly, however, to include all of the poor who use, or even apply for, means-tested public benefits. A number of sociologists use the term criminalization of poverty to describe an element of neoliberalism that involves the mass incarceration of poor people of color. See, e.g., ZYGMUNT BAUMAN, COMMUNITY: SEEKING SAFETY IN AN INSECURE WORLD 120 (2001) (describing the criminalization of the poor as the "ongoing exchange of population between the ghettos and the penitentiaries, each serving as a huge and growing input source for the other"); Loic Wacquant, The Penalization of Poverty and the Rise of Neo-Liberalism, 31 CAPITULO CRIMINOLOGICO 7, 16 (2003) (describing the criminalization of poverty in the United States as "a sharp and brutal substitution of the social-welfare treatment of poverty by penal treatment backed by all-out 'carceralization'"). (13) See infra notes 147-153 and accompanying text (discussing fingerprint imaging); notes 163-176 and accompanying text (discussing drug testing); notes 89-99 and accompanying text (discussing administrative sanctions). (14) See infra notes 130-138 and accompanying text (discussing the felony drug exclusion); notes 109-113 and accompanying text (discussing the fugitive felon provision). (15) See infra note 228 (discussing a trend among the states to punish welfare cheating through criminal prosecution rather than through civil administrative remedies).
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125 (16) See infra notes 199-200 and accompanying text (discussing prosecutorial discretion and localized practices of punishing welfare cheating). (17) See generally KENNETH J. NEUBECK & NOEL A. CAZENAVE, WELFARE RACISM: PLAYING THE RACE CARD AGAINST AMERICA'S POOR 35 (2001) (using the term welfare racism to describe "the various forms and manifestations of racism associated with means-tested programs of public assistance for poor families"). Neubeck and Cazenave describe "the abolition of [Aid to Families with Dependent Children (AFDC)] and the substitution of punitive welfare reform policies for the safety net needed by impoverished families" as the "ultimate expression of welfare racism." Id. at 37. See also JILL QUADAGNO, THE COLOR OF WELFARE 15 (1994) (arguing that "the motor of American history has been the continual reconfiguration of racial inequality in the nation's social, political, and economic institutions"). (18) Barbara J. Nelson, The Origins of the Two-Channel Welfare State: Workmen's Compensation and Mothers' Aid, in WOMEN, THE STATE, AND WELFARE 124 (Linda Gordon ed., 1990) (arguing that we should view "the welfare state as fundamentally divided into two channels, one originally designed for white industrial workers and the other designed for impoverished, white, working-class widows with young children"). (19) See generally Nelson, supra note 18. (20) The Aid to Dependent Children (ADC) caseload in 1942 was 901,560. WINIFRED BELL, AID TO DEPENDENT CHILDREN 208 n.24 (1965). By the beginning of 1960, the number of individuals receiving ADC had grown to 2,964,135 children and their adult caretakers. Jules H. Berman, Public Assistance Under the Social Security Act, 14 INDUS. & LAB. REL. REV. 83, 88 (1960). (21) Id. at 106. (22) FRANCES FOX PIVEN & RICHARD A. CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 184-89 (updated ed. 1993). (23) BELL, supra note 20, at 76 (explaining that the rules "had no standing in the general state statutes" and tended most heavily to affect African Americans). These morality standards were indeed generally intended as tools of racial oppression. In response to a school desegregation order by a federal court, the Louisiana state legislature passed a "segregation package" that included welfare legislation designed to economically disempower African Americans in the state. NEUBECK & CAZENAVE, supra note 17, at 70, 74. The legislation included welfare reforms excluding from public benefits women who had, in the last five years, lived in a common-law marriage or who had given birth outside of marriage. Id. at 71. The legislation rendered ineligible "6,000 families with 22,500 children--95 percent of whom were African American." Id. (24) Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 YALE L.J. 1245, 1248 (1965). (25) BELL, supra note 20, at 41-46 (describing the suitable home requirements); id. at 87-92 (describing surveillance of welfare mothers by welfare caseworkers). (26) Id. at 77-78. (27) See generally Parrish v. Civil Serv. Comm'n, 425 P.2d 223, 232-33 (Cal. 1967) (holding unannounced early morning searches invalid under the California Constitution). These surprise searches, done without warrants, were conducted in the early morning by teams of both fraud investigators and social workers. Id. at 225. Surprise home visits in California stopped after an Alameda County social worker, Benny Max Parrish, refused to continue participating in Sunday morning raids of welfare recipients' homes. Id. at 226, 234. Parrish, after being fired for insubordination, challenged his dismissal, claiming he had been asked to participate in illegal activity. Id. at 226. The California Supreme Court held that the raids violated
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126 welfare recipients' rights to privacy and were unreasonable, and that Parrish was justified in refusing to participate. Id. at 234. (28) NEUBECK & CAZENAVE, supra note 17, at 96-97. In 1962, the Senate Appropriations Committee held hearings on welfare fraud in the District of Columbia. Id. According to Kenneth Neubeck and Noel Cazenave, the hearings were sparked by segregationist U.S. Senator Robert Byrd, who was preoccupied not only by the rising welfare caseloads in the District, but also by both the rising population of African Americans in the District and the recent passage of the Twenty-Third Amendment giving D.C. residents the right to vote. ld. at 92-104. (29) Id. at 102. Neubeck and Cazenave note that in congressional discussions of welfare cheating in this era, unmarried men in intimate relationships with women receiving welfare "were portrayed as being, on the one hand, men who exploited welfare-reliant mothers and their children, and on the other hand, as men who provided for them. Both actions violated ADC policy, and, taken separately, each depiction presented a very negative view of these men, their motives, and their actions." Id. (30) DANIEL PATRICK MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 30 (1965). (31) Id. at 5-6, 14. (32) Id. at 9. (33) Id. at 12. (34) King v. Smith, 392 U.S. 309 (1968). (35) Id. at 329. (36) ld. at 315. (37) U.S. DEP'T OF HEALTH & HUMAN SERV., INDICATORS OF WELFARE DEPENDENCE: ANNUAL REPORT TO CONGRESS tbl.TANF 6 (2003), available at http://aspe.hhs.gov/hsp/indicators03/apa.htm#ttanf6 (last visited May 15, 2009). (38) See generally KATHRYN EDIN & LAURA LEIN, MAKING ENDS MEET: HOW SINGLE MOTHERS SURVIVE WELFARE AND LOW-WAGE WORK 14784 (1997); SUDHIR ALLADI VENKATESH, AMERICAN PROJECT 46 (2000) (discussing how families often reported men as absent from the household so that they could qualify for cash aid under AFDC). (39) For a detailed description of this administrative "churning," see PIVEN & CLOWARD, supra note 22, at 373-81. (40) Id. at 375-76 ("Forms written in legalese were mailed out (as often as monthly) asking poorly-educated recipients with erratic mail delivery to fill in the blanks and provide documentation justifying the continuation of checks."). (41) Timothy J. Casey & Mary R. Mannix, Ctr. on Soc. Welfare Policy & Law, Quality Control in Public Assistance: Victimizing the Poor Through One-Sided Accountability, 22 CLEARINGHOUSE REV. 1381, 1385 (1989) ("Extreme verification requirements create a cycle, known as 'churning.' Eligible families have their applications rejected or their cases closed for failure to verify, and then they reapply to gain or regain benefits."). (42) See Michael Lipsky, Bureaucratic Disentitlement in Social Welfare Programs, 58 Soc. SERV. REV. 3, 13 (1984) ("[E]xclusive concern with quality control errors resulted in diminished attention to helping recipients or concern about whether they fully received all to which they were entitled."). The Reagan Administration began penalizing states that overpaid benefits to the poor. Under an "error rate reduction system" implemented by the Reagan Administration, a state that could be shown to have an error rate of more than 5% on food stamp cases lost out on a portion of the funds it would otherwise have received from Washington. Michael J. Puma & David C. Hoaglin, Food Stamp Payment Error Rates: Can State-Specific Performance Standards Be Developed?, 85 J. AM. STAT. ASS'N. 891, 891 (1990) (noting that between 1981 and 1985, the Food and Nutrition Service of the U.S. Department of Agriculture assessed "423. (5 million in liabilities against 49 states" for their food
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127 stamp error rates). Only overpayment was penalized; from 1973 to 1977, underpayment to an eligible recipient, or the failure to serve an eligible person altogether, did not count as an error for the purpose of that calculation. Casey & Mannix, supra note 41, at 1381, 1382. This system created a strong incentive for welfare administrators to err on the side of caution in determining eligibility for aid. In fact, hunger rose in the United States during the early 1980s. See Joseph Lelyveld, Hunger in America: The Safety Net Has Shrunk but It's Still in Place, N.Y. TIMES, June 16, 1985, at 20. (43) Casey & Mannix, supra note 41, at 1386 (noting that home visits declined in the 1970s, though also noting that the Department and Health and Human Services instructed states in 1984 that they might return to home visits to reduce overpayments to welfare recipients). (44) David Burnham, U.S. Agencies Starting to Bolster Meager Defenses Against Fraud, N.Y. TIMES, Apr. 17, 1978, at A1. (45) Inspector General Act of 1978, Pub. L. No. 95-452, [section] 3, 92 Stat. 1101, 1101-02. The Inspector General's duties were to root out waste and fraud in government programs, and report instances of abuse directly to the U.S. Attorney General. (46) A 1978 Department of Health, Education, and Welfare Inspector General's report revealed costly fraud and abuse in the programs the department oversaw. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH, EDUC. & WELFARE, ANNUAL REPORT: JANUARY 1, 1978-DECEMBER 31, 1978 (1979). The Inspector's report criticized, in particular, defaulted loans in the student aid program and abuses by medical providers, particularly pharmacies and physicians, in the Medicaid and Medicare programs. Id. at 58-68, 122. (The report gives the impression that overpayments to AFDC recipients and fraud by government officials in both the cash aid and food stamp programs, though occurring, were problems secondary to the student aid and medical aid abuses.) The Inspector General's recommendations for attacking fraud, abuse, and error in income maintenance programs, such as AFDC, targeted improvements in information systems and better data exchange between government agencies. (47) 'Welfare Queen' Becomes Issue in Reagan Campaign, N.Y. TIMES, Feb. 15, 1976, at 51. (48) Id. (49) MARTIN GILENS, WHY AMERICANS HATE WELFARE: RACE, MEDIA, AND THE POLITICS OF ANTIPOVERTY POLICY 115 (1999). (50) RUSSELL B. LONG, S. COMM. ON FINANCE, 92D CONG., 2D SESS., WELFARE CHEATING (Comm. Print 1972). (51) Food Stamp Act of 1977, Pub. L. No. 106-171, 114 Stat. 3 (codified as amended at 7 U.S.C. [section][section] 2011-2036 (1977)). (52) The first nationally publicized case made news in 1974 when police began investigating forty-seven-year-old Chicago mother Linda Taylor for welfare fraud. Taylor herself triggered the investigation by reporting to police that fourteen thousand dollars in cash, jewelry, and furs had been stolen from her home. Welfare and Pension Swindle Laid to Woman of Many Aliases, N.Y. TIMES, Dec. 15, 1974, at 58. Early newspaper coverage of the case reported that Taylor was being investigated for using as many as fourteen different aliases over twenty-eight years to collect perhaps hundreds of thousands of dollars in welfare and social security payments. Id. The early estimates of her fraud were perhaps overestimates. In March, Taylor--who investigators and the press called the "welfare queen"--was found guilty of welfare fraud and perjury for using two aliases to collect eight thousand dollars in wrongful payments over the course of twenty-three months. Chicago Relief "Queen' Guilty, N.Y. TIMES, Mar. 19, 1977, at 8.
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128 Then, in 1978, Barbara Jean Williams, a thirty-three-year-old African-American mother from Compton, California, was convicted of ten counts of welfare fraud and twelve counts of perjury. Woman Guilty of $240,000 Welfare Fraud, WASH. POST, Dec. 2, 1978, at A4. According to a newspaper account of the investigation: Officials were alerted by an anonymous telephone tip to feed the name of Barbara Jean Thompson, one of Williams' alleged aliases, into the computer. The computer printout showed a pattern of identical or similar names for the recipients' alleged needy children. Williams was later accused of filing for aid in 10 welfare offices and collecting a total of $239,587 from September 1971 to February 1978. Id. At the time she applied for aid, the welfare system had not yet been computerized, making it easy for a willful criminal to apply for aid by opening multiple cases under different names. Williams was ultimately sentenced to eight years in jail for cheating the system. 'Queen of Welfare" Ordered Jailed in $239,500 Fraud, N.Y. TIMES, Dec. 29, 1978, at A10. The New York Times reported that Williams was known as the "Queen of Welfare." Id. In coverage of her court case, the New York Times and the Washington Post repeatedly noted that Williams drove a Cadillac. Id. (53) Text of White House Message to Congress on Proposal to Overhaul Welfare System, N.Y. TIMES, Aug. 7, 1977, at 40. (54) See "Welfare Queen' Becomes Issue in Reagan Campaign, supra note 47. The article noted that while campaigning for the Republican presidential primaries in New Hampshire, Reagan mentioned Linda Taylor "at nearly every stop." Id. Reagan reported greatly exaggerated facts, telling voters that Taylor had used eighty names, when, in fact, the indictment brought against her charged her with using four aliases. Id. The article noted that "[t]he 'welfare queen' item in Mr. Reagan's repertoire is one of several that seem to be at odds with the facts." Id. (55) David S. Broder, Still Learning to Be the Opposition, WASH. POST, Feb. 15, 1981, at C7. (56) Robert Pear, Reagan's Social Impact, N.Y. TIMES, Aug. 25, 1982, at A1. (57) Steven V. Roberts, Food Stamp Trims Sought by Reagan, N.Y. TIMES, Sept. 23, 1981, at A23. (58) Pear, supra note 56. (59) Charles R. Babcock & Patrick Tyler, Fired U.S. Waste-Fighters Bare Government Foulups, WASH. POST, Feb. 2, 1981, at A1. (60) Steven V. Roberts, '82 Election Preview: Making Money, Making Law, N.Y. TIMES, Sept. 22, 1981, at A28 (summarizing comments by California Democratic Representative Tony Coelho). (61) House Representative Guy Vander Jagt, a Michigan Republican, said, "'I suspect that a disproportionate share of blacks are on welfare, and that a disproportionate share of welfare fraud is committed by blacks.... But people are not mad at black welfare chiselers, they're mad at welfare chiselers, period.'" Id. (62) Babcock & Tyler, supra note 59; see OFFICE OF THE INSPECTOR GEN., supra note 46. (63) In December of 1980, after Reagan's successful presidential campaign, another prominent welfare fraud case surfaced in California. Dorothy Woods, a thirty-eightyear-old African-American mother of six living in Pasadena, was charged with welfare fraud for, like Barbara Jean Williams, creating multiple (twelve) aliases for herself and using the names of fictitious children to receive large payments from the AFDC program. Coast Woman Admits $377,458 Welfare Fraud, N.Y. TIMES, Mar. 17, 1983, at A16; Woman's Aid Claims for 38 Children Are Examined, N.Y. TIMES, Dec.
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129 21, 1980, at 31. Again, the news coverage highlighted the welfare cheat's automobiles of choice, in this case a Rolls Royce, a Mercedes Benz, and a Cadillac. Woman's Aid Claims for 38 Children Are Examined, supra. Woods was jailed in November of 1981 and, in March of 1983, pleaded guilty to forty-one criminal counts, including forgery, perjury, and welfare fraud. Coast Woman Admits $377,458 Welfare Fraud, supra. According to prosecutors, Woods had fraudulently collected $377,458 in welfare between 1974 and 1980. Id. The media dubbed Woods the "Welfare Queen," not only because of her luxury cars, but also because she lived in a large house with a swimming pool. Requiem for the Welfare Queen, WASH. POST, June 29, 1983, at A18.
Woods's criminal activities were not limited to welfare fraud and did not end with her fraud conviction. In 1987, Woods had her parole rescinded after the welfare office discovered she had collected a welfare check for a son who was not living with her. Lois Timnick, 'Welfare Queen' Arrested on New Fraud Charges, L.A. TIMES, May 22, 1987, at 3. An administrative hearing, however, later determined that the welfare office had not provided fair notice before terminating her benefits and that Woods had left her son with her brother for a few weeks while searching for housing. The Region, L.A. TIMES, Aug. 9, 1987, at 2. In 1993, after her release from prison, Woods became head of a Pasadena church homeless shelter. Nicholas Riccardi, "Welfare Queen" Held on Tax Fraud Charges, L.A. TIMES, Apr. 11, 1997, at B3. Her life of freedom did not last long. In 1997, Woods was again charged with fraud and pleaded guilty, this time for using the Social Security numbers of clients at the homeless shelter, forging their signatures, and fraudulently filing and collecting claims for earned-income tax credits. Official Business: Woman Pleads Guilty to New Tax Fraud Charge, L.A. TIMES, July 8, 1997, at B4. (64) See WAHNEEMA LUBIANO, Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means, in RACE-ING JUSTICE, ENGENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 323, 332-33 (Toni Morrison ed., 1992) ("IT]he welfare queen is omnipresent in discussions about 'America's' present or future even when unnamed. All of those things are constantly in the news (not that
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130 welfare queens were ever much out of the news)--urban crime, the public schools, the crack trade, teenage pregnancy are all narratives in which 'welfare queen' is writ large."). See generally ANGE-MARIE HANCOCK, THE POLITICS OF DISGUST: THE PUBLIC IDENTITY OF THE WELFARE QUEEN (2004) (discussing negative views of welfare recipients in political debates and in public opinion). The figure of the welfare queen offered (and continues to offer) contradictory stereotypes about the rationality of poor women. On the one hand, the welfare queen stereotype embodied a woman who was hyper-rational and enterprising, someone who was working the system and milking taxpayer money from the government. This welfare queen was someone who had decided to maximize her income by bearing more children and increasing her government benefits rather than working. She also represented a mother who refused to enter into marriage, which would jeopardize her benefits. At the same time, the welfare queen stereotype portrayed welfare recipients as uneducated, lazy, and irrational. A welfare queen was someone who did not, or perhaps could not, pursue the long-term well-being of her family. She was someone unmotivated to seek an education to improve her station, someone who refused to take the economic risk of joining the paid labor force and leaving the welfare system. Worst of all, she had children without regard for her inability to raise them in middleclass comfort. She neither participated in the paid labor market nor took on the caretaking responsibilities for a working husband. She simply drew upon taxpayer dollars with neither gratitude nor remorse. While poverty is not exclusive to women of color who have children, black mothers have come to bear much of the stigma associated with welfare. Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 J. GENDER & L. l, 25 (1993) ("Ideologically, in America, single motherhood is Black."). (65) Choking Food Stamps, N.Y. TIMES, Nov. 14, 1983, at A18 (noting that the Reagan Administration's focus on "fraud, waste and abuse," described in the article as "Reagan bugaboos," was making it difficult for destitute families to access public benefits). (66) Editorial, Reagan, Women and Poverty, BOSTON GLOBE, Apr. 13, 1984 (noting that Reagan's re-election efforts were aimed at middle-class women, while many of the budget cuts he implemented during his first term most affected the poor women he labeled "welfare queens"). (67) WALTER I. TRATTNER, FROM POOR LAW TO WELFARE STATE: A HISTORY OF SOCIAL WELFARE INAMERICA 370-71 (5th ed. 1994). (68) GILENS, supra note 49, at 3. (69) HANCOCK, supra note 64, at 93-94 (conducting a content analysis of the Congressional Record of the 104th Congress and finding the following terms arising frequently in debates about welfare recipients: Culture of Poverty, Don't Work, SingleParent Family, Illegitimacy, Cross-Generational Dependency, Teen Mothers, Crime, and Overly Fertile); see also Martha L. Fineman, Images of Mothers in Poverty Discourse, 1991 DUKE L.J. 274, 283 ("[I]n poverty discourses emanating from a broad spectrum of groups, these single mothers have been lumped together with drug addicts, criminals, and other socially-defined 'degenerates' in the newly-coined category of 'underclass.'"). (70) Susan D. Bennett describes welfare office application procedures as "discouragement practices" leading to "bureaucratic disentitlement." Susan D. Bennett, "No Relief but upon the Terms of Coming into the House"--Controlled Spaces, Invisible Disentitlements, and Homelessness in an Urban Shelter System, 104 YALE L.J. 2157, 2159 (1995). She explains that discouragement practices tend to take four forms: "the demand for the applicant's physical presence as a precondition to application, the physical isolation of the applicant in the waiting room, the withholding of information from the applicant, and verification extremism." Id. at 2161.
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131 (71) California began investigating applicants, not just welfare recipients, for fraud in the 1980s. A report by the 1996 U.S. Office of Inspector General notes: California was the original pioneer to use pre-eligibility fraud investigative units, and their program is one of the largest in the United Sates. It is also generally more aggressive than other States in detecting fraud. For example, many California counties used trained peace officers rather than social workers for investigators. OFFICE OF THE INSPECTOR GEN., DEP'T OF HEALTH & HUMAN SERV., REP. NO. OEI-04-9100101, AFDC PRE-ELIGIB1LITY FRAUD INVESTIGATIVE UNITS 3 (1995 ). 72 Id. at 2. (73) Id. at 6. (74) Id. at 8, (75) Id. at 11-12. (76) Wilson cut AFDC benefits by 5.8% in 1992. Jane Gross, U.S. Court Delays Welfare Cutback, N.Y. TIMES, Dec. 24, 1992, at A10. Wilson also sought to provide reduced benefits to welfare recipients who moved from other states, though a federal court prohibited that restriction, citing Shapiro v. Thompson, 394 U.S. 618 (1969), a Supreme Court case holding that residency restrictions on AFDC violate a constitutional right to travel. Id. (77) Carla Rivera, Experimental Fingerprint Program Targets Aid Fraud, L.A. TIMES, Apr. 7, 1994, at B4. A consultant to the Senate's Budget Committee noted that finger imaging would raise the $72 million a year the state already spent on welfare fraud programs another 13% without significant increases in efficiency. Id. (78) Max Vanzi, Assembly OKs GOP-Backed Welfare Cuts, L.A. TIMES, May 21, 1996, at A3. (79) Id. (80) Scott Steepleton, Countywide; Investigators Arrest 22 Welfare Recipients, L.A. TIMES, Mar. 7, 1997, at 3. (81) Beverly Horsburgh, Schrodinger's Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO L. REV. 531,565-66 (1996) (quoting lawmakers who associated women on welfare with caged animals such as wolves and alligators). (82) Vanessa Gallman, 'Sit Down and Shut Up': Welfare Debate Turns Testy, MIAMI HERALD, Mar. 25, 1995, at 8A. (83) [I] represent Florida where we have many lakes and natural reserves. If you visit these areas, you may see a sign like this that reads, "do not feed the alligators." We post these signs for several reasons. First, because if left in a natural state, alligators can fend for themselves. They work, gather food and care for their young. Second, we post these warnings because unnatural feeding and artificial care creates dependency. When dependency sets in, these otherwise able-bodied alligators can no longer survive on their own.
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132 141 CONG. REC. 9194 (1995) (statement of Representative Mica). (84) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006)). (85) Id. at Title I, [section] 401, 110 Stat. at 2261 (codified as amended at 42 U.S.C. [section] 601 (2006)) (specifying that the federal funds provided to states "shall not be interpreted to entitle any individual or family to assistance...."). (86) Id. at Title I, [section] 402, 110 Stat. at 2113-15 (codified as amended at 42 U.S.C. [section] 602 (2006)). (87) Id. at Title I, [section] 407, 110 Stat. at 2129-34 (codified as amended at 42 U.S.C. [section] 607 (2006)) (describing mandatory work requirements); id. at Title I, [section] 404, 110 Stat. at 2124-28 (codified as amended at 42 U.S.C. [section] 604 (2006)) (allowing states to sanction a family's welfare benefits if an adult fails to ensure that children attend school); id. at Title IX, [section] 902, 110 Stat. at 2347 (codified as amended at 21 U.S.C. [section] 862(b) (2006)) (allowing states to sanction welfare recipients who test positive for controlled substances). (88) Id. at Title I, [section] 408, 110 Stat. at 2140-42 (codified as amended at 42 U.S.C. [section] 609 (2006)) (allowing states discretion in determining the obligations of individual aid recipients and granting the states discretionary authority to determine penalties for noncompliance among individuals). (89) The many people who used this phrase seemed uncritical of the beast-of-burden imagery that the phrase "carrot and stick" creates with relation to the poor individuals who stand between the carrot and the stick. The phrase itself conjures up images of coerced, unpaid labor and resonates with images of black servitude under slavery. Martin Gilens notes that the public's negative attitudes towards the welfare system are inextricably tied to racism and an aversion to providing African Americans with aid. GILENS, supra note 49, at 3 (noting that "welfare has become a 'code word' for race"). (90) Carolyn Skorneck, Negotiators OK Welfare Bill: Carrot-and-Stick Reform Offers Some Concessions to Clinton, TIMES-PICAYUNE, July 31, 1996, at 2 (explaining that the welfare reform bill had "a tough edge that would force people off public rolls and into jobs"). (91) Regulations set forth by the Department of Health and Human Services determine general rules for all of the states, but the states determine what the work requirements will be under their programs, and eligibility workers at local offices determine what counts as work hours for individual welfare recipients. (92) Andrew J. Cherlin et al., Operating Within the Rules: Welfare Recipients" Experiences with Sanctions and Case Closings, 76 Soc. SERV. REV. 387, 395 (2002). (93) JACOB ALEX KLERMAN & JANE MCCLURE BURSTAIN, RAND, SANCTIONS IN THE CALWORKS PROGRAM xv (2008). (94) See, e.g., Jacob Alex Klerman & Caroline Danielson, Why Did the Welfare Caseload Decline? 2 (RAND, Working Paper No. WR-167, 2004) ("[O]ur simulations suggest only a moderate role for any specific reforms in explaining the large observed drop in the welfare caseload. We attribute about a fifth of the caseload decline to time limits and sanctions, about a quarter to the economy, and about a third to a residual policy bundle; the remainder of the decline is absorbed by unexplained time effects."). (95) Sanford F. Schram, Race and State Welfare Reform Choices: A Cause for Concern, in FROM POVERTY TO PUNISHMENT: HOW WELFARE REFORM PUNISHES THE POOR 97 (Gary Delgado ed., 2002). (96) LADONNA PAVETTI ET AL., MATHEMATICA POLICY RESEARCH, INC., THE USE OF TANF WORK-ORIENTED SANCTIONS IN ILLINOIS, NEW JERSEY, AND SOUTH CAROLINA 2 (2004). (97) Id.; see also State Policy Documentation Project, TANF Categorical Eligibility, http://www.spdp.org/tanf/sanctions/sanctions_findings.htm (last visited May 15, 2009). States may determine standards of "good cause" that will spare a household a sanction if an adult was not in compliance with the work requirements or other state
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133 requirements of the state welfare rules. Id. Good cause usually includes illness of the head of household, illness of a child in the family, or lack of transportation. Id. The Center for Law and Social Policy (CLASP) notes, however, that three states "do not have any type of process to resolve sanction disputes before they are imposed." Id. This lack of procedural protection for welfare recipients appears to be a violation of Goldberg v. Kelly, 397 U.S. 254 (1970), which holds that individuals are entitled to notice and a right to a fair hearing before denial of governmental benefits. (98) PAVETTI ET AL., supra note 96, at 2. (99) LaDonna Pavetti, Welfare Policy in Transition: Redefining the Social Contract for Poor Citizen Families with Children, 21 Focus, Fall 2000, at 44. (100) LADONNA PAVETTI ET AL., MATHEMATICA POLICY RESEARCH, INC., REVIEW OF SANCTION POLICIES AND RESEARCH STUDIES: FINAL LITERATURE REVIEW 3 (2003); JANICE PETERSON, INST. FOR WOMEN'S POLICY RESEARCH, REP. NO. IWPR-E511, FEMINIST PERSPECTIVES ON TANF REAUTHORIZATION: AN INTRODUCTION TO KEY ISSUES FOR THE FUTURE OF WELFARE REFORM 4 (2002); ISABEL V. SAWHILL ET AL., BROOKINGS INST., WELFARE REFORM: AN OVERVIEW OF EFFECTS TO DATE (2001), available at http://www.brookings.edu/papers/2001/01poverty_haskins.aspx; Pamela Holcomb & Caroline Ratcliffe, When Welfare Recipients Fail to Comply with Work Requirements: Indiana's Experience with Partial Benefit Sanctions, 24 J. APPLIED SOC. SCIENCES 1, 4 (2000). A recent study of California's TANF system found one-fifth of the adults were being sanctioned, and that the sanction rates doubled between 2000 and 2005. KLERMAN BURSTAIN, supra note 93, at xvii-xviii. (101) HEIDI GOLDBERG & LIZ SCHOTT, CTR. ON BUDGET & POLICY PRIORITIES, A COMPLIANCE-ORIENTED APPROACH TO SANCTIONS IN STATE AND COUNTY TANF PROGRAMS (2000). (102) Schram, supra note 95, at 99 (finding that among various factors analyzed, "only race and ethnic composition [of a state] affect the probability of adopting a family cap policy"); see also Joe Soss et al., The Hard Line and the Color Line: Race, Welfare, and the Roots of Get-Tough Reform, in RACE AND THE POLITICS OF WELFARE REFORM 245 (Sanford F. Schram et al. eds., 2003) (finding that "adoption of family caps and strict time limits was unrelated to any factor other than the racial composition of the [welfare] rolls"). (103) Ariel Kalil et al., Sanctions and Material Hardship Under TANF, 76 SOC. SERV. REV. 642, 655 (2002); see also PAVETTI ET AL., supra note 96, at 33-34 (finding African Americans are sanctioned at higher rates than other racial and ethnic groups). (104) Yeheskel Hasenfeld et al., The Logic of Sanctioning Welfare Recipients: An Empirical Assessment, 78 SOC. SERV. REV. 304, 314 (2004). (105) Sanctions are not only imposed for noncompliance with work requirements. States can establish other grounds for sanctioning as well. For example, women receiving welfare in California may be sanctioned for failing to cooperate in the State's efforts to establish a child's paternity and to assign child support benefits to the State. CAL. WELF. & INST. CODE [section] 11477(b) (West 2001 & Supp. 2009). Exceptions to this requirement apply when establishing paternity poses risks of abuse to mother or child, or where a child was conceived through rape or incest. This exception, however, may not come to light until a mother has already refused to provide information and has been sanctioned. Little to no qualitative research on the effects of sanctions on the daily lives of families who are sanctioned has been conducted. One might suppose, though, that these get-
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134 tough policies, intended to spur low-income women into the workforce, are making life more difficult for families who are already struggling. (106) 42 U.S.C. [section] 602(a)(22) (1994) (repealed by Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C. (2006))) (requiting states to recoup welfare overpayments, whether or not the overpayment was the fault of the state or the individual welfare recipient). (107) DAVID GARLAND, THE CULTURE OF CONTROL 196 (2001). Other scholars have begun tracing the ways that crime-control strategies have seeped into various realms of social life. John Gilliom, for example, traced the emergence of drug testing in the workplace and how it involved a process of "reclassifying largely criminal policies as administrative and colonizing the workplace as a site of surveillance and control." JOHN GILLIOM, SURVEILLANCE, PRIVACY, AND THE LAW: EMPLOYEE DRUG TESTING AND THE POLITICS OF SOCIAL CONTROL 119 (1996). (108) The "family cap" policies--welfare rules prohibiting an increase in a poor family's cash assistance when a new child is born into the family--highlight the ways welfare regulations affect issues of personal and family autonomy. The family cap rules were intended by lawmakers to influence women's, especially poor women-ofcolor's, decisions about birth control, abortion, childbearing, and family formation. The policies punish not only women who decide to bear children while on welfare, but also their entire families. Federal welfare reform legislation gave states the option of instituting family cap policies that prohibit welfare offices from offering cash assistance to children born to families receiving welfare. JODIE LEVIN EPSTEIN, CTR. FOR LAW & SOC. POLICY, CHILDBEARING & REPRODUCTIVE HEALTH SERIES BRIEF NO. 1, LIFTING THE LID OFF THE FAMILY CAP: STATES REVISIT PROBLEMATIC POLICY FOR WELFARE MOTHERS 1 (2003) (describing the federal and state policies). Twenty-one states have adopted the family cap; two others--Idaho and Wisconsin--have instituted flat grants for families of any size. Schram, supra note 95, at 95. The effects of the family cap are significant. According to the U.S. General Accounting Office, in an average month in the year 2000, approximately 108,000 families were receiving less cash assistance than they would have received without the punitive family cap policies. U.S. GEN. ACCOUNTING OFFICE, GAO-01-924, WELFARE REFORM: MORE RESEARCH NEEDED ON TANF FAMILY CAPS AND OTHER POLICIES FOR REDUCING OUT-OF-WEDLOCK BIRTHS 2 (2001). The family cap rules may also be increasing the number of abortions among low-income women of color. A study of women affected by New Jersey's family cap found that the abortion rate rose among welfare recipients subject to the rule--but only among African-American welfare recipients. Radha Jagannathan & Michael J. Camasso, Family Cap and Nonmarital Fertility: The Racial Conditioning of Policy Effects, 65 J. MARRIAGE & FAM. 52, 62 (2003). (109) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title If, [section] 202, 110 Stat. 2105, 2185-86 (codified as amended at 42 U.S.C. [section] 1382 (2006)) (relating to SSI benefits); id. at Title VIII, [section] 821, 110 Stat. at 2321 (codified as amended at 7 U.S.C. [section] 2015 (2006)) (relating to food stamps); id. at Title IX, [section] 903, 110 Stat. at 2348-49 (codified as amended at 42 U.S.C. [section] 1437 (2006)) (relating to public housing). (110) U.S. GEN. ACCOUNTING OFFICE, GAO-02-716, WELFARE REFORM: IMPLEMENTATION OF FUGITIVE FELON PROVISIONS SHOULD BE STRENGTHENED 3 (2002). (111) Press Release, Nancy Bartel, U.S. Dep't of Agric., Operation Talon Sting Nabs Hundreds of Fugitive Felons in Portland Area (Feb. 9, 2000), available at http://www.usda.gov/oig/webdocs/oig45.htm. (112) U.S. GEN. ACCOUNTING OFFICE, supra note 110, at 39.
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135 (113) JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISFRANCHISEMENT AND AMERICAN DEMOCRACY 74 (2006). (114) The use of Social Security numbers and privacy concerns over their use were a big concern during the 1970s. See, e.g., Marjorie Hunter, Social Security Number at Birth Urged to Curb Welfare Abuses, N.Y. TIMES, Mar. 21, 1972, at 24 (discussing heated debates over use of Social Security numbers in the welfare system). Many civil libertarians opposed the requirement of Social Security numbers for welfare benefits and opposed exchanges of information between government agencies. Id. In 1974 Congress passed the Privacy Act, which stated that states and localities could not withhold benefits from individuals who refused to provide Social Security numbers. Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. [section] 552a (2006)). The following year, Congress passed an amendment to the Act requiring disclosure of a Social Security number as a condition of AFDC eligibility. Social Services Amendments of 1974, Pub. L. No. 93-647, 88 Stat. 2337 (codified as amended in scattered sections of 42 U.S.C. (2006)). The next year, Congress authorized states to use Social Security numbers as a requirement of eligibility in any public assistance program. Tax Reform Act of 1976, Pub. L. No. 94455, Title XII, [section] 1211, 90 Stat. 1520 (codified as amended at 42 U.S.C [section] 405 (2006)). (115) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title I, [section] 408(9)(B), 110 Stat. 2105, 2140 (codified as amended at 42 U.S.C. [section] 608 (2006)) (legislating that prior state safeguards on disclosure of personal information "shall not prevent the State agency administering the program from furnishing a Federal, State, or local law enforcement officer, upon the request of the officer, with the current address of any recipient if the officer furnishes the agency with the name of the recipient"). (116) The U.S. Supreme Court has held that individuals have no legitimate expectation of privacy to financial information they disclose to banks through the regular course of business and therefore no Fourth Amendment claims when a bank is subpoenaed. United States v. Miller, 425 U.S. 435, 442-44 (1976). A recent federal district court case, however, noted that while searches conducted under legal process are protected, individuals have standing to challenge searches of financial records as unlawful where the searches are conducted either without legal process or outside the scope of a subpoena that has been issued. Walker v. S.W.I.F.T. SCRL, 491 F. Supp. 2d 781,790 (N.D. Ill. 2007). (117) Burrows v. Superior Court, 529 P.2d 590, 595-95 (Cal. 1974) (holding that "bank statements or copies thereof obtained by [investigators] without the benefit of legal process were acquired as the result of an illegal search and seizure"). Congress has offered some privacy protections to customers of banking institutions through the Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, Title XI, 92 Star. 3641, 3693 (codified as amended at 12 U.S.C. [section][section] 3401-22 (2006)). (118) 7 U.S.C. [section] 2020(e)(8)(D) (2006); 42 U.S.C. [section] 1437z (2006). (119) 7 U.S.C. [section] 2020(e)(8)(D)(i)(II). Individuals who receive Social Security benefits possess greater privacy rights over their information. Under the Omnibus Budget Reconciliation Act of 1990, an individual receiving Social Security benefits cannot be subject to any adverse action as a result of data matching without both verification of the information and prior notice to the individual. Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, Title VII, [section] 7201, 104 Stat. 1388 (codified as amended at 5 U.S.C. [section] 552a (2006)). (120) OFFICE OF INSPECTOR GEN., DEP'T OF AGRIC., OPERATION TALON: OCTOBER 2000 UPDATE 6 (2000); OFFICE OF INSPECTOR GEN., DEP'T OF AGRIC., OPERATION TALON (1998).
