Suppression of Evidence

Should evidence obtained as a result of police misconduct, or in violation of the accused's constitutional rights, be suppressed at trial?

As any watcher of Law & Order probably knows, as a general matter, under the exclusionary rule, fruit from the poisonous tree is no good at trial. (Mapp v. Ohio made the exclusionary rule applicable to the states.)

But in its 2008 Herring v. United States decision, the current Supreme Court seems to be heading towards saying... nuh-uh, not anymore.

Should the exclusionary rule stand or fall? (Not as a constitutional matter. Just as a policy matter.)

I feel like I ought to go with the Lefties on this one, but... I think I might actually agree with the Roberts crowd. Yes, true, the exclusionary rule currently acts as a powerful check on police power - holding them to respect 4th and 5th Amendment rights during the course of investigations. But oughtn't there be other ways to make the 4th/5th Amendments enforceable? Robertscalia points to the availability of civil suits against police officers as a deterrent, for example.

Cases where the police bust in and find the bloody knife with the accused's fingerprints, but then the evidence is excluded from trial because of police misconduct....... they just don't sit well with me. The evidence is there.

Maybe I have too much faith in the police. What do you think? I think some of my Lefty classmates would be aghast...

[XY Comment]: That is really interesting. Certainly seems like there could be room to have this judged case by case to allow the judge to determine if the police acted inappropriately and whether the evidence should be thrown out. You'd be worried with this type of discretion if the judicial system were weak or dependent on the law enforcement system. That doesn't generally seem to be the case in the US, so I have no problem giving up the current law.

Religion and criminal law

I thought this was an interesting article about a religious group that still practices polygamy in Canada. What interests me about this is that the government has investigated the group previously in 1991 but did not pursue a case. Religious beliefs can be pervasive in all aspects of life and conflict with secular laws can create quite a dilemma.

[/XX Comment] So from a privacy standpoint, or from an equal protection standpoint, I don't really see a conflict between anti-polygamy laws and the Constitution. In other words, it's not an undue burden on people's privacy (like certain anti-abortion laws, or laws restricting hte use of contraception, or homosexual sodomy), and it's not an equal protection problem either from a doctrinal standpoint.

We didn't study freedom of religion at all in my conlaw class, but here's my feeling about it...

Freedom of speech is not an unlimited right. Depending on what kind of speech you are making and where you are making it, government can limit your right to free speech, so long the regulation is viewpoint neutral.

Doctrinally, I don't know anything about freedom of religion, but I'm going to venture forth a guess that freedom of religion is not an unlimited right either, since it's covered under the same amendment. For instance, I doubt I could start a Religion Worshipping Gods Who Like Human Sacrifice, and then shield myself from prosecution for murder when I kill people on a purely religious basis.

So long as the secular law is constitutional, I don't see a problem with the enforcement of secular law infringing on freedom of religion. I don't see why your practising your religion should entitle you to violating secular laws. (Of course, I don't know how Canadian constitutional law looks at anti-polygamy laws.)

This mindset of mine is why I also had trouble with the torts cases I'd blogged about some time ago, where the religious person had a 'reasonable religious person' standard rather than a 'reasonable person' standard for liability. I just don't get it.

[/XY Comment] Well it seems to me that outlawing polygamy doesn't really make too much sense to me. Is a person allowed to have sexual relations with as many consenting people as they want? Yes. Could a man live with a dozen women and father children with all of them? Yes. Nothing there is illegal, and actually these actions are protected as regular freedoms.

It seems the only thing illegal is actually being `married' to multiple women, which is arbitrary and which most of society judges as morally questionable.

[/XX Comment] I think outlawing polygamy makes perfect sense, if you accept that the state should be in the business of regulating marriage in the first place (which I don't agree with). But if the state is in the business of regulating marriage, then it can regulate it however it wants.

The rationale for anti-polygamy laws is an anti-libertarian Protect The Woman rationale. It's thought that the state should protect women from themselves, from making decisions (i.e. marrying a polygamist) that are bad for themselves.

