Transferred Intent and Hiding in a Crowd: b.Sanhedrin 79-80

Today and tomorrow’s pages address two issues on which there is plenty of writing in modern criminal law. The first is the issue of transferred intent. Usually, we look for a match between the physical elements (actus reus) of a criminal offense and the mental state (mens rea) required for committing it: we can’t find someone guilty unless we prove *both* beyond reasonable doubt. Murder offenses, then, require proof that A caused B’s death as well as proof that A intended to cause B’s death. The problem ensues when A intends to kill B but kills C, and the usual rule is that the intent transfers: since the law does not prefer B’s life to C’s, it’s the same to the law who A intended to kill, as long as they killed a person. But the mishna for today deals with scenarios in which the mismatch between intent and action is more profound: A intends either a lesser or a greater offense than the one he actually commits. In all these cases, the mishna says, A is not liable for the serious crime:

  1. A intended to kill someone for whom they would face a lesser punishment (e.g., intended to kill an animal and killed a person);
  2. A intended a non-lethal strike (say, at B’s hips) but made a lethal hit (say, at B’s heart);
  3. A intended a lethal strike, ended up making a non-lethal hit, but B died anyway (eggshell skull? a fluke?)
  4. A intended a non-lethal strike at B, an adult, but the blow landed on C, a minor (and thus more vulnerable), and killed him.
  5. A intended to lethally strike the minor, C, but mistakenly struck the adult, B, with a blow usually not hard enough to kill an adult, but B died anyway (eggshell skull? a fluke?)

So far so good. But the mishna implies that Rabbi Shimon disagrees, and the gemara elaborates:

רַבִּי שִׁמְעוֹן אַהֵיָיא? אִילֵּימָא אַסֵּיפָא, ״רַבִּי שִׁמְעוֹן פּוֹטֵר״ מִיבְּעֵי לֵיהּ! אֶלָּא אַרֵישָׁא: נִתְכַּוֵּון לַהֲרוֹג אֶת הַבְּהֵמָה וְהָרַג אֶת הָאָדָם, לַנׇּכְרִי וְהָרַג אֶת יִשְׂרָאֵל, לַנְּפָלִים וְהָרַג אֶת בֶּן קַיָּימָא – פָּטוּר. הָא נִתְכַּוֵּון לַהֲרוֹג אֶת זֶה וְהָרַג אֶת זֶה – חַיָּיב. רַבִּי שִׁמְעוֹן אוֹמֵר: אֲפִילּוּ נִתְכַּוֵּין לַהֲרוֹג אֶת זֶה וְהָרַג אֶת זֶה – פָּטוּר. פְּשִׁיטָא! קָאֵי רְאוּבֵן וְשִׁמְעוֹן, וְאָמַר: ״אֲנָא לִרְאוּבֵן קָא מִיכַּוַּונָא, לְשִׁמְעוֹן לָא קָא מִיכַּוַּונָא״ – הַיְינוּ פְּלוּגְתַּיְיהוּ. אָמַר: ״לְחַד מִינַּיְיהוּ״ – מַאי? אִי נָמֵי, כְּסָבוּר רְאוּבֵן וְנִמְצָא שִׁמְעוֹן – מַאי? תָּא שְׁמַע, דְּתַנְיָא: רַבִּי שִׁמְעוֹן אוֹמֵר, עַד שֶׁיֹּאמַר ״לִפְלוֹנִי אֲנִי מִתְכַּוֵּון״. מַאי טַעְמָא דְּרַבִּי שִׁמְעוֹן? אָמַר קְרָא: ״וְאָרַב לוֹ וְקָם עָלָיו״, עַד שֶׁיִּתְכַּוֵּון לוֹ.

Essentially, and by contrast to the modern criminal law view on this, Rabbi Shimon (and, as is later explained, Rabbi Hizkiyah) would exempt *everyone* who committed a homicide with transferred intent; he finds a biblical anchoring from this position in Deuteronomy 19:11, which addresses a murderer lying in wait–presumably for a specific person. That the biblical text intends to hold the ambushing murderer liable implies that in cases where things went awry there is no liability.

The rabbis disagree. Instead, Rabbi Yannai’s school limits the interpretation of the Deuteronomy verse to situations in which A was ambushing a particular individual as opposed to throwing a stone into a crowd. But even here, there are variations: in the bible, the killing of a gentile is a less serious offense than the killing of an Israelite (lovely), and thus to some rabbis the percentage of Israelites and gentiles in the crowd matters (even lovelier). But if there is one gentile in the crowd of Israelites, he is “fixed”, and thus the treatment is as if there were half and half. In any case, the rule of lenity prevails: the doubt works in favor of the would-be murderer (all’s well that ends well, I suppose. Ugh.)

All these exemptions make it tough to explain away Exodus 21:22, which deals with a situation in which brawling people who hurt a pregnant woman and kill the fetus are liable; the rabbis explain that the liability in such a case is expressed through money damages, not through execution. But the school of Rabbi Hizkiyah disagrees: they believe that the verse refers not to situations of accidental killings, but to situations of transferred intent, and therefore agree with Rabbi Shimon that there is no liability here at all.

***

This discussion of the rule of lenity connects us to the second issue that comes up in these pages: a mishna involving a murderer who hid himself in a crowd, the sinister version of Where’s Waldo. Since the killer cannot be identified, all must be acquitted (reasonable doubt). Except, Rabbi Yehuda believes that all of these people, including the unidentified guilty party must be taken to a place called a כִּיפָּה (a room with a dome?), and at least according to one translation, they will all die in that room (this is intractable logic and will be discussed in detail in a little bit). Similarly, people sentenced to a variety of deaths who mix together, making it impossible to match a person to their execution method, must all be killed in the most lenient form–except, as you’ll recall from our earlier pages, there is a debate over which is the more lenient form. The previous discussion did not quell this debate, which now reignites, but we won’t go there. Instead, we go on to try and understand the logic of the Where’s Waldo mishna–particularly Rabbi Yehuda’s bizarre suggestion that the whole crowd is to die in the domed room–with the help of three perspectives:

  • Rabbi Abahu cites Shmuel, who explains away the confusion by relating the mishna to a situation in which a murder defendant whose case has not yet concluded in a decision mixes up with a crowd of convicted murderers. While the majority opinion is that the person cannot be judged in absentia, and thus cannot be executed along with the convicts, Rabbi Yehuda presumably feels uncofmortable because the rest of the crowd is guilty.
  • Resh Lakish thinks that everyone, including Rabbi Yehuda, would agree that no one should be executed in the Where’s Waldo scenario; however, Rabbi Yehuda’s ruling applies to a goring ox whose verdict has not yet been given and who is hiding amidst a whole herd of convicted goring oxen.
  • Rava points out the difficulty of reconciling this position with the possibility that one of the sages’ fathers might be in the crowd. Rather, he says, the mishna refers to a scenario in which two people stand next to each other, and an arrow emerges from the two of them and kills a person; neither is liable, as we do not know who shot the arrow (the causation analysis in this situation would be a lot more complicated in modern law).