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136 (121) Food Stamp Bust Nets 205 Suspects, COLUMBIAN, Feb. 12, 2000, at B6 (describing a sting where individuals were "[l]ured by promises of cash bonuses and transportation reimbursement"); Kristan Trugman, Fake Gambling Trip Helps Cops Snare Maryland, D.C. Fugitives, WASH. TIMES, Feb. 9, 2000, at C1 (describing how, after food stamp recipients with outstanding warrants were identified through computer checks, they "were encouraged to sign up early for a free bus junket to Atlantic City for a day of gambling, offers of a $50 stake and a free gym bag"). (122) The Inspector General for the Department of Agriculture stated Operation Talon was initiated "to locate and apprehend fugitives who were illegally receiving food stamp benefits, thereby ensuring that program benefits go to those who are truly in need." Review the Operations of the Food Stamp Program: Hearing Before the Subcomm. on Department Operations, Oversight, Nutrition, and Forestry of the H. Comm. on Agriculture, 108th Cong. 20 (2003) (statement of Phyllis K. Kong, Inspector General, United States Department of Agriculture). (123) Press Release, U.S. Dep't of Agric., Gore Announces Arrest of 2,199 Fugitives in Nationwide Sting (Dec. 18, 1997), available at http://www.usda.gov/news/releases/1997/12/0447. (124) Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, Title I, [section] 408(9)(B), 110 Stat. 2105, 2140 (codified as amended at 42 U.S.C. [section] 608 (2006)) (legislating that prior state safeguards on disclosure of personal information "shall not prevent the State agency administering the program from furnishing a Federal, State, or local law enforcement officer, upon the request of the officer, with the current address of any recipient if the officer furnishes the agency with the name of the recipient"). (125) A Closer Look: Inspectors General Address Waste, Fraud, and Abuse in Federal Mandatory Programs: Hearing Before the H. Comm. on the Budget, 108th Cong. 66, 1st Session (2003) [hereinafter Hearing on Waste, Fraud, and Abuse] (statement of Phyllis K. Fong, Inspector General., U.S. Department of Agriculture); OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC., REPORT NO. 56, OFFICE OF INSPECTOR GENERAL SEMIANNUAL REPORT TO CONGRESS: FY 2006-2ND HALF 22 (2006). (126) Formulation of the 2002 Farm Bill." Hearings Before the H. Comm. of Agriculture and Its Subcomm., 107th Cong. 643-57 (2001) (statement of Roger C. Viadero, Inspector General, U.S. Department of Agriculture); OFFICE OF THE INSPECTOR GEN., OPERATION TALON: OCTOBER 2000 UPDATE, supra note 120, at 6. (127) OFFICE OF THE INSPECTOR GEN., OPERATION TALON: OCTOBER 2000 UPDATE, supra note 120, at 6. (128) Hearing on Waste, Fraud, and Abuse, supra note 125, at 66 (statement of Phyllis K. Fong, Inspector Gen., U.S. Department of Agriculture). (129) PATRICIA ALLARD, THE SENTENCING PROJECT, LIFE SENTENCES: DENYING WELFARE BENEFITS TO WOMEN CONVICTED OF DRUG OFFENSES 1 (2002). (130) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 17 (2005). (131) Id. at 33-34 tbl.5. (132) ALLARD, supra note 129, at 2. (133) Id. (134) Id. (135) U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 130, at 20. Fourteen states exempt all individuals convicted of drug felonies from food stamp bans, while twenty-one states allow only some individuals with drug convictions to receive food stamps. Id. Food stamps are federally funded, and the benefits flow not only to lowincome individuals, but also to the businesses that accept them and to local food
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137 producers. Food stamps are also viewed as a benefit that cannot be easily used for illicit purposes, unlike cash benefits. (136) ALLARD, supra note 129, at 4. The Government Accountability Office points out that measuring the full effect of the drug felony exclusion is virtually impossible, since states do not report the number of parents they find ineligible for welfare due to drug convictions because there is no way to accurately determine the number of individuals who might be low-income heads of households and because there is no way to determine how this rule affects household composition. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 130, app.II. (137) ALLARD, supra note 129, at 5. (138) CAL. WELF. & INST. CODE [section] 18901.3 (West Supp. 2009). (139) Peter Schrag, Op-Ed., Food Stamps Become a Weapon in the War on Drugs, CONTRA COSTA TIMES, June 3, 2001, at 03. (140) IN. (141) Id. (142) See generally Kaaryn Solveig Gustafson, The Morality and Rationality of Welfare (Spring 2004) (unpublished Ph.D. dissertation, University of CaliforniaBerkeley) (on file with Proquest). (143) 45 C.F.R. [section] 205.51 (2008) (recording federal regulation requiring states to collect particular types of personal information and to establish an electronic Income Eligibility and Verification System). (144) Of the 24,970 welfare grants discontinued in December 2008 to one- and twoparent households, 10,898 (or 45%) were discontinued because the recipients failed to complete or return paperwork (known as CW7 and QR 7 forms). CAL. DEP'T OF SOC. SERV., CALIFORNIA WORK OPPORTUNITY AND RESPONSIBILITY TO KIDS (CALWORKS) REPORT ON REASONS FOR DISCONTINUANCES OF CASH GRANT 1 (2009), available at http://www.dss.cahwnet.gov/research/res/pdf/CA%20253/ 2008/CA253Dec08.pdf (calculations drawn from columns A and C). (145) See U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-98-228, FOOD STAMP OVERPAYMENTS: HOUSEHOLDS IN DIFFERENT STATES COLLECT BENEFITS FOR THE SAME INDIVIDUALS (1998) (studying duplicate food stamp participation data across states and finding potentially 20,000 duplicate Social Security numbers); OFFICE OF STATE SYSTEMS, DEP'T OF HEALTH & HUMAN SERV., REPORT TO CONGRESS ON DATA PROCESSING AND CASE TRACKING IN THE TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF) PROGRAM (1997) (reporting that no federal agency tracks duplicate TANF cases across state lines). (146) See U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-97-54, FOOD STAMPS" SUBSTANTIAL OVERPAYMENTS RESULT FROM PRISONERS COUNTED AS HOUSEHOLD MEMBERS (1997) (finding that government agencies, inadequately verifying household composition, were issuing benefits to incarcerated individuals, and recommending computer cross-checks between welfare agencies and the criminal justice system); see also Josh Meyer, Prisoners Get Food Stamps, U.S. Study Finds, L.A. TIMES, Mar. 11, 1997, at B1. (147) 42 U.S.C. [section](a)(6)(2006). (148) Even before California instituted the first fingerprint imaging program, legislative analysts and state consultants noted that adequate fraud control measures were in place and that fingerprint imaging would be unlikely to identify a significant number of fraud cases. Rivera, supra note 77. (149) CAL. STATE AUDITOR, BUREAU OF STATE AUDITS, REPORT NO. 2001-015, STATEWIDE FINGERPRINT IMAGING SYSTEM (2003). (150) Id. at iii. The report added:
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138 The Legislature should consider the pros and cons of repealing state law requiring fingerprint imaging, including whether SFIS is consistent with the State's community outreach and education campaign efforts for the Food Stamp program. To assist the Legislature in its consideration of the pros and cons of repealing state law requiring fingerprint imaging, Social Services and the data center should report on the full costs associated with discontinuing SFIS. Id. at 8. (151) SERVS., IMMIGRANT RIGHTS & EDUC. NETWORK, IMMIGRANT FAMILY ACCESS TO FOOD STAMPS IN SANTA CLARA COUNTY (2000). The Asian Pacific American Legal Center (APALC) conducted a survey of communitybased organizations to determine why, despite such high poverty rates among Asian and Pacific Islander communities, food stamps were being underutilized by eligible members of those communities. The report listed fear of the state fingerprint imaging system as one of the top four barriers to food stamp use among the eligible poor. ASIAN PACIFIC AM. LEGAL CTR., BARRIERS TO FOOD STAMPS (2000). (152) Several years ago, while recruiting interviewees outside a Northern California welfare office for a research project, I routinely met welfare applicants who were showing up for their second or third fingerprint imaging appointments because the machine had been broken on previous visits to the welfare office. (153) A California welfare applicant challenged the state's fingerprinting requirement after she refused to be fingerprinted and her entire household was subsequently denied welfare benefits. Sheyko v. Saenz, 5 Cal. Rptr. 3d 350 (Cal. Ct. App. 2003). The plaintiff argued that being fingerprinted and photographed was "an invasion of privacy and personal dignity" and that fingerprinting was a violation of her religious freedom because the imaging left "a mark of the devil and stains the soul with sin." Id. at 688. The claimant also argued that fingerprinting deterred needy families from aid and resulted in a net loss of tax dollars. The California appellate court that heard the case, however, noted that the U.S. Department of Agriculture produced a document stating that fingerprint imaging might prevent fraud and that the judiciary was "not in the best position to craft efficient relief laws." Id. at 688. The appellate court upheld the lower court's decision that welfare applicants could be deemed ineligible for aid for failure to be fingerprinted and photographed. Id. at 701. (154) Hearing on SB 1, General Appropriations Act for 2008-09 Before the H. Appropriations Subcomm. on Health and Human Serv., 80th Leg. (Tex. 2007) [hereinafter Tex. Hearing] (statement of Celia Hagert, Senior Policy Analyst, Center for Public Policy Priorities). (155) Id.; DEANNA T. SCHEXNAYDER ET AL., CTR. FOR THE STUDY OF HUMAN RES., LONE STAR IMAGE SYSTEM EVALUATION: FINAL REPORT (1997). Texas began fingerprint imaging on a pilot basis in 1996 and implemented statewide in August 1999. Tex. Hearing, supra note 154 (statement of Celia Hagert, Senior Policy Analyst, Center for Public Policy Priorities). By the end of 2000, fingerprint imaging had cost the state $15.9 million dollars. Id. While the Texas Department of Human Services claimed that fingerprint imaging was cost-effective, that claim was based on the decline in food stamp cases. Id. Between 1996 and the end of 2000, fingerprint imaging had "resulted in only nine charges filed by the DA, 10 administrative penalty cases, and 12 determinations of no fraud." Id. (156) CAL. STATE AUDITOR, supra note 149. (157) Tex. Hearing, supra note 154 (statement of Celia Hagert, Senior Policy Analyst, Center for Public Policy Priorities).
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139 (158) SUSAN BARTLETT ET AL., FOOD ASSISTANCE & NUTRITION RESEARCH PROGRAM, REPORT NO. E-FAN-03-013-3, FOOD STAMP PROGRAM ACCESS STUDY: FINAL REPORT 8-10 (2004) (finding applicants who applied for benefits in offices that required fingerprinting were 23% less likely to complete the application process than those who went to offices that did not require fingerprinting). (159) KAREN E. CUNNYNGHAM ET AL., MATHEMATICA POLICY RESEARCH, INC., REACHING THOSE IN NEED: STATE FOOD STAMP PARTICIPATION RATES IN 2006, 5 (2008). (160) Id. (161) Id. (162) Id. (163) MICH. COMP. LAWS ANN. [section] 400.571(2) (West 2008). (164) Id. (165) Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000). (166) Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (allowing suspicionless drug testing of high school students who participate in competitive extracurricular activities). (167) Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002). (168) Id. at 335-36. (169) Id. at 336. (170) Id. at 337. (171) E.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (upholding procedural due process rights for welfare recipients); Shapiro v. Thompson, 394 U.S. 618 (1969) (upholding the right of welfare recipients to travel). (172) Marchwinski v. Howard, 60 Fed. App'x. 601 (Gth Cir. 2003). While no state currently has a program of random testing for all welfare recipients, in the years since the welfare reforms of 1996, eleven states other than Michigan--Florida, Illinois, Indiana, Louisiana, Maryland, Nevada, New Jersey, New York, North Carolina, Oklahoma, and Oregon--have at some point proposed legislation or instituted drug testing programs for some welfare recipients who have been identified as being at risk for drug abuse. ACLU, WELFARE DRUG TESTING (2003), available at http://www.aclu.org/drugpolicy/testing/10757res20030415.html. Since the Marchwinsla" case was decided, there have been intermittent discussions of attempting to try a modified version of the drug testing program in Michigan. Drugs Redux, LANSING STATE J., Sept. 20, 2006, at 6A (describing drug-testing bills unsuccessfully introduced in the Michigan legislature in 2004 and 2006). (173) Marchwinst5, 60 Fed. App'x at 601. (174) Harold A. Pollack et al., Substance Use Among Welfare Recipients: Trends and Policy Responses, 76 Soc. SERV. REV. 256, 259 (2002). (175) Id. at 268-69. (176) RUKMALIE JAYAKODY ET AL., NAT'L POVERTY CTR., POLICY BRIEF NO. 2, SUBSTANCE ABUSE AND WELFARE REFORM 3 (2004) ("[F]indings suggest that policymakers and advocates have likely overstated the extent to which substance abuse contributes to continuing dependence on cash aid."). (177) This is for fiscal year 2007-2008. For low-cost counties the figures are $689 in TANF cash assistance and $377 in food stamps, for a total of $1,066. LEGISLATIVE ANALYST'S OFFICE, ANALYSIS OF THE 2008-09 BUDGET BILL: HEALTH AND SOCIAL SERVICES 1 fig.1 (2009), available at http ://www.lao.ca.gov/analysis_2008/health_ss/hss_an108009.aspx. (178) Id. (179) CAL. DEP'T OF SOC. SERV., PUBLIC ASSISTANCE FACTS AND FIGURES: FOR THE MONTH OF JANUARY 2009 (2009), available at http://www.dss.cahwnet.gov/research/res/pdf/Paff/2009/PAFFJan09.pdf.
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140 (180) EDIN & LEIN, supra note 38, at 7 ("Because of their constant budget shortfall, mothers ... had to generate additional revenue to make ends meet. Welfare-reliant mothers had to keep these activities hidden from their welfare caseworkers and other government bureaucrats."); KAREN SECCOMBE, "SO YOU THINK I DRIVE A CADILLAC?": WELFARE RECIPIENTS' PERSPECTIVES ON THE WELFARE SYSTEM AND ITS REFORM 146 (1999) (reporting that welfare recipients, unable to survive on welfare benefits, often turn to the help of friends, neighbors, relatives, charities, and social service agencies). (181) 45 C.F.R. [section] 205.56(a)(1)(iv) (2008). (182) CAL. WELF. & INST. CODE [section] 11004 (West 2001 & Supp. 2009). (183) Welfare fraud prosecutions are typically brought under a state's general fraud statute. Thus, statistics on felony arrests and prosecutions cannot disaggregate welfare fraud charges from other types of fraud charges. (184) C.A. MACDONALD & ASSOC., EARLY DETECTION AND PREVENTION PROGRAMS: STATE DIRECTORY 9 (1995), available at http://www.camacdonald.com/edpstate.htm. (185) CAL. DEP'T OF SOC. SERV., FRAUD INVESTIGATION REPORT: OCTOBER-DECEMBER 2007 (2007), available at http://www.dss.cahwnet.gov/research/res/pdf/fraud/2007/Oct-Dec07.pdf. Madera County, for example, had a caseload of 2,708 families and referred 1,060 cases (or 39% of its caseload) for fraud investigations. Id. at 5 tbl. 1. (186) L.A. GRAND JURY, WELFARE FRAUD PREVENTION AND INVESTIGATIVE FUNCTIONS OF THE DEPARTMENT OF PUBLIC SOCIAL SERVICES 4 (1999), available at http://grandjury.co.la.ca.us/gjury99/REPORtgj15.htm. (187) COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, DEPARTMENT OF PUBLIC SOCIAL SERVICES: WELFARE FRAUD PREVENTION PROGRAM REVIEW 4 (2003), available at http://auditor.lacounty.gov/Public%20Social%20Services/cms1_009318.pdf. (188) CAL. DEP'T OF SOC. SERV., supra note 185, at 2, 5. (189) An example of the injustice of these delays can be found in a recent unpublished case, People v. Pahoua Lo, 2008 Cal. App. Unpub. LEXIS 9428. In 1992, eighteenyear-old Pahoua Lo, whose primary language was Hmong, applied for cash welfare benefits and food stamps when she became pregnant. Id. at *3-4. In August of 1998, Lo informed both her social services case worker and her Welfare to Work case worker that she would begin working part-time as an interpreter for the local school district. She began work in September and received her first paycheck on October 1, 1998. Id. at *4. She received her pay for a given month on the first day of the following month and reported her earnings, submitting her first-of-the-month earnings as pay for the earlier month, an error under the California reporting rules. Id. at *5. Lo failed to report her income in November and December and, when contacted by a case worker, explained that she was unaware she needed to submit documentation each month since her pay was consistent from month to month. Id. at *6. Though numerous database alerts between November 1998 and December 2001 signaled income reporting discrepancies to case workers, no case workers notified Lo of problems with her case record, and her cash benefits and food stamps continued. Id. Lo continued to receive cash payments through October 2001 and food stamps through July 2002. Id. at *2. Not until August 2002 did the welfare department inform Lo that she had been overpaid benefits. Id. An administrative hearing determined that the overpayment was caused not by intentional misrepresentations by Lo, but rather by the County Welfare Department's administrative error. Id. at *8. At the same time, the hearing officer rejected an argument of equitable estoppel and ordered Lo to repay approximately $30,000 in benefits, finding that Lo had "unclean hands" because she had failed to accurately report income (despite language barriers and explanations to case workers) and because "public policy strongly demands repayment." Id. at *7-8.
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141 In May 2004, the State brought criminal charges of welfare fraud and perjury against Lo. Id. at *8. In November 2004, Lo pleaded no contest to felony welfare fraud; the perjury charge was dismissed. Id. She was given probation, but found obligated to pay restitution for the welfare overpayment of $30,000. Id. In 2006 the Superior Court issued a writ of administrative mandamus related to the overpayment of cash aid and overissuance of food stamps, wherein it attacked the County Welfare Department (CWD), declaring that "in violation of its obligations to assist [defendant] and act humanely, if not in bad faith, the CWD chose to pursue fraud instead of explaining to [defendant] how to report [her income properly]." Id. at *9. Granting equitable estoppel on the overpayment of cash benefits, the Superior Court reduced the restitution amount to just over $15,000 in food stamp overissuances. Id. at *12. The Appellate Court affirmed that the food stamp overissuance was an administrative error, which allows the State and the defendant to compromise on a settlement amount and, if Lo returns to the food stamp program, limit collection efforts to thirty-six months. Id. at *15 (citing Settlement Agreement and Stipulation for Entry of Judgment After Remand from the Court of Appeal, Lomeli v. Saenz, No. 98CS01747 (Cal. Sup. Ct. July 2000)). Pahoua Lo's case is not an isolated one. In 2002, a non-profit organization, People United for a Better Oakland (PUEBLO) filed suit on behalf of low-income families, claiming that the County Welfare Department was failing to notify individuals of overpayments in a timely manner and was instead allowing overpayments to accrue, sometimes for many years, and then seeking repayment from poor families who lacked the memory and paperwork to defend restitution claims. Complaint, PUEBLO v. Saenz, (Cal. Sup. Ct. Jan. 18, 2002) (on file with author). The action was dismissed for lack of standing. (190) 42 U.S.C. [section] 608a(a) (2006). (191) The penalties for failing to report required information--even where the reporting failures would not affect aid calculations--are tough. A finding of one offense, in an administrative hearing or by a court, disqualifies an individual from aid for six months. CAL. WELF. & INST. CODE [section] 11486(c)(1)(A), (c)(2)(A) (West 2001 & Supp. 2009). A second occasion results in a twelve-month disqualification from aid, and a finding of a third occasion results in permanent-meaning life-long--disqualification from aid. Id. There are other civil violations that can lead to permanent disqualification from welfare. Under California law, an individual can be excluded from receiving welfare benefits for life for any of the following violations: (1) "double dipping," or in other words, making false statements or representations about one's place of residence in order to make simultaneous claims for aid in more than one county or state; (2) submitting documents to receive aid for nonexistent children or for children ineligible for aid; or (3) receiving more than $10,000 in aid as a result of intentionally and willfully making false statements or misrepresenting, concealing, or withholding pertinent facts from welfare administrators. Id. [section] 11486(c)(1)(B)-(c)(2)(B). (192) Anyone convicted in state or federal court of felony welfare fraud is ineligible for aid for two years if the amount of money in dispute is less than $2,000. Id. [section] 11486(b)(1). A person convicted of fraudulently receiving between $2,000 and $10,000 is barred from receiving aid for five years; a person convicted of fraudulently receiving more than $10,000 is prohibited from receiving aid for life. Id. [section] 11486(b)(2)-(b)(3). (193) CAL. DEP'T OF SOC. SERV., supra note 185, at 4. (194) Id. Los Angeles turned its investigations over to the DA's office in January 1997. Greg Krikorian, 8 Arrested in Probe of Welfare Fraud, L.A. TIMES, July 26, 1997, at B1. (195) My interviews with welfare recipients as part of my dissertation research indicated that a number of welfare recipients who had been called in by the fraud
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142 investigation unit did not know that these were criminal investigations. One interviewee, Yvonne, said that when she received a letter stating that officials wanted to ask her some questions, she did not understand the officials with whom she met were criminal investigators rather than welfare officials. Gustafson, supra note 142, at 290. Even after a year of repayment through a diversion program, she did not understand that she had been criminally sanctioned, that she was no longer eligible for cash payments (although her children were), and that her ineligibility was due to her failure to report income and not because she quit a job. Id. at 291. (196) CALIF. DEP'T OF SOC. SERV., MANUAL OF POLICIES AND PROCEDURES [section] 20-352.2 (1999). (197) Id. [section] 20-352-21. (198) Gustafson, supra note 142, at 291. (199) CAL. PENAL CODE [section] 118 (West 1999). (200) Frederick Melo, Stopping Welfare Cheats: Differing Approaches in Washington County and Dakota County, ST. PAUL PIONEER PRESS, Aug. 17, 2008 (discussing differing penalties for welfare fraud among Minnesota counties). (201) CAL. DEP'T OF SOC. SERV., supra note 185, at 2. (202) Erik G. Luna, Welfare Fraud and the Fourth Amendment, 24 PEPP. L. REV. 1235, 1235 (1997). (203) U.S. Census Bureau, Historical Poverty Tables tbl. 13, http://www.census.gov/hhes/www/poverty/histpov/hstpov13.html (last visited May 15, 2009). (204) Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 416 (1999). (205) Gustafson, supra note 142, at 214 (finding that most of the welfare recipients interviewed were unaware that "underreporting of income could result not only in a civil claim demanding repayment, but also criminal fraud charges and lifelong exclusion from the welfare system"). (206) See generally CESARE BECCARIA, ON CRIMES AND PUNISHMENTS (Henry Paolucci trans., Bobbs-Merrill Co. 1963) (1764). (207) Id. at 17-18 (discussing the importance of making rules known). (208) Id. at 94 ("Do you want to prevent crimes? See to it that the laws are clear and simple and that the entire force of a nation is united in their defense, and that no part of it is employed to destroy them. See to it that the laws favor not so much classes of men as men themselves."). (209) Telephone Interview with Jim Stevens, Assistant District Attorney, Welfare Fraud Division, in Bayview County, Cal. (May 30, 1999) (note on file with author). Name and location have been changed to protect the identity of the interviewee. (210) Id. A 2003 Los Angeles County audit similarly found that fraud investigations were not prioritized, meaning that cases with high dollar values were not necessarily given priority over cases involving small amounts of overpayments. COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, supra note 187, at 8. (211) Telephone Interview with Stevens, supra note 209. (212) Id. (213) California data for the fourth quarter of 2008 show that while more than $30 million in overpayments to CalWORKs payments were identified, only $12.9 million dollars were recovered by the state. CAL. DEP'T OF SOC. SERV., QUARTERLY REPORT OF OVERPAYMENTS AND COLLECTIONS-CALWORKs 1 (2009), available at http://www.cdss.ca.gov/research/res/pdf/CA%20812/2008/CA812OctDec08.pdf. Of the money recouped, only $2.8 million was collected as cash payments; another $9.8 million was recovered by reducing cash grants to families who continued to receive aid. Id. (214) CAL. DEP'T OF Soc. SERV., HIGHLIGHTS OF THE 2007-08 GOVERNOR'S BUDGET 7, 9 (2007). (215) Id. at 7.
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143 (216) Id. (217) DAVID E. JANSSEN & BRYCE YOKOMIZO, COUNTY OF L.A. CHIEF ADMIN. OFFICE, ADDENDUM TO THE JANUARY 18, 2007 REPORT ASSESSING THE IMPACT OF THE GOVERNOR'S WELFARE PROPOSAL 3 (2007). (218) LEGISLATIVE ANALYST'S OFFICE, supra note 177. (219) A 2003 report noted that Los Angeles County alone spent $32 million per year on welfare fraud investigations (prevention and detection). COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, supra note 187, at 1. By comparison, the California Franchise Tax Board spent less than a third as much ($10.5 million) in 2005-2006 investigating tax fraud throughout the entire state. STATE OF CAL. FRANCHISE TAX BD., OPERATIONS REPORT" FISCAL YEAR ENDING JUNE 30, 2006, 17 (2008), available at http://www.ftb.ca.gov/aboutftb/Oprpt/OpRpt_0506.pdf. (220) A poignant example of the unmeasured family costs of welfare fraud prosecutions occurred in the case of Jerome (a pseudonym), a father I interviewed as part of a study on welfare rule knowledge and rule compliance. Jerome was singlehandedly caring for his toddler child. The toddler's mother ended up spending a year in jail after her sister called the welfare hotline and reported that Jerome was living in the household. The sister had hoped that officials would kick Jerome out of the house. Instead, they arrested and convicted the mother of welfare fraud. Jerome, who had been employed while staying with his son and girlfriend, could not find employment after she went to jail. While he received a sanctioned aid check for his son, he was ineligible for child care assistance because of his earlier admission to the welfare office that he had been living in his girlfriend's home. Jerome and his son were renting a small room (a converted garage) from Jerome's ex-wife, and the boy had spent a year without his mother. (221) CAL. DEP'T OF CORR. & REHAB., FOURTH QUARTER 2008 FACTS AND FIGURES, available at http://www.cdcr.ca.gov/Divisions_Boards/Adult_Operations/ docs/FourthQuarter_2008_Facts_and_Figures.pdf (last visited May 15, 2009). (222) The average cash welfare payment to a family receiving CalWORKs in January 2008 was $528.80. A year on aid at that rate would total $6,344.60. CAL. DEP'T OF SOC. SERVS., supra note 179, at 4. CalWORKs recipients generally qualify for other forms of public assistance, including food stamps, which max out at $463 per month for a family of three, and Medicaid. Still, the overall state cost to provide for a family on welfare is lower than the cost of housing one inmate. (223) California Assembly Bill 1542 added CAL. WELF. & INST. CODE [section] 11486(j) (West 2001). The bill provided each county "25 percent of the State's share of the client-caused Cal-WORKs overpayment collections." Memorandum from Bruce Wagstaff, Dep't of Soc. Serv., All-County Information Notice 1-58-98, 1 (Oct. 14, 1998). Congress later passed the Improper Payments Information Act of 2002, which provided a 12.5% incentive to the states for welfare fraud prosecutions and which required states to compile information on overpayments and underpayments of benefits. Pub. L. No. 107-300, 116 Stat. 2350 (codified as amended at 31 U.S.C. [section] 3321 (2006)). (224) GRAY DAVIS, STATE OF CAL. GOVERNOR'S OFFICE, CALIFORNIA GOVERNOR'S BUDGET HIGHLIGHTS 48 (2002). The federal incentives remain, providing counties with 12.5% of the aid repaid or recovered by a county. CAL. WELF. & INST. CODE [section] 114860) (West Supp. 2009). (225) See Cal. Dep't of Soc. Serv., Fraud Investigation Report, http://www.dss.cahwnet.gov/research/PG363.htm (last visited May 15, 2009) (prosecution activity). (226) Id. (227) See supra notes 223-224 and accompanying text.
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144 (228) I have gathered information about the welfare fraud prosecution practices in a number of states. A full analysis of the trends is too extensive to summarize here and creates a rich opportunity for future research. There are notable divergences among states. In a few states--Arkansas, Massachusetts, and Wisconsin--prosecutors typically avoid criminal charges for welfare fraud. In a large and seemingly growing number of states, however, the move is to punish welfare cheats through criminal charges rather than civil penalties. Also notable is that a growing number of states and localities are creating welfare fraud diversion programs, allowing welfare recipients to avoid criminal conviction and jail time if they pay restitution to the state. In the model of drug diversion programs, these fraud diversion programs usually allow welfare recipients who have violated the rules to engage in some sort of restitution-usually repayment, but in some cases home monitoring--to have their sentences suspended or removed from their records. These programs, however, are quite different from drug diversion programs. First, the welfare fraud diversion programs are often being promoted by prosecutors rather than by advocates for the poor. The reasons are clear: fraud diversion is a quick way to process the cases through the criminal justice system. Second, the goal of rehabilitation is absent since the underlying cause of the crime, poverty, goes unaddressed. Third, in some locales the purpose of the fraud diversion programs appears to be to stigmatize those who engage in welfare fraud rather than redeem them. (One welfare fraud diversion program in California required participants to show up in person at a window labeled "welfare fraud payments" periodically to pay a nominal sum; another required participants to wear ankle monitoring bracelets.) The welfare fraud diversion programs share some of the same problems as the drug diversion programs. First, the effects of the fraud diversion programs have been the subject of even less research than the drug diversion programs. Second, there is anecdotal evidence that many participants in the welfare fraud diversion programs do not or cannot comply with the conditions of participation, specifically the repayment requirement. Third, it may be that, as in the case of the drug courts, more individuals are finding themselves under the control of the criminal justice system than they would were the diversion programs not available. This is because weak cases do not get dropped by prosecutors, and those who fail to meet the administrative requirements of the diversion programs find themselves either under the control of the criminal justice system for a longer time than they would have been if they had been charged, or they find themselves ultimately facing felony charges. See Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionsm, 65 OHIO ST. L.J. 1479, 1558-60 (2004) (explaining that rather than reducing state incapacitation of offenders, diversion programs may instead be widening the net and simply changing types of state-imposed incapacitation of offenders). (229) Dorothy Brown, dismissing the idea that wage-earning taxpayers escape the heavy policing of welfare recipients, suggests that the criminalization of welfare is now seeping into tax policy. She explains that recipients of the Earned Income Tax Credit, a credit for low-wage earners, are now targets for IRS audits. Dorothy A. Brown, Race and Class Matters in Tax Policy, 107 COLUM. L. REV. 790, 795 (2007) ("Welfare stereotypes . . . do apply to low-income taxpayers because even though the low-income taxpayer credit was created as an alternative to welfare, low-income taxpayers are viewed as lazy former welfare recipients who work because they have to and will lie and cheat in order to line their pockets with government money."). (230) In 2002, the Santa Clara County (California) Board of Supervisors approved a proposal to re-assign thirty-seven employees from positions in the welfare office to positions as criminal investigators. Bd. of Supervisors, Santa Clara County, Agenda, Item No. 27 (June 25, 2002) (on file with author). (231) See WELFARE FRAUD INVESTIGATORS ASS'N, MEMORANDUM OF UNDERSTANDING BETWEEN THE ALAMEDA COUNTY WELFARE FRAUD INVESTIGATORS ASSOCIATION AND THE COUNTY OF ALAMEDA, JULY
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145 16, 2006-JUNE 27, 2011, 1 (2007) (describing the agreement signed by the "Alameda County Welfare Fraud Investigators Association, affiliated with Operating Engineers Local Union No. 3"). (232) For example, consider the California Welfare Fraud Investigators Association, "a nonprofit organization dedicated to developing the professionalism of Welfare Fraud and Medi-Cal Investigators throughout the state by sponsoring annual training conferences, identifying and supporting regional training sessions, and through legislative interaction." The California Welfare Fraud Investigators Association Home Page, http://www.cwfia.org (last visited May 15, 2009). Other associations include: The Alabama Council on Welfare Fraud; The Colorado Welfare Fraud Council; Iowa Council on Welfare Fraud; the Minnesota Fraud Investigators Association; the Ohio Council on Welfare Fraud; the New York Welfare Fraud Investigators Association; the Welfare Investigators of California Arizona Nevada (WICAN); and the United Council on Welfare, an umbrella organization for welfare fraud associations in both the United States and Canada. (233) The California Welfare Fraud Investigators Association introduced a bill requiring all welfare fraud investigators to complete a special course approved by the Commission on Peace Officer Standards and Training. A.B. 2059, 1999-2000 Reg. Mess. (Cal. 2000). They also introduced a bill extending leaves of absence in lieu of temporary disability benefits from public safety investigators to welfare fraud investigators. S.B. 125, 2003-2004 Reg. Mess. (Cal. 2003) (enacted). (234) See generally MARTHA DAVIS, BRUTAL NEED (1993) (offering a history of the lawyer's movement for welfare rights in the 1960s and 1970s). (235) Goldberg v. Kelly, 397 U.S. 254 (1970) (finding the loss of welfare benefits a deprivation sufficient to trigger due process rights, but inadequate to trigger substantive constitutional rights). (236) U.S. CONST. amend. IV. (237) Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (discussing the "zone of privacy created by several fundamental constitutional guarantees"). (238) King v. Smith, 392 U.S. 309, 329 (1968). (239) Gary LaCheen, New Provisions of the Temporary Assistance for Needy Families Program: Implications for Clients with Disabilities and Advocacy Opportunities, 40 CLEARINGHOUSE REV. 490, 500-01 (2007) (touting state programs that "use home visits and other outreach ways to determine the reason for noncompliance, to assist in attending appointments, and to deal with barriers to compliance"); see also ANDREA WILKINS, NAT'L CONFERENCE OF STATE LEGISLATURES, ITEM NO. 6900-0005, STRATEGIES FOR HARD-TO-SERVE TANF RECIPIENTS 13 (2002) (suggesting that welfare departments "[i]mplement home visits for time-limited or sanctioned families to ensure the well-being of children in these families"). (240) GARY LACHEEN, WELFARE LAW CTR., HOME ALONE: THE URGENT NEED FOR HOME VISITS FOR PEOPLE WITH DISABILITIES 1N NEW YORK CITY'S WELFARE SYSTEM 27 (2004) (demanding that New York's welfare agency "[p]rovide home visits to all applicants and recipients with physical or mental health problems that severely limit their ability to travel to appointment or wait in waiting rooms for extended periods of time"). (241) GREGORY ACS & PAMELA LOPREST, THE URBAN INST., A STUDY OF THE DISTRICT OF COLUMBIA'S TANF CASELOAD 54 (2003) (describing the District of Columbia's policy of having community organizations conduct home visits with families who are being sanctioned for noncompliance with welfare rules). (242) Parrish v. Civil Serv. Comm'n, 425 P.2d 233, 224 (Cal. 1967). The raids were intended to find men who might be cohabiting with the female welfare recipients. The case was brought by Benny Parrish, the caseworker who, citing King, 392 U.S. at 309,
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146 refused to participate in midnight raids to enforce the substitute parent rule. Parrish was subsequently fired and challenged his dismissal. The Supreme Court had to determine whether he was being asked to engage in unlawful conduct on the job, which is how the Court reached the issue of the lawfulness of early morning raids. As a result, many law students read this case in Employment Law courses rather than Poverty Law courses. (243) Parrish, 425 P.2d at 225. (244) Id. at 226. (245) Id. at 225. (246) Id. at 227. (247) Id, at 229-30. (248) Wyman v. James, 400 U.S. 309 (1971). (249) Id. at 326. (250) Id. at 318-19 (emphasis added). (251) Id, at 320-21 (specifically stating that under the procedures "[p]rivacy is emphasized"). (252) "The visit is not one by police or uniformed authority. It is made by a caseworker of some training whose primary objective is, or should be, the welfare, not the prosecution, of the aid recipient for whom the worker has profound responsibility." Id. at 322-23. (253) Id. at 321. The plaintiff Barbara James, it appears, may have feared not a fraud charge, but rather an abuse or neglect charge. The Supreme Court noted that her welfare case file contained comments from a caseworker that "all was not always well with the infant Maurice (skull fracture, a dent in the head, a possible rat bite). The picture is a sad and unhappy one." Id. at 322 n.9. (254) Id. at 323. (255) Douglas, acknowledging both the stigmatized status of the poor and the ease with which their rights are disregarded, wrote: If the welfare recipient was not Barbara James but a prominent, affluent cotton or wheat farmer receiving benefit payments for not growing crops, would not the approach be different? Welfare in aid of dependent children, like social security and unemployment benefits, has an aura of suspicion. There doubtless are frauds in every sector of public welfare whether the recipient be a Barbara James or someone who is prominent or influential. But constitutional rights--here the privacy of the home--are obviously not dependent on the poverty or on the affluence of the beneficiary. It is the precincts of the home that the Fourth Amendment protects; and their privacy is as important to the lowly as to the mighty. Id. at 332-33 (Douglas, J., dissenting) (internal citations omitted). (256) Id. at 334 (Douglas, J., dissenting) ("[I]f inspectors want to enter the precincts of the home against the wishes of the lady of the house, they must get a warrant."). (257) Id. at 339-40 (Marshall, J., dissenting). (258) Smith v. Bd. of Supervisors, 128 Cal. Rptr. 2d 700, 703 (Ct. App. 2002) (noting the broadcast as the trigger for the home visit program). (259) Id. at 703. According to county officials, the purpose was: [T]o explain the CalWORKs program to the participant and to discuss the availability of supportive services. Supportive services
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147 include educational, child care, transportation, domestic violence, substance abuse, and mental health services. During the interview, the HIP Eligibility Worker (EW) also notes any indications of circumstances that are inconsistent with the case information. For example, if children will be aided on the case, the HIP EW will look for evidence that children live in the home. If the participant claims that the father is an absent parent, the HIP EW will look for indications that the father lives in the home. COUNTY OF L.A. DEP'T OF AUDITOR-CONTROLLER, supra note 187, at 3. (260) Smith, 128 Cal. Rptr. 2d at 704. (261) Id. at 712. (262) Id. at 705. (263) Id. at 704. (264) Id. at 702 (affirming the Superior Court's dismissal of the claims). (265) Id. at 709. (266) The decision states that "in the past, when caseloads were not so high and budgets not so tight, home visits were the norm in the eligibility determination process." Id. (267) Id. at 705. (268) For example, a knock on the door without entry into the home would generally suffice to verify an applicant's address and determine the presence of additional adults living in the home. Moreover, the computer database cross-checks that are now conducted can already identify additional taxpayers, benefit recipients, or vehicle owners reporting a given address as a residence. (269) Smith, 128 Cal. Rptr. 2d at 703. (270) Id. at 711-12. (271) See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (allowing search of probationer's home without probable cause); New Jersey v. T.L.O., 469 U.S. 325, 33742 (1985) (allowing searches of high school students by school authorities based on reasonable suspicion rather than probable cause); Bell v. Wolfish, 441 U.S. 520, 55860 (1979) (allowing visual inspection body cavity searches of pre-trial detainees following detainees' contact with visitors). (272) See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (allowing random drug testing of student athletes based on "special needs" of public schools); T.L.O., 469 U.S. at 337-42. (273) United States v. Knights, 534 U.S. 112, 113 (2001) (upholding warrantless investigative search of probationer's dwelling where there was reasonable suspicion for search and where unconditional searches were included in terms of probation). The decision in Knights states that "probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Id. at 119 (citations omitted). The analogy of special needs searches of probationers to searches of welfare recipients suggests that welfare recipients also do not enjoy the freedoms of law-abiding citizens. (274) See, e.g., Griffin, 483 U.S. at 873 (allowing search of probationer's home without probable cause). (275) Sanchez v. County of San Diego, 2003 U.S. Dist. LEXIS 27538 (S.D. Cal. Mar. 7, 2003). The district court later enjoined fraud investigators' collateral contacts--for example, interviews with neighbors or landlords--conducted without the consent of the
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148 welfare applicants. Sanchez v. County of San Diego, 2003 U.S. Dist. LEXIS 27351, *22 (S.D. Cal., May 9, 2003). (276) Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006), reh "g denied, reh 'g en bane denied, 483 F.3d 965 (9th Cir. 2007), cert. denied, 128 S. Ct. 649 (2007). (277) Sanchez, 464 F.3d at 921. (278) Id. at 922 n.8. (279) Id. at 923. (280) Id. at 925. (281) Id, at 925 (citing Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (upholding warrantless searches of the homes of probationers as a special need); Bd. of Educ. v. Earls, 536 U.S. 822, 838 (2002) (upholding suspicionless drug testing of student high school athletes as a special need)). (282) Warrantless and suspicionless searches for the purposes of general law enforcement purposes were found to violate the Fourth Amendment in Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001) (putting a halt to suspicionless drug testing of pregnant women in a public hospital). (283) Sanchez, 464 F.3d at 927 (emphasis added). (284) Id. at 928. The Supreme Court in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672 n.2 (1989), upheld drug testing of public employees by explaining that, like the pre-announced welfare home visits in Wyman, it was the least intrusive means available, suggesting that, at least at one point in time, the notion of least intrusive means was important to the special needs doctrine. (285) Sanchez, 464 F.3d at 938 (Fisher, J., dissenting). (286) Id. at 940 (Fisher, J., dissenting) ("[U]nlike convicted felons, welfare applicants have no lesser expectation of privacy in their homes than the rest of us."). (287) Sanchez v. County of San Diego, 483 F.3d 965 (9th Cir. 2007). (288) Id. at 968 (Pregerson, J., dissenting). (289) Id. (Pregerson, J., dissenting). (290) Consent is determined by the "totality of all the circumstances," and elements suggesting that the search was non-voluntary and that the individual searched did not perceive a right to refuse render a consent-based search unlawful. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 230 (1972). A federal judge in Minnesota, applying the totality of the circumstances standard, ruled that a search was rendered nonconsensual by the mere fact that a welfare recipient's refusal to allow caseworkers to search her home would result in the termination of benefits. Reyes v. Edmunds, 472 F. Supp. 1218, 1223, 1225 (D. Minn. 1979). The opinion states, "The right to be free from unreasonable search and seizure is an absolute right. It in no way is qualified by whether or not evidence of an illegal activity is actually possessed or being concealed. A violation of this right is per se damaging." Id. at 1229. This case arose before the U.S. Supreme Court articulated the ever-expanding "special needs" exception. See supra notes 271-274. (291) This term was used by the district court in Kelly v. Wyman, 294 F. Supp. 893, 900 (S.D.N.Y. 1968), and quoted in the majority opinion of Goldberg v. Kelly, 397 U.S. 254, 261 (1970). The term was used to describe situations where--even absent the life, liberty, or property claims usually required to anchor a due process claim--a right to procedural due process might exist. (292) Sanchez v. County of San Diego, 464 F.3d 916, 931 (9th Cir. 2006). (293) More than forty years ago Charles Reich noted, "When government--national, state, or local--hands out something of value, whether a relief check or a television license, government's power grows forthwith; it automatically gains such power as is necessary and proper to supervise its largess. It obtains new rights to investigate, to regulate, and to punish." Charles Reich, The New Property, 73 YALE L.J. 733, 746 (1964). Reich specifically warned of such intrusions:
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149 Administering largess carries with it not only the power to conduct trials, but also the power to inflict many sorts of sanctions not classified as criminal punishments. The most obvious penalty is simply denial or deprivation of some form of wealth or privilege that the agency dispenses. How badly this punishment hurts depends upon how essential the benefit is to the individual or business affected. Id. at 755. (294) Smith v. Bd. of Supervisors, 128 Cal. Rptr. 2d 700, 712 (Ct. App. 2002) ("Eligibility workers are prohibited from opening drawers or closets during their walkthrough of the home. We conclude that whatever intrusion is involved is minimal, and is outweighed by the government's interest in preventing fraud."). Minnesota appears to provide more protections to welfare recipients. See Reyes, 472 F. Supp. 1218 (finding that both the Fourth Amendment and the Minnesota Constitution prohibit suspicionless, unannounced home searches of welfare recipients by welfare caseworkers). (295) See, e.g., Kyllo v. United States, in which Justice Scalia writes that "[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." 533 U.S. 27, 31 (2001) (internal quotation mark and citations omitted); see also Georgia v. Randolph, 547 U.S. 103, 123 (2006) (Stevens, J., concurring) ("At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a 'house' or 'castle' unless authorized to do so by a valid warrant."). (296) Steven Schwinn writes that these are not only violations of the Fourth and Fourteenth Amendments, but also violations of the Fifth Amendment's limitation on unconstitutional conditions. See Steven D. Schwinn, Reconstructing the Constitutional Case Against Mandatory Welfare Home Visits, 42 CLEARINGHOUSE REV. J. OF POVERTY L. & POL'Y 42 (2008). (297) Samson v. California, 547 U.S. 843 (2006) (validating warrantless searches of probationers' homes). (298) See City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000) (finding that where "the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment" and suggesting that the Fourth Amendment is meant to "prevent such intrusions from becoming a routine part of American life"); see also Ferguson v. City of Charleston, 532 U.S. 67 (2001) (holding warrantless, non-consensual drug testing of pregnant patients--even patients at risk of drug abuse--to be a violation of the Fourth Amendment). (299) See Sanchez v. County of San Diego, 464 F.3d 916, 928 (9th Cir. 2006) (citing Samson, 547 U.S. at 853-54). (300) See Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 671-72 (1989) (finding a special need for suspicionless searches where employees are involved in interdicting illegal drugs and carry firearms). (301) Amy Mulzer writes that welfare verification procedures play a more complex role in welfare policy than many people realize. First, they are a way to informally change eligibility rules and ration benefits. Second, verification procedures serve "a symbolic function, expressing and reaffirming public ideas about welfare and welfare
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150 claimants." Amy Mulzer, The Doorkeeper and the Grand Inquisitor: The Central Role of Verification Procedures in Means-Tested Welfare Programs, 36 COLUM. HUM. RTS. L. REV. 663, 710 (2005). (302) See supra notes 166, 271-272. (303) Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 FLA. L. REV. 391, 406 (2003) ("[T]he Court's caselaw affords the poorer people in our country much less protection of their privacy and autonomy than those who are better off."). (304) In 2007, Republican Member of the State Senate Tom McClintock introduced a bill, S.B. 269, 2006-2007 Reg. Sess. (2007), that would mandate unscheduled home visits throughout the State of California. At the time it was considered by committee, the Sanchez case was on appeal, and the bill failed passage in committee. Given that the Supreme Court has denied certiorari, thereby validating home searches of welfare applicants, it would not be a surprise to see this bill re-introduced in California--or to see similar bills introduced in other states. (305) California advocates for welfare recipients have lodged a number of complaints: that welfare offices contact recipients' employers and disclose their welfare status, causing recipients to be fired; that fraud investigators threaten children that their families will be cut off aid if they refuse to answer investigators' questions; that fraud investigators stop benefits without notice to recipients; that recipients who have been charged with fraud and who have obtained counsel are questioned without counsel present; that fraud investigators secretly tape interviews and offer them as evidence against recipients; and that eligibility workers frivolously refer self-assertive welfare recipients for fraud investigations. Advocate Meeting with CDSS Welfare Fraud Bureau--4/18/06, CCWRO NEW WELFARE NEWS (Coal. Of Cal. Welfare Rights Org., S.F., Cal.) July 3, 2006, at 5, available at http://www.benchmarkinstitute.org/ccwro/CCWRO-06-08.pdf. (306) A number of years ago, I attended an administrative hearing in Alameda County, California, requested by a welfare recipient to challenge her termination of benefits, which had occurred without notice. In addition to a couple of officials from the welfare office, two ADAs hoping to charge the woman with welfare fraud were in attendance. Also in attendance was a welfare fraud investigator, though it was unclear whether she was employed by the welfare office or was a deputized investigator working for criminal prosecutors. The welfare recipient had no idea that statements she made could be used against her in criminal proceedings, and had no idea that she could exercise her Fifth Amendment fight to remain silent in this setting. At the hearing, the welfare recipient had representation, but not representation by a lawyer. (Anyone with adequate knowledge of the regulations may represent a client in an administrative appeal in California. An individual with knowledge of the welfare regulations, though, may not have knowledge of the evidentiary issues or criminal issues involved.) (307) 397 U.S. 254, 278 (Black, J., dissenting) (citing Gideon v. Wainwright, 372 U.S. 335, 344 (1963)). (308) Today, lawyers are rarely available to low-income individuals who are engaged in administrative interactions with welfare officials. Legal aid attorneys give administrative welfare appeals low priority among the many legal issues that arise among the poor. During the late 1990s, when welfare prosecution rates soared in northern California, none of the legal aid offices provided representation to welfare recipients during administrative appeals because they had to prioritize resources and welfare hearings were subordinate to other legal issues. Lack of legal representation is particularly serious for welfare recipients who have misreported or underreported their income because statements they make at administrative hearings, particularly admissions, may be used against them in criminal proceedings. Collateral estoppel prevents welfare recipients from challenging any findings of fact in an administrative hearing during later criminal proceedings.
