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

Image result for activists rescuing chicken
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.

Are Mass Murderers and Serial Murderers Inherently Mentally Ill?

Goodbye, Friends.

As we were all still reeling from the horrific mass murder in Charleston, still too shocked to properly mourn the nine innocent victims–priests, coaches, students, parents, sons, daughters, siblings, spouses, coworkers, and friends, who got together to worship and were viciously attacked for no other reason than the color of their skin–the nomenclature debate began: what shall we call their killer? A terrorist? A mentally-ill person? A mass murderer?

Inevitable racial comparisons are made: Islam-motivated crimes tend to earn the label “terror” faster than white supremacy-motivated crimes (was the horrific murder of the Charlie Hebdo caricaturists “terror” or “mass murder”?). Personally, the word “terrorism” carries for me international law connotations, so I don’t tend to us it in the context of domestic crimes; others may disagree. And while I would prefer devoting more energy to remembering the victims and supporting their families, I understand why it is inevitable, in the aftermath of a horrific crime, for all of us to try and make sense of what happened. One way in which people try to do that is debate the mental health of the perpetrator.

One obvious reason mental health becomes an important question is the question of legal accountability: it is really hard for us to experience the consequences of a heinous crime without wanting to see the perpetrator punished, and we worry that, if he is found insane, he will not bear this responsibility. South Carolina has a two-tiered standard for mental illness. Defendants bear no culpability at all (“not guilty”) if they satisfy what is known as the M’Naghten Rules. Under these rules, which are law in many U.S. states, defendants claiming insanity have to prove, by preponderance of the evidence, that they suffered a mental disease or defect (usually this requires proof of psychosis, as opposed to neurosis, even though law lags some behind psychiatry in terms of the distinction), and as a result were unable to:

(1) distinguish right from wrong (e.g., a person with mental illness who believes that he or she are God’s emissary, and that killing the victim is a moral right); or–
(2) understand their act in the framework of right and wrong (e.g., a person with mental illness who thinks his victim is a hologram or an inanimate object, and it is therefore not wrong to shoot her.)

The second tier in South Carolina law allows for a verdict of “guilty but mentally ill”, which turns upon the “irresistible impulse” standard. Upon a finding that the defendant committed the crime beyond a reasonable doubt, the defendant has the burden to prove, by preponderance of the evidence, that because of her mental illness she could not refrain from committing the crime (e.g., a person with mental illness who hears voices commanding him to kill, which he can’t resist, even though he knows it’s wrong.) It should be noted that many countries, including common-law countries, accept “irresistible impulse” as an absolute defense (after all, it’s about the denial of free choice, which is the underpinning of modern criminal responsibility!), but the United States has not followed that path.

Even though the standard for the insanity defense is legal, not purely medical, psychiatrists are in some ways the gatekeepers. After all, many people who commit horrific acts of mass murder might believe that their acts are justified (as the defendant in this case is, outrageously, arguing, evoking the tired cliché of the hypersexualized black male to justify his actions), without suffering from a recognized mental illness. But it is also important to keep in mind that what constitutes a mental illness is malleable, and changes periodically. The DSM has seen several editions over many decades; the elements of diseases change; some are categorized differently, and some (thankfully) cease to be defined as mental illnesses at all. Sometimes, the classification of a behavior as a mental illness is welcomed not because it delineates pathology, but because it allows people to receive health care in a country with no universal provision for health care.

But it’s important not to leave unexamined the impulse of some commentators to see mental illness before any official diagnosis is on the horizon–that is, the idea that just the fact that a heinous crime has been committed in itself suggests that the perpetrator is mentally ill. South Carolina law explicitly rejects this notion, stating that “[e]vidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity.” Nonetheless, in our appetite to make sense of a horrible tragedy, we try to go there. In my current study of the Manson “family” parole hearings, I’m coming across many people for whom the question whether Manson himself is mentally ill, or whether his followers suffered from some form of collective psychosis, is still relevant and hotly debated; I can see how and why people would use the mental health framework to try and understand a shocking crime, which is now seen by many as having put an end to the romantic notions of the sixties.  Assuming that someone who is capable of committing heinous murders has to be mentally ill might be a protective mechanism, distinguishing”us”, the healthy, from “them”, the sick, and reassuring us that “we” could never do such a thing. As sociologist Emile Durkheim argued in the late 19th century, defining another’s deviance fosters social solidarity. And as Michel Foucault argued in Madness and Civilization, one of the main features of modernity is the need to cleanse and categorize and separate the sane from the insane.