From here, the sages draw an analogy to goring cows who give birth to calves, which I personally do not find all that helpful or savory. So instead let’s take a look at one final little pearl. In the argument about which execution method is more severe, we’re told that Rav Yehezkel and his son, Rabbi Yehuda, disagree. The son says to the father (presumably in public): אַבָּא, לָא תַּיתְנְיֵיהּ הָכִי (“Dad, don’t teach it this way.”) This rudeness draws a rebuke from Shmuel:

אֲמַר לֵיהּ שְׁמוּאֵל לְרַב יְהוּדָה: שִׁינָּנָא, לָא תֵּימָא לֵיהּ לַאֲבוּךְ הָכִי, דְּתַנְיָא: הֲרֵי שֶׁהָיָה אָבִיו עוֹבֵר עַל דִּבְרֵי תוֹרָה, לֹא יֹאמַר לוֹ: ״אַבָּא, עָבַרְתָּ עַל דִּבְרֵי תוֹרָה״, אֶלָּא אוֹמֵר לוֹ: ״אַבָּא, כָּךְ כְּתִיב בַּתּוֹרָה״. סוֹף סוֹף הַיְינוּ הָךְ! אֶלָּא אוֹמֵר לוֹ: ״אַבָּא, מִקְרָא כָּתוּב בַּתּוֹרָה כָּךְ הוּא״.

Shmuel says, “Oi, long-toothed one, don’t talk to your dad that way. A baraita says that, if a son sees his dad violate the Torah, he must not say, ‘Dad, you violated the Torah,’ but rather indirectly point out, ‘Dad, the Torah says x.'” Other sages disagree with Shmuel – both formulations are rude, and instead it’s best to say to your dad something even more oblique, like, “Dad, this verse says x.’

We resume on Saturday with page 81.

Peculiar Murders: b.Sanhedrin 77

PROFESSOR CALLAHAN:Ms. Woods, would you rather have a client who committed a crime malum in se or malum prohibitum?
ELLE: Neither.
CALLAHAN: And why is that?
ELLE: I would rather have a client who’s innocent.
CALLAHAN: Dare to dream, Ms. Woods. Ms. Kensington, which would you prefer?
VIVIAN: Malum prohibitum. Because then the client would have committed a regulatory infraction as opposed to a dangerous crime.
CALLAHAN: Well done, Ms. Kensington. You’ve obviously done your homework. Now let us look at malum prohibitum a little more closely. It has been said…
He sees Elle’s raised hand.
CALLAHAN: Yes, Ms. Woods?
ELLE: I changed my mind. I’d pick the dangerous one ’cause I’m not afraid of a challenge. –Legally Blonde

One of the mainstay features of the first year of law school is an assortment of bizarre hypotheticals about unusual murders. The reason law professors make up these strange scenarios is to train students in understanding principles of action, omission, and especially indirect causality–an unsavory but effective way to develop lawyerly thinking. Much as I understood the pedagogical value of this stuff, I kind of recoiled from inculcating people with outlandish scenarios when the bread-and-butter cases they would encounter in practice called for more attention; this is partly why I taught substantive criminal law very differently in 2005-2006 and much later, in 2012. But Talmudic sages live for this stuff, because they feel an obligation to build a towering shrine of logic for every word in the Torah and in the Mishna, and the latter source holds that a murderer is to be decapitated. So, here come mountains of expounding on who counts as a murderer and who does not.

At common law and most U.S. jurisdictions, a person is culpable of homicide by act or omission (the omission must come with a duty to act; there is no inherent duty to save every person on the planet, only those whose dangerous situation you created or to whom you owe special care by contract, statute, or relationship). For one’s act or omission (A) to cause another’s death (B), A has to happen before B, and it must also be established that: had A not occurred, B would not have occurred, and there is some proximity in time and circumstances between the two.

As you’ll see from the following examples, the Talmudic causality logic is pretty straightforward, and very similar to the common law rule. A person is culpable of murder if he strikes the victim with a stone or with iron (any size is lethal, says Shmuel), or holds a victim underwater or in a fire (unless the victim can extricate himself but for some reason does not). Siccing a dog on a victim is murder, but according to some, doing the same with a snake is not (as the snake has a mind of its own). If A pushes B under water, but C holds B down, C is responsible for the murder. It even might be possible that A is not responsible, if his contribution ws not the lethal one.

What if A exposes B to the elements, and B dies of natural consequences (e.g., confined to a hot place and dies of heat, or tied up and dies of starvation)? The causation here is indirect, as the immediate cause of death will appear to be “natural”, but of course there is criminal accountability here, as it is the action of the murderer that creates the conditions for the natural cause of death. It is, however, crucial to figure out whether exposing B to the dangerous situation guaranteed the lethal outcome. According to Rava, for example, tying a person in front of a lion is not murder (the lion might not be hungry), but in front of mosquitoes is (they will inevitably bite). According to Rav Ashi, even the mosquitoes have a choice.

A dispute between Rava and Rav Zeira involves a situation in which A overturns a vat on B, and the latter dies of suffocation. The redaction is unclear about who thought what. Some believe Rava would acquit, because he would also exempt A from tying up B who dies of starvation. Others believe Zeira would acquit, because he woudl exempt A from putting B in a sealed marble house unless he lit a lamp emitting poisonous fumes in it (an issue of proximate cause).

A few more scenarios follow, which are trying to get at problems of indirect causality (what today’s criminal law scholars would call “lack of proximate cause” but, at least to me, the logic does not track well, and is certainly less persuasive than the previous round:

  • A pushes B into a pit with a ladder. Later, C removes the ladder (or even A removes the ladder himself). The sages acquit A, because at least initially, B could have used the ladder to escape.
  • A shoots an arrow at B, who holds a shield. If, after the arrow was shot but before it reaches its target, C removes the shield (or even A somehow traverses the time/space continuum and removes the shield), A is to be acquitted, as when he shot the arrow B was still shielded.
  • A shoots an arrow at B, who holds medicinal herbs that can heal the wound. If C snatches the herbs from B (or even if A snatches them) before he can heal, A is exempt, as when he shot the arrow B could have saved himself.
  • The latter scenario, says Rav Ashi, holds true even if B didn’t hold the herbs, but they were available at the market.