I think it's perfectly reasonable. But... the state should just get out of the the marriage regulating business all together.

1st, 2nd, Manslaughter

Background (aka review of Law & Order basics)

Murder is homicide with "malice": (1) purpose to cause death or (2) intent to inflict serious bodily harm or (3) extreme recklessness with regard to someone's life with such unworthy purpose that it suggests callous indifference to human life. Under the typical state statute, murder is split into degrees:

First-degree murder: intentional and premeditated, or during the course of a specifically enumerated felony (felony murder). Generally punished by 15 years to a life sentence or the death penalty.

Second-degree murder: all other murder (without premeditation). Generally punished by 5 to 15 years.

Manslaughter is homicide without malice. Types:

Voluntary Manslaughter —intentional killing without malice. Killer either acted a) in heat of passion after “adequate provocation” or b) in honest but unreasonable belief that it was necessary for self-defense.

Involuntary Manslaughter —reckless or highly negligent killing. Some states break up into reckless manslaughter, negligent homicide, and vehicular manslaughter.

Question:

First off, I'm not sure I understand the difference between 2nd degree murder and voluntary manslaughter, given that in some jurisdictions, some courts have treated action in the "heat of passion" as both the distinction between (1) 1st and 2nd degree murder AND between (1) murder and [voluntary] manslaughter. At this point, after only having had 1 day of criminal law and a smattering of Law and Order episodes, I'm having trouble distinguishing the two.

Now, more as a POLICY question...

Why do we have lower sentences for 2nd degree murder (& voluntary manslaughter, since I seem to be conflating the two concepts...) than we do for 1st degree murder?

I think you could make an argument that prison sentences, at least, should be equivalent for 1st and 2nd degree murder (though perhaps death penalty should only be available for 1st degree murders, insofar as death penalty should be available at all -- but that's a different story).

If the justification for punishment is incapacitation - that is, incapacitating the perpetrator so that he cannot harm again for the period of his imprisonment, then I would argue that it is just as important to incapacitate one who intends to kill someone as a result of provocation, or in the heat of passion as it is to incapacitate one who plans to kill someone and carries out that plan. To me, the 2nd degree murderer (...& voluntary manslaughter-er) appears to be a person who cannot control his impulses.

So why not lock him up for just as long for the person who plans and schemes to kill someone? He is just as dangerous to society for his inability to temper himself, it seems to me.

Of course, there are other theories behind punishment -- deterrence, for example. Under a deterrence theory, there would be no reason to make sentences equal for 1st and 2nd degree murders. Then again, under a pure deterrence theory, I'm not sure imprisonment really deters ANY crime that is a result of provocation / lack of control of impulses, etc.

Under a retribution theory of punishment, then, yes, I guess you would punish the schemer more than the 2nd degree murderer. Maybe. Perhaps premeditation is evidence of more 'malice,' in a way, and is more deserving of punishment. Although I don't necessarily agree with that statement.

I tend to favor the incapacitation theory (combined with a little bit of retribution, I guess) behind punishment, and under that justification, I'm not sure I understand why there are different sentences at all between 1st and 2nd degree murder.

Any thoughts? You watch more Law & Order than I do, I think.

[XY comment]: I think deterrence provides a strong justification for distinguishing between 1st and 2nd degree murder. I also think part of the difference in punishment is the acknowledgement of randomness in actual outcomes and a person's responsibility for them. To the extent that a person's actions lead deterministically to another's death, that is the worst type of crime. To the extent that a person's actions were only part of the reason (i.e. other circumstances influenced the person - provocation for example) then the person is held to be less responsible. That is where deterrence comes in because a person can only be held accountable for his/her own actions. That is also how I think one should judge the different levels of murder, although the line between the different types of murder are definitely gray.

Which is more obnoxious?

So Saturday I went to a classmate's birthday party and many people inquired about XX. Possible answers:

A) XX is now going to [prestigious law school].