It is also, of course, telling that the labels are applied in a racialized manner; even though the murders in Charleston easily lend themselves to being understood as a murder in the context of racial supremacy (if you will, a mental illness that has characterized this country for centuries), there are commenters who intuitively gravitate to individual mental illness as an explanation, preferring the medical context to the political one. Ely Aaronson’s new and terrific book From Slave Abuse to Hate Crime speaks extensively of the mechanisms that led to the framing of anti-black violence as hate crime. Aaronson problematizes the usual arc-of-progress linear narrative, that “things are better than they used to be”, by showing how, with every iteration of an effort (usually by white moral entrepreneurs sympathetic to black plight) to criminalize white-on-black crime as hate crime, there are new barriers for the effective enforcement of the new label.

We know a few things about the suspect in the Charleston murder already: he is a confirmed and proud racist, with a long history of activism in white supremacy groups (he is also in his early twenties, which is the typical age for early onset schizophrenia, but it also happens to be the typical age at which people tend to commit violent crime in general, so that’s neither here nor there). If he is not insane, in the legal sense of the world, why does his deed still seem so “crazy”? is it just the heinousness of the act? In his new book Listening to Killers, psychiatrist James Garbarino says that, while most killers do not meet the official parameters for an insanity defense, they nonetheless kill for reasons that are “crazy” to us:

Most of the killers I listen to commit their crimes in states of mind that mimic the conditions that define legal insanity: they believe that in their world what they are doing is necessary and therefore right. They are so emotionally damaged that in their minds they have lost sight of the relevance of “right and wrong.” They are responding to powerful emotional forces—often unconscious forces—over which they have little if any control, at least in the moment of their violent action. It is in this sense that they make “crazy” choices.

The more than fifty murder cases in which I have been involved over the past twenty years have included many different explanations for the violent choices made. When looked at from the outside observer’s point of view, many seem crazy. However, each makes sense when looked at from the inside of their minds (and hearts in some cases).

Garbarini lists, in his typology of “crazy” reasons to kill, the following: survival (preemptive violence when feeling threatened); lust for power; monstrous narcissism; existential honor (real concerns that without honor one will cease to exist as a person); retaliation for sexual abandonment; panic; criminal practicality (crime as part of a criminal business enterprise); and even curiosity, or thrill. Really, it’s hard (but not impossible) to think of a “not crazy” reason to kill (self defense, duress, and necessity are all efforts to define such reasons; there’s a reason why they are so few and so narrowly defined).

That we are horrified, shocked, angry, sad, upset at a horrific crime, that we cannot understand how someone could do such a thing, does not mean that the perpetrator is necessarily legally or medically insane. Mental illness is not a blanket explanation for everything that the “sane” world does not understand. Also, plenty of people who are severely mentally ill do not commit crime. Moreover: whether or not a particular perpetrator suffers from mental illness does not negate the observation that this country suffers from a collective sociopolitical illness of white supremacy. The two categories are not mutually exclusive, and people often do good and bad things for a variety of reasons. As Maslow said, “while behavior is almost always motivated, it is also almost always biologically, culturally and situationally determined as well.”

Deep condolences to the families of Cynthia Hurd, Susie Jackson, Ethel Lance, Rev. DePayne Middleton-Doctor, Hon. Rev. Clementa Pinckney, Tywanza Sanders,  Rev. Daniel Simmons Sr., Rev. Sharonda Singleton, and Myra Thompson. If only our efforts to make sense of the murder of your loved ones could bring them back.