The page ends with some examples that have to do with dangerous items that rebound:

  • A throws a stone to kill B. The stone rebounds off a wall and kills C; A is accountable (this is known in modern criminal law as “transferred intent.”
  • Same story if A, B, and C play ball, which rebounds and hits D. If they intended to hit D, they are culpable (as a silly aside, if they did not intend to, they can go to exile, for which the term is “golin”, and the association with a goal is, at least for me, inevitable).
  • If A throws a ball that hits B within four cubits (אַמּוֹת) of A’s location, A is not culpable, as it was not his intent to throw the ball such a short distance–though other dispute this and say that intent governs the outcome, regardless of distance.
  • The outcome of rebounding and diverting objects has to do with the expected physical outcome of the action. If A diverts water from its course and the flow kills B, A is liable if he exercised enough force, or diverted the water, with sufficient pressure to kill. Similarly, if one throws an object up, the object is bound to come down, but if it takes some unexpected turn to the side and kills someone, the thrower is not liable.

This concludes page 77, which carries both me and you through the end of Tuesday, by which time my busy solo parenting will come to an end and we can resume on Wednesday with page 78 right on schedule with the rest of the Jewish world. More basic homicide law to come, so stay tuned. Happy rosh hodesh (beginning of the Jewish month) and Shabbat Shalom!

More Transgressions for the Same Amazing Price: b.Sanhedrin 62

Today’s page continues on the theme of idol worship, still reflecting a continuing curiosity about the motives. The previous page considered the idea of cult suasion. Today’s page opens with a dispute between Abaye and Rava:

אִיתְּמַר: הָעוֹבֵד עֲבוֹדָה זָרָה מֵאַהֲבָה וּמִיִּרְאָה, אַבָּיֵי אָמַר: חַיָּיב, רָבָא אָמַר: פָּטוּר. אַבָּיֵי אֲמַר: חַיָּיב, דְּהָא פַּלְחַהּ. רָבָא אָמַר: פָּטוּר, אִי קַבְּלַיהּ עֲלֵיהּ בֶּאֱלוֹהַּ – אִין, אִי לָא – לָא.

The issue is whether a person who worships an idol not out of true reverence for the idol, but rather to please someone they love or fear is liable (as Abaye says) or not (as Rava says).

In modern criminal law, as any first-year law professor will tell her students, motive usually does not matter. some offenses require a specific type of intent (for example, to commit a theft one has to have an intent to permanently deprive the owner of the stolen thing), but *why* the theft happens doesn’t make a difference. Is it greed? jealousy? need, as in Jean Valjean‘s case? Doesn’t matter. If you took and carried the item without permission, intending to permanently deprive, you’ve stolen it in the eyes of the law. Nevertheless, there are some scenarios in which the motive might matter. Proving a strong motive in court could strengthen the jury’s certainty that the defendant committed the offense. Arguing for a virtuous motive to commit a crime can play a role in sentencing, and sometimes might even dissuade prosecutors from pressing charges.

In this case, says Abaye, the motive does not matter, and his proof is threefold:

  1. The original mishna repeats the words “one who worships” twice – one of those is meant to imply our worshipper-with-an-unusual-motive. Rava’s counterargument is that the repetition is about the form of worship, not about the motive.
  2. The original mishna forbids not only bowing to idols, but rather any form of worship; bowing to another person out of love or fear is permitted, as a sign of respect and subservience, but here we have actual worship. Rava’s counterargument: It is possible to bow out of respect or to bow as a form of worship of the person (e.g., the aforementioned cult leader).
  3. There’s a baraita that teaches that, if an anointed high priest unintentionally worships an idol, he must offer sacrifice as his penance. But if the scenario reflects a truly honest mistake (bowing to the statue of a king to honor the king rather than to worship), then the guilt offering is unnecessary; this situation differs from others, where there is a motive to worship. The other sages seem to at least agree that, for the high priest to do such a thing must be a very serious lapse of judgment that does require a guilt offering.

Which brings us to another interesting criminal law principle. Fear not, all will be explained soon enough:

תָּנֵי רַבִּי זַכַּאי קַמֵּיהּ דְּרַבִּי יוֹחָנָן: זִיבַּח, וְקִיטֵּר, וְנִיסֵּךְ, וְהִשְׁתַּחֲוָה בְּהֶעְלֵם אֶחָד – אֵינוֹ חַיָּיב אֶלָּא אַחַת. אֲמַר לֵיהּ: פּוֹק תְּנִי לְבָרָא. אָמַר רַבִּי אַבָּא: הָא דְּאָמַר רַבִּי זַכַּאי מַחְלוֹקֶת רַבִּי יוֹסֵי וְרַבִּי נָתָן, דְּתַנְיָא: הַבְעָרָה לְלָאו יָצָאת, דִּבְרֵי רַבִּי יוֹסֵי. וְרַבִּי נָתָן אוֹמֵר: לְחַלֵּק יָצָאת. לְמַאן דְּאָמַר הַבְעָרָה לְלָאו יָצָאת, הִשְׁתַּחֲוָאָה נָמֵי לְלָאו יָצָאת. לְמַאן דְּאָמַר הַבְעָרָה לְחַלֵּק יָצָאת, הִשְׁתַּחֲוָאָה נָמֵי לְחַלֵּק יָצָאת. מַתְקֵיף לַהּ רַב יוֹסֵף: דִּילְמָא עַד כָּאן לָא קָאָמַר רַבִּי יוֹסֵי הָתָם הַבְעָרָה לְלָאו יָצָאת, דְּנָפְקָא לֵיהּ חִילּוּק מְלָאכוֹת מֵ״אַחַת מֵהֵנָּה״? דְּתַנְיָא: רַבִּי יוֹסֵי אוֹמֵר, ״וְעָשָׂה מֵאַחַת מֵהֵנָּה״ – פְּעָמִים שֶׁחַיָּיב אַחַת עַל כּוּלָּן, פְּעָמִים שֶׁחַיָּיב עַל כׇּל אַחַת וְאַחַת. וְאָמַר רַבִּי יוֹנָתָן: מַאי טַעְמָא דְּרַבִּי יוֹסֵי? דִּכְתִיב ״וְעָשָׂה מֵאַחַת מֵהֵנָּה״. אַחַת, מֵאַחַת. הֵנָּה, מֵהֵנָּה. ״אַחַת״ שֶׁהִיא ״הֵנָּה״, וְ״הֵנָּה״ שֶׁהִיא ״אַחַת״. אַחַת – ״שִׁמְעוֹן״, מֵאַחַת – ״שֵׁם״ מִ״שִּׁמְעוֹן״. ״הֵנָּה״ – אָבוֹת, ״מֵהֵנָּה״ – תּוֹלָדוֹת. ״אַחַת״ שֶׁהִיא ״הֵנָּה״: זְדוֹן שַׁבָּת וְשִׁגְגַת מְלָאכוֹת. ״הֵנָּה״ שֶׁהִיא ״אַחַת״: שִׁגְגַת שַׁבָּת וּזְדוֹן מְלָאכוֹת. אֲבָל הָכָא, דְּלָא נָפְקָא לֵיהּ חִילּוּק מְלָאכוֹת מִדּוּכְתָּא אַחֲרִיתִי, דְּכוּלֵּי עָלְמָא הִשְׁתַּחֲוָאָה לְחַלֵּק יָצָאת. חִילּוּק מְלָאכוֹת דַּעֲבוֹדָה זָרָה נָמֵי תִּיפּוֹק לֵיהּ מֵ״אַחַת מֵהֵנָּה״? ״אַחַת״ – זְבִיחָה, ״מֵאַחַת״ – סִימָן אֶחָד. ״הֵנָּה״ – אָבוֹת: זִיבּוּחַ, קִיטּוּר, נִיסּוּךְ, וְהִשְׁתַּחֲוָאָה. ״מֵהֵנָּה״ – תּוֹלָדוֹת: שָׁבַר מַקֵּל לְפָנֶיהָ. ״אַחַת״ שֶׁהִיא ״הֵנָּה״: זְדוֹן עֲבוֹדָה זָרָה וְשִׁגְגַת עֲבוֹדוֹת. ״הֵנָּה״ שֶׁהִיא ״אַחַת״: שִׁגְגַת עֲבוֹדָה זָרָה וּזְדוֹן עֲבוֹדוֹת.