B) XX lives in [where the prestigious law school is located], she's a first year in law school.

Note that this place is famous for one school, so naming the location is almost as good as naming the school.

Now the question: which is more obnoxious? Both XX and I hate pretentiousness and pretentious people...I find both answers moderately pretentious just because of the name-dropping, and the follow-up from the other person is inevitably - "Oh that's great - that's a great school etc. etc."

I found myself doing a little bit of both A and B, but definitely ended up using one more than the other...But before I reveal that - I'm curious which XX thinks is the better route.

[/XX edit]

Theoretically, I do think A is less pretentious, especially if given as a response to a direct question. B seems to be avoiding the question in an attempt to seem humble, but when in actuality it's not any more humble than A and is just annoying.

... however in practice, I still tend to use B more often. I think I justify it by thinking, well, I'm really meaning to be humble here. Even if it comes off as totally pretentious. Do as she says, not as she does, I guess. Um. Yeah.

[XY Comment]:

Yeah so I generally go with B - and I think it does come off as more obnoxious, which is ironic because I'm really trying to be less obnoxious. I guess I'll try and switch to A.

Torture (aka Maybe Left of Center isn't so Left of Center!)

Atlantic blogger Andrew Sullivan disses Newsweek for defending Bush/Cheney et al. re: torture at Abu Ghraib. I haven't read the Newsweek article, and I'm not really addressing the issue of whether Bush/Cheney orders were followed to the letter or followed in spirit / grossly taken out of proportion by subordinates, although that issue is certainly interesting.

Also interesting is the question of whether torture has rooted out or created more terrorists, but that's an empirical question, and at this point, totally speculative.

But, somewhat in the vein of I-Agree-With-Roberts, I'd just like to briefly discuss the torture issue itself. I think I've posted before that I think Bush Haters make him out to be a vile, evil human being who sadistically wanted to torture people and break laws just for the helluvit. Or there are the Bush Haters who value the Rule of Law - like, um, most of my classmates - who gasp at the very thought of compromising that Rule of Law. The sanctity of the Constitution / Geneva Conventions - egad!

I don't mean to make fun of them, but ... the issue isn't so black and white. Sure, when you're confronted with brutal photos at Abu Ghraib, and stories about what's done to people subject to extraordinary rendition, it's hard to come out and say, Yes, this is justified; this protects our country.

Because you don't know whether this really protects our country. At all. Like the question of how many terrorists the torture may or may not generate, it's an empirical question - and anyone's guess.

And maybe that's an argument for eschewing torture all together. Especially given that many of these detainees are tortured with absolutely zero due process. The risk of error is enormous. But how do you weight the costs and benefits? We don't know whether the intelligence we extract from torturing really saves lives. We don't really know the costs in terms of terrorists created. Maybe torture - the compromise of law - itself is a cost, and should tip in the balance of not having it.

But what would you give to sleep sound at night? To make sure your children are safe in bed?

It's a different situation. But... take the Israel-Gaza situation. There are huge costs. Civilian lives lost. The cost of war, in the face of some international disapproval. Does it really protect Israel, or create more angry militants on the Gaza border (and on the Lebanon border, for that matter, from Hezbollah)? But Israel justifies it, because Hamas fires rockets into their neighborhoods, with the potential of killing people. Self-defense, says Israel.

Is torture, rendition just America's self-defense? Maybe no Peace At Night argument can justify the violation of international law and norms. But... technically, the Justice Department carved themselves out a nice little exception in terms of unlawful enemy combatants. Yes, to avoid the law.

Should law be obeyed in all circumstances? Formalism vs. functionalism. Isn't the formalist answer in this case completely operating outside of reality in a post-9/11 world? I'm curious to see what Obama will do when he gets into office, when he is at once confronted by his own aversion to torture and to Bush's policy (and how they've harmed America's moral standing) and by his awesome responsibility for the SAFETY OF AN ENTIRE NATION.