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151 (309) People v. Sims, 651 P.2d 321, 334 (Cal. 1982) (expressing concern that multiple, and possibly inconsistent, judgments undermine procedural integrity). (310) People v. Garcia, 141 P.3d 197, 210 (Cal. 2006) (remanded on the collateral estoppel issue for "determination of whether the issues litigated at the administrative hearing and the criminal prosecution for welfare fraud and perjury were identical"). (311) Id. at 213-15 (Chin, J., dissenting). (312) Id. at 222-23. (313) Reich, supra note 293, at 784. (314) Slobogin, supra note 303, at 406-07. (315) Ohio, for example, has no statute specific to welfare fraud. Individuals accused of welfare cheating can be charged with falsification, OHIO REV. CODE ANN. [section]2921.13 (West 2006 & Supp. 2009); theft by deception, OHIO REV. CODE ANN. [section] 2913.02(A)(3) (West 2006 & Supp. 2009); securing writings by deception, OHIO REV. CODE ANN. [section] 2913.43 (West 2006); or unauthorized use of property, OHIO REV. CODE ANN. [section] 2921.04 (West 2006). (316) Georgia is a state that specifically defines welfare fraud and that seems to encourage prosecutors to enter into consent agreements, under which individuals who pay the state restitution and meet other specified conditions will go without criminal convictions. GA. CODE ANN. [section] 49-4-15 (West 2003). (317) See notes 109-201 and accompanying text. (318) Critical scholars have long expressed their anxieties that engaging with policy discussions simply reinforces law's hegemonic power over the oppressed, and fails to further either social theory or social transformation. See generally Kitty Calavita, Engaged Research, "'Goose Bumps, "and the Role of the Public Intellectual, 36 LAW & SOC'Y REV. 5, 7 (2002) (arguing that truly engaged law and society research is not myopically concerned with discrete policy issues, but rather engages with macrostructural analyses and social theory); Austin Sarat & Susan Silbey, The Pull of the Policy Audience, 10 LAW & POL'Y 97, 102 (1988) (arguing that "[b]y addressing a policy audience, scholars speak directly to power," but may ultimately serve to silence political and moral challenges to the power relationships foundational to the policies). (319) Sarat & Silbey, supra note 318, at 99 (arguing that those who avoid the policy audience are scholars who are "politically engaged without adopting the agenda of those who currently make or administer policy"). (320) Reich, supra note 293, at 779 ("The most clearly defined problem posed by government largesse is the way it can be used to apply pressure against the exercise of constitutional rights. A first principle should be that government must have no power to 'buy up' rights guaranteed by the Constitution."). (321) See generally Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995) (describing the social and legal construction of understandings and outlining techniques of transforming social meanings). While my Article is an attempt to map the social construction of poverty, welfare, and welfare cheating, it is also an attempt to transform our understandings of welfare in the process. (322) See, e.g., Shao-Hsun Keng et al., Welfare Dependence, Recidivism, and the Future for Recipients of Temporary Assistance for Needy Families (TANF) 9 (Iowa State Univ. Ctr. for Agric. & Rural Dev., Working Paper No. 00-WP 242, 2000) (using the term "welfare dependency" frequently). (323) See generally Nancy Fraser & Linda Gordon, A Genealogy of 'Dependency ': Tracing a Keyword of the U.S. Welfare State, 19 SIGNS 309 (1994) (exploring the term "welfare dependency" and its negative connotations). See also Sanford F. Schram, Words of Welfare: The Poverty of Social Science and the Social Science of Poverty 31-32 (1995) (explaining that Liberals' adoption of neo-liberalism has led to their use of the term dependency).
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152 (324) See R. MARK GRITZ ET AL., THE SPHERE INST., GRANT NO. 99ASPE338A, WELFARE RECIDIVISM AND USE OF NON-CASH AID BY WELFARE LEAVERS IN CALIFORNIA (2001), available at http://www.sphereinstitute.org/publications/AspePARecidivism.pdf; Shiferwa Gurmu & William J. Smith, Recidivism Among Welfare Recipients: The Role of Neighborhood and Access to Employment, 34 ATLANTIC ECON. J. 405 (2006). (325) See, e.g., MARY JO. BANE & DAVID T. ELLWOOD, WELFARE REALITIES: FROM RHETORIC TO REFORM 40-41, 64-65 (1994) (discussing "welfare cyclers"). (326) Kahan, supra note 204, at 415 (arguing that deterrence-based arguments for criminal policies secretly mask "illiberal conflict between contending cultural styles and moral outlooks").
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Part II
Courts, Crime and Controversy
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4 When Procedure Trumps Justice Bennett L. Gershman
W
hat could be worse than a capital murder trial in which the trial judge and the prosecutor are having a secret love affair and, working in tandem, cause a defendant to be found guilty of murder and face execution? That incredible scenario happened to Charles Hood. On trial for murder in a Texas courtroom, Hood claimed — correctly as it turns out — that the judge and the prosecutor were having a sexual relationship during his trial and that his right to a fair trial was thereby compromised. A lower court agreed to the extent of ordering a hearing, but the highest appeals court in Texas reversed. Why? Because Hood failed to raise the claim in earlier pleadings, as he could not substantiate the "rumors" of the affair with sufficient proof and, therefore, according to the Texas appellate court, was procedurally barred from raising the claim now. The Texas prosecutor hailed the decision "as a significant procedural victory." Interestingly, the prosecutor did not say that the defendant's allegation lacked merit because the prosecutor knew otherwise. Indeed, the judge and the trial prosecutor — a different prosecutor from the appeals prosecutor — acknowledged the love affair in sworn depositions taken after Hood's trial. _______________________________________________________
Bennett L. Gershman."When Procedure Trumps Justice." This article was published in the Nov. 23rd, 2009 issue of The New Jersey Law Journal. Copyright 2009 ALM Media Properties, LLC. All rights reserved. Reprinted with permission of ALM Media Properties, LLC.
155
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156 Nor did the prosecutor say that justice was served, which is the legal and ethical mandate of every prosecutor. The prosecutor could not say this, of course, because Hood's right to a fair trial was almost certainly prejudiced by the affair, and the pursuit of justice, at the very least, should have informed the prosecutor that a hearing was necessary, as the lower court had ordered. Nor did the prosecutor appear to be troubled by the fact that the trial judge was later elevated to the same appeals court, and she sat with many of the same judges who denied Hood the opportunity to prove his innocence. Of all the gamesmanship that prosecutors routinely play, one of the most alarming is to aggressively raise hypertechnical and attenuated procedural obstacles and hurdles that a defendant must overcome in order to get a court to listen to his often meritorious claim that the prosecutor committed misconduct. Indeed, the U.S. Supreme Court has characterized such prosecutorial conduct as "gambling" and "playing the odds" with a defendant's rights, playing "hide and seek" to avoid disclosure of exonerating evidence, and requiring a defendant to engage in "scavenger hunts" to find exonerating evidence of which the prosecutor is secretly aware but has suppressed. Thus, knowing full well that a defendant's claim is legitimate and meritorious, prosecutors regularly argue that the defendant failed to raise his claim earlier, as with Hood, even though the prosecutor well knew that the defendant could not raise the claim because he did not have the information that, brazenly, the prosecutor had suppressed. Some prosecutors have sought to deflect postconviction claims of innocence by arguing that the defendant pleaded the wrong theory, or failed to use the correct nomenclature to describe the violation. And too many courts have endorsed the prosecutor's arguments. There are limits to this judicial deference. A few terms ago, in Banks v. Dretke, the Supreme Court reversed the Fifth U.S. Circuit Court of Appeals, which had endorsed another Texas prosecutor's gamesmanship. In a death penalty case, the prosecutor argued that the defendant failed to differentiate sufficiently between his distinct legal claims — in effect, he "didn't say 'Simon Says.'" Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleading requirements — for example, the Supreme Court's decision last term in Ashcroft v. Iqbal — defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of
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157 sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.
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5 Investigating the ʻCSI Effectʼ Effect: Media and Litigation Crisis in Criminal Law Simon A. Cole, Rachel Dioso-Villa
S
ince 2002, popular media has been disseminating serious concerns that the integrity of the criminal trial is being compromised by the effects of television drama. This concern has been dubbed the "CSI effect" after the popular franchise Crime Scene Investigation (CSI). Specifically, it was widely alleged that CSI, one of the most watched programs on television, was affecting jury deliberations and outcomes. It was claimed that jurors confused the idealized portrayal of the capabilities of forensic science on television with the actual capabilities of forensic science in the contemporary criminal justice system. Accordingly, jurors held inflated expectations concerning the occurrence and probative value of forensic evidence. When forensic evidence failed to reach these expectations, it was suggested, juries acquitted. In short, it was argued that, in cases lacking forensic evidence in which juries would have convicted before the advent of the CSI franchise, juries were now acquitting. The jury is central to American law. The right to a jury trial is "no mere procedural formality, but a fundamental reservation of power in our constitutional structure." (1) Although the jury has been much maligned, the law continues to treat the jury as almost sacred, and many legal scholars and social scientists continue to defend the jury system. (2) Among the longstanding criticisms of juries has been the claim that juries are subject to media bias. Psychologists have argued that juries can be influenced by pretrial publicity in specific cases, lending support for the need for changes of venue in high profile cases. (3) But, they have also argued that there are more general forms of pretrial publicity, in which media influence may shape 159
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160 jurors' general views about law and crime in ways that affect jury deliberations and verdicts. (4) The CSI effect is supposedly just such a general pretrial publicity effect. It is alleged that media influence causes potential jurors to have distorted views of the capacity--in the broadest sense of that term--of forensic science to generate evidence in criminal prosecutions. These distorted views, it is alleged, actually affect jury verdicts: cases in which jurors would have convicted absent the media influence of CSI and similar television programming now result in acquittals or hung juries. As we have argued elsewhere, such charges, if true, would constitute a serious challenge to law's continued faith in the jury and thus raise serious questions about the integrity of the criminal justice system itself. (5) CSI: Crime Scene Investigation is a primetime American television crime drama. It first appeared on the CBS television network on October 6, 2000. (6) CSI is in some sense a standard television crime drama; its innovation is that the protagonists are forensic scientists rather than police detectives, and the plot is driven by the accumulation of forensic evidence rather than the revelation of psychological motive. (7) CSI defied conventional wisdom by daring to try to make science "sexy." This turned out to be a stunningly successful innovation, and CSI surprised the network by becoming, for a time, the most popular television series in the world. (8) Although there is no data on the penetration of CSI or on public awareness of the CSI effect, Nielsen data shows that there is enormous public exposure to the CSI franchise (Table 1). In addition, the program generates even more exposure through reruns. (9) CSI soon became not merely a television series, but a television franchise, and the original program, set in Las Vegas, was "spun off" into CSI: Miami in 2002 and CSI: New York in 2004. (10) There are several shows on television that center on forensic science that we consider to be imitators of CSI, including Without a Trace, Numb3rs, Criminal Minds, N.C.I.S.: Naval Criminal Investigative Service, The Closer, Crossing Jordan, Bones, and The Evidence. (11) In addition to these dramas, numerous forensic-themed documentaries and "reality" television programs could be found on American television, both before and after the advent of CSI, including Anatomy of a Crime, Autopsy, Dr. G. Medical Examiner, Medical Detectives, and The New Detectives. When media discuss the CSI effect, they appear to be describing the cumulative effect of all of this television programming, although the CSI franchise, because of its omnipresence, remains the supposed primary mover of the CSI effect.
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161 The term CSI effect appears to have entered the popular lexicon late in 2002 in an article in Time magazine. (13) That article described "a growing public expectation that police labs can do everything TV labs can." (14) Even in this early article, the notion of jury taint was present: "This [expectation, forensic scientists] worry, may poison jury pools...." (15) The term appeared a couple of times the following year and more in 2004. In 2005, media coverage of the CSI effect exploded. A LexisNexis search found fifty-six newspaper and magazine articles mentioning the CSI effect in that year and seventy-eight articles in 2006, the peak year (Table 2). This coverage included a cover story in U.S. News & World Report, (16) as well as coverage in leading science magazines like National Geographic and Scientific American. (17) Also in 2006, the first full-length book devoted to the CSI effect appeared. (18) Media discourse conceptualizes the CSI effect as what Professor Manning has called a "media loop," (19) a series of back-and-forth interactions between media and what is called, without irony, "reality." (20) The argument is this: Rapid developments and improvements in the power of forensic science inspired media coverage and even fictional television dramas. These media portrayals cause changes in jury behavior in real criminal trials. These changes themselves become the subject of media coverage: media stories about the impact of CSI and similar programs on juror behavior. We refer to this last category of media stories as CSI effect discourse. Media coverage shows remarkably little equivocation about the existence of the CSI effect. Media reports declare that "[t]here is no debating" the reality of the CSI effect, (21) and that "[t]he story lines are fiction. Their effect is real." (22) It is said that "TV is driving, jury verdicts all across America," (23) that "TV's False Reality Fools Jurors," (24) and that "CSI Has 'Major Effect' On Real Life Juries." (25) An online journal claims that "In many cases across the nation real-life jurors who are fans of CSI has [sic] either caused hung juries or acquitted obviously guilty criminals, claiming the investigators failed to test evidence the way CSI does on television." (26) A jury consultant says that "[t]he CSI effect is real, and it's profound." (27) The accusations leveled at CSI border on charges of jury tampering: one forensic scientist says that CSI is "polluting jury pools." (28) The impact of CSI is portrayed as irresistible: a prosecutor adds, "Jurors are so influenced by television ... that it makes it nearly impossible for us...." (29) Not only is the media treating the CSI effect as a serious problem, but justice system actors are as well. The FBI has produced a video about it. (30) The Maricopa County Attorney (the presiding
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162 prosecutor over much of the major metropolitan area surrounding the city of Phoenix, Arizona) has declared that CSI has a "real-life impact on justice" and has called on CBS to insert a disclaimer on the program stating that it is fiction. (31) In addition to concerns about the integrity of the jury system, some prosecutors have claimed that the CSI effect has altered another pillar of the criminal trial--the standard of proof. They have claimed that jurors are now holding them to a higher standard of proof than the traditional "beyond a reasonable doubt" standard. In closing arguments, prosecutors have called this higher standard the "TV expectation." (32) Several legal scholars have noted that, while the notion that forensically-oriented television programs might influence jurors is theoretically plausible, there is, as yet, no convincing evidence of such an effect. (33) Legal scholars have further noted that, from a theoretical point of view, any media influence on juries would be equally likely to have an effect opposite to that most commonly discussed by the media--that is, forensically-oriented television programming might just as easily make juries more conviction prone as more acquittal prone. (34) Legal scholars have also noted that even if media influences jurors, that by no means necessarily translates into changed verdicts. (35) They have also noted that no increase in reported jury acquittals has been detected. (36) We will report new data on acquittal rates in Part II.
How do we explain this apparent contradiction between media coverage and practice on the ground in U.S. criminal courts? There has been some excellent scholarly work debunking the CSI effect. (37) There has also been some excellent work interpreting the program CSI itself. (38) But there is little work that purports to explain the phenomenon of the CSI effect. In this article, we suggest that we may be able to gain additional insight into the CSI effect by drawing on legal literature emanating from an earlier episode of interaction between media and law. After all, the CSI effect is not the
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163 first time that American media has been accused of having perpetuated beliefs about the legal system that are not supported by empirical data. Since the 1970s, American media has reported on a phenomenon it termed the "litigation explosion" (39) or "litigation crisis." Legal scholars described this phenomenon as "hyperlexis," (40) "litigation panic," (41) and "litigation anxiety," (42) among other things. Media reports claimed that litigation was increasing dramatically, that American litigation rates were much higher than those of comparable nations, that punitive damage awards were increasing rapidly, and that the legal system was out of control. In short, the litigation explosion was portrayed as an acute social problem, a "crisis." However, these claims have been widely debunked by socio-legal scholars, who have generally agreed that there has been no dramatic increase in American litigiousness or punitive damages, and that American litigation rates are not wildly out of line with those of comparable nations. (43) In part, the notion of a litigation crisis was perpetuated by the insurance industry itself through a deliberate and well-funded advertising campaign. (44) However the paid message also penetrated the purportedly objective and therefore more credible mainstream media. Socio-legal scholars have argued that the dissemination of the notion of the litigation explosion was successful not merely because the message was disseminated but also because it resonated with American values such as individualism, responsibility, and self-reliance. (45) In this Article, we will articulate the noticeable parallels-parallels that have not hitherto been noted in the legal or social scientific literature--between the litigation explosion and the CSI effect. We use the more general term "litigation crisis" to encompass both the litigation explosion and the CSI effect. (46) Echoing the litigation explosion, CSI effect discourse is widely disseminating through the American public the belief that television drama is disadvantaging criminal prosecutions. And yet, the available evidence does not support this claim. Indeed, the available evidence suggests that the opposite may just as easily be the case: forensicthemed police procedural dramas may actually advantage the prosecution in criminal cases. Thus, jurors may come to trial with the counterfactual preconception that the prosecution is disadvantaged, and some of these jurors may unconsciously compensate for that perceived disadvantage.
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164 This Article will be modeled on this analogy with the litigation explosion literature. In the next Part, we will lay out a typology of effects that are all discussed in the media under the rubric of the CSI effect. In Part II, we will discuss the existing evidence in support of the most prominent of these effects, the claim that CSI is changing jury decision making. We show that there is scant empirical evidence to warrant concluding that such changes in jury decision making are occurring. We also introduce acquittal rate data that show only equivocal evidence of an increase in acquittals following the debut of CSI and its spinoffs and imitators. In Part III, we report results of a content analysis that shows that, like it was for the litigation explosion, media coverage is inconsistent with the lack of empirical evidence discussed in Part I. In Part IV and our Conclusion, we attempt to explain the CSI effect as a cultural phenomenon. In Part IV, we suggest that the CSI effect may be a "self-denying prophecy" on behalf of prosecutors; in our Conclusion, we suggest that the CSI effect embodies anxiety about science's threat to the law's role in society as a truth-generating institution. I. TYPOLOGY OF CSI EFFECTS As we have discussed elsewhere, the media and its sources use the term CSI effect loosely to denote a remarkable variety of different purported effects. (47) In our earlier work, we proposed a typology of six different specific causal claims that we discerned in the media coverage of the CSI effect, each named for the type of social actor who tended to articulate the supposed effect. Table 3 summarizes each effect. The perhaps canonical effect, which we dubbed the "strong prosecutor's effect," is the claim that television programming is altering juror behavior. Specifically, it is frequently claimed that CSI has increased juror expectations for forensic evidence in criminal trials. Because of CSI, jurors supposedly expect to see forensic evidence more often and expect it to be more probative. This, in turn, could lead to acquittals in cases where forensic evidence is absent or insufficiently probative. In other words, it is suggested that jurors are acquitting in cases lacking forensic evidence in which they would have convicted but for the creation of CSI and similar television programs.
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165 Many prosecutors also make a weaker claim, which we called the "weak prosecutor's effect." This claim posits that CSI has altered prosecutor, not juror, behavior. Claimed changes in prosecutorial behavior include questioning potential jurors about their television viewing habits in voir dire, presenting negative evidence testimony, discussing CSI in summations, and requesting legally unnecessary forensic tests. (48) Some defense attorneys advance an opposite effect, which we called the "defendant's effect." The claim is that CSI and similar television programming, through their positive and heroic portrayals of state-employed forensic scientists, enhance the perceived credibility of the government's forensic witnesses, thus advantaging the prosecution. The producers of CSI, in rebutting charges that their product is contaminating the criminal justice system, appropriated the term CSI effect and reinterpreted it as an educational effect on the general public. What we called the "producer's effect" holds that CSI teaches science to the American viewing public. The "educator's effect," in contrast, claims that CSI is attracting young people into careers in forensic science, much as law programs, such as L.A. Law, have been thought to increase law school applications, (49) medical programs, such as E.R., have been thought to influence medical students' choice of specialty (50) (and perhaps medical school applications as well), and the book and film The Silence of the Lambs has generated countless, mostly unfulfillable, dreams of careers in forensic profiling. (51) Finally, some media sources posit the "police chief's effect." This claim holds that CSI has educated criminals on how to avoid detection. Examples of the supposed police chief's effect include wearing gloves and dousing crime scenes with bleach. (52) It is important to emphasize that, of these six effects, only three of them--the strong prosecutor's effect, the defendant's effect, and the police chief's effect--would constitute serious problems for society. If jurors are acquitting defendants that they would have convicted had the television program CSI never existed, this would constitute a serious challenge for the legal system. Such acquittals could, in some sense, be construed as wrongful acquittals. Likewise, if television programming is bolstering the credibility of government witnesses (the defendant's effect), wrongful convictions (in the broadest sense of the term) could result. Either of these effects, if true, would raise serious doubts about the integrity of the jury system that forms the foundation of American criminal justice. If juries are so sensitive to irrelevant influences that the current primetime
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166 television schedule has a significant impact on their verdicts, can we really sustain the dogged faith in the jury that remains such a cherished principle of American criminal justice? Finally, the police chiefs effect would generate perhaps the greatest material harm. If true, the police chief's effect could mean that CSI is both increasing crime and decreasing detection of those crimes. However, it should be noted that the police chiefs effect is, strictly speaking, a criminological matter not a legal one. If it were occurring, it would probably be detected and addressed by criminologists, not legal scholars. The other three effects, on the other hand, would not seem to constitute genuine problems for society. For the weak prosecutor's effect, it would seem to comprise only a minor harm if prosecutors feel compelled to change their voir dire questioning to include asking jurors about their television viewing habits. Prosecutors in cases with little or no forensic evidence might use peremptory challenges to strike heavy CSI viewers from the jury based on the supposition that such jurors would require forensic evidence to convict. Likewise, defense attorneys might strike heavy CSI viewers in cases that rest heavily on forensic evidence based on the supposition that such jurors would be more likely to afford great credibility to the prosecution's forensic expert witnesses. As discussed in the next Part, neither of these suppositions is necessarily correct. Even so, litigants deploying their peremptory challenges in this manner would not seem to pose a significant legal problem. Similarly, prosecutors adopting the practice of explaining the absence of forensic evidence at trial would not seem to undermine the legal system's ability to deliver justice. Although it is true that the ordering of unnecessary forensic tests could constitute a drain on resources and add to backlogs at forensic labs, this, again, is not, strictly speaking, a problem to be solved by the legal system. The producer's effect is posited as a positive effect, provided that the educational aspects gleaned from the show are not wholly unrealistic or inaccurate. So, too, might the educator's effect be considered favorable if it increases the quantity--and thus perhaps indirectly the quality--of applicant pools to forensic science degree programs. (54) There would seem to be few negative repercussions from the educator's effect beyond the disappointment of some young people when they learn that forensic science is neither as exciting nor as glamorous nor as easy as its depiction on television. In our earlier work, we cautioned that it was necessary to be vigilant against what we called "hypothesis swapping," in which evidence supporting one supposed effect was used to support claims about the existence of a different effect. (55) In particular, it is not
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167 uncommon to see evidence of the weak prosecutor's effect advanced in support of claims that the strong prosecutor's effect is occurring. (56) For example, Maricopa County Attorney Andrew Thomas released a study that claimed that jurors are reaching "conclusions contrary to the interests of justice" because of "a significant CSI influence." (57) But, in fact, the study concedes that "verdicts have not yet noticeably changed from guilty to not guilty." (58) Instead, the study has merely found the weak prosecutor's effect: "prosecutors have had to take more and more preemptive steps to divert juries from reliance on television-style expectations." (59) Thus, evidence that supports the weak prosecutor's effect is presented in support of the strong prosecutor's effect. Since the publication of our earlier article, Donald Shelton has reinterpreted the CSI effect as the "tech effect." (60) He suggests that any apparent changes in juror behavior should not be attributed to television programming, but rather to the underlying real technological developments that these programs depict. (61) Forensic science and technology have advanced enormously over the past century. Shelton asserts that the cause of changes in juror behavior is not CSI but rather the real-life technological improvements in forensic science. (62) Shelton's argument raises an important caveat about the CSI effect. If we are to take seriously the notion of a CSI effect, it must be carefully disentangled from what Judge Shelton et al. call the "tech effect," the effect of changes in the actual capabilities of forensic science. For example, if, as posited by proponents of a CSI effect, we do find that jurors' expectations for forensic evidence have increased, we would have to assume that this increase is caused by at least two factors. One factor would be jurors' generally accurate perceptions of actual increases in the capabilities of forensic science. The other factor would be jurors' inaccurate perceptions of the capabilities of forensic science as imparted by CSI and similar television programming. Surely, for example, we would not insist that jurors' expectations for forensic evidence should remain completely static. Their expectations should be different today than they were, say, a century ago. In the intervening years, numerous forensic technologies have been developed; we would not expect jurors' commonsensical expectations for forensic evidence to ignore these developments. Our point is that the baseline against which the CSI effect should be measured is not a static baseline with no change in jurors' expectations for forensic evidence. Presumably, jurors' expectations should, appropriately, increase over time, in response to actual
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168 advances in forensic technology. The CSI effect, if there is one, would have to refer to a marginal increase in juror expectations that is excessive of whatever increase in expectations we should reasonably anticipate, given the technological developments that have actually occurred. What this means is that the tech effect, as Shelton et al. characterize it, is not a societal problem. It represents an appropriate increase in juror expectations in response to actual increases in forensic technological capacity. Only the supposed strong prosecutor's effect of wrongful acquittals would represent a genuine problem for the legal system. For the legal system, clearly, the competing hypotheses of greatest interest are the strong prosecutor's and defendant's effects. Does CSI advantage prosecutors or defendants? Our intuition would be consistent with the defendant's effect: the popularity of television programs that portray forensic scientists as hardworking, virtuous, honest, truthful, heroic, skilled, and attractive should benefit those litigants who employ forensic scientists as expert witnesses. (63) Our intuition would be that positive portrayals of professions in the media would benefit those professions by making the public's perception of them more favorable. (64) As indicated by public opinion polls, scientists have consistently been ranked among the most prestigious professions over a long period of time, far more prestigious than, say, lawyers or police (Table 4). Having a witness associated with one of the most prestigious professions would seem to advantage the prosecution. (65) Thus, it would seem that the defendant's effect is the more intuitive one. The strong prosecutor's effect is, in fact, a counterintuitive one. II. EVIDENCE OF THE CSI EFFECT Although the media coverage portrays the CSI effect as a well-documented phenomenon, actual evidence of the various effects is difficult to come by. (67) Media accounts rely largely on anecdotes and conclusory statements by various criminal justice system actors. Little reference is made to empirical data, and when such references are made, they usually note the absence of such data. (68) A review of the socio-legal literature reveals a rather different picture. Most legal scholars characterize claims of the most common CSI effect-the strong prosecutor's effect which would lead to wrongful acquittals--as speculative, and many suggest that the defendant's effect is equally plausible, even if mentioned less often by the media. (69) In this Part, we review the various forms of evidence that have been mustered in support of claims that there is a CSI effect, and we
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169 present new data on jury acquittal rates from state criminal trials that indicate no significant change in acquittal rates in response to CSI. A. Anecdotes Socio-legal scholars have noted that media discussions of the litigation explosion relied heavily on anecdotes--"horror stories" about frivolous civil suits that yielded large punitive awards. (70) Such "horror stories" included the notorious McDonald's coffee spill, the poodle in the microwave, and similar such cases. (71) And yet, further examination of these notorious anecdotes has shown that, in many cases, the supposedly outrageous outcomes were actually less egregious than media reports indicated. (72) Media coverage of the CSI effect similarly relies heavily on anecdotes. Perhaps the highest profile anecdote is the acquittal of Baretta television star Robert Blake from charges of murdering his wife, in which District Attorney Steve Cooley called the jury "incredibly stupid." (73) The prosecution provided evidence of motive and opportunity, but forensic evidence was lacking. In particular, Blake tested negative for gunshot residue, which was inconsistent with the theory that he fired the weapon that killed his wife. (74) We have suggested elsewhere that the Blake acquittal may be as indicative of a "celebrity defendant effect" as it is of a CSI effect. (75) However, numerous other lower-profile anecdotes abound--cases in which juries supposedly acquitted based on the lack of forensic evidence and despite the non-forensic evidence presented at trial. There is the sexual assault case in which, despite incriminating DNA evidence, the jury supposedly acquitted because of the failure to test a soil sample from the victim's cervix, (76) or the case in which a juror supposedly wanted a lawn tested for fingerprints. (77) Such stories are perhaps destined to become the equivalent of the McDonald's coffee case. But as with the McDonald's coffee case, there may be more to such stories than conveyed in most media coverage. (78) Such media portrayals present anecdotal evidence based on journalists' interviews with prosecutors and jurors who claimed that the acquittals were in fact due to jurors' increased expectation of forensic science evidence and techniques based on the television depictions in forensic programs such as CSI. (79) It is possible that the jury had good reasons for acquitting. For example, in reference to the Blake case jurors, Professor Laurie Levenson remarked, "[i]t was a reasonable-doubt case, and disagreeing with [Mr. Cooley, the District Attorney,] doesn't make them stupid." (80)
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170 B. Surveys of Legal Actors Another form of evidence cited in support of claims of a litigation explosion were surveys of corporate executives which reported that fear of litigation influenced business decisions, sapped competitiveness, and stifled innovation. (81) There are obvious methodological difficulties with treating such surveys as actual evidence of the supposed pernicious effects of the litigation explosion. First, even executives' genuine perceptions of the degree of litigiousness might not be accurate. Second, the opinions expressed in such surveys might have been self-serving given that part of an executive's job description includes communicating in a manner than benefits the corporation. Similarly, the second major form of evidence cited in support of the CSI effect is opinion surveys of legal actors: prosecutors, defense attorneys, and trial judges. These surveys focused on the perceived impact of forensic programs on jury verdicts, pretrial preparation, and trial strategy. Survey results generally indicate that, according to legal actors, the CSI effect is real and has had considerable impact on the carrying out of criminal trials. Watkins's study surveyed approximately fifty-three prosecutors, public defenders, and private defense attorneys. (82) The questions included the perceived impact of forensic television programs such as CSI on their pretrial preparations and on jury verdicts. He found that seventeen percent of prosecutors adjusted their pretrial behavior by requesting more forensic tests since the advent of CSI, fifty-five percent included questions on jurors' forensic television program viewing habits during voir dire, and forty-nine percent claimed to observe actual acquittals in cases where they felt that there was sufficient circumstantial evidence presented at trial to warrant a conviction.
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171
Similarly, the Maricopa County Attorney's Office surveyed 102 prosecutors with jury trial experience as to whether they perceived a CSI effect among juries. (83) Although there were no reported changes in the verdicts or rates of acquittal in Maricopa County, prosecutors reported changes in their own behavior pretrial and at trial. They reported taking preemptive steps to ensure that juries did not rely on inflated expectations of forensic evidence when determining their verdict decisions. Thirty-eight percent of the prosecutors surveyed reported at least one wrongful acquittal or hung jury that was the result of a lack of forensic evidence at trial, where they felt that the non-forensic evidence was sufficient to sustain a conviction. Accordingly, Maricopa County Attorney Andrew Thomas concluded that a CSI effect is "no myth." (84) Monica Robbers found, like Watkins and Thomas, that legal actors believed that jury decisions had been influenced by inflated expectations of forensic evidence based on forensic programs, such as CSI. (85) Robbers surveyed approximately 290 prosecutors, defense attorneys, and trial judges sampled from all state counties and cities in the United States. She asked respondents to discuss specific instances in which they believed that jury verdicts were influenced by CSI viewing and whether CSI and forensic television programs affected their jobs generally. The general findings from this survey were that the majority of legal actors (79%) reported some
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172 specific instance in which they felt juries' decisions were influenced by forensic programs. In their reports of these cases, they cited a perceived jury preference for forensic evidence (50%), the jury discounting eyewitnesses (53%), and an increased use of negative evidence witnesses (28%). (86) In another survey, conducted by Dennis Stevens, prosecutors also reported that they themselves and other legal actors were heavily influenced by forensic television programming. (87) Surveys of prosecutors, defense attorneys, and judges offer rich data as to how threats of a CSI effect have changed their behaviors at trial. However, such studies measure what we have called the weak prosecutor's effect. They measure attorney, not juror, behavior, and they tell us little about the effect with which the media is most concerned: the strong prosecutor's effect--the wrongful acquittal of criminal defendants. The surveys show that legal actors believe juries are affected by forensic television programs. Surveys also show that prosecutors engage in countermeasures, including questioning prospective jurors about the program in voir dire, presenting negative evidence witnesses to explain why forensic evidence was not found, increasing the time spent establishing the credibility of eyewitnesses and other non-forensic witnesses, and requesting forensic testing and procedures more frequently. However, these surveys provide very little supporting evidence for the strong prosecutor's effect, which people typically think of when they think of the CSI effect. Many of the questions on these surveys focus on effects on legal actors' behavior, not jurors' behavior. Moreover, even when these surveys do seek to measure juror behavior, they do so indirectly. Rather than examining jurors about whether they were influenced by CSI, these surveys ask legal actors whether they think jurors were influenced by CSI. Thus, these surveys measure not whether jurors were influenced by CSI, but whether legal actors perceive jurors to be influenced by CSI. In some cases, the legal actors claim to have spoken with the jurors; in others, they offer opinions about jury behavior without having spoken to the jurors. In either scenario, this makes for a poor measure of juror behavior, not merely because it is indirect, but also because legal actors are hardly unbiased perceivers of jurors' behavior and motivations. (88) Asking a prosecutor who has just completed a trial whether a jury acquittal was caused by the CSI effect, rather than by, say, insufficiency of the evidence, is clearly an unsatisfactory way of measuring whether the jurors were indeed influenced by CSI. Thus, in order to measure the strong prosecutor's effect, it would be far preferable to survey jurors directly.