The issue here is what I call, when I teach double jeopardy, unit of prosecution. Idol worship could include an entire sequence of actions: killing the animal, smoking it, dripping its blood, bowing to the idol. Is each of these a separate offense, or are they all part of a single idol-worship transgression? The different sages try to count the offenses in different ways, finding anchoring for their logic in various biblical verses. They relate it to a similar issue: violating the Shabbat and lighting a fire on Shabbat–with the latter treated so severely that it is counted as a separate offense. Setting aside the biblical juggling, I can see good arguments for a variety of reasonable approaches to this problem–and indeed, Rabbi Yose says that these scenarios should be figured out on a case-by-case basis (פְּעָמִים שֶׁחַיָּיב אַחַת עַל כּוּלָּן, פְּעָמִים שֶׁחַיָּיב עַל כׇּל אַחַת וְאַחַת). Here, for example, is U.S. federal law trying to sort out the very same problem. On one hand, overcharging is petty and creates what could be an unfair lever toward plea bargaining. On the other, undercharging could incentivize people to commit more crimes, knowing that the charges will not become more serious.

This brings the sages back to the questions of motive and intent, and they opine that the misguided idol worshipper, regardless of what he did, is liable only for one guilt offering – and they proceed to dismiss the idea of separating the offense into difference charges, with the rare closing וְתוּ לָא מִידֵּי (“there’s nothing more to discuss.”) Really? Have they decided to dismiss the whole unit of prosecution issue?

NOPE!

They’re back to it. Rav Shmuel arrives in Babylonia from Eretz Israel and discusses a baraita according to which each Shabbat violation is counted separately. And as it happens, I have a case in point in which common law concluded the opposite! I’m not making this up! In Crepps v. Durden (1777), “the plaintiff was convicted of selling small hot loaves of bread, the same not being any work of charity, on the same day (being Sunday) by four separate convictions.” The court concluded, as Lewis Hoccheimer explains in this law review article from 1900 (ah, the days in which these things were merely six pages long!) that the sales of the loaves (albeit to different customers) all constitute one offense. The contradiction is illusionary: as the sages explain, if one lights a fire AND mows one’s field, those are two transgressions; but two instances of mowing (like two instances of selling bread) count as only one transgression.

Now, the sages try to reconcile the two issues, which appear to involve different logical principles: repeated violations on the Sabbath and unintentional idol worship. They combine both into one: an unintentional idolator who engages in a series of worship actions owes only one guilt offering.

Counseling Criminal Clients on Immigration: A Tall Order

In 2010, the Supreme Court decided Padilla v. Kentucky. Padilla, a long-time legal permanent resident of the United States and a Vietnam veteran, was caught with drugs in Kentucky. His lawyer advised him to take a plea deal and told him not to worry about the immigration consequences of the conviction because “he’s been in the country for so long.” Lo and behold, the conviction triggered immigration consequences and Padilla was subject to mandatory deportation.

In a surprising departure from its usual approach to the ineffective assistance of counsel doctrine, the Court found that the defense attorney provided advice that fell beneath the minimum professional requirements and also prejudiced the client, thus failing the test from Strickland v. Washington. Justice Stevens’ opinion explains that immigration consequences of criminal conviction (“collateral” consequences) are often much more serious than the punishment meted out by the criminal justice system. In his words:

We have long recognized that deportation is a particularly severe “penalty”; but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature. . . deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. . . And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. . . . Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.  

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

All of which is true: deportation is, indeed, a life-altering penalty, and clients must absolutely take it into account when crafting their trial strategy. But where does this leave defense attorneys, who have had to learn an entire new field of law, rife with hypertechnical distinctions, arcane definitions, and jurisdictional messiness?

For the uninitiated, I’ll just say that the terms used by the INA and other immigration legislation do not mean what defense attorneys would be justified in thinking they mean. A “conviction” under the INA is not necessarily a conviction under state law. An “aggravated felony” under the INA need not be aggravated, nor a felony. “Drug crimes”, “domestic violence”, “firearm”, mean very different things in the immigration context than they do under state law. And don’t even get me started on crimes of moral turpitude, the meaning of which is so vague and fluid that immigration courts still refer to a legal dictionary from 1914. Unconvinced? How about a Jamaican citizen and legal permanent US resident busted for having 1.3 oz of marijuana facing deportation and having to take his case all the way to the Supreme Court to clarify whether this counts as an “aggravated felony”? Nor weird enough for you? Then why should it take a certiorary to the Supreme Court to save from deportation a mathematics professor–Green Card holder from Tunisia–caught with a sock containing four orange pills, who got nailed under Kansas law not for the pills, but for possession of the sock?

The point I’m trying to make is not that U.S. immigration law is nuts (that should be obvious), but rather that, in 2010, expecting garden variety defense attorneys to master all this, complete with all the contradictions and differences, was a tall order. Many people in the civil rights community (me included) hailed Padilla for finally drawing attention to the horror that collateral consequences can bring onto a person’s life. But what if Padilla completely backfired, and what we’ve created is an invitation to confusion at best and malpractice at worst?