Last question, out of curiosity. For staunch anti-torturers, what is their position on whether the U.S. should transfer prisoners to countries that do engage in torture?

[XY Comment]: In general, when people take absolute stances I hesitate and take pause. Obviously the world is complicated, and that makes taking absolute 100% stances difficult. It is easier to say that we should never torture anyone than to deal with the difficult issue of when it could possibly be justified. Because it's such a difficult issue, it does lead me to think that taking an absolute stance may be beneficial because we would need absolute confidence in the people in charge to make the right decisions in the gray areas. Even if we don't have absolute confidence, could there be hypotheticals where it is definitively needed? I hesitate to say no.

Perplexing Views

Approximately a month and a half after arguing vehemently in favor of Petitioners in Bagram / Guantanamo detainee litigation [at practice oral arguments at school], I suddenly find myself agreeing fully with Justice Roberts' dissent in Boumediene v. Bush.

More on this later, if I get the chance and am still as perplexed about my newfound concurrence with the conservative Roberts position as I am now.

[/XY Comment]: Personally I see changing your mind as displaying admirable flexibility. I'd love to know what arguments Roberts made that changed your mind. Also interested in if you read Roberts' arguments before, but are only now finding his arguments convincing.

[/XX Update]:

QUICK AND DIRTY SUMMARY OF MAJORITY BOUMEDIENE HOLDING (Justice Kennedy, 5-4 decision): Kennedy holds that Guantanamo bay detainees have the right to seek habeas corpus, because:

(1) the writ extends to Guantanamo under a 3-factor test which the Court articulated and applied;
(2) Congress has not suspended the writ in accordance with the Suspension Clause [Constitution, Art I. Sec. 9]; and
(3) Congress has not provided an adequate substitute for habeas.

The Court struck down Section 7 of the Military Commissions Act of 2006, which stripped federal courts of jurisdiction to hear habeas petitions from enemy combatants, as an unconstitutional suspension of the writ.

I first read this case in Con Law, in preparation for writing my brief on a very similar issue (whether the writ runs to Bagram, Afghanistan). I had briefly skimmed over the Roberts and Scalia dissents. I'd focused immediately on the constitutional questions - following Kennedy's reasoning, looking at the Suspension Clause, applying the Boumediene 3-factor test, etc. Granted, I'd had to take the case as a given, since it's Supreme Court precedent.

So, what made me change my mind? This second time around, I read the class for Civil Procedure, focusing on the procedural parts. And, in reading the Roberts dissent in this new context, I largely agree with him that maybe the constitutional issue should never have come up in the first place.

ROBERTS DISSENT

It's a long (and eloquent) dissent, but basically, Roberts argues that the Court should have resolved the case on other grounds. He argues that the court should have asked first whether the system that Congress designed satisfies any rights that the detainees may possess -- basically, question #3 in the majority's opinion, but asked in a slightly different way.

As background, Congress had legislated a system wherein these tribunals called CSRTs make initial and periodic status determinations of enemy combatans held by the executive. Then, to satisfy some other Guantanamo-related cases, Congress added judicial review under a DTA process, where the D.C. Circuit was allowed to review CSRT determinations under limited circumstances. This was Congress's attempt to balance the need for process with the need to protect national security.

Kennedy/Majority evaluated the DTA process as an inadequate substitute for habeas. So, habeas was the standard against which DTA was measured. Roberts argues that that's not the right approach - the Court should have asked whether the DTA process satisfies any due process rights the detainees have in the first place. (Roberts essentially answers his question in the affirmative, but that part is less convincing to me. Still - since this was a dissent, he didn't have to make his affirmative case.)

I agree especially with Roberts' assessment of the majority holding, which essentially dumps Congress's prescribed DTA process as inadequate (but then doesn't scrap it off the books, either] without really specifying what procedures will replace them.