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173 C. Juror Surveys Two forms of evidence are available to CSI effect claimants that were not available to litigation-explosion claimants. One is to survey jurors, or potential jurors, in an effort to determine whether individuals with high exposure to CSI hold different attitudes toward forensic evidence than individuals with low exposure. The second is to conduct psychological experiments that simulate juror decision making to, again, determine whether high-exposure individuals behave differently from low-exposure individuals in simulated jury decision making. In order to determine and measure whether there is a CSI effect, several studies surveyed jurors or potential jurors. In studies of this type, jury decision making can be compared between groups who watch CSI (and other forensic television programs) with those who do not. Kimberlianne Podlas attempted to detect the CSI effect by using a rape trial scenario with a consent defense where forensic evidence was neither provided nor necessary. (89) She surveyed 306 college students and asked them to reach a verdict of guilty or not guilty, where the expected or "legally correct" verdict for the case was not guilty. Podlas compared students who regularly watched forensic television programs with those who did not and found that there were no significant differences in their decision-making processes or the handing down of "not guilty" verdicts. The survey results did not indicate any increased expectation of forensic evidence by CSI viewers compared to non-CSI viewers. To test the effects of CSI on jurors' expectations, Shelton administered a survey to 1027 individuals called to jury duty in a county in southeast Michigan. (90) Respondents were asked about their television viewing habits of crime dramas such as CSI and were presented with various scenarios of criminal cases and charges. Respondents were asked what types of evidence they expected to be presented at trial and what verdict they would hand down based on certain types of evidence presented by the prosecution and the defense. The results indicated high expectations for forensic evidence by all subjects, and CSI viewers had higher expectations of all types of evidence (forensic and non-forensic) than did non-CSI viewers. Any differences found between CSI and non-CSI viewers were marginally significant and were counter to the strong prosecutor effect. Respondents' increased expectations of scientific evidence did not translate into a requirement for handing down guilty verdicts. For example, CSI viewers were more likely than non-CSI viewers to find eyewitness testimony valuable when reaching a verdict without any
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174 scientific evidence. The authors suggest that the increased expectations of forensic evidence might have little to do with whether or not jurors watch forensic television programs, but instead they may reflect a broader notion in society of an increased awareness about technological advances. Instead of a CSI effect, they posited a general tech effect experienced by everyone. Kiara Okita surveyed more than 1200 Canadians about their attitudes toward forensic science. (91) Like Shelton, Okita found that CSI viewers and nonviewers did not differ significantly in their perceptions of the accuracy and necessity of forensic science for investigating crimes. Indeed, in some cases nonviewers perceived forensic science to be more accurate than viewers did. However, Okita notes that even those differences between viewers and nonviewers that she did find were so small that they were unlikely to be operationalized, say, by producing different verdicts. As she summarizes: Regardless of CSI viewership, respondents' [sic] appear to consider forensic science, in general, to be somewhere between accurate or usually accurate, and between somewhat necessary and necessary in determining criminal guilt. Therefore again, contrary to the assertions of CSI effect claimants, respondents do not appear to perceive forensic science as completely accurate and always necessary in determining criminal guilt. (92) Finally, in a series of studies, Steven Smith and colleagues found evidence of changes in legal professionals' behavior (the weak prosecutor's effect), and found evidence suggestive of the defendant's effect. (93) But they found little evidence supporting the strong prosecutor's effect. D. Psychological Experiments Another approach to measuring the CSI effect is to conduct simulations of jury deliberations using mock jurors, usually college students. Although college student populations are not representative of actual jury pools, jury simulations allow researchers to conduct controlled experiments. Kimberlianne Podlas's second study included 538 mock jurors who deliberated in small groups about two crime scenarios where forensic evidence was neither necessary, nor referenced. (94) Podlas tested for the strong prosecutor's effect as measured by not guilty verdicts or wrongful acquittals for each scenario. She found no indication that CSI viewing jurors acquitted in cases that warranted convictions, nor did she find that CSI viewers
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175 relied on forensic evidence to a greater degree than their non-CSI viewing counterparts. While previous studies examined the strong prosecutor's effect of potential jurors acquitting defendants due to their increased expectation of forensic science, Schweitzer and Saks tested both the strong prosecutor's effect and the defendant's effect--that potential jurors who watch CSI have exaggerated faith in the capabilities of forensic science and give this evidence more weight than it may deserve. (95) Their sample included 48 college students who were asked to review a transcript of a mock criminal trial where the key piece of inculpatory evidence was a hair left at the crime scene. They included testimony by a forensic scientist who performed the microscopic hair analysis that identified the defendant, which overstated the probative value of the evidence--something that is apparently not uncommon for hair evidence. (96) Subjects were asked about their television viewing habits and their perceptions about the case and forensic evidence presented. CSI viewers perceived themselves as having a better understanding of forensic scientists and their techniques than non-CSI viewers, and they were more critical of the forensic evidence presented in the transcript. Schweitzer and Saks interpreted this as indirect evidence of an increased expectation of high-tech forensic science perhaps consistent with CSI's depictions of forensic techniques, and a tendency to find less high-tech or glamorous techniques less convincing. Similarly, in a study of 140 college students, Jenkins found CSI viewers more sensitive to possible flaws in a forensic assay that was discussed in a mock trial transcript. (97) E. Acquittal Rate Data Socio-legal scholars skeptical of claims about a litigation explosion examined time-series data on the number of civil trials held over various periods of time. Contrary to litigation explosion claims, they concluded that there was little empirical evidence of a litigation explosion. (98) These scholars argued that it was irresponsible to disseminate claims about a supposed litigation explosion if empirical data did not support such claims. (99)
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176
We can also adopt such an approach to claims about the strong prosecutor's effect. Even if surveys and jury simulations did provide evidence for the strong prosecutor's effect, one would presumably want to look for changes in the rate of jury acquittals in American criminal trials before concluding that CSI is influencing jury verdicts. The strong prosecutor's effect holds that jurors are acquitting in cases in which they would have convicted had the television program CSI never existed. If this effect is occurring, therefore, it would be expected to manifest itself through an increase in jury acquittals following the advent of the program. In earlier work, we examined data on the jury acquittal rate in federal courts, and we found no discernable increase in acquittal rates following the advent of CSI. (100) In fact, if anything, there appeared to be a decrease in the acquittal rate after CSI. Were this decrease to be significant it would support the defendant's effect, the claim that CSI actually benefits prosecutors. Recall that in some legal scholars' view this effect is equally theoretically plausible. (101) Loeffier supported this finding, determining that there was no evidence of an increase in acquittals after examining the acquittal rates of four large states. (102) Looking at Canadian data, Benoit Dupont also found no discernable increase in acquittals that was attributable to CSI. (103) Although overall Canadian acquittals did rise after 2000, Dupont notes that acquittals had been steadily rising for a long time before 2000, and he concludes that CSI does not appear to have had an influence on this trend. In new research we report here, we sought to carry this project forward by gathering acquittal rate data from all U.S. jurisdictions. Over the course of six months, we conducted internet
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177 searches of state administrative offices of courts' websites and follow up contacts via email and phone with state court administrators. We surveyed all fifty states to determine whether suitable acquittal rate data was available. We were able to obtain acquittal rate data on felony jury trials from eleven states. (104) However, the states varied in terms of how long they had been compiling dispositional data from criminal jury trials. They ranged from Florida, which has such data from as far back as 1986, to Kentucky, which began compiling data in 2006. There were only eight states for which we were able to ascertain acquittal rates both before and after the advent of CSI in 2000: California, Florida, Hawaii, Illinois, New York, North Carolina, Texas, and Vermont. We compiled acquittal rates for all jury verdicts from the felony trial courts of these eight states and the federal district courts. (105) In most cases, these were restricted to felony trials, although the types of crimes were not designated in this data. In one case, the acquittal rates include a small number of misdemeanors because the felony trial courts (the California Superior Courts) adjudicate a small number of misdemeanors as well as felonies. (106) Although data on jury verdicts in misdemeanor trials were available for a few states (Texas, Florida, and Vermont), we opted not to include this data in our analysis because of the strong possibility that misdemeanor jury trials differ from felony jury trials. We were able to obtain data reporting the outcomes (conviction or acquittal) for all felony jury trials (plus a small number of serious misdemeanor trials from California) that went to verdict for the states and years shown in Table 5. It is apparent from Table 5 that acquittal rates are fairly stable over time although, not surprisingly, they fluctuate far more in the two smallest jurisdictions. Indeed, the data show a strong main effect of jurisdiction on acquittal rates. In other words, each jurisdiction's acquittal rate appears to be quite stable over time, and jurisdiction appears to have a far greater influence on the probability of acquittal than does year. A defendant would be better off being tried in Florida than in California both before and after the advent of CSI, and, even if there is a CSI effect, it would appear to be a minor issue compared to the influence of jurisdiction. Although there is no reason to expect that any CSI effect would be felt differentially in different states, the various states do not follow a wholly consistent pattern. Overall, there does appear to be a slight rise in acquittals in 2001 and 2002. Interpreting this small rise as the strong prosecutor's effect, however, raises several concerns. First, after 2002, the acquittal rate drops back to 1998-2000
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178 levels, suggesting that even if there had been a strong prosecutor's effect in 2001-2002, it was short-lived (or prosecutors compensated for it by ceasing to bring susceptible cases to trial or through countermeasures). Second, the acquittal rate was already rising before the advent of CSI. The acquittal rates of 2001-2002 might simply be extensions of this trend, rather than reactions to CSI. Third, the aggregate acquittal rate in 1996 was as high as the postCSI acquittal rates of 2001-2002. It may be that it is the 1997 drop in acquittals that requires explanation, rather than the increase that followed it. At the same time, the trend toward a drop in acquittals that we noted earlier in the federal courts appears even more pronounced now that we have data for two additional years. Whereas in our prior study we found a drop to an 11% acquittal rate in 2005, we now see that the acquittal rate has remained at this historically low rate for three consecutive years. In short, the acquittal rate data would seem to offer only equivocal support for only a very small and short-lived strong prosecutor's effect. Can we conclude anything more definitive from this data? How to deal with time-series data of this sort is not obvious. For instance, it is not clear whether the pre-CSI acquittal rate should be treated as the acquittal rate for 2000, the year immediately preceding the advent of the program or the aggregate acquittal rate of a greater range of years, such as 1997-2000. Similarly, it is not clear how best to account for temporal trends in the acquittal rate that preceded the advent of CSI. We were not able to find any studies that attempt to model changes in jury verdicts in response to a historical event. Without any such study in hand upon which to model our analysis, we conducted two analyses. 1. Analysis 1 In order to test whether or not acquittal rates significantly changed due to the advent of CSI, we conducted pooled time-series cross-section analysis, which combines a time-series analysis within several cross sections. In our case, the acquittal data is characterized as repeated observations (acquittal rates) by year (1986 to 2008) within fixed states. We had a total of 132 observations/acquittal rates for all nine jurisdictions. One limitation of our analysis is that this constitutes a relatively small sample size. Another is that errors from regression equations from pooled data may not be independent over time, and, indeed, as discussed above, they appear not be. Third, we cannot control for the possibility of heteroskedasticity where there may be differing variances across the ranges of acquittal rates for any given state; meaning, different jurisdictions' acquittal rates vary differently, rather than consistently.
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179 We conducted linear regression modeling comparing acquittal rates before and after the first airing of CSI in 2000. If CSI viewership had an effect on jury verdicts, we would expect a change in acquittal rates as early as fiscal year 2001. We also looked at differences in acquittal rates in the following three years after the first airing of CSI, to account for the possibility of a lag effect in which CSI did not have an immediate impact but did have an impact after some years of media saturation. Indeed, one might expect that the CSI effect would be felt after a large number of aggregate exposures to CSI and similar programs. We conducted linear regressions of acquittal rates before and after 2000, after the first airing of CSI and found no statistically significant difference. That is, we treated year and state as the independent variable and acquittal rate as the dependent variable. When we tested the change in acquittal rates between these two groups (pre- and post-CSI), we found that the difference between them may have occurred due to chance or by coincidence, rather than inferring the events are somehow correlated. When we tested before and after the years 2001, 2002 and 2003, we found no statistically significant difference in acquittal rates before and after any of these years. Table 6 presents the results of this regression. These findings indicate that for any given comparison year, there was less than a one percent increase in acquittal rates after the introduction of the program CSI and that this difference is not significant at p<.05 level. These results suggest that the changes in acquittal rates following the introduction of CSI are very likely the result of chance, and, certainly, the possibility that they are due to chance cannot be ruled out. 2. Analysis 2 One disadvantage of Analysis 1 is that it treats each state's annual acquittal rate as a single observation. But such observations refer to a great many more trials in the case of California than in the case of Vermont. Analysis 2 overcomes that disadvantage by treating each trial that went to a jury verdict as an observation. In other words, we treated our data as if it was a random sample of American jury verdicts. (108) States were irrelevant in this analysis, except as a means of obtaining a sample of American jury verdicts. In order to keep the sampling method constant, we analyzed trial outcomes from the same set of states before and after the advent of CSI. Since Vermont only provided acquittal rate data starting in 1998, we chose to exclude Vermont, so as to include data from 1997. (109)
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180 We calculated the proportions of acquittals for periods before and after the advent of CSI. We then calculated the difference between these proportions and confidence intervals surrounding this difference in order to test whether or not there was a statistically significant change in the proportion of acquittals. The total number of felony trials in any given year ranged from approximately 18,000 in 2005 to over 24,000 in 1997 (Table 7). We calculated the proportion of acquittals pre-CSI (from 1997-2000). We then calculated the proportion of acquittals in three sets of post-CSI years (2001-2006, 2002-2006, 2003-2006), again in order to account for the possibility of a lag effect. We then calculated the differences between these proportions and the associated confidence intervals. The results of this analysis are shown in Table 8. We see that there is a statistically significant increase in acquittal rates from the years pre-CSI to post-2001 and post-2002, but not post-2003. As discussed above, there are a number of plausible explanations for this increase in addition to a two-year CSI effect. One is that this increase in acquittal rates post-CSI may be attributed to the general trend of rising acquittal rates beginning 1997 and may not be attributable to any CSI effect. This possibility may be rendered more tangible by row four of Table 8, which shows that there was also a statistically significant increase in acquittals between 1997-1999 and 2000, the year before CSI went on the air. To better control for a possible trend prior to CSI, in rows five through seven, we compared the proportion of acquittals from 2000 to post-CSI years (2001-2006, 2002-2006, 2003-2006). There was no longer a significant increase in acquittal rates. In fact, there appears to be a statistically significant decrease in the proportion of acquittals comparing 2000 to post-CSI 2003-2006. It should also be noted that the statistical power in this analysis is very high, making statistically significant findings in either direction more likely. Another possibility is that two or more different CSI effects may be canceling each other out. For instance, the strong prosecutor's effect and the defendant's effect might both be occurring and canceling one another out, one driving acquittals up, the other driving them down. Or, the strong prosecutor's effect may be occurring, but prosecutors may be compensating by not bringing the affected cases to trial, by effectively screening out jurors affected by it in voir dire, or by effectively explaining the absence or weakness of forensic evidence. Under such a scenario, the CSI effect would be occurring, but it would not be detected in acquittal rates. In a sense, the strong prosecutor's effect would be cancelled by the weak prosecutor's effect. Or, unknown other historical changes for which we have not accounted may have affected the acquittal rate during the period we
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181 analyzed and may have counteracted the CSI effect. For example, the September 11, 2001 attack on the World Trade Center and Pentagon comes to mind as an event that falls within the period of analysis that might have conceivably had an impact on acquittal rates. Similarly, a major legal change, such as a landmark Supreme Court ruling on evidence law might shift acquittal rates, although we are not aware of such a decision during the relevant period. In sum, given the equivocal nature of the data and the relatively small changes in acquittal rates, existing acquittal rate data would not seem to warrant panic about the existence of a CSI effect. III. MEDIA COVERAGE OF THE CSI EFFECT The dispute over civil litigation reform has been characterized as a battle between public intellectuals arguing for tort reform and drawing attention to a supposed litigation explosion and social scientists defending the civil litigation system against these charges. (110) Tort reformers relied largely on culturally resonant anecdotes for evidence. Indeed, Haltom and McCann's analysis of the empirical evidence contained in one prominent book in the tort reform canon found 272 anecdotes, one case study, and six citations to statistical evidence. (11l) Social scientists, meanwhile, relied on statistical evidence about the volume of civil litigation to debunk claims of a litigation explosion or that Americans were exceptionally litigious. "[T]he resulting contest," Haltom and McCann conclude, "has been a mismatch heavily favoring the scholars on intellectual grounds, but a veritable triumph for the reform proponents in the broader cultural terrains of American mass society." (112) Tort reformers' narratives captured a much greater share of media attention than did those of scholars. In addition, a concerted insurance industry advertising campaign disseminated the tort reform message. Two scholars even went so far as to call the contest for the hearts and minds of the American public a "slaughter." (113) Indeed, in the wake of media claims about the litigation explosion, sociolegal scholars documented that media coverage of civil law overwhelmingly emphasized plaintiff victories and high punitive damage awards. (114) Thus, the supposed existence of a litigation explosion became educated common sense among jurors (115) and even judges. (116) The result of this apparent bias in media coverage was that consumers of popular media were likely to have distorted understandings of the American civil legal system. Such consumers were likely to believe that there was a litigation explosion when, in
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182 fact, there was none. These consumers might have believed that the plaintiff victory rate was higher than it actually was, that average punitive damages were higher than they were in reality, and that this phenomenon imposed severe social costs (such as increased insurance premiums or more expensive consumer goods). The potential impact of this media bias on civil trials was not lost on socio-legal scholars. Elizabeth Loftus performed an experiment that "showed that it is possible to affect a jury award by even a single exposure to an insurance advertisement." (117) Similarly, in interviews with individuals who had completed service on civil juries in tort cases, Valerie Hans and William Lofquist found that most jurors believed that the litigation explosion existed and that many jurors believed it had negative social impacts. (118) They also found that the jurors who believed in the litigation explosion gave lower awards. (119) Hans and Lofquist stress that this result must be interpreted with caution, and, indeed, some contradictory evidence exists. (120) For example, another jury simulation study, although finding that "jurors who agree that damage awards are excessive and that tort reform is necessary generally gave lower awards," also found that belief in the litigation explosion drove awards higher. (121) The authors hypothesized that mock jurors calibrated their awards to what they perceived as the "going rate." (122) Overall the effect of knowledge of the supposed litigation explosion on civil juries appears to be "complex." (123) In this Part, we apply a similar approach to the CSI effect by examining the message conveyed by media about the CSI effect. Despite the lack of empirical support described in the preceding section, a review of media coverage shows that it tends to characterize the CSI effect as a well-established phenomenon. For example, based on a content analysis of seventy mass media articles about the CSI effect published between 2002 and 2005, Harvey and Derksen found that the majority of coverage claimed that jurors had formed unrealistic expectations of forensic evidence because of CSI. (124) In order to investigate this issue further, we conducted a content analysis of 258 magazine and newspaper articles discussing the CSI effect. We generated this data set by searching for the terms CSI effect or "C.S.I. effect" in the "Magazines, combined" and "Newspapers, combined" databases in LexisNexis for the years 2002 (after using LexisNexis to determine that was the earliest year the term appeared in the media) through 2008. These searches generated 504 documents. After eliminating duplicates, academic articles, and a few other sources that were not relevant to our research questions, or sources which did not seem to qualify as popular media, we were left with 258 documents published by media sources, two-thirds from
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183 domestic articles and one-third foreign. (125) Around fifty-five percent of the documents came from local U.S. newspapers, around four percent originated from national magazines like Macleans, U.S. News & Worm Report, and the New Yorker, and around nine percent derived from technical or legal magazines, such as Lawyer's Weekly, Business Monthly, New Scientist, and Chicago Lawyer. Although we confine our analysis to 258 unique articles in order to avoid double coding reprinted stories, the 504 LexisNexis "hits" might be a better indication of the penetration of the notion of the CSI effect in the popular consciousness. It should also be noted that LexisNexis misses many media sources. For example, LexisNexis is limited in its capture of broadcast television content, and it is completely ineffective in capturing new media sources like online journals and blogs. For all these reasons, we think that more than five hundred articles in six years still probably understates the penetration of the notion of the CSI effect. Although some of the articles were published in major media outlets like U.S. News & Worm Report, one notable aspect of these articles is how local CSI effect stories are. Unlike many news stories, including the litigation explosion, (126) in which many local papers publish the same story provided to them by a wire service, CSI effect stories lend themselves to what communications scholars call "localization," in which the same story is rewritten using local characters. (127) As we have posited elsewhere, CSI effect stories seem to lend themselves to this sort of treatment because every locality has its own forensic technician, prosecutor, and police chief, who serve as the standard "cast of characters" in CSI effect stories. (128) We coded the documents for any discussion of the six effects defined above. Not surprisingly, many documents mentioned more than one effect. During the coding process we also discovered some new "effects." Only one of these, which we call the "victim's effect," was prevalent enough to add to our coding scheme. The others were not prevalent enough to warrant further discussion. (129) The victim's effect concerns the supposed effect of CSI programs on crime victims' behavior. The claim is that victims have increased expectations that law enforcement will collect forensic evidence at a crime scene. We also coded whether the documents treated the specified CSI effect as real or whether they articulated doubt about whether the specified CSI effect was actually occurring. Documents were coded for doubt if, for example, they made statements like "[t]he 'CSI effect' is largely the product of anecdotal evidence." (130) Many
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184 documents that were coded for doubt also included statements asserting the reality of the CSI effect. Harvey and Derksen found that the strong prosecutor's effect was far more salient in the media than the defendant's effect. (131) Discussions of negative impacts on jurors far outweighed positive ones. In addition, Harvey and Derksen coded whether media reports discussed positive or negative impacts for prosecutors and defense attorneys. The most prevalent category was negative impacts for prosecutors. Moreover, there were more media reports of positive than negative impacts for defendants. (132) Our findings were similar, not surprisingly (especially because our data sets overlap). As shown in Table 9, the primary version of the CSI effect found in the media is the strong prosecutor's effect of increased juror expectations, which dwarfs all other effects. The rarity of the defendant's effect is also quite striking. In instances where defense attorneys were interviewed, they often mentioned altering their behavior to highlight the lack of forensic evidence at trial (in support of the strong prosecutor's effect), rather than raising the issue that CSI has led to jurors viewing government experts and forensic science techniques as having increased credibility. The strong prosecutor's effect appears in the media around seven times as often as the defendant's effect (197 appearances for the strong prosecutor's effect versus 21 for the defendant's effect). If the CSI effect is seen as strategic gamesmanship by prosecutors and defenders, our analysis of media content shows that the prosecutors are clearly doing a better job disseminating their message to the media. As with the litigation explosion, it is a "slaughter." (133) This is particularly striking because, as some commentators have noted, the defendant's effect is equally plausible (134) and, we suggest, more intuitive. One reason for this may be that in both cases, the media find stories of an effect and a social problem--the litigation explosion or the CSI effect--more appealing than stories extolling the unheralded virtues of the status quo. In addition, we found that media discussions of the CSI effect gave voice to remarkably little skepticism about the claims that the CSI effect is actually occurring (Table 8). For example, of 197 documents mentioning the strong prosecutor's effect, only 34 gave voice to skepticism about the effect actually occurring. This is particularly striking, given that most legal scholars have expressed doubt that CSI actually has changed jury behavior. Indeed, several of the 34 articles voicing doubt are profiles of academics, like Donald Shelton or Kimberlianne Podlas, who have done empirical research that casts doubt on the claims advanced on behalf of the strong prosecutor's effect. (135)
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185 In sum, our analysis showed that the media is quite broad in its use of the term "CSI effect," using it to convey a wide variety of quite different and sometimes even incompatible ideas, often in the same article. At the same time, it is clear that, by and large, in media discourse, CSI effect means the strong prosecutor's effect--an influence on jury behavior in the direction of acquittal. In addition, the media tends to portray the CSI effect as an established phenomenon. For example, one article states, "[i]n an alarming number of cases, jurors found people not guilty of serious violent crimes because they believed police should have presented more, or different, forensic evidence." (136) Media consumers, therefore, are likely to believe that CSI is impacting juror behavior, making convictions more difficult to achieve. Aside from the question of whether the CSI effect is actually occurring is the question of whether it constitutes a serious social problem. The media discussions of the CSI effect are remarkable for their alarmist tone. Media discussions of the litigation explosion invoked "[i]mages of a destructive, elemental force" and described it with terms like "epidemic," "avalanche," "flood," "tidal wave," "deluge," "apocalypse," and "doomsday." (137) Similarly, media discussions of the CSI effect use terms like "alarming," (138) "dangerous," (139) and "a big problem," (140) and they suggest that the CSI effect "could have serious ramifications for our justice system." (141) This is striking because, as discussed above, empirical evidence supporting this claim is conspicuously lacking. IV. A SELF-FULFILLING OR SELF-DENYING PROPHECY? As with the litigation explosion, the current media view of the CSI effect is, in some respects, the outcome of a conscious effort on the part of litigants' lobbying organizations: corporate defendants and their public intellectual allies in the case of the litigation explosion; prosecutors in the case of the strong prosecutor's effect. As socio-legal scholars have pointed out, widespread popular belief in the litigation explosion would seem to have at least two effects that would benefit the interests of civil defendants. First, policymakers convinced that there is indeed a litigation explosion and that it constitutes a significant social problem might be amenable to regulatory changes that would render civil litigation less desirable for plaintiffs--tort reform. (142) Proposed reforms include creating disincentives for litigation, increased sanctioning of frivolous cases, promoting alternative dispute resolution, and creating alternative compensation systems. (143) A second effect of media coverage, as discussed above, might be on the jury pool itself. Jurors who believe
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186 that frivolous lawsuits are common and are causing economic and social damage to the United States, that punitive damage awards are out of control and are causing economic and social damage to the United States, and that plaintiffs usually win civil lawsuits may be more sympathetic jurors from the perspective of civil defendants. This constitutes a sort of second-order version of media effects on juries: the impact that awareness (or purported awareness) of previous jury decisions obtained through media may have on current jury decisions. As Hans and Lofquist noted, current jurors' "concerns about deep pockets, the litigation crisis, and the integrity of plaintiffs were implicitly and explicitly linked to the presumed excesses of antecedent juries." (144) Such juries, they further noted, might try to correct for the perceived excesses of antecedent juries. (145) And yet, it is important to note that current jurors' perceptions of the general trends among antecedent juries may be media-biased and incorrect. (146) A jury that attempts to correct for perceived proplaintiff bias when in fact there is not pro-plaintiff bias, is, in effect, enacting anti-plaintiff bias. The same argument would seem to hold for media coverage of the CSI effect. Jurors who are consumers of the popular media might believe that prosecutors are typically disadvantaged in criminal trials; that high expectations for forensic evidence are "unreasonable"; and that criminal convictions are becoming increasingly rare and difficult to achieve. Jurors who believe these things might be more sympathetic to prosecutors out of sympathy for the perceived underdog or in attempt to correct for the perceived excesses of antecedent juries. (147) Claiming to be disadvantaged is a familiar trope in trial advocacy, especially in opening and closing arguments; prosecutors frequently point out that they bear the burden of proof, whereas defense attorneys often refer to their lack of resources or to the awesome power of the state. As with the litigation explosion, there may be a secondorder media effect on juries in criminal law. We might call this the "CSI effect effect": juries that have become convinced through media that there is a strong prosecutor's effect that disadvantages prosecutors and has led antecedent juries to acquit inappropriately might tend to sympathize with the prosecution and enact a seemingly "corrective" pro-prosecution bias. But, if there is, in fact, no strong prosecutor's effect, the CSI effect effect is essentially an inappropriate proprosecution bias. As Okita notes, "the 'CSI effect' may not be an effect caused by the media, but one which has instead been promulgated by the media." (148) The Maricopa County Attorney proposed to actually enact the CSI effect effect, using CSI itself, rather than the news media. He
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187 proposed that CSI "show the CSI effect in action" and communicate the message that the strong prosecutor's effect is a damaging social phenomenon, and proposed potential storylines: Programs in which jurors use outside influences and prejudices to "supplement" the facts of the case presented in court, or in which a jury foreman with an addiction to television crime dramas uses his "expertise" to intimidate and cajole young, inexperienced jurors, might be instructive. It might also be possible to present a case in which both sides put on heroic court performances but the jury ends up freeing a criminal who committed a serious crime, like child molestation, because of these influences. (149) Ultimately, the strong prosecutor's effect, as easily as it might be--as Harvey and Derksen describe it--"a self-fulfilling prophecy," (150) might just as easily be a self-denying prophecy. By disseminating through the media the notion that the CSI effect is occurring, prosecutors may be preventing the strong prosecutor's effect from occurring. And, if the strong prosecutor's effect is not occurring, this counteraction may in fact be creating a new effect of its own, advantaging, rather than disadvantaging prosecutors. CONCLUSION And yet, as with the litigation explosion, we cannot attribute media interest in the CSI effect merely to the efforts of those who have sought to perpetuate the story. The media does not accept every narrative proposed to it, and not every narrative shows the sort of penetration of public consciousness that the CSI effect has clearly achieved. As with the litigation explosion, the successful dissemination of the CSI effect must also be attributed to the resonance of CSI effect narratives with large themes and values in contemporary culture. Kelner has usefully divided the litigation explosion literature into two broad categories. (151) Some literature seeks to debunk claims of a litigation explosion. Other literature seeks not only to debunk, but also to explain--to explore the symbolic meaning of litigation explosion claims. (152) In addition to the work of debunking, legal scholars searched for explanations as to "why so large a gap exists between the widespread perception that the American litigation system is wildly out of control and the picture that emerges from an examination of the available evidence." (153) This Article is modeled on the latter category. We seek not merely to debunk overblown media claims about television's influence on jury
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188 verdicts, but also to attempt an explanation of why these narratives hold such great appeal for the media and what that tells us about the public's perceptions of the law and even law's own self-perception. In the case of the litigation explosion, some sociolegal scholars proposed that the litigation explosion narrative evinced a severe distrust of the civil jury system. (154) Others have noted that these arguments are situated within a broader context in which the litigation explosion was viewed as a sign of the erosion of American rugged self-reliance and individualism. (155) Thus, the litigation explosion is situated within a profound ambivalence about, or even hostility to, the use of law--a "turn against law." (156) This notion, in turn, implies an imagined end to law--an America in which disputes are resolved without law, or at least without "too much law." (157) Media discussions of the CSI effect display similar distrust of juries, though in criminal, not civil, law. But the CSI effect cannot be explained by reference to the American values of individualism, responsibility and self-reliance. What cultural values, then, account for the remarkable resonance of the CSI effect? To us, the answer seems clear: the rising authority and prestige of science in modern society. Science is popularly associated with such positive values as truth, certainty, goodness, enlightenment, progress, and so on. Law's relationship to science has always been somewhat uneasy.(158) While law has often held high hopes that science would prove effective at resolving disputes without ambiguity, this very potential to be truth-producer is a cause for understandable anxiety on the part of the law. (159) As we have suggested elsewhere, (160) the CSI effect would seem to embody the law's anxiety about the threat to its legitimacy as a truth-producing institution posed by a rival truthproducing institute called "science." The discourse among legal actors about the supposed CSI effect is rife with lamentations of the law's purported inability to provide proof with the strength that jurors supposedly desire. Whereas the litigation explosion may have resonated with a societal anxiety about relying on law too heavily,
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189 the CSI effect would seem to resonate with anxieties about using law too little, increasingly abrogating its truth-producing function to science. Whereas the litigation explosion may have articulated fears of hyperlexis, the CSI effect would seem to give voice to fears of what we might call "hyperscientia"--too much science.
Table 1. Annual Rank of CSI Franchise Programs Among U.S. Television Programs (12) Year 2000 2001 2002 2003 2004 2005 2006 2007 2008
CSI 10 2 1 2 2 3 5 5 4
CSI: Miami CSI: New York 10 8 5 6 10 8 14
21 22 28 23 16
Table 2. Media Mentions of CSI Effect Year 2002 2003 2004 2005 2006 2007 2008
Mentions 2 2 12 56 78 65 43
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190 Table 3. The Many Effects of CSI: Typology of CSI Effects Found in Media Accounts Effect name Strong prosecutor's effect
Effect on Jurors
Description Acquit in cases in which they would have convicted had CSI never existed
Weak prosecutor's effect
Prosecutors
Compensate for absence/ weakness of forensic evidence
Defendant's effect
Jurors
Afford greater credibility to forensic expert witnesses
Producer's effect
Jurors
Know more science
Educator's effect
Students
Attraction to careers in forensic science
Police chief's effect
Criminals
Adopt countermeasures to prevent detection through forensic evidence
Tech effect
Jurors
Hold higher expectation for forensic evidence because of actual developments in forensic technology
Victim's effect (53) Crime victims
Expect forensic testing For all crimes
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Table 4. Percentage of Respondents Responding "Very Great Prestige" to Questions About the Prestige of Selected Professions (66) 191
Scientist
1992 1997 1998 2000 2001 2002 2003 2004 2005 2006 2008 57 51 55 56 53 51 57 52 56 54 56
Doctor
50 52 61 61 61 50 52 52 54 58 53
Teacher Police officer 41 34 49 36 53 41 53 38 54 37 47 40 49 42 48 40 47 40 52 43 52 46 Lawyer Journalist
25 19 23 21 18 15 17 17 18 21 24 15 15 15 16 18 19 15 14 14 16 18
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192 Table 5. Acquittal Rates for Nine Jurisdictions in All Years Available, Starting in 1986 Mean Vermont Number Fiscal of 60 Year Trials 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 25% 1999 31% 2000 30% 2001 26% 2002 44% 2003 24% 2004 33% 2005 38% 2006 37% 2007 32% 2008 46%
North Florida Carolina Illinois
New York
4131
2478
37% 35% 37% 34% 34% 37% 35% 34% 33% 33% 38% 31% 33% 34% 37% 37% 36% 35% 34% 33% 35% 33%
2025
33% 30% 31% 31% 31% 27% 31% 30% 30% 31% 30% 30% 30% 29% 29% 36% 30%
1009
29% 27% 26% 26% 28% 33% 30% 31% 32% 35% 36% 32%
26% 28% 29% 29% 29% 29% 30% 29% 30% 30%
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193 Hawaii
Texas
260
3180
California Federal Aggregate
Mean # Trials Fiscal Year 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
21% 27% 31% 28% 34% 35% 31% 31% 29% 24% 24% 25% 34% 26% 33% 24% 34% 32%
5594
l6% 15% l4% 19% 19% 18% 20% 20% 20% 21% 21% 19% 21% 20% 21%
13% 14% 16% 17% 17% 19% 14% 16% 16% 16% 16%
4141
22878
19% 19% 20% 19% 16% 17% 17% 16% 15% 16% 13% 13% 14% 15% 15% 16% 15% 15% 15% 11% 11% 11%
26% 26% 27% 25% 23% 24% 25% 26% 24% 23% 26% 22% 24% 24% 25% 26% 26% 24% 25% 23% 24% 23% 25%
The horizontal line marks the advent of CSI. The dashed box indicates data used in Analysis 2. The mean number of trials per year for each jurisdiction is given as a rough measure of the sample size for each jurisdiction. Table 6. Linear Regression Summary of the Relationship Between Acquittal Rates Before and After the Airing of CSI in 2001, 2002, and 2003 (n=132) (107)
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194 Pre/Post Comparisons Coefficient Standard Lower Error Bound Pre vs. Post 2001 0.001975 0.005727 -0.009361 Pre vs. Post 2002 0.005035 0.005679 -0.006206 Pre vs. Post 2003 0.002294 0.005802 -0.009192
Upper Bound 0.013311 0.016276 0.013780
Table 7. Aggregate Number of Trials and Acquittals from 1997-2006 Year 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
Total Number of Trials 24,343 22,553 22,133 21,291 19,768 19,179 20,219 19,235 18,807 19,746
Number of Acquittal Acquittals Rate 5,405 21.9% 5,316 23.5% 5,311 24.1% 5,399 25.0% 5,027 25.5% 4,957 25.9% 4,887 24.2% 4,747 24.7% 4,345 23.2% 4,728 24.0%
Table 8. Comparisons Between Aggregate Acquittal Rates Before and After the Airing of CSI in 2001, 2002, and 2003 Row 1 2 3 4 5 6 7
Pre/Post Comparisons 1997-2000 vs. 2001-2006 1997-2000 vs. 2002-2006 1997-2000 vs. 2003-2006 1997-1999 vs. 2000 2000 vs. 2001-2006 2000 vs. 2002-2006 2000 vs. 2003-2006
Mean Difference
Standard Error
0.008040107
0.001893866
0.006213296
0.001974616
0.002533247
0.002083443
0.021331112
0.003387205
-0.00826265
0.003236207
-0.01008946
0.003284115
-0.01376951
0.003350677
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195
Row 1 2 3 4 5 6 7
Lower Bound 0.0043281292 0.0023430489 -0.001550301 0.01469219 -0.01460562 -0.01652633 -0.02033684
Upper Bound 0.0117520852 0.0100835429 0.0066167941 0.027970034 -0.00191969 -0.00365260 -0.00720219
Table 9. Frequency of Various Versions of CSI Effect and Frequency of Mention of Doubt Version of CSI effect
Strong prosecutor's effect Weak prosecutor's effect Educator's effect Police chiefs effect Defendant's effect Tech effect Victim's effect
Mentions Mentions doubting effect 197 74 39 27 21 9 6
34 8 3 4 4 0 3
Percentage of mentions expressing doubt 17% 11% 8% 15% 19% 0% 50%
Endnotes (1.) Blakely v. Washington, 542 U.S. 296, 306 (2004). (2.) See, e.g., Shari Seidman Diamond & Mary R. Rose, Real Juries, 1 ANN. REV. L. & SOC. SCI. 255 (2005). (3.) See, e.g., Geoffrey P. Kramer et al., Pretrial Publicity, Judicial Remedies, and Jury Bias, 14 LAW & HUM. BEHAV. 409, 435 (1990); Amy L. Otto et al., The Biasing Impact of Pretrial Publicity on Juror Judgments, 18 LAW & HUM. BEHAV. 453, 454 (1994). (4.) See, e.g., Edith Greene, Media Effects on Jurors, 14 LAW & HUM. BEHAV. 439 (1990); Valerie P. Hans & Juliet L. Dee, Media Coverage of Law: Its Impact on Juries and the Public, 35 AM. BEHAV. SCIENTIST 136 (1991).
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196
(5.) Simon A. Cole & Rachel Dioso-Villa, CSI and Its Effects: Media, Juries, and the Burden of Proof 41 NEW ENG. L. REV. 435, 435 (2007). (6.) Michael Alien, Introduction: This Much I Know ... to READING CSI: CRIME TV UNDER THE MICROSCOPE 3, 4 (Michael Allen ed., 2007) [hereinafter READING CSI]. (7.) Silke Panse, 'The Bullets Confirm the Story Told by the Potato': Materials Without Motives in CSI: Crime Scene Investigation, in READING CSI, supra note 6, at 153, 153. (8.) Allen, supra note 6, at 5; see also Deborah Jermyn, Body Matters: Realism, Spectacle and the Corpse in CSI, in READING CSI, supra note 6, at 79, 79 ("That a programme built around the gruesome clues, secrets and promises embedded within, and articulated across, the image of the corpse could become the most successful television series in the world would have been unimaginable until relatively recently."). (9.) Paige Albiniak, Sizzling 'CSI' Reruns: Off-net Procedurals Stay Strong, BROADCASTING & CABLE, Nov. 3, 2008, at 9. (10.) CSI (franchise), WIKIPEDIA, http://en.wikipedia.org/wiki/CSI_franchise (last visited Apr. 1, 2009). (11.) We drew on research by Jennifer L. Christian in compiling this list. (12.) CSI: Crime Scene Investigation, WIKIPEDIA, http://en.wikipedia.org/wiki/ CSI:_Crime_Scene_Investigation#American_Ratings (last visited Jan. 8, 2009); CSI: Miami, WIKIPEDIA, http://en.wikipedia.org/wiki/CSI:_Miami#U.S._television_ratings (last visited Jan. 8, 2009); CSI: New York, WIKIPEDIA, http://en.wikipedia.org/wiki/CSI:_NY# Nielsen_Ratings (last visited Jan. 8, 2009). (13.) Jeffrey Kluger, How Science Solves Crimes, TIME, Oct. 21, 2002, at 36, 45. (14.) Id. (15.) Id. (16.) Kit R. Roane, The CSI Effect, U.S. NEWS & WORLD REP., Apr. 25, 2005, at 48. (17.) Max M. Houck, CSI: Reality, SOL AM., July 2006, at 84; Stefan Lovgren, "'CSI' Effect" is Mixed Blessing for Real Crime Labs, NAT'L GEOGRAPHIC NEWS, Sept. 23, 2004, http://news.nationalgeographic.com/news/pf/80520796.html. (18.) KATHERINE RAMSLAND, THE C.S.I. EFFECT (2006). (19.) For a discussion of media loops, see PETER K. MANNING, POLICING CONTINGENCIES 76-77 (2003); see also Susan Bandes, Fear Factor. The Role of Media in Covering and Shaping the Death Penalty, 1 OHIO ST. J. CRIM. L. 585, 585 (2004) (discussing a "complex feedback loop" between law and the media). (20.) For an argument about the indistinguishability of "fiction" and "reality" in this discourse, see Michael Mopas, Examining the 'CSI Effect' Through an ANT Lens, 3 CRIME MEDIA CULTURE 110 (2007).