Consider this: None of the criminal procedure bail-to-jail courses I am familiar with, including mine (this is going to change as of the next time I teach it), includes a crimmigration unit. Not all law schools even offer a crimmigration class, and of course if they do it’s not mandatory. The bar doesn’t test on immigration and certainly not on crimmigration. I did an informal poll among my former students who practice as defense attorneys. Those who work at public defender offices are lucky in that good, conscientious outfits have prioritized hiring immigration experts (this does not dispense with the Padilla requirement, because presumably the ethical responsibility is still the public defender’s, but at least it offers the clients correct advice.) Those who work as private attorneys, or in smaller outfits such as alternate public defender offices in rural places, are left completely in the lurch. They rely on charts and lists such as this one, or they’ll refer the clients to immigration attorneys, but that means that people who are already in dire financial straits incur even more costs. At least one person admitted to me that they pass on cases with immigration consequences because they fear ethical violations and don’t want to do a bad job, and while this reluctance is understandable, one wonders where that leaves clients with immigration issues (who are already among the weakest, most disenfranchised folks in the system) collectively. More commonly (and also disturbing)–my former students admitted their immense discomfort when counseling people not to take good deals, or to go to trial with a very flimsy chance of success, or to take ridiculous deals that are immigration workarounds. They were (understandably) confused about whether advising their client about the least of all evils–taking a suboptimal criminal justice strategy to save them immigrationwise–was ethically clean, even when realistically sound. They also expressed frustration when dealing with ill-informed (at best) or callous (at worst) prosecutors who chide them for asking for something “special” or “preferable” for a client in risk of deportation.

In other words: This is not good.

I have a few thoughts about this. The first is that a solid empirical study of Padilla‘s impact on criminal practice is absolutely essential. This would require a survey of a large group of defense attorneys about how Padilla altered their criminal practice, as well as in-depth interviews with examples. This stuff will have to be triangulated with what we know about criminal representation, to check whether the additional burdens on defense attorneys have resulted in worse access to justice for noncitizen defendants.

The second is that all of us who teach criminal procedure in law schools–I’m going to start this and my chartacourse electronic casebook is available for you to use–have got to revise our curriculum to include a basic crimmigration unit. I’m thinking something between 6-8 hours covering the categorical approach, aggravated felonies, crimes of moral turpitude, some more specific removal categories, and basic situations in which one’s client might interface with the immigration system. In addition, of course, specialty crimmigraiton courses must be offered in every law school that purports to certify ethical defense attorneys for practice. The bar exam, for all its imperfections, can add immigration law to the list of covered subjects, and this would be relatively easy to do in the MBE because it’s federal law.

This is not a perfect solution, given that immigration law changes frequently and is subject to administrative whims (even when not dealing with someone as unhinged as the current occupant of the White House). Because of that, my third thought is that, in offering and taking CLEs, priority must be given to crimmigration updates. If and when we establish a defense bar, crimmigration proficiency has to be prioritized.

Same deal, by the way, for prosecutors: Larry Krasner’s initiative in forming an immigration unit at the D.A.’s office is an essential tool for any prosecutorial outfit that purports to give people what they deserve, rather than indirectly bring about grossly disproportionate punishment. Immigration is not an externality: it is part and parcel of the person’s fate, and has to be treated as such by the D.A.’s office.

If you are a defense attorney and have encountered immigration issues in your criminal practice, I would love to hear from you in the comments.

Facing Criminal Charges to Save Animals, Part IV: Planning Legal Strategy

Image result for animal activists in court
Australian animal rights activists protesting during a criminal
trial of an activist for trespassing an animal culling operation.

Part I
Part II
Part III

Trials of animal rights activists can be seen as the site of convergence for two very different legal events: a criminal process against an individual charged with a crime, in which the individual faces the prospect of conviction and punishment (and the dilemmas involved in going to trial vs. pleading guilty), and a landmark case for animal rights. By contrast to impact litigation on issues of animal cruelty, though, the latter meaning is a bit more indirect: the accused are pointing the finger at their own accusers as lawbreakers (of anti-cruelty laws), perpetuators of illegalities (through the pursuit of ag-gag laws that might be struck down as unconstitutional), and moral transgressors (through engaging in cruelty.) This duality in the function of the trial has complicated implications as to the legal strategy employed by the activists.

To begin, there is the choice of legal representation. Cases pursued as impact litigation might attract the attention and services of organizations such as the Animal Legal Defense Fund (ALDF) or animal law clinics at law schools (such as the program here at Harvard.) As Bruce Wagman explains here, there’s often a crossover between the litigation and the academic world in this field (Also see this great piece by Kathy Hessler). But most of what these organizations do is litigate with the animals as clients, as it were (now there’s an interesting issue of animal personhood), against factory farms, laboratories, zoos, amusement parks, etc., and they might find it difficult to litigate with a human lawbreaker as a client. This problem might reflect a more general rift in the animal rights community between the “moderates” and the “radicals”: Taimie Bryant writes about this rift, and the hesitation of the former to get behind the latter to provide legal representation, in this piece. There is also the more mundane issue of legal specialization: is it best to hire a criminal lawyer, or an animal rights advocate, for a criminal case involving animal rights advocacy? And how might the choice of representation inform the issues to highlight at the trial? This might also bring out interesting attorney-client conversations (and potentially disputes) as to the value of provocative strategies. 

The activists on trial seek support, financial and otherwise, and the emphasis on one aspect of the case over another might impact the sources of said support. Presenting oneself as an idealistic, otherwise normative person in risk of a considerable prison sentence might be a persuasive strategy in obtaining support on a personal basis from sympathetic people, but it also centers the person, rather than the suffering animals, in the debate. Presenting the criminal case as an effort to produce a landmark outcome is also fairly complicated. If the activists are seeking a jury trial, even in the happy event that they are acquitted, they will not obtain a reasoned, written decision supporting animal personhood and rights (or even animal welfare), and it might be anyone’s guess whether the acquitting verdict is the product of legal analysis or jury nullification due to sympathy for the defendants. So, is the desired outcome a conviction, followed by a reversal on appeal with a written judicial opinion? And if so, how might that affect the ways in which support is sought? 
Image may contain: 24 people, including Almira Tanner, Matt Johnson and Jon Frohnmayer, people smiling, people standing
Activists packing the court at Rachel Ziegler and Jon Frohnmayer’s
trial for open rescue activities, Sep. 9, 2019.
Photo credit: Paul Picklesimer on Facebook.
And what about behavior during the criminal trial? Is filling the courtroom with supporters wearing animal rights t-shirts a winning strategy, or might it prove a turnoff to a jury, especially in a rural farming area? Again, the answer might lie in the question what the activists are trying to achieve at trial.