Yes, the Court grants habeas, but habeas is malleable. Will the Court allow hearsay evidence? [An earlier Guantanamo case, Hamdi, argued yes.] Will the Court allow a presumption for the government's evidence? [Hamdi said yes.] What will be done about the confidentiality / military secrets problem? [The DTA process dealt with this explicitly. The majority opinion says, Ohhhh the lower courts can figure it out themselves, hyuck hyuck hyuck!] Are they entitled to counsel? What's the evidentiary standard? Who has the burden of proof, the burden of non-persuasion?

Roberts argues that these uncertainties about how a habeas proceeding would balance the need for 'process' against national security interests will probably have to be resolved in further litigation to determine exactly what process is required.

What bothered me most about the majority opinion was that one of its biggest beefs with DTA was that detainees would have limited access to witnesses and exculpatory evidence, because of their detainment and lack of access to counsel. But then after granting the magic habeas on them, the Court doesn't even rectify the very procedural problem they pointed out. It's perplexing.

There's more substance to Roberts' dissent than I've written here. He makes a separation of powers point that because the Court hasn't really specified what procedures would be used in these habeas cases, the majority basically just grabbed the detainee issue away from the legislature. It's kind of an overly dramatic point - the traditional conservative Judicial Activism complaint. But here, I find it kind of true.

Again, I think Roberts grossly over-estimates the value of the CSRT/DTA process. He makes it sound like the detainees are getting a full criminal or military trial or something, but really... the CSRT/DTA process is nothing close to that. Still, the question is whether they're getting process that they're entitled to. I'd be curious to see what due process rights Roberts - or anyone - thinks detainees have, though, if any (and where they'd come from, because ... then you'd have to get into the question of whether the 5th Amendment applies outside of the U.S.).

Despite those criticisms, I find Roberts' overall argument convincing. And I think the main change in why I was pro-Majority the first time and pro-Roberts this second time around is the lens through which I read the case - constitutional vs. procedural.

FYI, my own view, from a policy perspective - not a legal perspective - is you should give detainees process anyway, even if they're not entitled to it, just because there has to be SOME WAY, even if it's a hard way, for an innocent detainee to get out of indefinite detention. But again, from a legal POV, under a Roberts analysis, there doesn't seem to be a legal source for detainee due process rights. Which is exactly why CONGRESS prescribed the CSRT/DTA process. And if that isn't sufficient, in some moral sense, then CONGRESS should provide better process.

Anyway. I've taken too long of a study break... and rambled on for way too long... but I hope you found it interesting.

Gen Y ... Unprepared for the Real World?

In this article, Managing the Facebookers, the Economist discusses the differences between Gen-Y (us, the Net Geners) and the old-schoolers who, in many cases, are our bosses once we enter the workplace:

"The Net Geners have grown up with computers; they are brimming with self-confidence; and they have been encouraged to challenge received wisdom, to find their own solutions to problems and to treat work as a route to personal fulfilment rather than merely a way of putting food on the table."

The old-schoolers often welcome the current economic troubles, the article says, as a wake-up call to idealistic youngsters. Certainly, there are differences between generations; we've grown up in different times, acquired a slightly different set of values. But I'd hypothesize that the management difficulties created by this generation gap have been exaggerated. It seems like people who find their work personally fulfilling might be better to manage - they show enthusiasm, increase productivity, and contribute to morale, etc. in ways that those who see their job as putting food on the table do not.

Still, kind of an interesting article, tying everything to the current crisis.

Some good news...

I got back to the apartment yesterday to find a new lego catalog waiting for me. Perhaps inspired by financial mayhem and activities in Somalia - lego has revived their pirate series - aarrrrrhhh! (I'd link it but that part of the lego website is down at the moment). Great news for me because pirate legos are my all-time favorite. Definitely will be looking to add to my Navy (I have a pirate ship already so I'm looking for an Imperial warship to have it duel). They've also been reviving their castle series, adding dragons and trolls etc. I like what the company is trying to do although it's tough to get kids to put down the video games.

[/XX edit] Oh god, I love Legos. :)