March 2011 Archives

March 31, 2011

American Exceptionalism and the United States Prison Population

There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It's perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It's hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there's a reason to think we're different, and better, surely it has it's roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn't meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That's to be applauded.

Regrettably, America is exceptional in a second, more numerically verifiable way.  We have more people in prison than any other nation on the planet.  That's not in relative numbers, but in absolute ones.  We have 2.3 million people in prison, compared with China's 1.6 million.  Considering that China is four times the size of the United States, and is not, ahem, freedom loving, that's stunning.

I have close relationships with a number of prosecutors, and, at times, I'll ask them about their work.  The question I come back to is this - If the United States locks up more people than any other country on the planet, what does that same about America?  Are our citizens uniquely inclined toward criminal activity?  Are we, as a people, more deserving of prison time? 

I don't think that's the answer.  I think we can accept that it can be the answer (we're not Australia, after all).  Rather, I think the answer, as David Simon has argued, is that the war on drugs has been a war on poor people.  Though I don't think a prosecutor is allowed to agree (unless he or she thinks it's ok for a country to declare war on poor people, which is a separate problem).

Rather, I think a third kind of American Exceptionalism explains how prosecutors react to our unconscionably high number of prisoners.  Years ago, I went to a talk by then Chief-Justice Rehnquist.  He was explaining that he was in Finland, meeting with the Attorney General of that country.  He asked her if the Supreme Court of Finland has the power to declare an act of parliament against the law in Finland.  The Attorney General consulted with her advisors and said that they could, but never had. 

To Rehnquist, this answer illuminated a key difference between Americans and the rest of the world - it is unthinkable for an American to have power and not test it's limits.  We are, according to our late Chief Justice, a power-hungry people. 

I have talked to a number of prosecutors, and I can see the lure of the position.  One can walk into a lot of opportunities from a U.S. Attorney's Office.  But I don't know one yet who I've heard offer a thoughtful response to how dramatically out of whack our prison population is with the rest of the world.  I can see, though, how Rehnquist could offer an explanation why people who increase our prison population don't stop to think much about its size.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

March 6, 2011

Why Do People Hate Juries?

Jury trials are under attack. Granted, my perspective is idiosyncratic – I tend to notice things only if they affect the kind of law I practice (mainly federal criminal defense and plaintiffs personal injury) or they get so much attention in the mainstream or legal press that they can’t be ignored. But from a lot of fronts, we’re sliding into a civil law/administrative system of justice instead of the one we learn about in school and that’s in the constitution.
 
I’m seeing three reasons to worry – federal judges sentencing criminal defendants on acquitted conduct; caps on damages, and Ken Feinberg.
 
It’s hard to explain to a client that regardless of what a jury says or what he entered a plea to, the Court has the power to sentence him up to the statutory maximum based only on facts that the judge thinks finds to be true by a preponderance of the evidence.  But, hey, that's the law.  Clients reasonably ask what the point of the jury is, if not to find the facts that lead to their sentence (clients, perhaps myopically, tend to focus more on how much time they’ll be away from their family than on the name of their offense of conviction). I don’t know what to tell them.
 
In the federal district court where I practice most, a guy was just given a life sentence. His guidelines were just over fifteen years. The government proved up state crimes that he was acquitted of. Turns out the federal judge doing his sentencing was more sympathetic to the government's evidence than the state jury was; he decided that the defendant was actually guilty of the state offenses and gave him the statutory maximum based on hearsay testimony and a preponderance of the evidence standard. 
 
How much violence does that do to the idea that jury trials matter? 
 
The problem is that federal courts have decided that jury trials only matter to the fact of a conviction – the actual sentence is up to a judge. But, no one but a lawyer cares what the offense of conviction is – people care about how much time in prison they’re going to get. Taking a jury trial away from the thing that really matters – the facts that support a sentence – is a sophistic slight of hand.
 
Caps on damages in civil suits are the same thing – courts or legislatures think that they should be making decisions about damages, rather than the good citizens of our community, should be making decisions about damages.
 
Ken Feinberg has built an empire on the idea that jury trials are to be avoided. And he’s showing no signs of turning into Ozymandias any time soon.
 
I’m not sure if jury determinations about, say, sentencing would always work out well for my clients. Juries can do crazy things – they probably give sentences that are higher than what a judge would give for crimes of violence, but white collar cases may work out better, at least under current federal sentencing guidelines. In civil cases, there are plenty of stories of completely bizarre jury behavior.
 
What bothers me is that the way jury rights are chipped away at is the very worst about lawyers. Consider the Seventh Amendment –
 

            Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 
“No fact tried by a jury shall be otherwise re-examined in any Court in the United States.” Pretty clear, right? 
 
Good citizens, here’s what your courts allow – a defendant in a civil case can file a motion for judgment on the evidence before the jury gets the case, then, after an adverse jury verdict, the defense lawyer just renews her prior motion. The Court is ruling, not on the jury verdict, but on the motion that happened before the jury verdict. It’s clever, but I don’t mean “clever” in a good way.
 
Is this a problem?  I think so.  If we're going to change the way we decide things in our courts, we should do it after we all get together and decide that's the change we're making.  But that's not what we're doing.  The way we decide important questions about what people should be punished for, or how much a life is worth, is changing.  And it's changing in ways that aren't being discussed.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.