And then there is the legal strategy itself. The endgame for some (albeit not all) animal liberationists is some recognition of animal personhood. There are fierce debates in the literature about how to conceptualize animal personhood, of course. The granddaddy of animal liberation theory, Peter Singer, seemed revolutionary when the book came out, but in light of later writings on the topic, his writing on food and medical experimentation does allow for some exceptions. Tom Regan’s take on animal personhood relies on the animals’ cognition. In their provocative comparison of the animal rights and pro-life movements, Sherry Colb and Michael Dorf rely on the concept of sentience. And  perhaps the most radical formulation of animal personhood is Gary Francione‘s abolitionist theory, which finds no exceptions to the prohibition against using animals for any purpose. And against these philosophical theorists, whose views are, perhaps best articulated as biocentric, we have the ecocentric views of environmental ethical thinkers, for whom the perpetuation of a species or an ecosystem might be more valuable than the protection of individual animals (see more about this debate in a post I wrote a while ago in my oft-neglected cooking blog, of all places.) The big question is – to what extent would prospective jurors need to “buy” any of these formulations of animal personhood, be they strong or weak, to find that the necessity defense applies and the activists were justified in saving the animals? Since the necessity defense requires a balance of harms, is it necessary that the harm be suffered by someone who has some sort of legal status, some sort of claim to rights? Or are rights and suffering fundamentally different? And to what extent will the activists’ lawyers expect jurors to parse out these different theories? Again, Helena Silverstein’s wonderful Unleashing Rights is relevant here: as she points out in other legal contexts, “lawyers in the movement rarely speak of animal rights in the courtroom.” But importantly, “rights talk itself is not out of bounds in the courtroom. When rights talk is used, however, it is not in the form of animal rights but in the form of human rights. . . lawyers and movement organizations advance human rights claims such as the First Amendment right to freedom of speech in order to promote animal rights.” Is this true in the criminal context as well?
Finally, given the jury’s power to nullify (big debates here about what jurors should do when confronted with unjust laws or their application), there is the question of whether the activists’ lawyers should invest in crafting their arguments within existing law (that is, arguing that the necessity defense, as currently framed, applies to open rescue) or changing the law (that is, arguing that the necessity defense should change because the current conceptualization of animal suffering/rights/personhood in law is insufficient or unjust.) What the lawyers choose to do is also a question of jurisdiction: there might be some states in which it is easier to work within the interpretation of the necessity defense, and those might, ironically, be places in which the defense is not codified, which might create a first-impression situation that gives the lawyers an interesting blank canvas to argue rights and personhood. 
But underlying these important considerations is an important feature of the criminal process: pursuing animal rights through the criminal process means that there is a human individual who might face conviction, and even incarceration, at the end of the day. My last blog post on the project discusses that.

Part V

Facing Criminal Charges for Saving Animals, Part II: The Necessity Defense

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Activist rescuing pigs. Photo courtesy DxE.

Part I here

The necessity defense is recognized in common law as a situation in which a person violates the law in order to prevent or mitigate harm. One way to understand the principle behind necessity is to think of a car swerving off the road to avoid an accident and then running into someone’s fence. Ordinarily, the driver would be responsible for the damage to property, but because she caused it in order to avoid a greater harm, we do not hold her responsible. Necessity belongs to a family of affirmative defenses known as “justifications”: rather than merely excusing an individual for a particular set of circumstances that absolve them of responsibility (because they are insane, too young, or intoxicated, for example), a justification applies more universally, and might be regarded as a legal statement that, when faced with these circumstances, the law wants people to choose the lesser harm.

As Jenni James explains in this excellent article, the necessity defense can be elusive, because over the years judges have narrowed its scope. Most states do not even have it codified into their penal code: for example, to find California’s necessity defense, you’d have to recur to the California jury instructions. The elements vary somewhat across jurisdictions, but for the most part they conform to some general principles:

  1. Serious harm (in CA, defendants have to prove that they acted “in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else)”
  2. No adequate legal alternative.
  3. Proportionality between the harm committed and the harm avoided ( in CA, “[t]he defendant’s acts did not create a greater danger than the one avoided). In other words, the opposite of what the Cowboy Fireman did in this terrific Faith Petric song.
  4. A genuine, subjective belief that the act was necessary to prevent the threatened harm or evil.
  5. Objective support for the subjective belief: In other words, that “a reasonable person would also have believed that the act was necessary under the circumstances.
  6. Lack of culpability on the part of the defendant for the emergency in the first place (CA law requires that the defendant “did not substantially contribute to the emergency.”)

As James argues in her article, the ability to even present the necessity defense in court depends on judicial discretion (typically exercised in the context of a motion in limine to prevent the presentation of the defense.) In one decision, U.S. v. Schoon, the Ninth Circuit held that the necessity defense will only be available to activists who engage in “direct civil disobedience”–that is, directly challenging the rules they protest–and not “indirect civil disobedience” activists, who violate a law that is “not, in itself, the object of protest.” As James explains, open rescuers engage in both forms of civil disobedience, because they challenge both the exploitation and cruelty of the animal industry (indirect) AND ag-gag laws (direct.) But the upshot of the decision was that protesters, by definition, were to be denied the necessity defense–even though lower courts sill allow it on occasion. And of course, as James points out, the necessity defense can be a poor fit for these premeditated and planned operations, because by its very nature it is designed to address emergencies.

This means that activists encounter some serious hurdles in presenting the defense. The first and foremost issue that might come up is the big question whether the suffering of animals constitutes “serious harm,” and also, a harm that is proportional to the harm they cause when they enter the facility or remove an animal. Part of this debate is factual: the activists would have to prove the imminent harm to the animals, and to come up with a way to show that this harm is equal or greater to the harm that their actions caused to the farmers. Video evidence showing sick or dying animals might prove their marginal monetary worth to the farmers as well as the harm and suffering to them (but requires, of course, that activists engage with the legal framework that sees animals as property.) As to how harm and suffering are to be measured, one thing I plan to look at is the extent to which potential jurors are open to considering evidence of animal emotions and theories of animal personhood.

I’m reading Frans de Waal’s Mama’s Last Hug, whose point of departure is the animal behaviorist’s skepticism about proof. De Waal argues that we can, and should, be able to assess and measure animal emotions, which human and nonhuman animals can both exhibit and control. The examples he provides show nonhuman animals as imbued with a sophisticated understanding of their social world, as well as a sense of justice, as well as fairness. Larry Carbone’s interesting What Animals Want, which is set at a lab, raises important questions about assessing physical suffering of animals held in labs for experimentation. My hope is to expand my reading on animal emotion, feelings, and suffering, and think about which theory of animal agency would be persuasive to a jury.

Then, there are questions about the subjective and objective intents of the activists, as well as the extent to which they recurred to legal means before taking illegal action (reports to the police, etc.) – this element can be difficult to handle, because often one can know of the specific harms that are occurring only via illegal means. In short, as James argues in her article, “[j]udges seldom have to overtly pit commercial privacy interests against an animal’s right not to suffer. Instead, judges often assume the practice causing the animal’s suffering was legal and thus not harmful for purposes of the necessity defense balancing of harms. Rescuers who wish to remove animals from industrial facilities, then, should be careful to select only animals suffering from clearly illegal activity, which, ideally, should also be documented. However, to avoid the appearance of vigilantism, rescuers might consider using this documentation sparingly and perhaps even sharing it with law enforcement promptly.”