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197 (21.) Linda Deutsch, 'CSI' and 'Law & Order' Lead Jurors to Great Expectations, Associated Press, Jan. 14, 2006. (22.) Glenn E. Rice, TV is Making Jurors Suspicious About Evidence: CSI: Courtroom Stalemates Increase, KAN. CITY STAR, Aug. 10, 2005, at A1. (23.) Roane, supra note 16, at cover. (24.) Kate Coscarelli, The 'CSI' Effect: TV's False Reality Fools Jurors. Newhouse News Service, Apr. 21, 2005. (25.) CBS4 Denver: CSI Has 'Major Effect' on Real Life Juries (CBS television broadcast May 5, 2005). (26.) Clarence Walker, CSI (T. V. Crime Dramas) Affects the American Criminal Justice System, AMERICANMAFIA.COM, June 2005, http://www.americanmafia.com/Feature_ Articles_301.html. (27.) Amy Lennard Goehner et al., Ripple Effect: Where CSI Meets Real Law and Order, TIME, Nov. 8, 2004, at 69 (quoting jury consultant Robert Hirschhorn) (internal quotation marks omitted). (28.) Allison Klein, Art Trips Up Life: TV Crime Shows Influence Jurors, BALT. SUN, July 25, 2004, at 1A (quoting forensic scientist Thomas Mauriello) (internal quotation marks omitted). (29.) Id. (quoting Baltimore Deputy State Attorney Haven H. Kodeck) (internal quotation marks omitted). (30.) DVD: CSI Effect Fact or Fiction (Fed. Bureau of Investigation Training Network #112 2000) (on file with SUNY University at Buffalo library). (31.) MARICOPA COUNTY ATT'Y'S OFFICE, CSI: MARICOPA COUNTY: THE CSI EFFECT AND ITS REAL-LIFE IMPACT ON JUSTICE 1, 10 (2005) [hereinafter CSI: MARICOPA COUNTY]. (32.) Boatswain v. State, No. 408,2004, 2005 WL 1000565, at *2 (Del. Apr. 27, 2005) (internal citation omitted); cf Robin Franzen, TV's 'CSI' Crime Drama Makes It Look Too Easy, OREGONIAN, Dec. 10, 2002, at A01 (quoting Clatsop County District Attorney Josh Marquis expressing prosecutors' concern about "being held to an artificial 'CSI' standard"). (33.) See Kimberlianne Podlas, "The CSI Effect": Exposing the Media Myth, 16 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 429 (2006); Donald E. Shelton et al., A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the "CSI Effect" Exist?, 9 VAND. J. ENT. & TECH. L. 331 (2006); Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 YALE L.J. 1050 (2006). (34.) See Podlas, supra note 33; Tyler, supra note 33. (35.) See, e.g., Kiara Okita, The CSI Effect: Examining CSFs Effects upon Public Perceptions of Forensic Science (Fall 2007) (unpublished Master's thesis, University of Alberta) (on file with author). (36.) See Cole & Dioso-Villa, supra note 5; see also Charles Loeffler, "CSI" and the Criminal Justice System: Jury Trials, NEW REPUBLIC ONLINE, June 7, 2006 (on file with authors). (37.) See, e.g., Podlas, supra note 33; Shelton et al., supra note 33; Tyler, supra note 33; Okita, supra note 35.
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198
(38.) See, e.g., READING CSI, supra note 6; Gray Cavender & Sarah K. Deutsch, CSI and Moral Authority: The Police and Science, 3 CRIME MEDIA CULTURE 67 (2007); Martha Gever, The Spectacle of Crime, Digitized: CSI: Crime Scene Investigation and Social Anatomy, 8 EUROPEAN J. CULTURAL STUD. 445 (2005); Mopas, supra note 20; Thomas W. Nolan, Depiction of the "CSI Effect" in Popular Culture: Portrait in Domination and Effective Affectation, 41 NEW ENG. L. REV. 575 (2007). (39.) See Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 5 (1983) [hereinafter Galanter, Reading the Landscape]. (40.) Id. at 6. (41.) Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3, 37 (1986) [hereinafter Galanter, Day After]. (42.) See Kimberlianne Podlas, The Monster in the Television: The Media's Contribution to the Consumer Litigation Boogeyman, 34 GOLDEN GATE U. L. REV. 239, 241 (2004).
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199
(43.) See Galanter, Day After, supra note 41; Marc Galanter, The Hundred-Year Decline of Trials and the Thirty Years War, 57 STAN. L. REV. 1255 (2005) [hereinafter Galanter, Decline of Trials]; Galanter, Reading the Landscape, supra note 39; Deborah L. Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 DUKE L.J. 447 (2004); Randy M. Mastro, The Myth of the Litigation Explosion, 60 FORDHAM L. REV. 199, 200 n.9 (1991) (reviewing WALTER K. OLSON, THE LITIGATION EXPLOSION (1991)). Since there is an extensive literature on the litigation explosion, we will not rehash those arguments here. (44.) See The Insurance Industry: Do Its Ads Undermine Jury Impartiality?, 75 A.B.A. J. 46 (1989). (45.) See, e.g., WILLIAM HALTOM & MICHAEL MCCANN, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS 61 (2004); (46.) While both the litigation explosion and the CSI effect are portrayed as litigation crises, the CSI effect is better characterized as a "litigation crisis" than as a "litigation explosion." The CSI effect refers to a supposed problem in litigation but not to any supposed increase (i.e., "explosion") in litigation. (47.) Cole & Dioso-Villa, supra note 5. The discussion in this Part draws heavily from that work. (48.) Negative evidence refers to the notion of presenting testimonial evidence explaining the absence of physical evidence when the jury might construe that absence as significant. For example, the prosecution might call a forensic technician to testify that the crime scene was dusted for fingerprints but none were found to preclude the defense from insinuating that the police were too lazy or too focused on the defendant to search for fingerprints. (49.) See Cynthia A. Hoffner et al., TV Characters at Work: Television's Role in the Occupational Aspirations of Economically Disadvantaged Youths, 33 J. CAREER DEV. 3, 15 (2006). (50.) See, e.g., Michael M. O'Connor, The Role of the Television Drama ER in Medical Student Life: Entertainment or Socialization?, 280 J. AM. MED. ASS'N 854, 854 (1998).
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200 (51.) See, e.g., John Randolph Fuller, So You Want to Be a Serial-Murderer Profiler ..., CHRON. HIGHER EDUC., Dec. 7, 2001, at B5. (52.) For an interesting discussion of convicts' perceptions of the strength of DNA evidence, see generally Barbara Prainsack & Martin Kitzberger, DNA Behind Bars: Other Ways of Knowing Forensic DNA Technologies, 39 Soc. STUD. Set. 51, 64 (2009). (53.) See infra note 129 and accompanying text. (54.) It should be noted that many forensic scientists feel that aspiring forensic scientists are not well served by forensic degree programs and would be better served by mainstream science programs. See, e.g., KEITH INMAN & NORAH RUDIN, PRINCIPLES AND PRACTICE OF CRIMINALISTICS: THE PROFESSION OF FORENSIC SCIENCE 302 (2001). (55.) Cole & Dioso-Villa, supra note 5, at 453. (56.) See. e.g., Enric Volante & Kim Smith, 'CSI Effect' Impacts Justice in Tucson, ARIZ. DAILY STAR, May 8, 2005, at A1. (57.) CSI: MARICOPA COUNTY, supra note 31, at 2, 5. (58.) Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 YALE L.J. POCKET PART 70, 71-72 (2006), http://www.thepocketpart.org/2006/02/thomas.html; see also CSI: MARICOPA COUNTY, supra note 31, at 5. (59.) Thomas, supra note 58, at 72; see also CSI: MARICOPA COUNTY, supra note 31. (60.) Shelton et al., supra note 33, at 362. (61.) Id. at 362-65. (62.) Id. (63.) See Nolan, supra note 38, at 580. (64.) See Cynthia Hoffner & Martha Buchanan, Young Adults' Wishful Identification with Television Characters: The Role of Perceived Similarity and Character Attributes, 7 MEDIA PSVCHOL. 325, 327-28 (2005) (arguing that "[t]elevision role models ... influence young people's occupational aspirations"). (65.) It might be argued that, if prosecution witnesses were already scientists to begin with, the advent of CSI should not alter the jury's perception of them as scientists. This issue is complicated by the fact that some forensic disciplines--such as forensic document analysis, latent print analysis, and firearms and toolmark analysis--are practiced by individuals who do not possess formal academic scientific credentials. (Whether they might yet be considered "scientists" is a fraught question.) On CSI, however, the same scientifically credentialed individuals who run DNA analyses and other high-tech assays also perform latent print analysis and tool mark analysis. It is, therefore, possible that CSI might increase jurors' association of practitioners of the humbler forensic disciplines with the prestigious profession of science. (66.) The Roper Center for Public Opinion Research, University of Connecticut, http://www.ropercenter.uconn.edu/data_access/ipoll/ipoll.html (last visited Apr. 4, 2009) (also on file with authors). Responses are compiled from telephone surveys of national samples of American adults conducted by Harris Interactive. Sample size varied from year to year but was always greater than 1000. (67.) See, e.g., Cole & Dioso-Villa, supra note 5; Tyler, supra note 33. (68.) See, e.g., Roane, supra note 16; Lovgren, supra note 17. (69.) See, e.g., Podlas, supra note 33; Podlas, supra note 42; Tyler, supra note 33. (70.) See, e.g., HALTOM & MCCANN, supra note 45; Robert M. Hayden, The Cultural Logic of a Political Crisis: Common Sense, Hegemony and the Great American Liability Insurance Famine of 1986, 11 STUD, L. POL. & SOC'Y 95, 10408 (1991). (71.) See, e.g., Rhode, supra note 43. (72.) See, e.g., HALTOM & MCCANN, supra note 45, at 183-226; Shari Seidman Diamond, Truth, Justice, and the Jury, 26 HARV. J.L. & PUB. POL'Y 143, 145-47 (2003); Hayden, supra note 70, at 106-08.
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201 (73.) Julie Keller, D.A.: Blake Jury 'Incredibly Stupid', E!ONLINE, Mar. 24, 2005, http://www3.eonline.com/uberblog/b49519_da_blake_jury_incredibly stupid.html. (74.) Houck, supra note 17, at 86. (75.) Cole & Dioso-Villa, supra note 5, at 455. (76.) See Andy Kravetz, 'CSI' Making Impact in Courts. Area Prosecutors Battling TV Show's Reality with Real Life PEORIA J. STAR, Sept. 4, 2005, at A1. (77.) See Art Aisner, 'CSI Effect' Put Under the Scope, ANN ARBOR NEWS, May 18, 2007, at A1. (78.) See e.g., HALTOM & MCCANN, supra note 45, at 183-226; Diamond, supra note 72, at 146. (79.) See, e.g., Klein, supra note 28, at 1A. (80.) See Keller, supra note 73. (81.) See John Lande, Failing Faith in Litigation? A Survey of Business Lawyers' and Executives' Opinions, 3 HARV. NEGOT. L. REV. 1 (1998); see also Galanter, Decline of Trials, supra note 43, at 1267 n.36; Podlas, supra note 42, at 244. (82.) See Michael J. Watkins, Forensics in the Media: Have Attorneys Reacted to the Growing Popularity of Forensic Crime Dramas? 59 (Aug. 3, 2004) (unpublished M.A. thesis, Florida State University) (on file with authors). (83.) See CSI: MARICOPA COUNTY, supra note 31, at 5; see also Thomas, supra note 58, at 70. (84.) Thomas, supra note 58, at 70. (85.) See Monica L.P. Robbers, Blinded by Science: The Social Construction of Reality in Forensic Television Shows and its Effect on Criminal Jury Trials, 19 CRIM. JUST. POL'Y REV. 84, 91-98 (2008). (86.) See id. at 91-92. (87.) See Dennis J. Stevens, Forensic Science. Wrongful Convictions, and American Prosecutor Discretion, 47 How. J. 31, 46 (2008). (88.) See Cole & Dioso-Villa, supra note 5, at 458; see also Tyler, supra note 33, at 1078 (speculating that the CSI effect describes prosecutors' attempts to understand jury behavior). (89.) See Podlas, supra note 33, at 455-61. (90.) See Shelton et al., supra note 33, at 332-39. (91.) See Okita, supra note 35, at 47. (92.) Id. at 103. (93.) See Steven M. Smith et al., Exploring the CSI Effect: Is It Real? If So, What Is It?, Address at the North American Correctional and Criminal Justice Psychology Conference, in PROCEEDINGS OF THE NORTH AMERICAN CORRECTIONAL & CRIMINAL JUSTICE PSYCHOLOGY CONFERENCE, 2008, at 81, 83. (94.) See Kimberlianne Podlas, The 'CSI Effect' and Other Forensic Fictions, 27 LOY. L.A. ENT. L. REV. 87, 112-21 (2007). (95.) See N.J. Schweitzer & Michael J. Saks, The CSI Effect: Popular Fiction About Forensic Science Affects the Public's Expectations About Real Forensic Science, 47 JURIMETRICS J. 357, 360-63 (2007). (96.) See Margaret A. Berger, The Impact of DNA Exonerations on the Criminal Justice System, 34 J.L. MED. & ETHICS 320, 322 (2006). (97.) See Gwen Jenkins et al., The CSI Effect: Mock Jurors' Sensitivity to the Reliability of Forensic Evidence, Address at Annual Meeting of the American Psychology-Law Society, Jacksonville, Fla. (Mar. 5-8, 2008) (on file with authors). (98.) HALTOM & MCCANN, supra note 45, at 73; Galanter, Day After, supra note 41; Galanter, Decline of Trials, supra note 43; Galanter, Reading the Landscape, supra note 39; Michael Saks, If There Be a Crisis, How Shall We Know It?, 46 MD. L. REV., 63 (1986). (99.) Galanter, Reading the Landscape, supra note 39, at 71.
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202 (100.) Cole & Dioso-Villa, supra note 5, at 462. (101.) See, e.g., Podlas, supra note 33, at 461; see also Tyler, supra note 33, at 1084. (102.) Loeffler, supra note 36. The states were New York, Texas, Illinois, and California. (103.) Benoit Dupont, The CSI Effect: Myths and Reality, Address at 29th Annual Conference of the Canadian Identification Association (Nov. 24, 2008). (104.) These eleven states included California, Florida, Hawaii, Illinois, Kentucky, Missouri, New York, North Carolina, South Dakota, Texas, and Vermont. (105.) The sources of the data are: BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, available at http://www.albany.edu/sourcebook; CIRCUIT COURTS OF ILL., CASELOAD AND STATISTICAL RECORDS, available at http://www.state.il.us/COURT/SupremeCourt/AnnualReport/2006/ Stat/caseload.pdf; FLA. OFFICE OF THE STATE COURTS ADM'R, FLORIDA'S TRIAL COURTS STATISTICAL REFERENCE GUIDE, available at http://www.flcourts.org/gen_public/stats/ reference_guide.shtml; JUDICIAL COUNCIL OF CAL., ANNUAL DATA REFERENCE FOR 1994-1995, available at http://www.courtinfo.ea.gov/reference/3_stats.htm; JUDICIAL COUNCIL OF CAL., COURT STATISTICS REPORTS, STATEWIDE CASELOAD TRENDS, available at http://www.courtinfo.ea.gov/reference/3_stats.htm; N.C. JUDICIAL BRANCH, ADMIN. OFFICE OF THE COURTS, CASELOAD INVENTORY BY COUNTY, SUPERIOR COURT CRIMINAL, DISPOSITION ACTIVITY, STATEWIDE SUMMARY (courtesy of Mr. Patrick Tamer, Statistical Programmer Analyst, Research and Planning Div., N.C. Admin. Office of the Courts); OFFICE OF COURT ADM'R, ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY, available at http://www.courts.state.tx.us/pubs/annual-reports.asp; STATE OF HAW., JUDICIARY, OFFICE OF THE ADMIN. DIR., STATEWIDE CIRCUIT COURT CRIMINAL (on file with the Stanford Law Review); STATE OF N.Y., REPORT OF THE CHIEF ADMINISTRATOR OF THE COURTS, available at http://www.courts.state.ny.us/reports/annual; STATE OF VT. SUPREME COURT, JUDICIAL STATISTICS (2000) (on file with the Stanford Law Review); STATE OF VERMONT SUPREME COURT, JUDICIAL STATISTICS (1999) (on file with the Stanford Law Review); STATE OF VERMONT SUPREME COURT, JUDICIAL STATISTICS (1998) (on file with the Stanford Law Review); VT. JUDICIARY, ANNUAL STATISTICS, DISTRICT COURT, available at http://www.vermontjudiciary.org/Statistics/default.aspx. (106.) The California data does not allow the removal of misdemeanors because, although convictions are broken out into felonies and misdemeanors, acquittals are aggregated. We do not feel that the inclusion of a small number of California misdemeanors in the felony data is likely to substantially distort our findings. To give some idea of what we mean by a "small number" of misdemeanors: in 2007, misdemeanors accounted for 4.5% of all convictions recorded by the California Superior Courts. See JUDICIAL COUNCIL OF CALIFORNIA, COURT STATISTICS REPORTS, STATEWIDE CASELOAD TRENDS (2008), available at http://www.courtinfo.ca.gov/reference/documents/csr2008.pdf. (107.) Note: all tests were not significant at p>.05. (108.) Strictly speaking, our sample was not random. It was a convenience sample dictated by which states compile acquittal rate data. Nonetheless, we think it is still appropriate to treat the sample as random because we did not exercise any choice in selecting which states would supply the sample data. (109.) Had we wanted to use data from earlier than 1997, we would have had to exclude the State of New York, which accounts for a large amount of data. (110.) See HALTOM & MCCANN, supra note 45. (111.) Id. at 67. (112.) Id. at 148; see also id. at 100, 109.
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203 (113.) Id. at 148. (114.) See id. at 165-66; Daniel S. Bailis & Robert J. MacCoun, Estimating Liability Risks with the Media as Your Guide: A Content Analysis of Media Coverage of Tort Litigation, 20 LAW & HUM. BEHAV. 419, 425-26 (1996); Steven Garber & Anthony G. Bower, Newspaper Coverage of Automotive Product Liability Verdicts, 33 LAW & SOC'Y REV. 93 (1999). (115.) See Stephen S. Meinhold & David W. Neubauer, Exploring Attitudes About the Litigation Explosion, 22 JUST. SYS. J. 105 (2001); cf. Edith Greene et al., Jurors' Attitudes About Civil Litigation and the Size of Damage Awards, 40 AM. U. L. REV. 805, 814, 817 (1991) (finding a high degree of belief in a "litigation explosion" but a lack of belief in an insurance "crisis"). (116.) See, e.g., Galanter, Decline of Trials, supra note 43, at 1267-68. (117.) Elizabeth Loftus, Insurance Advertising and Jury Awards, 65 A.B.A. J. 68, 70 (1979). (118.) Valerie P. Hans & William S. Lofquist, Jurors' Judgments of Business Liability in Tort Cases: Implications for the Litigation Explosion Debate, 26 LAW & SOC'Y REV. 85, 93-97 (1992). (119.) Id. at97. (120.) Id. (121.) Edith Greene et al., supra note 115, at 816-17. (122.) Id. at 808-09 (citing S. Daniels, Civil Juries, Civil Jury Verdict Reporters, and the Going Rate (paper presented at the annual meeting of the Law and Society Association in Chicago, 1986)); see also H. Ross, SETTLED OUT OF COURT: THE SOCIAL PROGRESS OF INSURANCE CLAIMS 112-16 (1970). (123.) Jennifer K. Robbennolt & Christina A. Studebaker, News Media Reporting on Civil Litigation and Its Influence on Civil Justice Decision Making, 27 LAW & HUM. BEHAV. 5, 23 (2003). (124.) Elizabeth Harvey & Linda Derksen, The CSI Effect: Science Fiction or Social Fact?, in DECONSTRUCTING THE CSI EFFECT: PRODUCING NARRATIVES OF JUSTICE AND SCIENCE, PRODUCING TELEVISION DRAMA 18, 25-26 (Valerie Marie Johnson & Michelle Byers eds., 2009). (125.) We eliminated academic articles because we were interested in studying the characterization of the CSI effect in popular media, not scholarly discourse. (126.) HALTOM & MCCANN, supra note 45, at 203. (127.) See generally Lisbeth Clausen, Localizing the Global: "Domestication" Processes in International News Production, 26 MEDIA CULTURE & SOC'Y 25 (2004) (describing a similar process of "news domestication"). (128.) Cole & Dioso-Villa, supra note 5, at 444. (129.) One article mentioned what we call the "Hollywood effect." This held that CSI had induced forensic scientists to forego their careers in law enforcement in order to work as consultants in the entertainment industry. Richard Willing, Medium Sends Message to U.S. Court System: 'CSI' Effect Has Juries Wanting More Evidence, CHI. SUN-TIMES, Aug. 15, 2004, at 1. Another article mentioned what we call the "Joseph Smith effect." The claim here was that CSI had promulgated the notion that "DNA proves pretty much everything" and thus undermined faith in the teachings of the Book of Mormon by contradicting claims that Native Americans were descendants of the lost tribes of Israel. Carrie A. Moore, DNA Claims Rebutted on Book of Mormon, DESERET MORNING NEWS, Oct. 23, 2007. For a fascinating account of this controversy, see generally Gary Edmond & Simon Southerton, Almost Apostasy: Human DNA Genealogy and the Latter-day Saints (unpublished manuscript on file with author). (130.) See, e.g., The Jury Is In: TV Doesn't Sway Justice, GRAND RAPIDS PRESS, May 21, 2007, at A3 [hereinafter The Jury Is In].
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204 (131.) See Harvey & Derksen, supra note 124, at 25-26. (132.) See id. at 28. (133.) HALTOM & MCCANN, supra note 45, at 148 (internal quotation marks omitted). (134.) See Podlas, supra note 33, at 452; Tyler, supra note 33, at 1063. (135.) See, e.g., Walt Belcher, College Teacher Finds Some Evidence Debunking Alleged 'CSI Effect' on Verdicts, TAMPA TRIB., Feb. 16, 2006, at 4; The Jury Is In, supra note 130. (136.) Susan Clairmont, Public Is a Victim of 'The CSI Effect', HAMILTON SPECTATOR, Sept. 29, 2005, at A01. (137.) Galanter, Reading the Landscapes, supra note 39, at 65. (138.) Clairmont, supra note 136. (139.) Carlene Hempel, TV's Whodunit Effect. Police Dramas Are Having an Unexpected Impact in the Real World: The Public Thinks Every Crime Can be Solved, and Solved Now--Just Like on Television, BOSTON GLOBE, Feb. 9, 2003, (Magazine), at 13. (140.) Roane, supra note 16, at 48. (141.) Sonya Neufeld, Sorting Fact from Fiction, HOBART MERCURY, June 25, 2005, at B07. (142.) See Robbennolt & Studebaker, supra note 123, at 22. (143.) See Rhode, supra note 43, at 472.
(144.) Hans & Lofquist, supra note 118, at 111-12. (145.) See id. at 112. (146.) See, e.g., Robbennolt & Studebaker, supra note 123, at 15. (147.) It should also be noted that judges who believe these things might also be unconsciously more sympathetic to the prosecution. Although some judges have evinced skepticism, e.g., Shelton et al., supra note 33, our data set contains numerous statements by judges attesting to the existence of the strong prosecutor's CSI effect. See, e.g., Maggi Newhouse, Real-Life Investigators Indict 'CSI' for Perjury, PITTSBURGH TRIB.-REV., Apr. 13, 2005; Dana Sullivan, Get Set for Jurors with CSI IQs, N.J. LAWYER, June 13, 2005, at 1. (148.) Okita, supra note 35, at 106. (149.) See CSI: MARICOPA COUNTY, supra note 31, at 11. (150.) See Harvey & Derksen, supra note 124, at 18. (151.) See Joshua D. Kelner, The Anatomy of an Image: Unpacking the Case for Tort Reform, 31 U. DAYTON L. REV. 243, 246 (2006) (noting that "[f]irst, a litany of scholars has adeptly refuted the arguments propounded by the proponents of tort reform" and "[s]econd, though with less frequency, scholars have devoted attention to
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205 understanding how the critique of the legal system functions, on both logical and symbolic levels"). (152.) The work of Professor Galanter is a prime example. See, e.g., Galanter, Decline of Trials, supra note 43; Galanter, Reading the Landscape, supra note 39. (153.) Saks, supra note 98, at 74. (154.) See Diamond, supra note 72, at 144; Kelner, supra note 151, at 266. (155.) See Galanter, Reading the Landscape, supra note 39, at 66; see also Hayden, supra note 70, at 110. (156.) Galanter, Decline of Trials, supra note 43, at 1269. (157.) Galanter, Reading the Landscape, supra note 39, at 6. (158.) See TAL GOLAN, LAWS OF MEN AND LAWS OF NATURE: THE HISTORY OF SCIENTIFIC EXPERT TESTIMONY IN ENGLAND AND AMERICA 263 (2004) (recounting law's "two centuries of growing ... dependence on, and frustration with, science"). (159.) This notion is a theme in, for example, KEN ALDER, THE LIE DETECTORS: THE HISTORY OF AN AMERICAN OBSESSION (2007); JAY D. ARONSON, GENETIC WITNESS: SCIENCE, LAW, AND CONTROVERSY IN THE MAKING OF DNA PROFILING (2007); MICHAEL LYNCH ET AL., TRUTH MACHINE: THE CONTENTIOUS HISTORY OF DNA FINGERPRINTING (2008); Jennifer L. Mnookin, Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence, 52 VILL. L. REV. 763 (2007). (160.) See Cole & Dioso-Villa, supra note 5, at 468-69. Simon A. Cole, Associate Professor of Criminology, Law & Society, University of California, Irvine; Ph.D. (science & technology studies), Cornell University; A.B., Princeton University. Rachel Dioso-Villa, Doctoral candidate, Criminology, Law & Society, University of California, Irvine; M.A. (criminology), University of Toronto; B.Sc., University of Toronto. For research assistance, we are grateful to Kasey Perry and Nicole Bucur. For assistance obtaining acquittal rate data, we are grateful to Thomas Keller and Sharon Iwai of the State of Hawai'i Judiciary, Patrick Tamer of the North Carolina Administrative Office of the Courts, and Christine A. Loso of the Vermont Court Administrators Office. We are also grateful for the assistance of Charles Loeffler, Jennifer Christian, Richard McCleary, John R. Hipp, and Elizabeth Loftus and for the thorough editing and convening of a symposium by the Stanford Law Review staff. This project was funded in part by the National Science Foundation (Award #SES0347305). Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of the National Science Foundation.
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Part III
Law and Crime
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6 Crime Data The Federal Bureau of Investigation
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reliminary statistics for 2008 indicate that 41 law enforcement officers were feloniously killed in the line of duty, 17 fewer than in 2007. By region, the South lost 20 officers; the Midwest, 9; the West, 9; and the Northeast, 3. Of these felonious deaths, 10 occurred during arrest situations, 8 in traffic pursuits and stops, 7 during tactical situations, 6 while investigating suspicious persons and circumstances, 6 in ambush situations, 2 during investigative activities, 1 while responding to a disturbance call, and 1 while handling a prisoner. Firearms were used in 35 of the slayings: handguns in 25, rifles in 5, shotguns in 4, and an unknown type of firearm in 1. Four officers were killed by vehicles, and two died from injuries as a result of a bomb. At the time of their deaths, 30 of the 41 law enforcement officers were wearing body armor. Ten officers fired their weapons, and four attempted to do so. Six officers had their weapons stolen, and four were killed with their own weapons. The 41 law enforcement officers were killed in 38 separate incidents, and all have been cleared by arrest or exceptional means. In 2008, the number of officers killed in accidents also dropped from the previous year. Sixty-seven officers were accidentally killed in 67 separate incidents while performing their duties. This represents 16 fewer officers killed in accidents than in 2007. _______________________________________________________
Crime data. The FBI Law Enforcement Bulletin, July 2009 volume 78 issue 7 p. 10.
209
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210 The FBI will release final statistics in the Uniform Crime Reporting Program's annual report, Law Enforcement Officers Killed and Assaulted. This document will appear in the fall of 2009 on the FBI's Web site, http://www.fbi.gov.
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7 Internet Fraud on the Rise: Spike in Internet Crime Complaints Concerns U.S. Law Enforcement Cynthia G. Wagner
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s more of our lives are conducted online, including our financial lives, the risk of falling prey to online crime also grows. In 2008, a record-setting 275,284 complaints were filed, according to the latest report of the FBI Internet Crime Complaint Center. Crimes, both fraudulent and non-fraudulent, increased by more than 32% in the United States between 2004 and 2008, and the amount of money reported lost annually skyrocketed from $68 million to $265 million. Fraud complaints include auction fraud, credit and debit card frauds, and nondelivery of goods or services. Nonfraud complaints include computer intrusions (hacking/cracking), spam, and child pornography. One of the biggest stories of 2008 was the popularity of fraudulent FBI e-mails used in identity-theft schemes, the report notes. Another development was the increasingly personalized nature of the contacts to gain trust of the victims, allowing fraudsters to take over unsecured e-mail accounts. _______________________________________________________ Cynthia G. Wagner. "Internet Fraud on the Rise: Spike in Internet Crime Complaints Concerns U.S. Law Enforcement." Originally published in The Futurist. Used with permission from the World Future Society, 7910 Woodmont Avenue, Suite 450, Bethesda, Maryland 20814 USA. Telephone: 301-656-8274; www.wfs.org
211
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212 Despite the global nature of the Internet, more than 66% of the perpetrators of Internet crimes were from the United States, as were 92% of the complaints that the organization received. Predicting where, when, how, and whom Internet crimes and frauds may strike is impeded by the many variables of individual Internet usage--more time spent using the Internet increases exposure, for instance, but also increases a user's experience and Net savvy. The report concludes that the best crime-fighting strategy is proactive prevention measures. Users need to educate themselves about Internet crimes and fraud schemes, and be more aware of their own risky behaviors. Tips offered by the report for preventing Internet crimes include: * In Internet auctions, learn as much about the seller as you can and see what actions the auction site will take in the event of a problem. * Obtain a physical address for the seller, not just a post office box. * Be particularly cautious in responding to unsolicited e-mail offers. * Make payment by credit cards, because those payments can be disputed if something goes wrong. An other option is an escrow service, but be sure to investigate that service, too. * To avoid identity theft, guard your personal information, especially your Social Security number; check your credit reports; and destroy documents before discarding them if they contain critical information such as account numbers. Victims also need to overcome any embarrassment they may have about reporting such crimes, because more information on more Internet users' experiences enables law enforcement officials to better see trends in the criminal uses of the Internet.
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8 Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism”? Matthew Haist
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ecent scholarship on theories of criminal punishment has increasingly focused on retributivist justifications for punishment. While within this retributivist camp opinions differ as to the particulars of such policies, there is general agreement that criminals getting what they deserve, that is, their "just deserts," should be the underlying goal and rationale of the criminal justice system. From this point, these scholars argue that a criminal should receive punishment according to what the criminal deserves. Some forms of retributivism, however, have attempted to draw support from other theories of criminal punishment. By borrowing elements of other theories, specifically utilitarian theories, scholars have attempted to bolster support for retributivist policies. A particularly well received form of retributivism and the focus of this Comment, "limiting retributivism," argues that a range of punishments will fall within the criminal's just deserts, and that utilitarian concepts can alter the punishment within the aforementioned range. This Comment scrutinizes limiting retributivism's appeal to utilitarian _______________________________________________________
Matthew Haist. "Deterrence an a Sea of ‘Just Deserts’: Are Utilitarian Goals Achievable an a World of ‘Limiting Retributivism’?" Journal of Criminal Law and Criminology, Summer 2009 volume 99 issue 3 p. 789-822. Copyright © 2009 Northwestern University, School of Law. Reprinted by special permission of Northwestern University School of Law.