But that raises other questions, which are a proper subject for ethnographic research: How do animal rights activists relate to the law, and to the prospect of criminal justice in their activities? More on that in Part III.

Part III
Part IV
Part V

Facing Criminal Charges for Saving Animals, Part I: Open Rescue

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DxE activists with rescued birds. Image courtesy Indybay.

Hello, friends! I’m writing this from the Harvard Animal Law Policy Program, where I am a Visiting Fellow this fall. My plan for this fellowship is to examine the intersection of criminal justice, social movements, and animal rights–in other words, what happens when animal rights activists engaging in open rescue are criminally charged for their actions?

A brief primer: the conditions of confinement experienced by animals–cows, pigs, chickens, turkeys, and others–in factory farms are beyond atrocious, and this is true not only for conventional farms, but also for so-called “humane” or “cage-free” facilities. I have seen footage that has torn my heart apart. In one video, from a chicken farm, I saw emaciated and sick chickens, some of which were barely moving and clearly close to death. The animals trampled upon each other to breathe and carcasses of trampled chickens were clearly visible on the ground. Parts of the animals’ bodies were torn, likely by other animals trying to push through to obtain food and air. There were some indications that the animals, starving and parched, had turned to cannibalizing each other.

These are difficult things to see and experience, partly because opening our eyes and hearts to animal suffering requires seriously reconsidering our consumption habits that contribute to this cruelty. But the first step is, of course, to raise public awareness to these conditions, and there are very few legal avenues to doing so. Because of that, activist organizations turn to a technique called open rescue.

The Animals and Society Institute defines open rescue as “[t]he process of giving aid, rescue, and veterinary treatment to animals confined in typical factory farm living conditions. The immediate aim of the rescuers, who identify themselves even when trespass is necessary, is to save lives, while documenting the animal suffering inherent in large-scale industrialized food production.” This definition has several important components.

First, it is a “rescue” mission, and therefore often involves not only documenting conditions at the farm, but also removing sick and endangered animals. The activists I spoke to explained that they seek to identify animals that might imminently die or suffer irreparable harm unless they are removed from the facility (this, in itself, requires them to do some selection, because all animals subject to factory farm lives are in dire circumstances.) They also do this because working for animal rights can be emotionally devastating and demoralizing, and rescuing animals provides an optimistic element to the experience.

Second, open rescue is “open”. In an article about the need for solidarity and cooperation in the animal rights movement, Taimie Bryant quotes Paul Shapiro, formerly of Compassion over Killing, who explains that, by contrast to other animal liberation actions in which participants “go to great lengths to conceal their identities”, the point of open rescue is to rescue the animals “completely openly… you videotape yourself doing it, you take full responsibility for the fact that you did it and you openly publicize the fact that you did it.” Shapiro argues that the overt nature of the action garners much more sympathy for the activists and focuses attention away from the morality of their own actions (“should we treat them like orderly criminals, or like political prisoners?”) and toward the conditions suffered by the animals.
–> But, as it turns out, you can’t really avoid the question of how to treat the people, even in the face of the serious question how to treat the animals. Entering factory farms to document conditions does not only violate garden-variety penal code provisions against trespass (and, if animals are rescued, larceny), but also a slew of ag-gag laws–laws lobbied for by the agricultural industry prohibiting entry to, and documentation of, animal factory farms.

As an aside, saving animals turns out to be a fairly dangerous proposition in general. During Hurricane Katrina, the Animal Legal Defense Fund composed a memo offering legal guidance for the brave people who broke into abandoned, flooded homes to rescue animals left behind. Even in the face of the heartbreaking story of Snowball— reportedly, the inspiration behind legislation requiring states to come up with animal rescue planning as a condition for FEMA assistance–the law offered (and still offers) little to no protection even for people who rescue the most sympathetic animals of all: domestic pets. Good Samaritan Laws, which protect emergency rescuers from criminal and/or civil liability, either do not refer explicitly to animals or explicitly use the term “person.” Local animal cruelty laws do not go as far as offer coverage for rescuers.

This is especially true for farmed animals: as reported by the Animal Welfare Institute, several states explicitly exclude farmed animals from the definition of “animal” in their animal cruelty laws, so that these laws do not apply to them. Moreover, the aforementioned ag-gag laws were designed specifically to protect agricultural interests, as exemplified in this Intercept story by Glenn Greenwald. So, from the perspective of the farmers, the legislature, and the prosecutors, open rescuers are trespassers (when they step on the premises) and thieves (when they remove animals from the premises.)

My project involves a study of an organization called Direct Action Everywhere (DxE) which, among other avenues, pursues open rescue and documentations. DxE activists use sophisticated technology–drones, virtual reality filming–to present the horrors of factory farms to the public. And, the organization often rescues animals, whom they name and care for with the help of vets and sanctuaries. Such acts have resulted in several criminal cases against activists. Some of these have been dismissed (such as the case against a woman who gave water to thirsty pigs on their way to slaughter) but some are still pending, in California (Sonoma County), Utah, and North Carolina.

The activists facing trial have, so far, declined plea bargains in favor of jury trials, and they plan to argue for a necessity defense.

The next installment in this blog post series will examine the elements and feasibility of relying on a necessity defense in open rescue cases.

Part II
Part III
Part IV
Part V

What Counts as a “Deadly Weapon?”

Minor in possession of a deadly weapon?

Last week, the California Supreme Court decided In re B.M., a case that required the Justices to address the meaning of the term “deadly weapon.”

The story, in essence, is this: B.M, a teenaged girl, returned home one night and found that her sister had changed the locks (there’s probably a bigger story here than could be examined through the lens of this case, but we’ll get to that later.) She managed to get in through the window and confronted her sister. In her anger, she picked up a butter knife in the kitchen–a dull metal knife with round serrations at the end, which is usually used for spreading butter rather than for cutting. She came into her sister’s room holding the knife and the sister covered herself with a blanket.

Here is the case’s description of the interaction:

B.M. approached Sophia, who was lying on top of the bed with her knees bent. Sophia testified that B.M. “came . . . at [her] trying to stab [her]” and that from a distance of about three feet, B.M. made several “downward” “slicing” motions with the knife in the area around Sophia’s legs. Sophia further testified that the knife hit her blanketed legs “a few” times and that the amount of pressure B.M. used was “maybe like a five or a six” on a scale from one to ten “if one is the least amount of pressure and ten is the most pressure.” Sophia initially said B.M. poked her with the knife, but she later clarified that B.M. did not poke or stab her and that B.M. did not “hurt” her. B.M. testified she only “wanted to scare [Sophia]” and “had no intentions in actually stabbing [Sophia] with [the knife].”

Reading between the lines, it seems that Sophia had originally exaggerated her description of the events to the cop who showed up, and later retracted some of that when she realized this might have consequences. There’s also clearly a history between B.M. and Sophia that is left unexplored in this decision.