213
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214 theories of punishment to determine if such a system of punishment can achieve many of the outcomes sought by utilitarian theories, specifically deterrence. This Comment argues that the answer to this question, while complex, is ultimately no. I begin my inquiry by expounding on the history of retributive and utilitarian theories of punishment, and the specific concepts of limiting retributivism and what "factors" exist in determining a criminal's just deserts. Then, I shift focus and analyze the practical effects of these factors in light of recent behavioral psychology and behavioral law and economics research on cognitive biases. Subsequently, I describe why these insights into human psychology and the effects of cognitive biases, as applied to the retributive factors in determining just deserts, will actually lead to under-deterrence of criminal activity. I develop this point by acknowledging that while this research also questions utilitarianism's proposal for deterrence through ex ante incentives, the underdeterrence effect of limiting retributivism is far higher than that of utilitarianism. I also highlight why such under-deterrence is fundamentally contrary to utilitarian goals of punishment. I end by arguing that, given the insights of behavioral psychology, utilitarian goals of punishment are not sufficiently accomplished under limiting retributivism. A more pure form of utilitarianism is required to achieve utilitarian goals with hard and fast criminal rules with no appeal to or use of other theories of punishment. I also propose that utilitarians, in collaboration with behavioral law and economics scholars, can further understanding of how the criminal law may incorporate behavioral psychology insights to create more effective ex ante incentives. I. INTRODUCTION The question of why we should punish criminals is age-old, and elicits many more answers than the lay person would imagine. Punishing what society deems wrong or unwise seems to be an integral part of any civilization. (1) Specific guidelines for punishment date back to Hammurabi's Code, (2) while theoretical and philosophical justifications for punishment can be seen as early as Aristotle. (3) Simply put, criminal justice is, and has always been, at the center of public concern, so much so that modern societies often view and compare themselves to one another through the lens of what we now call criminal justice. (4) Given the importance of criminal justice to obtaining a safe and prosperous society, recent developments in the field must constantly be monitored to ensure that we operate under a theory of criminal punishment that either is
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215 optimally in line with our concepts of morality or best serves to provide the needed security. (5) Fortunately, scholars have spent much time and effort-increasingly so within the past twenty to thirty years--debating this issue. (6) These debates affect our view of which system of criminal punishment is ideal, and demonstrate that the discussion is neverending. (7) Criminal justice has evolved over the millennia and will continue to do so over the next. Under Hammurabi's Code, the punishment for almost any crime was death. (8) Under the Qur'an, crimes were given specific punishments, yet required a particular level of proof to be established to find guilt. (9) English common law guaranteed a criminal defendant a right to trial by his or her peers. (10) And our founding fathers added the right against selfincrimination and the prohibition of cruel and unusual punishment, while preserving the English common law right to trial by jury. (11) This evolution of criminal procedures and customs has been accompanied by rigorous academic debate over the goals and rationales of criminal punishment. (12) The progression can be seen from its beginning under Aristotle, (13) to the nineteenth century works of Immanuel Kant (14) and Jeremy Bentham, (15) and into the twentieth and now twenty-first centuries. (16) Today, the debate largely involves three theories of criminal punishment: utilitarianism, retributivism, and denunciation--although denunciation tends to take a back seat to the first two frameworks. (17) Some modern scholars have attempted to form theories of punishment by mixing the three concepts into a single theory of punishment, or have argued in favor of one theory through appeals to another. (18) A common argument is to support a retributivist system of punishment, but with attempts to appeal to certain utilitarian concerns. (19) The most widely accepted form of this theory is Norval Morris's "limiting retributivism." (20) This Comment attempts to further the debate over theories of criminal punishment by investigating whether such retributivist appeals to utilitarianism are valid and can achieve utilitarian goals. Specifically, this Comment seeks to determine whether Morris's limiting retributivism theory, and its appeal to utilitarian concepts, can achieve utilitarian goals. I undertake to answer this question in five parts. Part II presents a brief historical overview of theories of criminal punishment in order to provide the reader with sufficient background and context to understand the recent movements in this debate. Part III then describes the current movement of scholarship towards the retributivist camp, the several factors that potentially determine the
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216 severity of a criminal's punishment under a retributive theory of punishment, and, finally, this camp's attempted appeal to utilitarianism. Part IV describes the concept of limiting retributivism in greater detail. Part V describes why limiting retributivism's appeal to utilitarianism cannot succeed. In doing so, it utilizes recent behavioral psychology research to demonstrate how the structure of retributivist punishment leads to under-deterrence of crime. Specifically, it highlights how the factors involved in determining punishment under retributivism are affected by cognitive biases. Part VI then acknowledges that the same behavioral psychology research challenges utilitarianism's attempt to create sufficient and optimal ex ante incentives. However, while utilitarianism without any adjustment for cognitive biases leads to a one-time underdeterrent effect, limiting retributivism essentially creates a "double" underdeterrent effect. Because of this double effect, limiting retributivism's appeal to utilitarianism fails. Thus, based on this behavioral psychology research, utilitarian goals of punishment, and deterrence in particular, are best served through a purely utilitarian theory of punishment. Finally, this Part provides insights into how utilitarian punishment may be improved through the use of behavioral psychology research. II. BACKGROUND Retributive and utilitarian theories of criminal punishment are the two predominant theories of punishment discussed today. (21) The two theories are often thought of as the two opposing concepts of what criminal punishment should be. (22) The debate between the two camps is by no means a recent phenomenon. It has evolved over hundreds of years and will probably continue to advance over the next hundred years. (23) But before we address the history and development of this debate, it is necessary here to give a quick synopsis of each theory. A. RETRIBUTIVISM Retributivism posits that punishment is necessary because society must engage in some form of retribution against those who violate its laws. (24) Its central tenet defines punishment as society's response to a criminal action that has occurred in the past. (25) The value of the punishment of the crime is in the punishment itself; (26) when someone has committed a crime, they simply deserve to be punished. (27) "Punishment that gives an offender what he or she deserves for a past crime is a valuable end in itself and needs no further justification." (28) Furthermore, society is morally obligated to punish wrongdoers. (29)
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217 B. UTILITARIANISM Utilitarian theories of criminal punishment stem from general utilitarian concepts. Joshua Dressier suggests that "[t]he purpose of all laws is to maximize the net happiness of society." (30) Therefore, punishment should only be administered if it results in an overall benefit to society. (31) Only when punishment leads to more aggregate pleasure than aggregate pain is punishment justified. (32) As John Robinson and John Darley argue, "Punishment for a past offense is [only] justified by the future benefits it provides." (33) In this manner, utilitarian theories are sometimes referred to as "consequentialist" because they are concerned solely with how punishment will affect future actions and with society's future aggregate happiness. (34) Punishment can do this in two main ways. First, it can deter future criminals from committing crimes; second, it can either incapacitate criminals or rehabilitate them so that they cannot or will not engage in future crimes. (35) C. HISTORY The history of these two theories of punishment is extensive. Each has enjoyed the support of legal scholars and intellectual giants, and each has had its periods of dominance. (36) While the specifics of the theories may have changed over the years, their foundations have remained constant. Retributivism has always been concerned with punishing criminals as simple punishment for their crimes, (37) while utilitarianism has valued the punishment of criminals because of the benefit society may reap as a result of such punishment. (38) Retributivism can trace its origins far into the past. (39) From the time of antiquity through the middle-ages, many criminal justice systems were based largely on the concept of retributivism-the criminal getting what he or she deserved. (40) Indeed, retributivism can be seen in biblical and Talmudic forms of justice. (41) The existence of early forms of retributivism is not surprising when one considers the emotional aspects of this theory-punishment based in large part on a feeling that the perpetrator deserves the punishment. (42) But retributivism was not solely a legal or emotional justification for punishment. It was also justified on moral and philosophical grounds. (43) Arguing in support of these justifications for punishment, Immanuel Kant wrote that "[p]unishment can never be administered merely as a means for promoting another Good...." (44) On the contrary, "Punishment ought to be pronounced over all
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218 criminals proportionate to their internal wickedness." (45) In this sense retributive punishment could be thought of as a moral or ideological and philosophical need to condemn wrongdoers. Hegel provided an even more comprehensive justification of retributivism. (46) He concluded that crimes needed to be negated in order to reestablish equivalence in society, and that negation could only be achieved through punishment. (47) Retribution was the link between the crime and the punishment. (48) Utilitarian theories of punishment, while perhaps not as old as retributivism, may also date back several millennia. (49) While early retributivism may have called for a thief to have his or her hand cut off (also potentially a utilitarian response), it is possible that a decision to imprison the thief instead of, or in addition to, cutting off his or her hand reflected utilitarian values. After all, the utilitarian principle of incapacitation asserts that while in prison, the thief is no threat. Seen in this light, utilitarian concepts may date back almost to the beginnings of civilization. Indeed, utilitarian justifications for punishment can be seen as early as in the work of Plato. In Protagoras, Plato argued that punishment for punishment's sake was "taking blind vengeance like a beast." (50) He continued, "No, punishment is not inflicted by a rational man for the sake of the crime that has been committed--after all one cannot undo what is past...." (51) The medieval and early modern eras witnessed the continued development of utilitarian thought. St. Thomas Aquinas argued that the purpose of punishment required that some good emerge from the punishment. (52) Later in the millennium, Thomas Hobbes indicated support for utilitarian forms and rationales of punishment. He argued that society should be "forbidden to inflict punishment with any other design[], than for the correction of the offender, or direction of others." (53) The utilitarian rationale in this statement appears undeniable. Yet it was not until the writings of Jeremy Bentham in the eighteenth and nineteenth centuries that utilitarianism was most clearly articulated. (54) Although it was John Stewart Mill who actually coined the term utilitarianism to describe the doctrine, (55) it was Jeremy Bentham who first proposed his theory that society's goal should be to maximize utility, that is, to maximize the amount of aggregate pleasure and minimize the amount of aggregate pain in society. (56) Criminal punishment, therefore, was only acceptable if it increased future pleasure or decreased future pain. Using his theory of utility, Bentham was the first to clearly argue that prevention of future crimes should be the primary goal of punishment. "General prevention ought to be the chief end of punishment, as it is its real
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219 justification." (57) Because criminal acts decrease aggregate happiness in society, prevention of such acts increases aggregate happiness. The influence of Bentham's and others' works on utilitarianism and their influences on the criminal justice system cannot be overstated. Bentham, in particular, accurately touched on all the issues mentioned by previous academics and philosophers, and weaved those concerns into a comprehensive and conclusive theory that could be applied to life in general. (58) Following Bentham, we see the emergence of applications of utilitarian principles of punishment by prominent legal scholars. (59) Several famous American scholars and judges adopted and further developed utilitarian theories of punishment. Oliver Wendall Holmes, Jr., for example, wrote in 1881 that "prevention would ... seem to be the chief and only universal purpose of punishment." (60) He openly supported deterrence as a chief principle of punishment: If I were having a philosophical talk with a man I was going to have hanged.... should say, I don't doubt that your act was inevitable for you but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like. But the law must keep its promises. (61) John H. Wigmore described deterrence as "the kingpin of the criminal law." (62) As the twentieth century progressed, the movement towards utilitarian theories of punishment grew in its influence. (63) Even the Supreme Court appeared to have found the virtues of the philosophy. In 1949, the Court held that "[r]etribution is no longer the dominant objective of the criminal law." (64) Three years later the Court spoke of the "tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation of public prosecution." (65) The latter half of the twentieth century saw a continued development of utilitarian principles that nicely dovetailed into the philosophy of the emerging law and economics movement. (66) This movement sought to craft legal rules that created ex ante incentives that would lead to efficient outcomes in a variety of situations. (67) The utilitarian concepts of using criminal punishments to decrease the amount of future crime through deterrence played right into the law and economics movement and its use of ex ante incentives to create optimal care and activity levels. (68) By creating a bright-line rule of harsh punishments, potential criminals are incentivized not to commit a crime. (69)
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220 As discussed above, during this period incapacitation and deterrence became important goals of the criminal justice system. (70) Professor Albert Alschuler highlights the use of law-andeconomics-based deterrence policies during the period with the example of federal income tax evasion penalties. (71) Even though physically stealing $100,000, for example, from the government would appear to most of us as worse than avoiding paying $100,000 worth of income tax, income tax evasion was punished much more severely than outright theft. (72) The justification was that tax evaders were caught less often than thieves; therefore, harsher penalties were necessary to create a sufficient deterrent effect. (73) As the twentieth century wore on, utilitarian justifications for punishment seemed to be gaining a foothold in American criminal jurisprudence. (74) Yet this blossoming of acceptance of utilitarian concepts of punishment was not to last. A "renaissance" of retributivist thought was soon to challenge utilitarian theory. (75) This recent movement towards retributivism as the predominant school of American criminal jurisprudence is discussed in the next Part. III. MODERN RETRIBUTIVISM As recently as the middle to late twentieth century, many scholars and judges were still under the assumption that retributive theories of punishment had either been thoroughly defeated or served little to no purpose in the criminal justice system. (76) In 1972, Justice Thurgood Marshall declared that "no one has ever seriously advanced retribution as a legitimate goal of our society." (77) A criminal law scholar in the 1950s claimed that "[p]unishment as retribution belongs to a penal philosophy that is archaic and discredited by history." (78) Even the drafters of the Model Penal Code seemed to virtually ignore the role of retributivism in criminal punishment. (79) The 1962 draft included retribution as a limiting principle while seemingly including every other plausible justification as a legitimate and primary rationale and purpose for punishment. (80) In such a hostile atmosphere, a reemergence of retributivism seemed highly unlikely; yet, exactly such a reemergence has occurred, and with great strength and influence. (81) Over the last quarter of the twentieth century and into the early part of the twenty-first century, retributivism has reestablished itself as the dominant theory behind criminal justice. (82) That this revolution in thought about criminal punishment has occurred is disputed by few scholars (83) and can be seen in a plethora of examples. (84) One scholar noted that "[t]here has been a steady rise
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221 in the popularity of retributivism over the last decade, which is surprising given its near death in the 1950s and 1960s." (85) Such sentiments are seen through the works of several other criminal law scholars. (86) These scholarly insights about the reemergence of retributivism were based on strong examples in a number of contexts. In Spaziano v. Florida, the United States Supreme Court acknowledged the role of retribution in criminal justice. (87) The Court stated that retribution "is an element of all punishments society imposes." (88) State courts, too, adopted a more retributivist slant when interpreting criminal punishment statutes. (89) Additionally, several states adopted retributivist principles of punishment into their penal codes. (90) Pennsylvania's penal code went so far as openly advocating retribution as the primary purpose of criminal punishment: "The sentencing guidelines provide sanctions proportionate to the severity of the crime [that] ... establishes a sentencing system with a primary focus on retribution...." (91) While the specific event that triggered the reemergence of retributivism is highly debated, the reasons for its reemergence are more agreed upon. (92) Although several reasons existed for the growth, three are predominant. First, retributivism altered its rhetoric away from talk of retribution and towards criminals getting their just deserts. (93) In other words, retributivism no longer spoke of victims or society taking vengeance on the criminal, but instead spoke of the criminal getting what he or she deserved for committing the crime. Second, retributivism received a facelift in the form of much scholarly development of its concepts and philosophical arguments and justifications. (94) This development helped modernize retributivist thought and moved retributivism away from its archaic image of an "eye for an eye" punishment. (95) Lastly, many retributivists developed and adopted new systems of retributivism that attempted to appeal to other theories of punishment. (96) For purposes of this Comment, I focus on limiting retributivism's appeal to utilitarianism, and will now discuss the three developments in great detail. The rhetoric of retributivism had always been one of its weakest points. (97) A system that speaks of the basis of punishment in terms of vengeance is bound to evoke bad connotations similar to reactions towards vigilante justice. (98) This rhetoric leads to retributivism being "portray[ed] ... as glorified vengeance, [a] celebrat[ed] and codif[ied] ... brutal and inhumane impulse to harm those who harm US." (99) In response to these negative images associated with the term retribution, retributivism scholars have
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222 adopted less severe and more egalitarian-sounding rhetoric. (100) The newly chosen motto was "just deserts." When a person commits a crime, his or her actions deserve punishment in accordance with the severity of the crime and his or her moral culpability. (101) This change in rhetoric has largely achieved its goals. (102) "The emphasis on desert seems to have helped disassociate retribution from revenge, for it allows punishment theorists to draw on a concept that has more neutral philosophical status." (103) Thus, instead of being punished because of revenge or hatred, the criminal receives his or her just deserts as punishment. (104) This change in rhetoric accompanied a change in retributivism's underlying philosophy as well. (105) While opinions differ within the philosophy of modern retributivism, there is consistency in the emergence of the use of egalitarian principles within those theories. (106) Herbert Morris was one of the pioneering supporters of the new theoretical basis for retributivism. (107) Morris argued that the law should create equal rights and responsibilities for all members of society. (108) When an individual commits a crime, the perpetrator violates this equal distribution. (109) The criminal receives the benefit of others not committing crimes, but violates his responsibility not to commit crimes against others. (110) Punishment, therefore, is simply society restoring the balances of benefits and burdens of the law. (111) Other retributivists consider a criminal act to consist of the criminal declaring he is more important than the victim. (112) By delivering just deserts as punishment, society signals that the criminal is not, in fact, more valuable than the victim, demonstrating the victim's equality through the punishment of the criminal. (113) Lastly, retributivists attempted to reconcile retributivism with utilitarianism to gain adherents among traditional supporters of utilitarian theories of punishment. (114) While, historically, retributivism and utilitarianism were viewed as diametrically opposed and mutually exclusive theories of punishment, late twentieth century scholars were able to create a system that bridged the gap. (115) The most influential of these scholars was Norval Morris, not to be confused with Herbert Morris. (116) Morris established the limiting retributivism model of criminal punishment. (117) Limiting retributivism did not follow the typical retributivist concept that punishment should be based and predicated on a criminal getting his or her just deserts. (118) Instead, desert and moral blameworthiness served as a limiting principle, "a principle that, though it would rarely tell us the exact sanction to be imposed ... would nevertheless
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223 give us the outer limits of leniency and severity which should not be excluded." (119) Despite the fact that Morris used retributivism as a limiting principle, his theory can still be seen as located squarely within the retributivist camp of theories of punishment. Morris acknowledged the fundamental difficulties in determining with precision a prisoner's just deserts. Instead, retributivism would often lead to a range of possible penalties. (120) While we can be sure that some penalty is either too little or too much, we cannot always know exactly what the correct retributivist penalty should be. (121) This leads to Morris's use of retributivism as a limiting principle instead of a guiding principle, as mentioned above. (122) Within the range of penalties dictated by retributivism's limiting principles, other theories of criminal punishment are utilized to increase or decrease the sentence to achieve those theories' goals. (123) One such theory, supported strongly by Morris himself, was "parsimony," which essentially held that a criminal's punishment should be no more severe than needed. (124) This served as a further limiting principle that had to be addressed before any other considerations could result in an increase or decrease in punishment within the acceptable range. For this Comment, however, the most important theory to which Morris's limited retributivism attempted to appeal was utilitarianism. Limiting retributivism appealed to utilitarian concerns in two main ways. First, and of lesser concern, it created increased uniformity in sentences, which was believed to be of utilitarian value. (125) More uniform sentences would create a clear indication of the level of punishment that a criminal would receive and thus was thought to have a deterrent effect. (126) Second, and more importantly, within sentence parameters a judge could factor in utilitarian concerns such as incapacitation or deterrence to increase or decrease the severity of the sentence. (127) Thus, "desert permits the reasonable pursuit of utilitarian aims even as it forestalls the dangers of excessive utilitarianism." (128) In light of these developments, Norval Morris's theory of limiting retributivism seemed to succeed at bridging the gap between retributivism and utilitarianism. As a result of its ability to appeal to both retributivism and utilitarianism, limiting retributivism became a widely accepted theory of criminal punishment. (129) Some sentencing guidelines, where theories of criminal punishment are put to practice, are evidence of such acceptance. Some of the guidelines, Minnesota's for example, seem to be adopting limiting retributivism as their guiding principles. (130)
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224 IV. LIMITING RETRIBUTIVISM Because of its extreme success, (131) limiting retributivism is the model of retributivism I will focus on in the remaining portions of this Comment. Here, a more detailed description of limiting retributivism is necessary to highlight how it functions in practice, how it specifically appeals to utilitarianism, and what factors are involved in determining the upper and lower bounds of acceptable levels of punishment. As previously mentioned, limiting retributivism seeks to create a system of criminal punishment in which retributivist principles determine upper and lower limits of a criminal's potential range of punishment. (132) The criminal's culpability and moral blameworthiness are the relevant factors in assessing the upper and lower limits of punishment. (133) While determining an appropriate, specific punishment may create difficulties for scholars and practitioners, creating a range of possible punishments is easier, although not without its own difficulties. Professor Martin Redish claims that when interpreting constitutional text, you may not always know when your interpretation is the correct one, but you do know when it is the wrong one. (134) The text provides a range of possible interpretations, and it should be quite clear when you have exceeded that range. (135) This same idea can apply to creating an acceptable range of punishments for a criminal. You cannot always know if a certain punishment is correct, but you can know if it is either too severe or too lenient. If a criminal steals a car, we intuitively know that a one-day prison sentence is far too low, while a fifty-year sentence is far too high. Yet we may not know if a ten-year or a fifteen-year sentence is more appropriate. (136) While upper and lower limits can be very roughly determined through intuitive retributivist beliefs given a specific crime, how do we determine different ranges of punishments from one type of crime to another? In other words, how do limiting retributivists determine that an appropriate range of punishments for theft is one to five years, for example, while an appropriate range for rape is ten to twenty? The answer is much the same as how limiting retributivists determine the appropriate range for a single crime: there are intuitive sensibilities about punishments. There is a general belief that some crimes are more morally reprehensible than others. (137) People tend to agree that rape is a far more reprehensible crime than mere theft. These general beliefs about the varying degrees of reprehensibility of crimes are supported by empirical evidence. (138) Almost all people, across all groups, when asked to rank crimes from
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225 least-worst to worst, rank them in similar manners. (139) This evidence bolsters limiting retributivism' s appeal to intuition to create upper and lower limits by demonstrating that such intuition is inherent in human nature and, therefore, in some sense, not arbitrary. Although the fact that differing crimes receive different levels of punishment seems obvious, it is still important to note that the range of punishment from crime A to crime B is justified in a similar manner as that of ranges of potential punishments within a single type of crime. Both differences are based on moral culpability. This fact can be seen in the Model Penal Code, which ranks crimes and states of required knowledge, implying differing levels of moral culpability for each mens rea. (140) Once we have accepted that limiting retributivism can successfully create a range of acceptable punishments, we are faced with how utilitarian principles may be met and goals achieved within those ranges. Here, utilitarian concepts such as incapacitation or deterrence are utilized. (141) The judge or sentencing guidelines determine the range of punishments available for certain crimes, given the type of crime and the criminal's culpability and moral blameworthiness, and then utilitarian concerns are used to determine the adequate punishment within that range. (142) According to supporters of limiting retributivism, these adoptions of utilitarian principles can have demonstrable effects and thus serve utilitarian purposes. (143) Limiting retributivism's use of utilitarian principles can serve utilitarianism's twin goals of incapacitation and deterrence; examples of each follow. Suppose a person has robbed a grocery store. The upper and lower bounds for this theft are one to ten years. The trial judge discovers that this individual has been previously convicted of theft, assault, and attempted robbery, and received jail terms of one year, six months, and one year, respectively. Given this individual's demonstrated propensity to commit crime, utilitarians consider this criminal a threat to society--that is to say, the criminal's demonstrated propensity to commit crimes indicates he is likely to commit future crimes and thus is bound to cause pain to others. Therefore, society will be better off if this individual is put in jail for a long time where he cannot hurt others. Thus, with these considerations in mind, a judge may sentence this individual to ten years in prison, the maximum allowed. This same logic is behind the "three strikes and you're out" rule of many state penal codes. (144) This example is a clear demonstration of an appeal to incapacitation principles of utilitarianism.
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226 Now let us consider another hypothetical. An individual is convicted of attempted rape. The range of acceptable punishments for attempted rape is two to twenty years. Let us also assume that this crime was committed in a state or county where it was known that a very low percentage of rape or attempted rape victims took actions against their perpetrators and pursued criminal charges. In this regard, a very low percentage of people committing rape or attempted rape end up being charged with the crime, and an even lower percentage will be found guilty and sentenced to a term of imprisonment. In light of this low rate, a very high level of punishment may be required to create sufficiently strong incentives that will convince potential rapists that they should not commit the crime. Simple economic calculations support this statement. If there is a 10% chance of being found guilty and an expected jail time of five years, then the expected harm to the rapist is a six-month jail sentence. On the other hand, if the expected jail time is twenty years, the expected harm is a two-year sentence. According to simple law and economic principles, the higher expected harm will create greater incentives not to commit the crime. (145) Given this information, the judge decides to award twenty years in an attempt to demonstrate to the community that one found guilty of attempted rape will face twenty years imprisonment. (146) This decision to sentence one found guilty of rape or attempted rape to the highest possible prison term, according to the law and economics theory previously mentioned, creates stronger incentives not to commit rapes, and therefore serves as a deterrent, the other main goal of utilitarianism. (147) This example demonstrates limiting retributivism's appeal to deterrence. But this leaves us with our last, and, as we will see, most important question. Retributivists claim that the level of culpability and moral blameworthiness of the offender determines the upper and lower bounds of permissible punishment. (148) This seems simple enough, yet how are culpability and moral blameworthiness quantified? I cannot imagine a retributivist would ever claim that a man with Down syndrome was as culpable or morally abject for committing assault as a full-grown man with average intellect. Neither, I imagine, would a retributivist say the permissible range of punishments should be the same for a young child who commits theft as for an adult. The question is then: what factors are utilized when determining the upper and lower bounds of permissible punishment, given the fact that people committing the same crime may have varying degrees of culpability and moral blameworthiness? Scholars and judges have dealt with this problem by viewing desert on a case-specific basis. (149) By looking at the
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227 specifics of each case, the judge can determine the most appropriate range of punishment in line with the defendant's culpability and moral blameworthiness, and the severity of the crime. (150) "Desert is typically understood to be a highly individual matter, in the sense that to be deserving or not is dependent on particular traits of the individual." (151) One scholar goes as far as describing desert as based "as much or more on circumstances and personal characteristics as on physical actions and harm." (152) Several commentators have acknowledged that each individual's desert may differ greatly. (153) Various conditions or situations exist that may increase or decrease a criminal's culpability and moral blameworthiness, and hence alter his or her desert. (154) Such factors range from mental ability to age. (155) I refer to these issues of personal characteristics and circumstances as "aggravating" and "mitigating" factors. An aggravating factor is any factor that increases a criminal's desert, while a mitigating factor is any factor that decreases a criminal's desert. While the academic discussion of the list of possible aggravating and mitigating factors is nowhere near complete, I posit that based on the underlying structure of retributivism and its dependency on moral blameworthiness, that list will be lengthy. Aggravating and mitigating factors play a large role in determining a criminal's just desert. For example, how blameworthy is a poor baker stealing bread from his employer to feed his family? What about a situation in which a man thinks his actions are saving the lives of many, yet actually result in several deaths? Or a ten-yearold child who accidentally shoots and kills his sister? Most would not argue that these three people are just as morally culpable and blameworthy as those who stole or murdered in cold blood, for fun or revenge. I believe these three situations illustrate how many factors could be used to alter the range of potential punishments under a limiting retributivism theory of punishment. (156) In conclusion, limiting retributivism, in its current form, consists of determining a range of potential punishments by utilizing all the various aggravating and mitigating factors that affect the defendant's moral culpability, and then altering the punishment within those parameters to serve utilitarian purposes. As we will see in the following Part, this system is questionable because the existence of so many aggravating and mitigating factors itself will lead to severe under-deterrence, due to the effects of cognitive biases. Regardless of the resulting adjustments for utilitarian concerns within the acceptable range of punishments, the overall deterrent effect of this system is inadequate. The following Part describes why
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228 utilitarian concerns about deterrence and ex ante incentives are not adequately addressed by limiting retributivism. V. LIMITING RETRIBUTIVISM, UTILITARIANISM, AND COGNITIVE BIASES Over the past several decades, behavioral psychologists have made numerous discoveries that have questioned previous assumptions about human behavior. (157) These discoveries have questioned the neo-classical image of human beings as rational beings capable of making well-informed, reasoned decisions. (158) In contrast to the optimal rational behavior humans were imagined to possess, they "exhibit bounded rationality, bounded self-interest, and bounded willpower." (159) In other words, human psychology and behavior prevent people from acting or behaving as entirely rational beings, as they have often been thought to be. With these new insights into the true nature of human psychology, several old theories, specifically theories of criminal punishment, must be adjusted to accommodate this new information. In essence, behavioral psychologists have discovered over the past several decades what many already thought to be true: human beings simply are not rational. (160) Yet research has shown that the extent to which human beings are irrational, and the impact of this irrational behavior, is far greater than previously predicted. (161) Errors in human judgment are not simply the effect of emotion creeping into the decision-making process and temporarily overriding the individual's rationality; rather, they are the effect of systematic cognitive biases that affect all of human nature. (162) Studies have demonstrated that human beings are, in many ways, fundamentally irrational. By demonstrating the existence of such cognitive biases as the hindsight bias, (163) the entity effect, (164) and the representative heuristic effect, behavioral psychologists have demonstrated just how irrational we are. (165) Hindsight bias refers to the phenomenon in which human beings, once knowledgeable of the outcome of some situation, develop a sincere belief that they would have predicted the actual outcome. (166) This may seem like common sense--hindsight is 20/20--yet the extent of this bias is remarkable. Suppose a patient comes into a hospital with a set of symptoms. Doctors know that given these symptoms, there is a 33% chance the patient has disease A, a 33% chance that the patient has disease B, and a 33% chance that the patient has disease C. Before actual diagnosis, several doctors, knowledgeable about all three diseases and their symptoms, are asked the probability that a patient with this set of symptoms has each of the three diseases. Virtually every doctor will say there is a
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229 33% chance that the patient has each disease. The doctors are then presented with a description of a patient with the exact same symptoms, but told the patient had disease B. They are then asked, if they had seen this patient before he was diagnosed, what would be the predicted probability of the patient having each of the three diseases. In one study of the hindsight bias, the doctors claimed they would have predicted disease B was more than 50% likely to be the cause of the patient's symptoms. Clearly, the responses in both situations should be the same--33% for each disease--yet the results were not SO. (167) The doctors all exhibited hindsight biases. The practical effect of this bias on the legal world is huge. How should we view an expert doctor's testimony at a medical malpractice suit with the effect of hindsight bias in mind? (168) The entity effect is another example of a cognitive bias that affects human decision-making. (169) Research in this field demonstrates that if humans are presented with a hypothetical situation and a set of related facts, they will continue to maintain their belief in a conclusion drawn based on the facts even after they have learned that those facts are false. Thus, if given a set of facts and then asked to create a hypothesis based on those facts, even if those facts are later proved to be entirely false, people still hold on to their initial hypotheses and fundamentally believe it is correct. This tendency is called the entity effect. (170) Another example of a cognitive bias that affects decisionmaking is the availability bias. This refers to the phenomena in which individuals, faced with a decision, give far too much credence to anecdotal evidence that is particularly salient to them, instead of depending on relevant, known statistical evidence. (171) For example, suppose that a person lives in city X. Recently, two of the person's friends have had their cars stolen. The person is asked by another friend whether car theft is a big problem in city X. Previously the person was provided with statistical evidence demonstrating that, compared to other cities, city X has a very low rate of car thefts. Nonetheless, the person will probably still say, and genuinely believe, that car thefts are a big problem in city X, despite the evidence to the contrary. With these examples of cognitive biases in mind, we move to those biases that affect our issue specifically. That is, we will examine which cognitive biases will be triggered by the adoption of limiting retributivism with its aggravating and mitigating factors and what the effects of those biases will be. The biases are motivated reasoning, (172) optimistic bias, (173) cognitive dissonance, (174) and control illusion. (175)
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230 A. MOTIVATED REASONING Motivated reasoning is a combination of several cognitive biases and describes the tendency in humans to reach desired conclusions in an apparently unbiased manner. (176) Specifically, given a set of facts, humans are more likely to reach the conclusion that they want, without actually being aware of this predisposition. When making decisions, "one [naturally] accesses only a biased subset of the relevant beliefs and rules." (177) Thus people "perceive and interpret evidence in a manner designed to confirm initial hypotheses, but [they] construct[] the initial hypotheses themselves through biased cognitive processes designed to 'reason' toward a desired conclusion." (178) This bias has significant, real-world importance. For example, people may often convince themselves they have not had too much to drink, and that even if they are above the legal limit, they can still handle a car. These individuals honestly believe in such a statement despite the fact that the majority of people in this situation cannot, in fact, drive safely. (179) Unfortunately, "the practice of motivated reasoning appears to be a universal and, perhaps, immutable characteristic of human nature." (180) B. OPTIMISM BIAS Optimism bias describes how human beings are simply overly optimistic about factors affecting their lives. (181) Despite the fact that many people purport to believe that they are unlucky or that bad things always happen to them, deep-down people are extremely optimistic. (182) Regardless of how aware of statistics or actuarial calculations people are, they still often believe bad things will not happen to them while good things will. For example, people are twice as likely to think their children will be gifted than is statistically probable, (183) while they are six times more likely to think they will own a home than statistics suggest. (184) "One particular manifestation of this bias is the tendency of people to underestimate their own chance of suffering some adverse outcome even when they accurately state or even overstate everyone else's chance of suffering the same outcome." (185) Optimism bias stems from several sources, chief among them the belief that risk is avoidable through individual action. In other words, the individual believes that while something bad may happen to others, he or she knows how to handle the situation and, as a result, will not suffer the same outcome. (186) Optimism bias is one of the most prevalent biases and, unfortunately, also one of the most "indiscriminate and indefatigable" ones. (187)
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231 C. COGNITIVE DISSONANCE Cognitive dissonance is somewhat of a subset of both optimism bias and motivated reasoning. (188) It describes the general tendency of people to ignore or undervalue information that contradicts more positive information about oneself. (189) Behavioral psychologists believe cognitive dissonance stems from individuals seriously believing themselves to be "smart, nice people." (190) Anything that contradicts this self-image is ignored or downplayed. (191) The effect of this cognitive feature is that "[i]n the face of a known risk ... individuals come readily to the opinion that they themselves--unlike the average person--are relatively immune, and they hold onto these optimistic assessments tenaciously." (192) Thus, "[p]eople prefer to believe that they are intelligent and are not subjecting themselves to a substantial risk." (193) The impact of this type of bias should be clear: people think more highly of themselves and their abilities than they should. D. CONTROL ILLUSION The illusion of control is one which leads individuals to attribute random events to their own actions; in effect, they believe they can control, to some extent, random events. (194) Several studies have demonstrated this bias's effects in a variety of situations. (195) The important point here is that people believe that their control of a situation is merited by the actual situation. E. LIMITING RETRIBUTIVISM With these biases in mind, we now look to limiting retributivism doctrines and their use of aggravating and mitigating factors to determine the appropriate range of punishment. The salient issue here is the theory's open and public support of the use of these aggravating and mitigating factors. The entire concept of a defendant's moral culpability rests on determining how immoral or blameworthy the defendant and his or her actions are. Unfortunately, when this theory openly advocates the use of these aggravating and mitigating factors, it links directly into cognitive biases, where it becomes problematic. If the potential criminal is aware of the use of aggravating and mitigating factors in determining sentencing ranges, his or her decisionmaking will be affected by the interaction of his or her cognitive biases and his or her knowledge of the factors in the present situation that may be considered in sentencing. Before a person's decision to commit or not to commit a crime, all four of the aforementioned biases will play their respective roles in his or her
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232 judgment process. Although these biases will be present whether or not there are aggravating and mitigating factors, the fact that these factors may play a role in any punishment received will be shown to exacerbate the effects of these biases. How will these cognitive biases affect a criminal's decision-making process, given that the criminal knows that aggravating and mitigating factors may play a role in sentencing? Because of cognitive biases, a person debating whether or not to commit a crime may be comforted by several facts that the criminal believes to be true. First, the criminal probably does not believe that he or she will be caught in the first place. Second, if he or she is caught, he or she will believe that he will receive a sentence or punishment on the lower end of the range of permissible punishments. As a result of his or her cognitive biases, the criminal is likely to genuinely believe that the jury or the judge will find, given the particular facts of the case, that he or she does not have a high degree of moral culpability. For example, if the person has a history of abuse as a child, or has a poor family that needs to be fed, or if the crime contemplated is non-violent in nature, a person may believe that these or other factors will lead the jury or the judge to find that the defendant's just desert is on the low end of the range of permissible punishments. Given the existence of motivated reasoning, we can see that all of the above statements contribute to the hypothesis about potential punishment for the crime contemplated that a person would likely create, given the set of facts as he or she believes them to be, when engaging in the decisionmaking process of whether to commit a crime. The truth is that the criminal's hypotheses or predictions about any aggravating or mitigating factors that will affect his or her punishment are probably not accurate, but instead are highly influenced by cognitive biases. In other words, because of inherent cognitive biases, a person will conclude that, if caught and found guilty, he or she will not receive a harsh sentence even though a more balanced and rational interpretation of the facts would actually lead to a different conclusion. As mentioned above, the potential criminal's thought process is an example of motivated reasoning. The jury or judge will likely have a more balanced and rational interpretation of the facts and circumstances surrounding the crime. The same person will also exhibit the optimism bias. If his or her cognitive processes are being filtered through the optimism bias, a person will believe that the judge will not be harsh on him because he or she honestly thinks he or she, and his or her situation, is different. The person will think the judge will be far more likely to find mitigating factors and far less likely to find aggravating factors.
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233 As a result, the individual will believe that the judge will determine that the appropriate punishment is on the very low end of the scale. In addition, the person may suffer from cognitive dissonance in the decision-making process. This person may anticipate a lenient judge, for example, because he or she believes that he or she is a nice person. The judge will see that he or she is a good person who may have simply fallen on some bad luck, as he himself believes. Alternatively, he or she may think he or she is smart enough to outwit the system or the judge. In the mind of the would-be criminal, all of the potential aggravating factors will not be important to the judge, who will see through all of the district attorney's ploys to cast the defendant in a bad light and see him or her for who he or she really is--a good person who made a mistake and had lots of forces out of his or her control pushing him or her towards committing the crime. The criminal believes that he or she is either not very morally culpable, or can convince the judge that he or she is not morally culpable. Therefore, the criminal believes that the judge will grant him or her a range of sentences on the lower end of the spectrum. Of course, the criminal's confidence in his or her good nature or ability is likely unfounded. Lastly, the would-be criminal may believe that he or she has a way to convince the jury or the judge to be lenient on him. He or she may believe that he or she has a secret method to put the judge or the jury in a good mood or to make them sympathetic to his or her pleas. While there is a chance the defendant may actually have a method to achieve these goals, it is more likely he or she is simply demonstrating control illusion and, in fact, will be unable to control the judge or jury. While the examples given above are not examples of purely one type of cognitive bias or another, they combine to demonstrate the collective effects of these biases on a criminal's psychology and, thus, how the criminal's decision-making process may be affected. Together, these illustrations demonstrate how a person may anticipate a sentence far lower than he or she rationally should. The open use of aggravating and mitigating factors in determining sentences plays strongly into the effects of these cognitive biases. By openly admitting that they are used in determining sentences, limiting retributivism is, in essence, advertising directly to these biases. Reliance on them in determining sentencing simply adds more factors into which cognitive biases can play, with the effect of altering the criminal's expectations. This may have a disastrous effect if one abides by a utilitarian theory of punishment. Under limiting retributivism, the use
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234 of these aggravating and mitigating factors in determining punishment will lead to would-be criminals anticipating punishments extremely below those which they may actually receive. Here, another law and economics example is useful. Suppose the existence of aggravating and mitigating factors leads criminals to believe that the average sentence will be one year, while the average sentence is in fact five years. The deterrence effect of the punishment, then, is five times lower than it should be. In essence, the very existence of these factors in determining punishment may lead to a person's anticipation of less prison time and hence under-deterrence. Utilitarianism cannot be reconciled with a system that leads to such under-deterrence. Regardless of whether within the permissible punishment ranges utilitarian principles are utilized, the primary basis on which the range of punishment is decided is contrary to the goals of utilitarianism. Such a retributivist appeal to utilitarianism is similar to a store attempting to appeal to penny-wise shoppers by increasing the price of their goods by five dollars and then giving two-dollar coupons. When the system of determining punishment leads to under-deterrence, the subsequent use of utilitarian concerns is of lesser to no value. VI. ACHIEVING UTILITARIAN GOALS Limiting retributivism's use of aggravating and mitigating factors in determining punishment will likely result in strong underdeterrence of crime. Insights into human behavioral psychology demonstrate this fact. (196) Therefore, limiting retributivism proponents' attempts to appeal to supporters of utilitarian theories of criminal punishment should be rebuffed as contrary to utilitarian aims. However, establishing that limiting retributivism does not sufficiently serve utilitarian goals does not end the debate. A careful reader will notice that the cognitive biases identified by behavioral psychologists, and used here to suggest the failure of limiting a retributivist system of punishment to achieve utilitarian goals, may also be used to challenge utilitarian systems of punishment as well. After all, the same cognitive biases that lead criminals to irrationally believe they will either not be caught or will be found innocent may also affect deterrent levels in a purely utilitarian system. In this section, I defend the argument that utilitarians should reject limiting retributivism appeals to utilitarian goals because cognitive biases create a double under-deterrent effect under a limiting retributivism system while they create only a single under-deterrent effect under a utilitarian system. Furthermore, I highlight possible methods to adjust utilitarian policies to accommodate previously mentioned
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235 research in behavioral psychology and to better achieve utilitarian goals. Given the research in behavioral psychology, utilitarians face a difficult task in arguing in further support for utilitarian theories of punishment, specifically deterrence-based punishment. Because behavioral psychologists have shown that people do not rationally react or respond to facts, it could be argued that all of the deterrence efforts of utilitarianism will ultimately fail. Critics of utilitarianism will argue that this research proves that utilitarian goals of deterrence are unreachable and therefore utilitarianism is an unworkable system of punishment. Yet, these arguments that utilitarianism is an unworkable system fail under scrutiny. The evidence that people do not act as rational individuals, the basis of much of utilitarianism and of law and economics, weakens the allure of utilitarianism; yet it does not destroy the theory altogether. Optimism bias, the illusion of control, motivated reasoning, and cognitive dissonance all serve to decrease the overall deterrent effect of criminal punishment; however, they do not destroy all deterrent effect. Whether because criminals think they have less of a chance of getting caught or judges will be lenient with them if caught, the overall expected harm that a criminal will anticipate will be lower than it should be. The reason behind this suboptimal deterrent level is the effect of cognitive biases. But does this mean that punishment has no deterrent effect? The answer is no. While the deterrent effect is not optimal, it still exists, albeit in a weaker form. At this point, one may wonder, is this not the same argument used to discredit retributivism's appeal to utilitarianism? Was not the fact that retributivism led to underdeterrence the very reason it was held to be contrary to utilitarian goals? The answer is yes, but only to a degree. The real question then becomes which system creates a stronger deterrent effect? To answer this question, one needs to determine which system is more affected by these cognitive biases: limiting retributivism or utilitarianism. In a limiting retributivism system, two factors exist that will lead to under-deterrence. First, the use of basic utilitarian principles to alter a sentence within the acceptable range will not have as much deterrent effect as one would hope. Second, the open use of mitigating and aggravating factors in determining punishment will create further under-deterrence. (197) Both steps in the determination of punishment under limiting retributivism, creating the range of permissible punishment and altering the specific punishment within that range, deter at a sub-optimal level. Utilitarianism does not face this double under-deterrence effect.
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236 Under a utilitarian system, the general deterrent effect of the punishment will be less than ideal, but no other factors will further reduce the deterrent effect. In other words, there is likely only one point where cognitive biases create sub-optimal deterrence levels. An example will demonstrate this difference appropriately. The crime at issue is auto theft. Suppose it is an ideal world, where people act according to the classic economic view of human beings as rational and the optimal level of deterrence is created by a punishment of twenty years. In other words, this punishment provides the ideal deterrent effect. In a utilitarian system, one found guilty of this crime will face a twenty-year sentence if caught and convicted. Now, let us assume that human nature, as defined by behavioral psychology, will result in a 20% decrease in the deterrent effect, either because criminals expect not to get caught, or because they expect leniency in sentencing, or for whatever other reason. Whereas under the previous scenario of completely rational human behavior, a stated punishment of twenty years in jail has an expected punishment of twenty years, now there is an expected punishment of sixteen years. Thus, with cognitive biases in mind, a twenty-year sentence no longer creates the optimal deterrence level because criminals will expect a sixteen-year sentence. The utilitarian system has two options: (1) increase the punishment by 25% to twenty-five years, so the aggregate effect is twenty years of expected punishment, resulting in the optimal deterrence level or (2) accept less-than-ideal deterrent levels--an 80% effective deterrent effect. Now analyze this situation under a limiting retributivism system of punishment. Under a limiting retributivism system, assume that the range of punishment for someone convicted of stealing a car is fifteen to twenty-five years. Because of the open use of aggravating and mitigating factors in determining sentencing, the potential car thief will expect a 20% decrease in the applied range. Now, he or she expects a range of twelve to twenty years instead of fifteen to twenty-five. The anticipation of a decreased range of punishment, which as mentioned above stems from cognitive biases, is the first way in which limiting retributivism under-deters. Next, the criminal will further expect his or her sentence to be 20% less than is probable within the range. This occurs because the criminal will anticipate this second level of decision-making by the judge--he or she will know that the judge has discretion to sentence within a given range. At this point, cognitive biases may lead the criminal to expect or anticipate a specific level of punishment within the range that is less than what is actually likely, given the facts of the case. This is where the second level of underdeterrence occurs in limiting retributivism. Within the eight-year
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237 range, the facts of the case may indicate four years of added punishment, yet the criminal's prediction of this number is affected by his or her biases, and as a result he or she will predict 3.2 years of added punishment. Thus the criminal's expected punishment will be 15.2 years (12 years plus 3.2 years). Thus, the aggregate deterrence level will be closer to the optimal level under a utilitarian system. Under utilitarianism the potential criminal will expect a 16 year sentence, while under limiting retributivism he or she will expect a 15.2 year sentence. Because deterrence levels are higher under a utilitarian system of punishment than under a limiting retributivism system, adherents of utilitarian theory must reject limiting retributivism. Using a utilitarian system will lead to greater deterrence and decrease the likelihood of future crimes. Accordingly, utilitarianism provides the greatest level of deterrent effects. Thus, for those who hope the law can have a deterrent effect by creating ex ante incentives for individuals not to commit crimes, utilitarianism is the only system and theory of punishment that is acceptable. If one is steadfast in the belief of the value of using ex ante incentives, the only system permissible is that which comes closest to creating optimal levels, which is utilitarianism. Yet this does not mean that utilitarians have won and should pack up and go home happy. As has been demonstrated, utilitarian systems of punishment may still not result in optimal levels of deterrence. Human psychology undoubtedly decreases the deterrent effect of criminal laws. Anyone who believes the law can and should create ideal levels of incentives to create optimal outcomes, including most proponents of utilitarian theories of punishment, has much more work to do. As the recent developments in the fields of behavioral law and economics indicate, the goal of optimal outcomes may still be reached if we tailor laws in recognition of cognitive biases or create laws--or, more specifically, systems of punishment--that minimize the effects of these biases. (198) In fact, unbeknownst to lawyers at the time of the rules' creation, several legal rules can be seen as methods to overcome cognitive biases. (199) An excellent example of such a law is the "business judgment rule" in corporate law. This rule essentially states that when challenging a business decision of a company executive, all that is required to defend the decision--absent any evidence of self-dealing--is that it was in some way rational, even if not the best decision. (200) In essence, this rule can be seen as compensating for the existence of hindsight bias by declaring that the outcome is not important at all, and saying that if there was any
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238 reasonable rationale for making the decision that was ultimately made, then the decision is legitimate. (201) While the example of the business judgment rule demonstrates how behavioral psychology insights can help craft better laws, or justify previously existing ones, these laws are examples of ex post reasoning. What concerns utilitarians are ex ante incentives. The cognitive biases that affect ex ante incentives are very different than those that affect ex post decisions. In other words, the hindsight effect, highlighted by the business judgment rule example, focuses more on a person's view of a situation after that situation has occurred, and thus is unlikely to have effects on ex ante decision-making and hence ex ante incentives. Unfortunately, biases that affect such decision-making, for example, optimism bias and motivated reasoning, have been demonstrated to be extremely difficult to adjust for or to alter. (202) Utilitarians face a tough challenge, but one that may not be insurmountable. Utilitarianism has been demonstrated to have at least some effect on deterring criminals. Further investigations may prove that cognitive biases are, in fact, correctable. If not, other, more correctable biases may be further investigated and applied. Insight into such biases may not lead to a system of perfect deterrence, but it may assist utilitarians in crafting laws that are better able to deter criminals. Through the research, use, and adoption of laws tailored to accommodate for, or to alter, cognitive biases, deterrence levels may be increased. VII. CONCLUSION Recent developments in retributivist theory have resulted in the creation of a limiting retributivism system of criminal punishment. Such a system attempts to appeal to utilitarian concerns in an effort to garner support from those who desire the criminal law to serve utilitarian purposes. Utilitarians must reject this appeal, however, because it leads to lesser deterrent levels compared to those expected under a properly utilitarian system of punishment. Recent developments in behavioral psychology suggest reasons why the limited retributivist system of punishment may lead to sub-optimal deterrence levels. Limiting retributivist systems of punishment are affected by cognitive biases on two separate occasions, leading to a double under-deterrence effect, while utilitarian systems of punishment only face a single under-deterrence effect. Simply put, cognitive biases suggest that limiting retributivism systems of punishment will lead to higher levels of under-deterrence than will utilitarian systems of punishment. In light of these inferences, utilitarians must resist the appeals of proponents
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239 of limiting retributivism and insist on a more rigid utilitarian system of punishment. Utilitarians must engage in further research in an effort to mitigate the effects of cognitive biases on deterrence levels. The ex ante incentives that utilitarians wish to create through the law may be improved if laws are drafted to account for--and overcome-demonstrated cognitive biases.
MATTHEW HAIST, J.D., Northwestern University School of Law, 2009; A.B., Davidson College, 2003. I would like to thank the editorial staff of the Journal of Criminal Law and Criminology for their comments and corrections, and as always, my parents, David and Louise. Endnotes (1) I have not found any evidence or instance of a society that does not have a form of punishment. (2) HAMMURABI'S CODE OF LAWS (C. 1780 B.C.E.) (L.W. King trans.), available at http://www.fordham.edu/halsall/ancient/hamcode.html (last visited May 1, 2009). (3) ARISTOTLE, NICOMACHEAN ETHICS 200-01 (Roger Crisp trans., Cambridge Univ. Press 2000). (4) One only needs to look toward the Europeans' general view of the death penalty and their detestation of continued U.S. support for such punishment to see evidence of this comparison. Justice Scalia's concurring opinion in Kansas v. Marsh highlights this point. 126 S. Ct. 2516, 2532 (2006) (Scalia, J., concurring) ("There exists in some parts of the world sanctimonious criticism of America's death penalty."). (5) If one gives credence to social contract theory, security and safety is the principal reason individuals enter society in the first place. Therefore, preservation of individuals' interests, be they bodily integrity, property interests, or general liberties, should be the main priority and obligation of government. See THOMAS HOBBES, LEVIATHAN 121 (Richard Tuck ed., rev. student ed., Cambridge Univ. Press 1996) (1651) ("A Common-wealth is said to be Instituted ... [so] that Man, or Assembly of men ... live peacefully amongst themselves, and be protected against other men."); JOHN LOCKE, TWO TREATISES ON GOVERNMENT 269-78 (Peter Laslett ed., Cambridge Univ. Press 2002) (1698); JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT AND THE FIRST AND SECOND DISCOURSES 163-64 (Susan Dunn trans., Yale Univ. Press 2002). (6) See, e.g., Albert W. Alschuler, The Changing Purposes of Criminal Punishment." A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. CHI. L. REV. 1 (2003); Russell L. Christopher, Deterring Retributivism: The Injustice of "Just" Punishment, 96 NW. U. L. REV. 843 (2002); Richard S. Frase, Punishment Purposes, 58 STAN. L. REV. 67 (2005); Norval Morris, Desert as a Limiting Principle, in PRINCIPLED SENTENCING 201 (Andrew von Hirsch & Andrew Ashworth eds., 1992); Alice Ristroph, Desert, Democracy, and Sentencing Reform, 96 J. CRIM. L. & CRIMINOLOGY 1293 (2006); Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453 (1997). (7) See supra note 6.
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240 (8) HAMMURABI'S CODE OF LAWS, supra note 2 (stating, for example, in Code number six that "[i]f any one steal the property of a temple or of the court, he shall be put to death, and also the one who receives the stolen thing from him shall be put to death," and in Code number fourteen that "[i]f any one steal the minor son of another, he shall be put to death"). (9) AN INTERPRETATION OF THE QUR'AN [THE KORAN], Al-ma'idah 5:38, at 113 (Majid Fakhry trans., bilingual ed., N.Y. Univ. Press 2002) ("As for the thieves, whether male or female, cut off their hands in punishment for what they did...."). (10) See 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 349 (Dawsons of Pall Mall 1966) (1768); see also A.E. DICK HOWARD, MAGNA CARTA: TEXT AND COMMENTARY [section] 39 (Univ. Press of Virginia 1964) (1215) ("No free man shall be taken, imprisoned, disseised, oulawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land."). (11) U.S. CONST. amend. V, VII-VIII. (12) See supra note 6. (13) ARISTOTLE, supra note 3, at 200-01. (14) IMMANUEL KANT, THE PHILOSOPHY OF LAW: AN EXPOSITION OF THE FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE AS THE SCIENCE OF RIGHT 194-204 (W. Hastie trans., Edinburgh, I.&T. Clark 1887) (1796). (15) JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1781), reprinted in 1 THE WORKS OF JEREMY BENTHAM 1, 83-96 (John Bowring ed., Thoemmes Press 1995) [hereinafter MORALS AND LEGISLATION]; JEREMY BENTHAM, PRINCIPLES OF PENAL LAW (1843), reprinted in 1 THE WORKS Or JEREMY BENTHAM, supra, 365, 39697. (16) See supra note 6. (17) JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 14-19 (4th ed. 2006). (18) Id. at 11-24. (19) See Norval Morris, Punishment, Desert and Rehabilitation, in SENTENCING 257 (Hyman Gross & Andrew von Hirsch eds., 1981). (20) See Ristroph, supra note 6, at 1301-02. (21) DRESSLER, supra note 17, at 19. (22) See id. (23) See, e.g., Alschuler, supra note 6. (24) See GEORG WILHELM FRIEDRICH HEGEL, HEGEL'S PHILOSOPHY OF RIGHT [section][section] 90-104 (T.M. Knox trans., Oxford Univ. Press 1978) (1821); see also KANT, supra note 14, at 196 (describing retaliation as the only principle capable of determining "the quality and quantity of a just penalty"). (25) See R.A. DUFF, TRIALS AND PUNISHMENTS 4 (1986) (noting that retributivism "find[s] the sense and justification of punishment in its relation to a past offence"). (26) See Stanley I. Benn, Punishment, in 7 THE ENCYCLOPEDIA OF PHILOSOPHY 29, 30 (Paul Edwards ed., 1967) ("[T]he punishment of crime is right in itself...."). (27) See id. (28) Robinson & Darley, supra note 6, at 454. (29) See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 5 (1955). (30) DRESSLER, supra note 17, at 14. (31) See BENTHAM, MORALS AND LEGISLATION, supra note 15, at 83-84. (32) See id. (33) Robinson & Darley, supra note 6, at 454.
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241 (34) See Christopher, supra note 6, at 848 ("Consequentialist theories justify punishment ... on the actual, good consequences that are attained, for example, deterrence of a crime...."). (35) Robinson & Darley, supra note 6, at 453. (36) See, e.g., Alschuler, supra note 6. (37) See infra text accompanying notes 39-48. (38) See BENTHAM, MORALS AND LEGISLATION, supra note 15, at 83. (39) See IGOR PRIMORATZ, JUSTIFYING LEGAL PUNISHMENT 12 (1989). (40) See id. (41) Id. at 13 ("The history of the retributive view of punishment begins with the biblical and [T]almudic ethical and legal ideas."). (42) Cf. PRIMORATZ, supra note 39, at 13 (describing the moral aspect of retributive punishment, which this Comment posits will often equate to an emotional aspect of retributive punishment). (43) See id. (44) KANT, supra note 14, at 195. (45) IMMANUEL KANT, THE SCIENCE OF RIGHT (1790), reprinted in 42 GREAT BOOKS OF THE WESTERN WORLD: KANT 447 (Robert Maynard Hutchins ed., 1989). (46) See Markus Dirk Dubber, Rediscovering Hegel's Theory of Crime and Punishment, 92 MICH. L. REV. 1577, 1577-78 (1994). (47) Id. at 1581-82. (48) HEGEL, supra note 24, at [section] 101. (49) A more recent example can be seen in the work of John Locke. LOCKE, supra note 5, at 273 (noting that a crime may be punished for future restraint). (50) PLATO, PROTAGORAS, reprinted in THE COLLECTED DIALOGUES OF PLATO 308, 321 (Edith Hamilton & Huntington Cairns eds., 1982) (stating that punishment is permissible if "the [punisher's] intention be directed chiefly to some good, to be obtained by means of the punishment of the person who has sinned"). (51) Id. (52) II ST. THOMAS AQUINAS, SUMMA THEOLOGICA, in 20 GREAT BOOKS OF THE WESTERN WORLD, second part, part I, question 92, art. 2, at 215 (Robert Maynard Hutchins ed., founders ed. 1952) ("And it is the fear of punishment that law makes use of in order to ensure obedience...."). (53) HOBBES, supra note 5, at 106. (54) See BENTHAM, MORALS AND LEGISLATION, supra note 15, at 83-86. (55) JOHN STUART MILL, UTILITARIANISM (Oskar Piest ed., Bobbs-Merrill Co. 1957) (1861). (56) See BENTHAM, MORALS AND LEGISLATION, supra note 15, at 1-13. (57) BENTHAM, PRINCIPLES OF PENAL LAW, supra note 15, at 396. (58) See PRIMORATZ, supra note 39, at 13. (59) See infra text accompanying notes 60-62. (60) OLIVER WENDELL HOLMES, JR., THE COMMON LAW 46 (Little, Brown & Co. 1945) (1881). (61) Letter from Oliver Wendell Holmes, Jr., to Harold J. Laski (Dec 17, 1925), in 1 HOLMES-LASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI, 1916-1925, at 806 (Mark DeWolfe Howe ed., 1953). (62) Harry Olson, Homer Cummings & John H. Wigmore, A Symposium of Comments from the Legal Profession: The Loeb-Leopold Case (Concluded), 15 J. AM. INST. CRIM. L. & CRIMINOLOGY 395,401 (1924). (63) However, this period can be differentiated between adoptions of rehabilitation and deterrence as governing theories. See Alschuler, supra note 6, at 6-14.
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242 (64) Williams v. New York, 337 U.S. 241, 248 (1949). (65) Morissette v. United States, 342 U.S. 246, 251 (1952). (66) Cf. Alschuler, supra note 6, at 11 (noting economists' views on criminal punishment). (67) See, e.g., Steven Shavell, Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent, 85 COLUM. L. REV. 1232 (1985). (68) See id. (69) See id. (70) See Alschuler, supra note 6, at 11. (71) Id. (72) Id. (73) Id. at 11 n.61 ("Especially in light of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations ... deterring others from violating the tax laws is the primary consideration underlying these guidelines." (citing U.S. SENTENCING GUIDELINES AND POLICY STATEMENTS [section] 2T4.1 (April 1987))). (74) Id. at 9-12. (75) See Martin R. Gardner, The Renaissance of Retribution--An Examination of Doing Justice, 1976 WIS. L. REV. 781, 781. (76) See supra text accompanying notes 63-75; infra text accompanying notes 77-80. (77) Furman v. Georgia, 408 U.S. 238, 363 (1972) (Marshall, J., concurring). (78) Austin MacCormick, The Prison's Role in Crime Prevention, 41 J. CRIM. L. & CRIMINOLOGY 36, 40 (1951). (79) See MODEL PENAL CODE [section] 1.02 (Proposed Official Draft 1962). (80) Id. (81) See Christopher, supra note 6, at 845-47. (82) Id. (83) But see Gerald Leonard, Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model Penal Code, 6 Burr. CRIM. L. REV. 691, 692 n.6 (2003) (arguing that there has not been a revolution of retributivist thinking). (84) See Christopher, supra note 6, at 845; Gardener, supra note 75, at 784; Ristroph, supra note 6, at 1293. (85) Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1659 (1992). (86) See, e.g., Richard S. Frase, Limiting Retributivism, in THE FUTURE OF IMPRISONMENT 83, 90-104 (Michael Tonry ed., 2004); Gardener, supra note 75, at 784; Kyron Huigens, The Dead End of Deterrence, and Beyond, 41 WM. & MARY L. REV. 943, 980 n.152 (2000); Sanford H. Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 CAL. L. REV. 943, 978 (1999). (87) 468 U.S. 447, 462 (1984). (88) Id. (89) See Michelle Cotton, Back with a Vengeance: The Resilience of Retribution as an Articulated Purpose of Criminal Punishment, 37 AM. CRIM. L. REV. 1313, 1326-27 (2000) (citing examples of state courts adopting retributivist rationales for criminal punishment). (90) See, e.g., Act Operative July 1, 1977, ch. 4.5, 1976 Cal. Stat. 5140 (codified as amended at CAL. PENAL CODE [section] 1170(a)(1) (West 2004 & Supp. 2009)). (91) 204 PA. CODE [section] 303.11 (2008). (92) Christopher, supra note 6, at 846 n.6. (93) See Ristroph, supra note 6, at 1299-1301. (94) See id. at 1299-1300. (95) See id. at 1299-1306. (96) See id. (97) See id.
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243 (98) See id. at 1298-99. (99) Id. at 1299. (100) Id. (101) See Frase, supra note 6, at 73 (citing ANDREW VON HIRSCH, CENSURE AND SANCTIONS 29-33 (1993); Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: "Proportionality" Relative to What?, 89 MINN. L. REV. 571, 590 (2005)). (102) See supra text accompanying notes 81-86. (103) Ristroph, supra note 6, at 1300. (104) See id. (105) See Herbert Morris, Persons and Punishment, in SENTENCING, supra note 19, at 93. (106) See Ristroph, supra note 6, at 1300 ("These egalitarian arguments have won much support."). (107) See Morris, supra note 105, at 93-95. (108) Id. (109) Id. (110) Id. at 95 ("[I]t is just to punish those who have violated the rules and caused the unfair distribution of benefits and burdens. A person who violates the rules has something others have--the benefits of the system--but by renouncing what others have assumed, the burdens of self-restraint, he has acquired an unfair advantage."). (111) See WOJCIECH SADURSKI, GIVING DESERT ITS DUE: SOCIAL JUSTICE AND LEGAL THEORY 229 (1985). (112) See, e.g., Jean Hampton, An Expressive Theory of Retribution, in RETRIBUTIVISM AND ITS CRITICS 1, 5-6 (Wesley Cragged., 1992). (113) Id at 6-11. (114) See, e.g., Morris, supra note 19, at 257-59. (115) See DRESSLER, supra note 17, at 19. (116) See Morris, supra note 19, at 257-59. (117) Id. (118) Id. (119) Id. at 259. (120) Id. (121) See Ristroph, supra note 6, at 1301-02 (noting that "[t]he 'limiting retributivism' model attributed to Norval Morris begins with the recognition that our intuitions about how much punishment a given offender deserves are often imprecise"). (122) See, e.g., HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 66 (1968) ("I see an important limiting principle in the criminal law's traditional emphasis on blameworthiness.... But it is a limiting principle, not a justification for action."). (123) See Morris, supra note 19, at 264. (124) See NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 60-62 (1974). (125) See Frase, supra note 6, at 74-75. (126) Id. (127) Id. at 76-77. (128) Ristroph, supra note 6, at 1302. (129) One scholar noted that limiting retributivism has become a "widely endorsed and adopted model." Frase, supra note 6, at 76. Another stated that it is "[o]ne of the most widely followed reconciliations of desert with utilitarian aims." Ristroph, supra note 6, at 1301. (130) Minnesota's sentencing guidelines seem to have adopted limiting retributivism to some degree. See Richard S. Frase, Sentencing Guidelines in Minnesota: 1978-2003, 31 CRIME & JUST. 131, 149 (2005) ("Thus, for most defendants, the guidelines
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244 essentially retain the traditional indeterminate sentencing system and its utilitarian values, subject only to retributive 'caps' set by the presumptive duration of stayed prison terms."). (131) See Frase, supra note 6, at 76; Ristroph, supra note 6, at 1301. (132) See supra text accompanying notes 116-24. (133) ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 69 (1976). (134) See Martin H. Redish & Karen L. Drizin, Constitutional Federalism and Judicial Review: The Role of Textual Analysis, 62 N.Y.U.L. REV. 1, 22 (1987) (citing Frederick Schauer, An Essay on Constitutional Language, 29 UCLA L. REV. 797, 828 (1982)). (135) See id. (136) This example is taken from Ristroph, supra note 6, at 1302. (137) Cf. YON HIRSCH, supra note 133, at 66-71 (arguing that the existence of differing punishments for different crimes implies that certain crimes are worse than others). (138) Joseph E. Jacoby & Francis T. Cullen, The Structure of Punishment Norms: Applying the Rossi-Berk Model, 89 J. CRIM. L. & CRIMINOLOGY 245 (1998). (139) Id. (140) See Kevin R. Reitz, Reporter's Introduction to MODEL PENAL CODE: SENTENCING 1, 3-4 (Discussion Draft 2006). (141) See MORRIS, supra note 124, at 60-62. (142) See id.; see also Frase, supra note 6, at 76-77 (explaining the concept of limiting retributivism and Morris's role in its development). (143) See MORRIS, supra note 124, at 60-62. (144) See, e.g., CAL. PENAL. CODE [section] 667(e)(2)(West 1999). (145) See Shavell, supra note 67, at 1235. (146) This example is similar to the federal income tax evasion example mentioned supra, in the text accompanying notes 70-73. (147) See Shavell, supra note 67, at 1235. (148) See generally Ristroph, supra note 6. (149) Id. at 1321. (150) Id. (151) Id. (152) Alschuler, supra note 6, at 19. (153) See, e.g., JOEL FEINBERG, Justice and Personal Desert, in DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 55, 61 (1970). (154) See, e.g., Kadish, supra note 86. (155) See Ristroph, supra note 6, at 1314-27. (156) Although I have not seen any scholarly writings that have argued this point, I believe it is a natural and logical progression of the concept of retributivism in general. Given that moral blameworthiness and culpability are what defines an individual's desert, I cannot see how the examples I illustrated would not affect one's level of desert. In order to preclude such factors from entering the debate of what the individual's just deserts are, retributivists will need to create a different rationale or measuring stick for desert. A possibility could be having some sort of free will requirement, in other words, describing moral blameworthiness as being able to understand the import of your decision, its likely outcome, yet nonetheless going forward with the action. (157) Ironically, the decision to engage in such research was, in large part, a reaction to the law and economics movement's description of human beings as rational decision-makers. See William M. Goldstein & Robin M. Hogarth, Judgment and Decision Research: Some Historical Context, in RESEARCH ON JUDGMENT AND DECISION MAKING 3, 5 (William M. Goldstein & Robin M. Hogarth eds., 1997); Robin M. Hogarth & Melvin W. Reder, Introduction to RATIONAL CHOICE: THE
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245 CONTRAST BETWEEN ECONOMICS AND PSYCHOLOGY 1, 5 (Robin M. Hogarth & Melvin W. Reder eds., 1987). (158) See supra note 157. (159) Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1471 (1998). (160) Id. at 1473. (161) Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N.Y.U.L. REV. 630, 633 (1999). (162) J. St B.T. Evans, Bias and Rationality, in RATIONALITY: PSYCHOLOGICAL AND PHILOSOPHICAL PERSPECTIVES 6, 6 (K.I. Manktelow & D.E. Over eds., 1993) (noting that humans exhibit "a whole range of systematic errors and biases"). (163) See, e.g., Hal R. Arkes et al., Eliminating the Hindsight Bias, 73 J. APPLIED PSYCHOL. 302, 305 (1988). (164) See, e.g., Lee Ross et al., Perseverance in Self-Perception and Social Perception: Biased Attributional Processes in the Debriefing Paradigm, 32 J. PERSONALITY & SOC. PSYCHOL. 880, 882-83 (1975) (referring to the "entity effect" as the perseverance phenomenon). (165) See, e.g., SUSAN T. FISKE & SHELLEY E. TAYLOR, SOCIAL COGNITION 142-79, 245-94 (2d ed. 1991) (1984). (166) See Arkes et al., supra note 163, at 305. (167) See id. at 305, 306 tbl.1. (168) See, e.g., Susan J. LaBine & Gary LaBine, Determinations of Negligence and the Hindsight Bias, 20 LAW & HUM. BEHAV. 501, 510-11 (1996). (169) See Ross et al., supra note 164, at 882-83. (170) Id. at 883-84. (171) See Matthew Rabin, Psychology and Economics, 36 J. ECON. LITERATURE 11, 30 (1998). (172) See, e.g., Ziva Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480 (1990). (173) See, e.g., Neil D. Weinstein, Unrealistic Optimism About Future Life Events, 39 J. PERSONALITY & SOC. PSYCHOL. 806, 806 (1980). (174) See, e.g., Neil D. Weinstein & William M. Klein, Resistance of Personal Risk Perceptions to Debiasing Interventions, 14 HEALTH PSYCHOL. 132, 138-39 (1995). (175) See, e.g., Ellen J. Langer, The Illusion of Control, 32 J. PERSONALITY & SOC. PSYCHOL. 311, 311-13 (1975). (176) See Kunda, supra note 172, at 480. (177) Id. at 493. (178) Hanson & Kysar, supra note 161, at 654. (179) Cf. Kunda, supra note 172, at 495-96 (discussing examples of the motivated reasoning bias; the example given here, while not explicitly supported by Kunda's article, is a logical progression). (180) Hanson & Kysar, supra note 161, at 654. (181) See Weinstein, supra note 173, at 806. (182) See Neil D. Weinstein, Optimistic Biases About Personal Risks, 246 SCI. 1232, 1232 (1989). (183) See Weinstein, supra note 173, at 810. (184) Id. (185) Hanson & Kysar, supra note 161, at 656. (186) See, e.g., Laurie J. Bauman & Karolynn Siegel, Misperception Among Gay Men of the Risk for AIDS Associated with Their Sexual Behavior, 17 J. APPLIED SOC. PSYCHOL. 329, 344-45 (1987). (187) Hanson & Kysar, supra note 161, at 657. (188) Cf. Weinstein & Klein, supra note 174, at 138-39.
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246 (189) Id. (190) George A. Akerlof & William T. Dickens, The Economic Consequences of Cognitive Dissonance, 72 AM. ECON. REV. 307, 308-09 (1982). (191) Id. (192) Hanson & Kysar, supra note 161, at 658 (footnotes omitted). (193) Id. (194) See Langer, supra note 175, at 311-13. (195) See, e.g., Ellen J. Langer & Jane Roth, Heads I Win, Tails It's Chance: The Illusion of Control as a Function of the Sequence of Outcomes in a Purely Chance Task, 32 J. PERSONALITY & SOC. PSYCHOL. 951 (1975); Amos Yversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCI. 1124, 1129 (1974). (196) See supra Part IV. (197) See supra Part III. (198) See Jolls, Sunstein & Thaler, supra note 159, at 1522-41. (199) Id. (200) Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985). (201) Jolls, Sunstein & Thaler, supra note 159. (202) Hanson & Kysar, supra note 161, at 657.
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Part IV
Federal and State Courts
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9 Threats to the Rule of Law: State Courts, Public Expectations and Political Attitudes Margaret H. Marshall
“T
he law makes a promise: neutrality. (1) If the promise gets broken, the law as we know it ceases to exist." These are the words of Supreme Court Justice Anthony Kennedy. (2) They remind us of the potential vulnerability of our system of justice. It is a system erected by our federal and state constitutions and made manifest in thousands of concrete ways through laws and the enforcement of laws. But, ultimately, it is a web of relationships grounded in a moral compact, a promise of fair and unbiased justice. "If the promise gets broken, the law as we know it ceases to exist." Those of you who grew up in the United States--the birthplace and stronghold of constitutional democracy--may take for granted the concept of a just government. But as one who has had personal experience of the arbitrary, often brutal abuse of official power, I never can. Yes, in the South Africa of my youth there were duly enacted statutes, and a sophisticated network of executive agencies and courts to implement and enforce those statutes. But apartheid South Africa's laws had one _______________________________________________________
Margaret H. Marshall. "Threats to the Rule of Law: State Courts, Public Expectations & Political Attitudes." Daedalus, Fall 2008 volume 137 issue 4 p. 122-129. Copyright © 2008 American Academy of Arts and Sciences. Reprinted by permission
249
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250 primary aim: to protect and consolidate the power of the powerful. Here it is different. The United States has given the world much. But unquestionably this country's most enduring contribution to human progress is the structure of government in which a foundational, written charter apportions public power, guarantees fundamental rights, and entrusts the ultimate protection of those rights to an impartial judiciary. Constitutional democracy so defined has been the foundation of our security and prosperity. For two centuries America stood in splendid isolation in its chosen form of government. Today our form of constitutional democracy has become the world's gold standard of government. (3) Countries as diverse as India, Lithuania, South Africa, and Canada have staked their future on the promise of constitutional democracy. While we embrace these extraordinary developments, are we in the United States turning away from our foundation? I ask that question because a convergence of potent developments is exerting significant pressure on our form of government: attacks by politicians and others on the constitutional role of our courts to be free from political interference, the massive influx of special-interest money into judicial selection and retention procedures, and the loosening of ethical constraints on what judicial candidates may and may not say about cases likely to come before them. Combined and unchecked, these developments will have a wide-ranging, permanent, and damaging impact on our freedom, our security, and our prosperity. In thinking about our structure of government today, we would do well to recall how--and why--our government came to be. We can pinpoint its creation. The year? 1780. The place? The Commonwealth of Massachusetts. The document? The Massachusetts Constitution, in which the principle of constitutional democracy first gained institutional and practical form. It begins with a ringing promise: All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. (4) Grand words, but was it possible to design a scheme of government to realize those aims? John Adams invented the answer. In the Massachusetts Constitution he created for the first time in history a representative democracy that guaranteed certain rights--guaranteed them in writing--and that limited, divided, and balanced public power. To be sure, he borrowed from Britain (and other examples) the idea of a supreme executive and a bicameral parliament. But, in Britain, the
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251 word of Parliament was the supreme law of the land, no matter what Parliament enacted. And judges were required to enforce the will of Parliament, no matter what Parliament enacted. Adams crafted a different solution. To the executive and legislative departments, he added a third, equal-standing department: the judiciary. Judges, long regarded as subordinate to the will of the powerful, would now be "subservient to none," except the rule of law. (5) Would the Adams "invention" work? In 1783, just three years after its adoption, the Massachusetts Constitution was put to the test. On the docket of the Supreme Judicial Court was a series of cases concerning the savage beating of a man named Quock Walker, a black man, by or at the behest of Nathaniel Jennison, a white man. Jennison claimed that Walker was a slave, his property, and had run away; Walker claimed that he had been promised his freedom. Walker sued Jennison for assault and battery. The outcome of the case-this when slavery was widely endorsed in all thirteen colonies and elsewhere--was far from certain. We do not have a decision of the Court because none is published. But we do have Chief Justice William Cushing's notes, which give some of the texture of this extraordinary event in American history: As to the doctrine of slavery and the right ... to hold Africans in perpetual servitude and sell and treat them as we do our horses and cattle, ... whatever sentiments have formerly prevailed ... a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural innate desire of Liberty, with which Heaven ... has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Common-wealth have solemnly bound themselves, sets out with declaring that all men are born free and equal. This being the case, the chief justice wrote. "the idea of slavery is inconsistent with our conduct and Constitution." (6) In the Quock Walker case the Supreme Judicial Court treated the new constitution not as a mere statement of ideals but as binding law. Quock Walker's case was the first in the United States, or anywhere, to abolish slavery by judicial decision. (7) It demonstrated that the words of the Massachusetts Constitution were not mere platitudes; they were the supreme law of the land. Twentysix years before Marbury v. Madison, (8) Adams's "mighty invention" (9) had met the real world-and made it a better world.
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252 Fully 95 percent of all of our nation's litigation takes place in state courts. It is litigation that touches on every aspect of our lives: commercial contracts, property disputes, grandparental visitation rights, environmental law, consumer fraud, the right to assisted death, academic tenure disputes, just to name a few. How many cases are we talking about? In 2005, the latest date for which we have reliable figures, well over 93 million cases were filed in state courts, (10) Contrast that figure with approximately 323,000 cases filed in all of the federal courts nationwide in 2005. (11) You see my point: state courts and state-court decisions matter; they have an enormous impact on our daily lives and on the development of the law. Even in the U.S. Supreme Court, of the cases decided in the 2005 term, 28 percent originated in state courts. (12) The impact of state courts has sometimes sparked controversy. State-court rulings have piqued the wrath of governors and presidents. One example: The former governor of Massachusetts, Mitt Romney, has loudly and publicly voiced his disagreement with the Supreme Judicial Court's holding in Goodridge v. Department of Public Health, (13) which held that the Massachusetts Constitution forbade limiting marriage to opposite-sex couples. (14) Legislators also have taken umbrage at the decisions of state courts. When the Supreme Judicial Court help that the Massachusetts Constitution required the legislature either to fund or repeal a "clean elections" law passed by the voters, (15) some members of the legislature were angry enough to talk of pushing for a constitutional amendment requiring the election of judges. And state courts have sometimes issued decisions that have incensed whole communities, just as they have elated others--not only in Massachusetts. In 1948, the California Supreme Court declared the state's antimiscegenation statute to violate the constitutional rights of individuals who wish to marry those of another race. (16) This was at a time when Jim Crow reigned supreme, and when public sentiment nationwide was overwhelmingly opposed to interracial marriage. (Ten years later, in a 1958 Gallup poll, 96 percent of those responding said they opposed interracial marriage. (17) Given that some decisions of our courts are highly controversial, and sometimes unpopular, it is a wonder that some court orders are obeyed at all. But that is a remarkable feature of our constitutional democracy, one that newer democracies struggle to emulate. Americans obey court decisions for a variety of reasons, of course. But surely one of them, a significant one, is that, whatever we might think about individual courts or individual decisions, we continue, to trust that the judiciary, as an institution, on balance,
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253 continues faithfully to carry out its constitutional duty to do justice, to "say what the law is," (18) and to keep the promise of neutrality. To the extent that the American public understands the judiciary to proceed thoughtfully, impartially, fairly, it is willing to obey even those judgments that most rankle. When a group in the United States strongly disagrees with a court decision, what is the response? Not blood in the streets. The losing side returns to the drawing board to develop new evidence, refine its arguments, and file the next case. Or so it has been until lately. I referred earlier to three forces that are converging and whose confluence causes me great concern: attacks on the constitutional requirement of political impartiality in the judicial branch, the torrent of special-interest money pouring into state judicial selection campaigns, and the loosening of judicial canons of ethics. Here, I can only give some sense of the scope of these troublesome developments, but they should cause all of us the greatest concern. First, we have all heard the denunciations. Some politicians urge citizens to "save America from the judges." (19) Others tell us that judges "are trying to take the hearts and souls of our culture." (20) Hardly a day goes by, it seems, without some charge of "judicial activism" or "judicial legislating." Prominent politicians trumpet their intention to punish-and that is the word they use, punish-judges for issuing opinions with which they disagree. (21) Supreme Court Justice Ruth Bader Ginsburg revealed that both she and Justice O'Connor have been the targets of death threats. (22) Make no mistake: I believe, deeply, that our courts should be placed under the closest scrutiny. The public should be free to criticize the language and reasoning of our decisions. But the criticism has lately taken an ominous turn. It targets the very heart of our judiciary: its function as a separate branch of government. It calls for the judiciary to be subordinate to legislative oversight, or for judges to work in fear of "punishment." The second disturbing development is the recent and escalating influx of vast amounts of special-interest money into state judicial selection and retention campaigns. Since the 1990s, as special interests-political, business, religious, and others-have come to recognize the impact of state courts' decisions on daily life and commerce, judicial campaigns have become far more competitive, harsher, and more expensive-a lot more expensive. In 2004, two Illinois Supreme Court candidates combined to raise more than $9.3 million to secure their positions on that court, and three of four winners of a seat on the Ohio Supreme Court raised over $1 million.
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254 (23) In that same period, 81 percent of highcourt races (thirty-five of forty-three) were won by the top fund-raisers. (24) All too often the money comes from single-interest advocacy groups. All too often the money goes to advertising that is overwhelmingly negative. Indeed many judicial campaigns now attack the very institution of the judiciary itself. Just as national politicians see advantage in running against Washington, judicial candidates now find benefit in running against the bench. In Alabama, for example, Justice Tom Parker centered his 2004 judicial campaign on attacks against "liberal judges," whom he characterized as "trying to take God out of public life." (25) Justice Parker won the election. The pressure to politicize the judiciary is not confined to those states in which judges are elected; it is present in any state in which judges must be either reappointed or reelected to the bench. Whenever sitting judges face some form of reconfirmation or reaffirmation they must be evaluated on their "record." Every judicial decision becomes a message of allegiance, or not, to partisan constituents, much like a legislator's voting record. Judges who have rendered decisions that run counter to an interest group's agenda are tarred as "antifamily," "soft on crime," "unaccountable." The aims are obvious: to pressure fair and neutral judges to look over their shoulders, to test the prevailing political winds, to abandon the principles of judicial neutrality when deciding a case. The strategy appears to be working; judges who have been through a contested retention process tell us so. The late Justice Otto Kraus of the Oregon Supreme Court once remarked that to ignore the political implications of a decision near the time of a judicial election "would be like ignoring a crocodile in your bathtub." (26) Third, those who seek to lock judges into a particular partisan agenda were emboldened by an opinion of the U.S. Supreme Court. In 2002, the case of Republican Party of Minnesota v. White (27) threatened to leave state codes of judicial conduct throughout the nation in tatters. The case began when a complaint was lodged with Minnesota's judicial conduct commission against a candidate for a seat on the Minnesota Supreme Court who distributed campaign literature criticizing the judicial decisions of his opponent-on crime, welfare, abortion, and other issues. Minnesota's Code of Judicial Conduct at the time prohibited a "candidate for a judicial office, including an incumbent judge," from "announc [ing] his or her views on disputed legal or political issues." (28) The candidate claimed that the rule prohibiting a judicial candidate from "announcing" views on politically controversial issues violated the First Amendment. By a bare majority of five, the U.S. Supreme Court agreed.
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255 The dissenting opinions were scathing. By blurring the distinction between the election of a judge and the election of a senator, Justice John Paul Stevens wrote, "the Court defies any sensible notion of the judicial office and the importance of impartiality in that context." (29) Justice Ruth Bader Ginsburg accused the majority of disingenuously permitting judicial candidates to promise to rule a certain way on important issues. (30) Political attacks on courts as protectors of individual rights, special-interest money flowing to judicial campaigns, and the loosening of ethical restrictions on judicial candidates have blurred the line between judicial accountability and political accountability in alarming ways. The two forms of accountability are different-very different. Judicial accountability is faithfulness to the principles of neutrality, fairness, and equal treatment under law. It is accountability to civil society's most laudable pursuit: the work of justice. Judicial accountability knows no partisanship. It brokers no compromises and trades no favors. That is the American model now so widely embraced around the world. Constitutional democracy, although surely imperfect, is the best mechanism we have to ensure that debates about deeply divisive national issues will take place according to the rule of law and not the law of the ideologue or the law of the mob. In a speech at Georgetown University in 2006 that was widely reported in this country and abroad, Justice Sandra Day O'Connor voiced concern about "the efforts of those who would strong-arm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship," she said, "but we should avoid these ends by avoiding these beginnings. " (31) Justice O'Connor is not known for hyperbole. The warning signs are there for all to see. The question is: have we the will to protect the structure of government that for so long has protected us? Margaret H. Marshall, a Fellow of the American Academy since 2001, is Chief Justice of the Massachusetts Supreme Judicial Court. She joined the Court, in November 1996 as the second woman Associate Justice in the Court's history, and in October 1999 became the first woman to serve as Chief Justice of the Court.
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256 Endnotes (1) This paper is taken from a talk given at the 225th Annual Meeting and 1902nd Stated Meeting of the American Academy of Arts and Sciences held on May 10, 2006. (2) Quoted in Shirley S. Abrahamson, "Judicial Independence as a Campaign Platform," reprinted by the Washington State Bar Association, available at www.wsba.org/media/publications/barnews/2005/mar-05-abrahamson (on file). (3) Richard H. Pildes, "The Supreme Court Term 2003-Foreword: The Constitutionalization of Democratic Politics," Harvard Law Review 118 (2004): 29: "In the last generation, more new democracies, all constitutional, have been forged than in any comparable period. In regions ranging from South Africa to the former Soviet Union, Latin America, and parts of the Middle East, the renewed rise of democratic institutions has been a defining political development of the era." We remain the world's "oldest continuous constitutional democracy"; Samuel Issacharoff and Richard H. Pildes, "Emergency Contexts Without Emergency Powers: The United States' Constitutional Approach to Rights During Wartime," International Journal of Constitutional Law 2 (2004): 296. (4) Massachusetts Constitution, Part the First, article 1. (5) David McCullough, John Adams (New York: Simon and Schuster, 2001), 103. (6) Proceedings of Massachusetts Historical Society 1873-1875 (1875): 294: "Chief Justice Gray submitted for the inspection of the members of the Massachusetts Historical Society Chief Justice Cushing's original note-book of the trials before the Supreme Judicial Court of Massachusetts at the terms held in the County of Worcester in 1783, (which had been intrusted to him for the purpose by Mr. William Cushing Paine, the namesake and great grand-nephew of Chief Justice Cushing), and read therefrom the minutes of the trial at the April Term 1783 of the case of the Commonwealth v. Nathaniel Jennison, in which it was established that slavery was wholly abolished in this Commonwealth by the Declaration of Rights prefixed to the Constitution of 1780"; ibid., 292-293. (7) See Joseph Ellis, Founding Brothers: The Revolutionary Generation (New York: Vantage Books, 2002), 89-90. (8) 5 U.S. (1 Cranch) 137 (1803). (9) The phrase is taken from an address by Justice Benjamin Kaplan on the occasion of the 300th anniversary of the Supreme Judicial Count. Benjamin Kaplan, "Introduction: An Address," in The History of the Law in Massachusetts: The Supreme Judicial Court, 1692-1992, ed. Russell K. Osgood (Boston: Supreme Judicial Court Historical Society, 1992), 4. (10) National Center for State Courts, Court Statistics Project (updated April 10, 2008), at http://www.ncsconline.org/D_Research/csp/CSP_Main_Page.html. (11) See www.uscourts.gov/judicialfactsfigures/Table 601.pdf. (12) Chart for 2005 term on file with author; includes habeas cases from state courts. (13) Goodridge v. Department of Public Health, 440 Mass. 309 (2003). (14) See, for example, Mitt Romney, "One Man, One Woman: A citizen's guide to protecting marriage," The Wall Street Journal, February 5, 2004, stating, among other things, that Goodridge v. Department of Public Health was "wrongly decided and deeply mistaken." (15) Bates v. Director of the Office of Campaign & Political Finance, 436 Mass. 144 (2002). (16) Perez v. Sharp, 32 Cal.2d 711, S.C. sub. nom. Perez v. Lippold, 320 Cal. 2d 711 (1948). (17) Randall Kennedy, Interracial Intimacies (New York: Pantheon, 2003), 88. (18) Marbury v. Madison, 177. (19) Bert Brandenburg, "Judge Dread: The judiciary may end up the big losers in the Schiavomess," Slate Magazine, March 29, 2005 (on file): "Majority Leader [Tom] DeLay, Phyllis Schlafly, and Alan Keyes will gather in Washington to lambaste 'the
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257 Judicial War on Faith.' Conference organizers call it 'the beginning of a broad-based effort to save America from the judges.'" (20) Quoted in "DeLay Takes on High Court at Tenn. Rally," August 15, 2005, at www.nytimes.com/aponline/national/APJustice-Sunday.html. (21) See David D. Kirkpatrick, "Republicans Suggest a Judicial Inspector General," The New York Times, May 10,2005, at http://www.nytimes.com/2005/05/10/politics/10watchdog.html? scp=1&sq=Judicial+Inspector+General&st=nyt: "o preserve the independence of the judiciary, [Congressman James] Sensenbrenner said, Congress should not seek 'to regulate judicial decision-making through such extreme measures as retroactively removing lifetime appointees through impeachment.' But he continued, '[t]his does not mean that judges should not be punished in some capacity for behavior that does not rise to the level of impeachable conduct. The appropriate questions,' he added, 'are how do we punish and who does the punishing.'" (22) Ruth Bader Ginsburg, "'A Decent Respect to the Opinions of [Human]kind': The Value of a Comparative Perspective in Constitutional Adjudication," Constitutional Court of South Africa, February 7, 2006 (on file). (23) James Sample, "The Campaign Trail: The true cost of expensive court seats," Slate Magazine, March 6, 2006, at www.slate.com/toolbar.aspx?action=print&id=2137529. (24) Ibid. (25) The storyboard of the campaign advertisement of Judge Parker's from which these quotations are taken may be found on the website of the Brennan Center, at www.brennancenter.org/programs/buyingtime_2004. (26) Quoted in Paul Reidinger, "The politics of Judging," ABA Journal 73 (1987): 58. (27) 536 U.S. 765 (2002). (28) Minnesota Code of Judicial Conduct,Canon 5 (A) (3) (d) (i) (2000). (29) Republican Parly of Minnesota v. White, 797. (30) Ibid, 804. (31) Nina Totenberg, Morning Edition, March 10 2006 (on file). See Julian Borger, "Former top judge says US risks edging near to dictatorship," Guardian, March 13, 2006.