The Supreme Court reversed the Appellate Court decision, which affirmed B.M.’s conviction for assault with a deadly weapon. In doing so, the Court established a realistic, context-driven definition of “deadly weapon”:

We hold, consistent with settled principles, that for an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by Penal Code section 245(a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate.

In other words, in the context of this case, when an inexperienced person ineffectually waves the weapon toward someone covered in a blanket, in a manner that cannot hurt the other party, the weapon is not a “deadly weapon.”

Common sense decisions like this are important, because the trend in the last decades has been to expand the reach of elements and enhancements involving weapons. But the decision has special significance for cases involving women and juveniles. The method by which women and girls commit violent offenses is different than that of men, and ignoring gender context misses out on important parts of the picture. As Lyn Brown, Meda Chesney-Lind, and Nan Stein explain in this paper, there has been an increase in the criminalization of girls, which is perceived as an increase in girls’ violence. This has sparked a moral panic regarding girls. But when you look at the context, what you find is that girls are criminalized with increased frequency for behaviors that are often a response to a larger context of domestic abuse (as might be the.case in B.M.’s case – we simply don’t know the full picture.) Moreover, treating assaults involving weapons more seriously, a seemingly straightforward, gender neutral convention, overlooks a fact that my friend and former student Ryan Newby found plays an important role in violent crime sentencing: the fact that, in domestic assault contexts, women are more likely to use a weapon to even the odds against assailants who are frequently bigger and stronger than they are. Ignoring this context makes it appear as if the assault is more serious because a weapon has been used, when oftentimes the weapon is whatever was at hand in the kitchen–such as the butter knife in this case.

The California Supreme Court decision makes no mention of this broader context, but it is useful to keep it in mind. Gender equity in sentencing is not always straightforward, because the language of the law is neutral and ignores what empirical research tells us about the circumstances of violent offending. This is, therefore, an even better decision than it appears at first blush.

Oh, and the kid in the picture is my very own minor. 🙂

No Big Surprises: Deportation Law Triggered by Criminal Convictions Declared Vague

Today, the Supreme Court decided Sessions v. Dimaya, in which the respondent appealed his deportation. It is an interesting decision both legally and politically.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. The definition of “aggravated felony” includes several enumerated crimes, and also a residual definition of a “crime of violence”, which reads as follows:

“(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya, a documented immigrant from the Philippines, had two convictions for burglary, neither of which involved violence. Nonetheless, immigration authorities found that the convictions satisfied the “aggravated felony” residual clause, and therefore triggered automatic deportation.

Today, SCOTUS struck down the definition as unconstitutionally vague. Justice Kagan, reminding us that the court applies “the most exacting vagueness standard. . . in removal cases”, relied on Johnson v. United States to argue that the law in its current form does not provide sufficient warning about deportation consequences of criminal convictions.

Also important is the fact that Justice Neil Gorsuch, Trump’s appointee to the Supreme Court, voted with the four liberal Justices to vacate the law. While newsworthy, this is hardly a surprise for those familiar with Gorsuch’s record on criminal justice. He has publicly and consistently spoken against the abundance of criminal laws on the books and his position on overcriminalization and vagueness was well known at the time of his appointment.

Moreover, today’s decision relies on Johnson, a pro-defendant decision on a similar issue authored by Justice Scalia, also a conservative who would side with defendants in cases involving overcriminalization and vagueness.

While encouraging and fair, today’s decision is hardly surprising… except, perhaps, at the White House, where consistency of opinion is valued less than dogged personal loyalty.

BREAKING NEWS: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?

Amidst the good news that are not this blog’s topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.

The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines “violent offense” as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson’s case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard–so you can be sure thta this decision is not about his niceness).

The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of “violent offense” itself. Today, the Court sided 8-1 with Johnson, finding that the definition of “violent offense” was too vague and did not provide sufficient warning about conduct.

The vagueness, according to Justice Scalia who wrote for the majority (!!!), lies in the fact that the clause provides no guidelines for what counts as “risk” posed by the crime (statistics? similarity to enumerated offenses? precedents have taken various and different tacks) and for assessing the amount of “risk”. Even seemingly easy issues turn out to be difficult to call. Notably, Scalia gives the example of “prison rioting”, which he is willing to say is an offense that is defined so broadly that it doesn’t necessarily generate “risk” of injury (!!!). Moreover, it is not necessary that a vague statute be “vague in all its applications”.

The court also rejects the suggestion that “risk” be interpreted based on what each defendant actually did, rather than based on the average case. This is important in the facts of Johnson itself: It may well be that many felons in possession of a firearm don’t pose as much risk as Johnson, a white supremacist with violent plans against progressives and minorities, but Johnson needs to be judged by the overall risk of the offense, not by his particular plans.

Finally, the court states that its decision is prompted by the massive confusion among lower federal courts on how to interpret the clause.

Justice Thomas arrives at the same conclusion via a different path–finding that possession of a firearm does not the definition in the residual clause. He agrees with the sole dissenter, Justice Alito, that the statute is not so vague as to merit its invalidation.

A few thoughts:

  1. It’s hard to ignore the particular facts of this case given the tragic events of last week in South Carolina. Johnson’s plans were similar to those that Roof put into action. Is the 8-1 decision here explainable, politically, via pro-gun sentiments among the conservative Justices?
  2. This decision might suggest that the Court has lost its appetite for sentencing enhancements. In Criminal Procedure II, I teach cases that have bent over backwards to uphold enhancements–including, in the case of California’s Three Strikes, the ability to add two strikes at the same time (which obviously can’t be justified by the need to deter–just by the wish to incapacitate.) Here we see that the Court pays a lot of homage to the idea of behavior modification, invoking the principle of legality. If I were teaching first year criminal law next year, I’d teach this case on the first day of class.
  3. The decision also highlights a disenchantment with the language of risk and panic, which has characterized so much of American criminal justice in the era of the “New Penology“. 
  4. Many commentators on the new state of criminal justice, including me in Cheap on Crime, have pointed out that much of the new project of scaling back mass incarceration addresses nonviolent offenders, and retrenches opinions about violent offenders by lumping them all in the same category. I find it remarkable, and heartening, that this decision strikes at the heart of the issue, arguing against an overbroad category of violent offenses. I’m not sure Johnson should necessarily be on that side of the distinction, but as the Court states, this is about the offense, not about the offender.
  5. Finally, I find it notable that Justice Scalia–who, in Brown v. Plata referred to inmates as “speciments”–chose, as one of his examples, prison rioting, explicitly stating that the definition of rioting is so broad that it is not necessarily a violent offense. Attorneys in Ashker v. Brown, the lawsuit against long-term solitary confinement, should take note of this comment. I think it’s important. It’s the third Supreme Court statement this week that is sympathetic to prisoners.