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10 Getting Terrorʼs Number James J. Roth
A
s the Feb. 3 deadline approaches for Congress to renew the USA Patriot Act, one investigative technique drawing particular scrutiny is the use of national security letters. These letters allow the Federal Bureau of Investigation and other intelligence community agencies to obtain certain information held by third-party record keepers without search warrants. I am very familiar with this particular investigative tool. I served in the FBI for 25 years, more than half of that time as the chief counsel of the New York office, the largest field office in the bureau. While there, I was responsible for reviewing and approving all national security letters issued by the assistant director in charge of that office. I thus know firsthand that many of the current objections to the letters reveal a lack of knowledge and perspective. National security letters are not a dangerous threat to civil liberties, as some claim. Rather, they are a vital law enforcement tool that is necessary in the ongoing defense against terrorism. Congress, and specifically the Senate, should approve renewal of this tool in the form approved by the conference committee that considered the renewal of the Patriot Act last year. _______________________________________________________ James J. Roth. "Getting Terror's Number." Legal Times, January 30th, 2006. Copyright © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
259
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260 THEY'RE NOT NEW National security letters are demands for records. They are issued only by the FBI and other authorized intelligence community agencies. The FBI can use them only in national security investigations. They cannot be used in traditional criminal cases. National security letters can be directed only to three types of third-party record holders -- financial institutions, wire and electronic communications service providers, and credit reporting agencies. They can be used to obtain only limited types of records, such as financial records, telephone toll records, and the names of telephone and Internet service subscribers. Contrary to twoNew York Timeseditorials that exemplify the confusion and misinformation in this debate, the letters cannot be issued to obtain medical records. The information sought is the type of information (such as phone records on whom a suspect is calling routinely) that would identify and connect conspirators, whether in organized crime or in international terrorism networks. National security letters are not a new tool created by the Patriot Act. Congress first provided the FBI with the authority to use national security letters to request records from financial institutions in the Right to Financial Privacy Act of 1978. This statutory authority was amended in 1986 to require recipients to comply with FBI record demands pursuant to national security letters. The Electronic Communications Privacy Act of 1986 added the authority to use a national security letter to demand transactional and subscriber records held by wire and electronic communications service providers, which can include libraries offering Internet access to the public. In 1995, amendments to the Fair Credit Reporting Act authorized issuing national security letters to credit bureaus to obtain names and addresses of financial institutions at which a consumer maintains an account, as well as to obtain the consumer's address and employment information. To protect against compromising disclosures of these investigations to foreign powers and their agents, Congress has always imposed secrecy requirements on the recipients of these requests. THE PATRIOT ACT After Sept. 11, Congress provided additional national security letter authority in the Patriot Act to deal with terrorism. Congress required consumer reporting agencies, after a written request from a government agency authorized to investigate
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261 international terrorism, to furnish a consumer report of a particular consumer, as well as all other information in a consumer's file. The Patriot Act also amended requirements for issuing national security letters. Previously, to issue a letter, the FBI had to certify that there were specific and articulable facts giving reason to believe that the records sought pertained to a foreign power or an agent of a foreign power. This standard limited the value of the letters, because the records sought often contained the very facts agents needed to make the connections that would allow them to draw the conclusions necessary to make the required certification. The Patriot Act changed this standard. Now the certification is that the information sought is believed to be relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. The amendments also authorized senior FBI executives in all field offices to issue letters, and it prohibited issuing letters solely on the basis of activities protected by the First Amendment. These changes have made national security letters a more valuable investigative tool, which is reflected in the reported increase in their use. NOTHING EXTRAORDINARY To place the FBI's authority in context, it is useful to compare national security letters to grand jury and administrative subpoenas. These are criminal investigation tools that the FBI cannot use in national security cases. The FBI can issue administrative subpoenas in drug, child pornography, and health-care fraud investigations. Assistant U.S. attorneys issue grand jury subpoenas. Agency officials issue administrative subpoenas. Both kinds of subpoenas compel any source of information to produce nonprivileged documents and tangible objects. Both kinds of subpoenas are issued without prior judicial approval. In fact, there is no judicial involvement unless a recipient challenges the subpoena or refuses to comply, and the government must go to court for enforcement. Absent a privilege, subpoenas will be enforced if there is any reasonable possibility that the material sought will produce information relevant to the investigation. In contrast, national security letters can be used only in national security investigations. They are issued by senior FBI executives. They are more limited than subpoenas because they can be directed only to a limited set of information sources for certain types of records. As with subpoenas, the records sought must be relevant to the investigation.
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262 A comparison with the existing subpoena authorities in criminal investigations demonstrates that the more limited authority to compel production of records in national security cases is nothing extraordinary. National security letters let FBI agents countering threats to national security have the similar ability to obtain information (from a limited class of record holders) that FBI agents investigating criminal cases, including domestic terrorism, routinely obtain through either grand jury or administrative subpoenas. NONDISCLOSURE Some criticize and oppose national security letters because there is currently no explicit mechanism for challenging them and because of the nondisclosure provisions that restrict the ability of recipients to inform the subjects of the investigation about the letters. But there has always been an implicit legal right to challenge a national security letter, and refusal to comply with such a letter would require the government to ask a court to enforce it. These issues are clarified in the proposed new statute. The 2005 conference bill reauthorizing the Patriot Act amends the law to provide explicit procedures regarding challenges to and enforcement of national security letters and nondisclosure requirements. This bill passed the House but was filibustered in the Senate. Only a temporary extension of the original Patriot Act passed, and now Congress is again facing the disputed issues. The conference bill establishes a procedure whereby a recipient of a national security letter can petition for an order modifying or setting aside the request. The bill also establishes a process for the government to move for judicial enforcement of the letter, and it lets a court impose sanctions for contempt if a recipient fails to comply with a court order to enforce a letter. While the conference bill reiterates the prohibitions on disclosure, it explicitly allows for disclosure about the letters to obtain legal assistance. It also specifies that the recipient can petition for judicial review of the disclosure prohibitions immediately after the receipt of the letter. If the prohibition on disclosure is upheld, the recipient may petition yearly for another judicial review of the nondisclosure requirement. All of these changes make sense. CONNECTING THE DOTS After Sept. 11, the FBI was excoriated for, among other things, failing to aggressively collect and connect the dots. In July 2001, an FBI special agent in Phoenix sent a communication to FBI headquarters expressing concern about the number of subjects of investigative interest attending flight schools
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263 in Arizona. The agent speculated about the possibility of a coordinated effort by Osama bin Laden to send students to civil aviation schools in the United States. After Sept. 11, the FBI was characterized as bumbling and bureaucratic because it did not respond by ordering an immediate, dragnet-style, nationwide canvass of flight schools to identify Arabs and others from the Middle East and investigate why they were taking flight lessons. Yet now, when the FBI issues national security letters to a library to identify users of a particular computer, it is criticized as being intrusive and insensitive to privacy and constitutional rights. Critics speculate that the FBI may be abusing the Constitution or compiling electronic dossiers on our reading and Internet preferences. Such fears are unfounded, and the proper remedy for any law enforcement abuses is to punish the culprits severely, not to remove or severely restrict valuable investigative tools. Moreover, none of these criticisms speak to the possible reasons for issuing these national security letters. Perhaps the FBI is trying to identify an individual who used that library computer to communicate with a terrorist cell. With an Internet service provider, maybe the FBI is seeking to identify a foreign agent using the provider's facilities to advance plans to harm the nation. In 2004, the FBI agents took aggressive efforts in Las Vegas to identify possible terrorists in response to threat information that placed the nation on heightened alert. Yet these efforts were criticized by many in the same quarters who accused the FBI of failing to boldly pursue the Phoenix flight-school theory before Sept. 11. There should be no room in this important debate for uninformed speculation and misinformation. Authority for national security letters as amended by the Patriot Act is a necessary tool that is critical to the FBI's ability to identify all elements of the threats to the nation from international terrorism. The proposed new statute, as shown by the conference report, contains reasonable provisions for the protection of civil liberties. Critics who want more stringent requirements need to explain why international terrorists deserve greater procedural protections than those given to organized crime figures. And why do foreign agents need more protections from investigation than child pornographers or health care fraudsters? These critics seek to impose overly stringent standards that are not required by the Constitution and are not necessary to protect
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264 constitutional rights. If they succeed, it will impede the FBI's ability to protect the nation from future attacks. In the debate over the reauthorization of the Patriot Act, those seeking to reinstitute unnecessary restrictions or, in the name of civil liberties, enact restrictions that would provide terrorists sanctuary in libraries need to remind themselves of the horror of Sept. 11. James J. Roth is a retired FBI special agent and member of the information committee of the Society of Former Special Agents of the FBI. He is also a member of the adjunct faculty at Fordham Law School in New York.
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Part V
Civil Law
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11 Charges are Enough to Create Standing Leo Strupczewski
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uling that a person need not be convicted of an offense stemming from a statute to challenge its constitutionality, a Commonwealth Court panel has allowed a juvenile and his mother to continue their fight against a city's anti-loitering ordinance. The decision in Crews v. City of Chester, PICS Case 091839 (Nov. 2, 2009) Flaherty, J. (8 pages), held that simply being charged with an ordinance violation has enough of an adverse effect on someone to meet the threshold for standing. Senior Judge Jim Flaherty authored the unanimous opinion, which overturns a trial court judge's ruling on the matter and reinstates a four-count complaint against the city of Chester and one of its police offers. "Specifically, but for the Ordinance, [plaintiff] would not have been arrested, handcuffed, transported to the police station and held in police custody and issued a citation for violation of the Ordinance," Flaherty wrote. "Moreover, no money would have been expended in retaining a lawyer to defend against the violation." The decision, which appears to be one of the first in state court to grant a plaintiff standing in such a case, left Chester's attorney, Mark A. Raith of Holsten & Associates in Media, Pa., "disappointed." _______________________________________________________
Leo Strupczewski. "Charges Are Enough to Create Standing." Reprinted with permission from the Nov. 16th, 2009 Edition of Pennsylvania Law Weekly. Copyright © 2010 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
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268 "When you look at these standing cases, almost every one begins with 'plaintiff was convicted,'" Raith said. "There really wasn't anything out there that was definitive on it. I thought we had a pretty good argument to make." Attorney Jon J. Auritt, who represented plaintiff Lawrence Crews and his mother, Lynette Crews, said he never saw standing as an issue in the case. "There's been many cases like this at the federal courts especially," Auritt said. "Something happened to him to his detriment. It's not just 'nothing happened.' He was arrested." The real issue, Auritt said, was whether Chester's antiloitering ordinance, designed to reduce foot traffic in "high drug activity areas," was constitutional. The panel, however, did not address that issue despite it being briefed. Instead, Flaherty's opinion focused on the issue of standing. He distinguished the case from Commonwealth v. Ciccola, 894 A.2d 744 (Pa. Super. 2006), and Commonwealth v. Semuta, 902 A.2d 1254 (Pa. Super. 2006), because the individuals in those cases were challenging the constitutionality of statutes with which they were never charged. Because of that fact, Flaherty wrote, "they were not affected or injured by the challenged statutes." Crews, however, "suffered an injury directly attributable to the Ordinance." "Although the citation was dismissed, such does not change the fact that Crews was adversely affected by this Ordinance, in that we was taken into custody and issued a citation for violation of the Ordinance and retained counsel to defend the subsequently dismissed action," Flaherty wrote. Auritt's client, Lawrence Crews, was arrested in April 2001 after police approached him and three other individuals who were standing at the corner of 10th and Potter streets in Chester, according to Flaherty's opinion. Crews, along with the others, ran from the corner when police approached. One of the officers caught Crews and arrested him, according to Flaherty's opinion. The youth was taken to the city's police station and charged with violating city of Chester Ordinance Article 711, which made it unlawful for people to loiter for more than 30 minutes in a "high drug activity area" without a reasonable explanation. The ordinance also made it unlawful for people to return to the area after a police officer asks them to leave, according to Flaherty's opinion. Crews' mother hired an attorney to fight the charge and that attorney, along with Crews, appeared before a magisterial district judge in November 2001. Neither a prosecutor nor the arresting
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269 officer attended the hearing and the district justice dismissed the citation. Crews' mother later filed a complaint challenging the constitutionality of the ordinance and seeking damages, including medical and legal bills incurred as a result of her son's arrest. In the suit, plaintiffs alleged that Crews was hit by the arresting officer and suffered a shoulder injury. The trial court Judge James F. Proud, in a November 2007 order, responded to two opposing motions for summary judgement by remanding the personal injury aspect of the case to arbitration and denying the Crews' request to find the ordinance unconstitutional. In an amended order June 4, 2008, Proud dismissed the Crews' complaint. He later filed an opinion explaining the order. "This court determined that it could not consider the merits of plaintiffs' constitutional challenge to the ordinance because plaintiffs lack standing to make such a challenge," Proud wrote. "The principle of standing holds that where a person is not adversely affected by the matter which he seeks to challenge, he is not aggrieved and thus has no standing to obtain a judicial resolution of that challenge." Like they did with the Commonwealth Court panel, the parties briefed the constitutionality issue with Proud, but the judge did not rule on its merits. Both Raith and Auritt said they're waiting to hear from the trial court judge on what will happen next. "I doubt if there's going to be anything," Raith said. "I haven't checked the recent Supreme Court decisions to see if there is anything that would change the basic framework. The judge may decide to take it based on what we already submitted. At this point, we don't know." Auritt described the situation as being "stuck in a holding pattern." "There's not anything new that this opinion gives the court as a tool to decide the constitutional question," Auritt continued. "Maybe, tomorrow we'll get the asterisk that was missing that explains all this." Raith said he thought the panel declined to address the constitutionality of the ordinance because the trial court hadn't yet ruled on it.
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Part VI
Criminal Courts – Prosecutors and Defense Attorneys
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12 Prosecutorʼs Errors Bring New Trial on 1993 Verdict Joel Stashenko
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prosecutor’s failure to correct false testimony about the benefits received by one of her key witnesses has prompted the state Court of Appeals to vacate the 1993 murder convictions of two men. The Court, which ordered a new trial for Danny Colon and Anthony Ortiz, also faulted the Manhattan prosecutor for interviewing two women soon after the double killing but failing to turn over her notes to the defense prior to the trial. In other rulings yesterday, the Court ruled that a defendant's right to confront a witness against him was not violated when a DNA laboratory technician did not take the stand at his sexual assault trial, and it clarified at what stage attorney's fees can be collected in condemnation proceedings. Messrs. Colon and Ortiz have been serving 50-year-to-life sentences since their conviction in Supreme Court for killing Orlando Martin and Frank Morales as the victims sat in parked cars on the Lower East Side of Manhattan in 1989. Two other men were wounded. At trial before the late Supreme Court Justice Clifford J. Scott, prosecution witness Anibal Vera testified to being with Mr. Colon the day after the shootings. Mr. Colon told Mr. Vera that he was one of the shooters and that Mr. Ortiz had also participated in the crime, Mr. Vera testified. _______________________________________________________ Joel Stashenko. "Prosecutor's Errors Bring New Trial on 1993 Verdict." Reprinted with permission from the Nov. 20th, 2009 edition of New York Law Journal. Copyright © 2010 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
273
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274 When asked by then-Assistant District Attorney Margaret J. Finerty what agreement he had made with prosecutors for this testimony, Mr. Vera said he had been allowed to enter a plea to disorderly conduct and avoid jail for a misdemeanor drug arrest. Mr. Vera said that the plea was the "only benefit" he had received and denied that prosecutors were behind a subsequent plea he entered on a felony drug charge before the trial of Messrs. Colon and Ortiz began. The Court yesterday found that Ms. Finerty allowed Mr. Vera's testimony to stand uncorrected, even though she had personally interceded with narcotics prosecutors in the felony drug case against Mr. Vera and identified him as a cooperating witness in a homicide case. She had also agreed to help with the relocation of Mr. Vera's grandparents in city housing when he expressed concerns about their safety, according to the ruling. During closing arguments, Ms. Finerty repeated Mr. Vera's erroneous statement that the plea in the misdemeanor drug case was the "only benefit" the witness was receiving to testify, the Court noted. "By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People," Judge Victoria A. Graffeo wrote yesterday for a 6-0 Court in People v. Colon, 162, and People v. Ortiz, 163. "For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments." The Court also concluded that prosecutors should have turned over Ms. Finerty's notes about interviews she had with two women who provided her with lists of four participants in the shootings, none of them either Mr. Colon or Mr. Ortiz. "In their role as public officers, prosecutors 'must deal fairly with the accused and be candid with the courts,'" Judge Graffeo wrote. "This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness." According to briefs in the case, Mr. Colon worked from his prison cell to obtain sworn statements from Mr. Vera about the undisclosed benefits Mr. Vera received prior to his testimony. In 2003, Mr. Colon moved to vacate the judgment against him under CPL 440.10. Mr. Ortiz later joined the motion.
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275 Yesterday's ruling reversed an Appellate Division, First Department determination that upheld the convictions. While the First Department judges said the lack of full disclosure about the benefits Mr. Vera received for his testimony was improper, there was "no reasonable possibility" that it affected the verdict. As to the prosecutor's notes, they "contained layers of hearsay" and were "not apparently admissible" as evidence. However, the Court of Appeals concluded that the prosecutor's errors could not be considered as harmless. "Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict," Judge Graffeo wrote. Joel B. Rudin of Manhattan, who represented Mr. Colon, said the case gave the Court an opportunity to remind prosecutors of their duty to act fairly toward the defense. "It is really important that the Court of Appeals make clear to the prosecutors in this state that they should strictly comply with Brady [disclosure obligations] and that's what I think this decision does," Mr. Rudin said yesterday. "Most defense lawyers, and many prosecutors, believe that the problem of prosecutors not complying with Brady is a widespread problem." Harold V. Ferguson Jr. of the Legal Aid Society of New York represented Mr. Ortiz. "His family is ecstatic and we are firmly convinced that Mr. Ortiz is innocent of this," Mr. Ferguson said. "He has been in prison for 19 years for something he didn't do." Mark Dwyer, chief assistant district attorney in Manhattan, said the cases against Mr. Colon and Mr. Ortiz are not over. "We are disappointed that the Court disagreed with the lower courts, and believed that any material mistake was made," Mr. Dwyer said yesterday. "The conviction was fairly obtained. At this time, we certainly intend to bring these defendants to trial and see to it that the appropriate verdict is again returned." Manhattan Assistant District Attorney Patrick J. Hynes argued the appeal for the prosecution. After leaving the district attorney's office, Ms. Finerty served a stint as Criminal Court judge in New York City and is now in private practice at the Manhattan firm Getnick & Getnick. The National Association of Criminal Defense Lawyers and the Center on the Administration of Criminal Law filed amicus briefs. Chief Judge Jonathan Lippman took no part in the ruling. No 'Crawford' Violation The DNA testing case, People v. Brown, 152, hinged on defendant Michael J. Brown's contention that his Sixth Amendment
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276 rights were violated because his lawyer was not allowed to question in court the laboratory technician who processed his DNA test. The case involved the application of Crawford v. Washington, 541 U.S. 36 (2004), in which the U.S. Supreme Court restricted admission of hearsay statements in criminal cases. Citing Melendez-Diaz v. Masschausetts, 557, US—, —, 129 S Ct 2527 (2009), and People v. Meekins, 10 NY3d 136 (2008), the Court unanimously ruled that the introduction of a DNA report prepared by a private subcontractor laboratory where the technician who prepared the report did not testify is not a Crawford violation. "These technicians would not have been able to offer any testimony other than how they performed certain procedures," Judge Carmen Beauchamp Ciparick wrote for the Court. She also noted that Mr. Brown did get to question the forensic biologist-criminalist from the New York City Office of the Chief Medical Examiner who linked Mr. Brown's DNA with samples from a rape kit collected from a 9-year-old girl in Queens. Mr. Brown was convicted of sodomy and other charges and is serving up to 25 years in prison. Assistant Queens District Attorney William H. Branigan argued for the prosecution. Steven R. Bernhard of Appellate Advocates defended Mr. Brown. Attorney Fees In the condemnation case, Matter of Hargett v. Town of Ticonderoga, 169, the Court resolved conflicting rulings between Appellate Division panels in the Second and Third departments by determining that property owners are entitled to seek attorney's fees and other expenses if they prevail against governments in the first stage of an eminent domain proceeding. The Court affirmed a Third Department ruling that property owner Georgia Hargett could seek legal costs after she prevailed in the first stage of the condemnation proceeding. Such reimbursement had been rejected by the Second Department under Matter of 49 WB LLC v. Village of Haverstraw, 44 AD3d 226 (2007). But Chief Judge Lippman, writing for the Court, said the judges "can discern no reason" why the Legislature would allow condemnees who prevail in the second stage of the eminent domain process to seek attorney's fees from governments while blocking those who are successful at the first stage from doing so. Judge Lippman cautioned that the Court was ruling on the general question of entitlement to reimbursement at the first stage of the condemnation process, under EDPL Article 2, and not defining
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more specific questions about certain types of costs eligible for payment by governments. John D. Aspland Jr. of Glens Falls represented the town. Darrell W. Harp argued on behalf of Ms. Hargett. 277
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13 Drawing the Line: Court Looks Again at How Much Immunity Prosecutorʼs Have John Gibeaut
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he 1977 murder of John Schweer awakened sleepy Council Bluffs, Iowa, like an icy slap in the face. His body, with a 12-gauge shotgun wound to the chest, was found July 22, 1977, on railroad tracks near a car dealership where he worked as a night security guard. Schweer had retired just 17 days earlier as a captain with the city police department. He was wearing his police uniform when his body was found. The community overlooking the Missouri River cried out for justice. More than 30 years later, Curtis W. McGhee Jr. and Terry J. Harrington say local prosecutors and police conspired during the investigation to frame them with lies, threats and fabricated evidence. Worse, they say, prosecutors used that same evidence to convict them of first degree murder at trial. It cost each man a life sentence. So they've taken the prosecutors and police to federal court, alleging due process violations under the Civil Rights Act of 1871, known today as 42 U.S.C. [section] 1983. They say prosecutors lack immunity for feeding a witness information that helped convict the pair. _______________________________________________________ John Gibeaut. "Drawing the Line: Court Looks Again at How Much Immunity Prosecutors Have." ABA Journal, Nov 2009 volume 95 issue 11 p. 18-20. Copyright © 2009 American Bar Association. Reprinted by permission.
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280 The prosecutors, however, maintain that using the challenged evidence at trial immunizes them from a lawsuit, even though they helped police develop the evidence. They want the U.S. Supreme Court to draw a line shielding them throughout trial. DOCTRINAL DISCOURSE So it becomes the high court's turn this month to delve once more into the doctrine of immunity for public officials accused of wrongdoing in the course of their duties. Pottawattamie County v. McGhee is scheduled for argument Nov. 4. "I'm glad they're taking it up," says defendant David Richter, Pottawattamie County attorney at the time. "Maybe we can get it straightened out for the whole country." Richter oversaw the investigation and subsequent prosecution that landed McGhee and Harrington in prison. In 2003, the Iowa Supreme Court threw out Harrington's murder conviction on other allegations of prosecutorial misconduct, a decision that ultimately also freed McGhee. Richter had been appointed county attorney in 1976 and planned to seek a full term in 1978. So solving and successfully prosecuting the murder of a police officer was paramount. "They wanted to close it out in the worst way," says McGhee's lawyer, Stephen D. Davis of Chicago. "And they did it in the worst way." The other former prosecutor in the federal lawsuit, Joseph Hrvol, declined to comment. But state and federal prosecutors throughout the country are watching the case intently. The National Association of Assistant United States Attorneys and the National District Attorneys Association had asked for permission to file an amicus brief even before the U.S. Supreme Court accepted the case this spring. Prosecutors argue that public policy discourages subjecting them to liability and damages because it distracts them and chills their crime-fighting efforts. Besides, prosecutors say, other avenues are available to deal with such misconduct, including professional discipline and even criminal charges in egregious situations. But lawyers for McGhee and Harrington say those processes do nothing to compensate their clients for the 26 years they spent locked up. They want punitive damages too. "The [section 1983] defendants are responsible for the natural consequences of their actions," Davis says. "Section 1983 is meant to provide a broad remedy." The state court decision that freed McGhee and Harrington was a relative no-brainer: Prosecutors had not informed them about a possible alternate suspect. That violated the groundbreaking 1963
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281 U.S. Supreme Court decision in Brady v. Maryland, which requires disclosure of evidence that may point to innocence. McGhee and Harrington, both African-Americans from Omaha, Neb., accuse the prosecutors in their civil rights complaint of focusing on them because of their race: A jury from largely white Council Bluffs, directly across the river, would be more likely to convict them than the missing alternative suspect, who was Caucasian. COERCION ALLEGED The immunity question in the federal case before the justices promises to be anything but simple. McGhee and Harrington accuse authorities of coercing the key witness against them by threatening to charge him with murder if he didn't give them someone else and by dangling a $5,000 reward in front of him. The witness--Kevin Hughes, a small-potatoes car thief from Omaha--first gave investigators a series of conflicting accounts and flat-out lies, involving such crucial details as the type of weapon used in the murder, what exactly occurred at the scene, and whether he even accompanied McGhee and Harrington to the scene at all. So police and prosecutors decided to help Hughes out, according to the civil rights complaint, chiefly by editing his story to eliminate lies that could be proven false and by supplying him with details of the crime to make him sound more believable. Section 1983 contains no immunity provision for prosecutors. So answering the question in Pottawattamie County almost certainly will require the court to reconcile conflicting case law and policy considerations. "I don't think any lawyer has an adequate explanation for it," says Harrington's lawyer, J. Douglas McCalla of Jackson, Wyo. "It doesn't make sense to me, and it doesn't make sense to most lawyers." The Supreme Court looks first to the common law when determining whether public officials are insulated from civil litigation arising from their actions in carrying out their duties. The court first addressed the question in a section 1983 setting in 1951, and over the decades it has conferred either full or qualified immunity on a wide range of officials, including judges, legislators, governors and other executive officers, school administrators and police officers. The question of immunity for prosecutors didn't reach the court until 1976, when it granted full immunity to prosecutors engaged in presenting cases in court, which generally begins at
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282 indictment but also can include preliminary matters such as seeking search war rants. The court based its holding on the absolute immunity that covered judges under common law--and still does. QUALIFIED PROTECTION As it fleshed out the details of prosecutorial immunity, though, the court granted only qualified protection to prosecutors when they advise or assist police in their investigations. That could be particularly important in Pottawattamie County, where McGhee and Harrington say the rights violations began before authorities developed them as suspects. Prosecutors say that's baloney: If McGhee and Harrington weren't suspects at the time, they couldn't be victims of civil rights violations. If anyone has a legitimate rights complaint, the prosecutors say, it belongs to the witnesses they questioned. They say the section 1983 plaintiffs can't use violations against others to assert their own rights. Moreover, prosecutors contend, any sins against McGhee and Harrison were washed clean when they presented the evidence in court under absolute immunity. (Police, meanwhile, labor under only qualified immunity throughout the investigation and prosecution.) Prosecutors hope their compartmentalized view that full immunity begins where qualified immunity ends will help them beat back decisions, by the trial court and the 8th U.S. Circuit Court of Appeals, that forced them to ask the high court to step in. The St. Louis-based 8th Circuit decided that the law should treat prosecutors the same as police, who can be held liable for falsifying evidence used at trial. They said prosecutors can't shed responsibility by putting on their advocate hats, walking into a courtroom and presenting to jurors the same evidence they helped invent as investigators working with the police. The Iowa prosecutors maintain the policy considerations behind insulating them simply override civil rights plaintiffs' hunt for compensation. "Something gets lost in the immunity doctrine," acknowledges Chicago lawyer Jeffrey W. Sarles, who represents the county and prosecutors. "It's just one of those compromises you have to make. There are always going to be some things that fall through the cracks. We're talking about principles."
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14 Fashioning a Top Career: Prosecutorʼs Memoir Details Work from Watergate to the 9/11 Probe Barbara Rose
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hen former Watergate prosecutor Richard Ben-Veniste counts a pivotal victory--the moment when a lawyer in resident Richard Nixon's White House agreed to turn over incriminating tapes--he shares an odd detail: The lawyer was "unaccountably got-up in a lime-green shirt with a brown suit," he writes in his memoir, The Emperor's New Clothes: Exposing the Truth from Watergate to 9/11. His eye for fashion is apparent when you meet the impeccably dressed Ben-Veniste, whose father worked as a salesman in Manhattan's Garment District. He also has a mischievous streak, displayed during his college years when he fabricated an early career for his mother, Sylvia, as a roller derby queen--a description that found its way into a newspaper profile of him during the Watergate scandal. That side of his personality may become more apparent if the 66-year-old partner at Mayer Brown in Washington, D.C., finds time to complete the half-finished novel in his drawer. "I enjoy some of the more absurd things in life, and you can be freer with that in fiction," he says. _______________________________________________________
Barbara Rose. "Fashioning a Top Career: Prosecutor's Memoir Details Work from Watergate to the 9/11 Probe." ABA Journal, Oct 2009 volume 95 issue 10 p. 35-37. Copyright © 2009 American Bar Association. Reprinted by permission
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284 He accumulated plenty of grist for gripping narratives during a career that includes such high-profile roles as counsel to U.S. Senate Democrats during the Whitewater hearings and 9/11 Commission member. Nixon helped advance Ben-Veniste's career more than once. Fresh from postgraduate legal studies in 1968, Ben-Veniste landed his dream job working as assistant U.S. attorney for Robert Morgenthau's office in the Southern District of New York, where young attorneys were given as much responsibility as they could handle. Before long he found himself assisting an investigation of influence peddling inside the office of U.S. House Speaker John W. McCormack. After his election as president in 1968, Nixon forced Morgenthau's resignation. Many of the senior AUSAs quit, leaving Ben-Veniste, at age 26, the only remaining attorney on the important probe. He subsequently was tapped by Morgenthau's replacement, Whitney North Seymour Jr., to help try the high-profile case against McCormack's chief aide, Martin Sweig. Ben-Veniste looks back on those years as the most important in his career. "Being mentored by people who went on to become leaders in their profession, shown by example not only the tradecraft but the proper limitations of prosecutorial power, was very important," he says. The job cemented his reputation as a tough, fast-rising trial attorney. He was only 30 when he was summoned to Washington to be interviewed by Watergate Special Prosecutor Archibald Cox Jr., who hired him on the spot (despite the fact, he recalls now with chagrin, that he wore a wide paisley tie). Trial law drew his interest from the start at Columbia Law School, then at a postgraduate program on a Ford Fellowship at Northwestern University School of Law. "The action, the focus, the ability to think on your feet, ask questions and listen, were consistent with whatever natural talent I had," he says. "To me that was the be-all and end-all of practice. Of course, until you stand in front of a jury you don't really know if you can do it. It turned out I was a fish in water." Summer jobs from the age of 12--busing tables, parking cars, pushing a hand truck in the garment center, delivering beer and laundry, working in offices--were also important. "I've had all kinds of experiences and come into contact with working people, which informed my ability to relate to them when they reappeared in a courtroom on a jury as 12 strangers."
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285 Instincts learned from his mother, a sense of fairness, knowing the importance of standing up to bullies and an affinity for the underdog also shaped his career. PYRRHIC VICTORY? The week after Nixon fired Cox, Charles Alan Wright--the green-shirted lawyer--rose in court to announce that the president would comply with an appellate decision ordering him to turn over White House tapes to a federal grand jury. "We had won! Nixon had capitulated," Ben-Veniste writes. "But we had lost our leader in the process. A horrifying thought crossed my mind. What if there was really nothing on the tapes after all, and the whole episode had simply been a plot to get rid of Archie?" He needn't have worried. The tapes held plenty of evidence, and Nixon's actions had once again advanced Ben-Veniste's career.
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15 “A Prosecutor is a Lawyer with Convictions” Joseph I. Cassilly
T
he following is an excerpt of remarks I delivered at this year's career prosecutor course. I assume that if you have come to the career prosecutor course that you intend to be a prosecutor for some substantial portion of your life. Let us understand what it is to be a prosecutor. A prosecutor is a lawyer for the State with the power to do justice or incredible harm. He is a leader not only in the criminal justice community but in the larger community that he serves. He is expected to be an example of respect for the law to those who know him or deal with him. As a prosecutor you cannot escape being a leader. Whether you are the elected or appointed chief prosecutor, a managing assistant prosecutor or the prosecutor who is on their own for the first time in court, people around you will follow your lead. It may be the police officer who violated, deliberately or accidentally, the constitutional rights of a criminal that watches your response to know whether he can do it again. It may be the investigator who puts in long hours diligently preparing his case who watches the prosecutor's handling of the case to decide if it is worth it to put that effort into _______________________________________________________ Joseph I. Cassilly. "A Prosecutor Is a Lawyer With Convictions.” Prosecutor, Journal of the National District Attorneys Association, April-June 2009 volume 43 issue 2 p. 4-6. Copyright © 2009 National District Attorneys Association. Reprinted with permission of the National District Attorneys Association
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288 the next case. It may be the prosecutor's friends who watch him at a party to see if he believes the laws against drunk driving apply to him. A prosecutor is a leader to these people and many more in the prosecutor's community who see the role of a state's attorney, a district attorney, or an attorney general as extending beyond the entrance to the courthouse. The prosecutor's willingness to lead within the various branches of government is critical to a successful system of justice. In the executive branch, the prosecutor who meets with police, prison officials, probation and parole, mental health and drug counselors, social services, schools, recreation organizers and many others can do much to shape the direction of services and spur new initiatives to answer problems of juvenile crime, substance abuse, domestic violence and prisoner reentry. If you are not meeting with them, you are not ready for the job. By interacting with legislatures at the local, state and federal level, the prosecutor can give an accurate assessment of the impact of crime and the effectiveness of solutions in their communities. It is important for prosecutors to always remember that legislators run for office thinking they know all the problems and have all the answers. They are bombarded by groups with a very selective view of the world. Mothers of guys doing prison time for beating up their girlfriends interpret the problem and see the solution very differently than the domestic violence victim advocacy group. Prosecutors most reach out to legislative representatives on every level to foster and support good laws and blunt bad ones. This is part of our job of representing our citizens. For some, the concept of community prosecution is a recent development, but it is an issue for most elected prosecutors at least every four years. It is called campaigning for office. It involves introducing yourself to the voters on the main street, attending candidate forums and visiting neighborhoods. This is an advantage and disadvantage for the county or city-based prosecutor. While they are in touch with their constituents' concerns, prosecutors also may be subjected to some rough treatment for unpopular decisions. A prosecutor must accept, as part of their duties, the responsibility of conducting themselves with respect for the law. If you are unwilling to bear this burden of responsibility, you will destroy your credibility and the respect of others for the law. Prosecutors are not entitled to bend or break laws. Thomas Jefferson said, "He who permits himself to tell a lie once, finds it easier to do it a second and third time, till at length it becomes
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289 habitual, he tells lies without the attending to it and truths without the world believing him." We must, as leaders, communicate to those who work for us, with us, and around us that we expect--no demand--ethical, just and law-abiding conduct in our lives and dealings with others. A prosecutor is expected to possess moral and ethical principles, integrity and the courage to do the right thing. Whether our principles came from our parents, church, school, scout troop of some innate sense of fairness, they must be consistent and not situational. The English philosopher Edmund Burke, while describing to the people what sort of government to expect, stated, "Your representative owes you not his industry only but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion." Our decisions as prosecutors are shaped by many factors but our judgment of right and wrong must not be the subject of a popularity contest. Those citizens without power, influence and money should expect of us the same treatment, the same judgment, as that we render to those citizens who possess power and money. Prosecutors must accept that we are subject to public scrutiny and that every opinion of act becomes a precedent for the ones that follow. The prosecutor's office must always emphasize integrity and courage in any situation. Assistant prosecutors should know what the elected prosecutor expects and know that the chief prosecutor will support the right decision. The prosecutor's integrity must not be warped by influence, nor may he abandon his courage and allow injustice to become the precedent for all his later actions. When citizens perceive that their prosecutor is not to be trusted to uphold the law, who is there that will make the justice system provide protection and justice? As easy as it is to say that an elected or appointed prosecutor must not let the desire to stay in office overcome his integrity, it takes a great deal of courage to risk the family's financial security to maintain a principle in the face of political and societal pressure. A young politician who gave his life, once said, "For of those to whom much is given, much is required. And when at some future date the high court of history sits in judgment of each of us, recording whether in our brief span of service we fulfilled our responsibilities to the state, our success of failure in whatever office we hold, will be measured in the answers to four questions. First, were we truly men of courage. Second, were we truly men of
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290 judgment. Third, were we truly men of integrity. Finally, were we truly men of dedication." That young politician was John E Kennedy. After 30 years as a prosecutor, I believe that Kennedy's words apply more particularly to prosecutors and police officers than to any other public servant. For the best exercise of my judgment I have drawn curses, threats and ridicule; the media has accused me of favoritism and fanaticism in the pursuit of justice, of being an incompetent of a coward. Having been re-elected six times, I hope that the voters have made their own decisions about my honor and integrity because we have little control over how our opponents and the media portray our actions. The National District Attorneys Association exists to promote pride in the profession, to set ethical standards and to support our members in finding their way through often tangled situations while dealing with the media. It is up to each of us to make sure that ethics are more important than winning. JOSEPH I. CASSILLY STATE'S ATTORNEY HARFORD COUNTY, MARYLAND
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InfoMarks: Make Your Mark What is an InfoMark? It is a single-click return ticket to any page, any result, or any search from InfoTrac College Edition. An InfoMark is a stable URL, linked to InfoTrac College Edition articles that you have selected. InfoMarks can be used like any other URL, but they’re better because they’re stable – they don’t change. Using an InfoMark is like performing the search again whenever you follow the link, whether the result is a single article or a list of articles. How Do InfoMarks Work? If you can “copy and paste,” you can use InfoMarks. When you see the InfoMark icon on a result page, its URL can be copied and pasted into your electronic document – web page, word processing document, or email. Once InfoMarks are incorporated into a document, the results are persistent (the URLs will not change) and are dynamic. Even though the saved search is used at different times by different users, an InfoMark always functions like a brand new search. Each time a saved search is executed, it accesses the latest updated information. That means subsequent InfoMark searches might yield additional or more up-to-date information than the original search with less time and effort. Capabilities InfoMarks are the perfect technology tool for creating: • • • • • • •
Virtual online readers Current awareness topic sites – links to periodical or newspaper sources Online/distance learning courses Bibliographies, reference lists Electronic journals and periodical directories Student assignments Hot topics 293
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294 Advantages • • • • • • • •
Select from over 15 million articles from more than 5,000 journals and periodicals Update article and search lists easily Articles are always full-text and include bibliographic information All articles can be viewed online, printed, or emailed Saves professors and students time Anyone with access to InfoTrac College Edition can use it No other online library database offers this functionality FREE!
How to Use InfoMarks There are three ways to utilize InfoMarks – in HTML documents, Word documents, and Email. HTML Document 1. 2. 3. 4. 5. 6. 7. 8.
Open a new document in your HTML editor (Netscape Composer or FrontPage Express). Open a new browser window and conduct your search in InfoTrac College Edition. Highlight the URL of the results page or article that you would like to InfoMark. Right-click the URL and click Copy. Now switch back to your HTML document. In your document, type in text that describes the InfoMarked item. Highlight the text and click on Insert, then on Link in the upper bar menu. Click in the link box, then press the “Ctrl” and “V” keys simultaneously and click OK. This will paste the URL in the box. Save your document.
Word Document 1. 2. 3.
Open a new Word document. Open a new browser window and conduct your search in InfoTrac College Edition. Check items you want to add to your Marked List.
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4. 5. 6. 7. 8. 9.
295 Click on Mark List on the right menu bar. Highlight the URL, right-click on it, and click Copy. Now switch back to your Word document. In your document, type in text that describes the InfoMarked item. Highlight the text. Go to the upper bar menu and click on Insert, then on Hyperlink. Click in the hyperlink box, then press the “Ctrl” and “V” keys simultaneously and click OK. This will paste the URL in the box. Save your document.
Email 1. 2. 3. 4. 5. 6.
Open a new email window. Open a new browser window and conduct your search in InfoTrac College Edition. Highlight the URL of the results page or article that you would like to InfoMark. Right-click the URL and click Copy. Now switch back to your email window. In the email window, press the “Ctrl” and “V” keys simultaneously. This will paste the URL into your email. Send the email to the recipient. By clicking on the URL, he or she will be able to view the InfoMark.
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