Manufacturing crime: Process, pretext, and criminal justice

Georgetown Law Journal

Volumn 97, Issue 6, 2009, Pages 1435-1507

  Murphy, Erin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 70349467716     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (576)

1. Brogan v. United States, 522 U.S. 398,408 (1998) (Ginsburg, J., concurring).
2. Stuart P. Green, Why It's a Crime To Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533,1612 (1997) (enumerating list as including "crimes such as perjury, false statements, obstruction of justice, bribery of public officials, prison escape, tax and customs duty evasion, illegal immigration, and draft dodging").
3. See, e.g., Harry Litman, Pretextual Prosecution, 92 GEO. L.J. 1135, 1182 (2004) (observing that pretextual prosecutions receive "little scholarly attention");
4. Daniel C. Richmàn & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 585 n.5 (2005) (noting tolerance for pretext prosecutions among courts and adding that "[t]he tolerance consists of a grudging silence; extended treatments of the issue are rare");
5. Chris William Sanchirico, Evidence Tampering, 53 DUKE LJ. 1215, 1218 (2004) (noting that academic analysis of "evidentiary foul play" is uncommon).
6. See, e.g., Pamela H. Buey, Trends in Corporate Criminal Prosecutions, 44 AM. CRIM. L. REV. 1287 (2007);
7. Lisa Kern Griffin, Compelled Cooperation and the New Corporate Criminal Procedure, 82 N.Y.U. L. REV. 311 (2007);
8. Ellen Podgor, Jose Padilla and Martha Stewart: Who Shall Be Charged with Criminal Liability?, 109 PENN. ST. L. REV. 1059 (2005);
9. Chris William Sanchirico, Detection Avoidance, 81 N.Y.U. L. REV. 1331 (2006);
10. Sanchirico, supra note 3;
11. Michael L. Seigel & Christopher Slobogin, Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts, 109 PENN. ST. L. REV. 1107 (2005);
12. J. Kelly Strader, White Collar Crime and Punishment: Reflections on Michael, Martha, and Milberg Weiss, 15 GEO. MASON L. REV. 45 (2007).
13. See, e.g., Richman & Stuntz, supra note 3, at 583.
14. A variation of this line of inquiry includes the approach exemplified by the work of Stuart Green, who probes the moral content of many white collar offenses. See STUART P. GREEN, LYING, CHEATING, AND STEALING: A MORAL THEORY OF WHTTE COLLAR CRIME 24 (2006).
15. See, e.g., Lirman, supra note 3, at 1137;
16. Richman & Stuntz, supra note 3, at 583 ("Pretextual charging is primarily a phenomenon of the federal criminal justice system..").
17. Richman & Stuntz, supra note 3, at 583-84.
18. Litman, supra note 3, at 1135 & nn.1-2.
19. Webster's defines "ground truth" as derived from the earth sciences, and as referring to "the facts that are confirmed [when] an actual field check is done at a location, specif, the determination of facts by examining the ground for patterns revealed by remote sensing or aerial photography." Webster's New Millennium Dictionary of English, Preview Edition, "ground truth," http://dictionary.reference.com/ browse/ground-truth (last visited March 8, 2009).
20. Sanchirico, supra note 4;
21. Sanchirico, supra note 3.
22. Sanchirico, supra note 4, at 1332-33;
23. see also Alex Raskolnikov, Crime and Punishment in Taxation: Deceit, Deterrence, and the Self-Adjusting Penalty, 106 COLUM. L. REV. 569, 618 (2006).
24. Sanchirico, supra note 4, at 1336 (referring to "shifts in the law's posture toward process crimes-and detection avoidance generally").
25. Sanchirico, supra note 3, at 1244 (comparing "process crimes with primary activity crimes" and effectively equating process crimes with "evidence tampering" offenses including "perjury and obstruction").
26. Indeed, Professor Sanchirico focuses on attaining optimal enforcement and deterrence of certain behaviors, not upon any inquiry into the exercise of discretion per se.
27. JOEL FEINBERG, 4 THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING, at ix (1990) [hereinafter FEINBERG, HARMLESS WRONGDOING] (defining the harm principle and contrasting it to other justifications for penal law);
28. JOEL FEINBERG, 1 The MORAL LIMITS OF THE CRIMINAL LAW: HARMS TO OTHERS 63 (1984) [hereinafter FEINBERG, HARMS TO OTHERS] (describing "governmental interests" violated by certain process offenses as "in the last analysis belong[ing] to individual citizens");
29. id. at 221-23 (exploring legitimacy of harms to public interest).
30. See FEINBERG, HARMLESS WRONGDOING, supra note 15, at 33 ("It would be absurd to deny the legitimacy of criminal statutes forbidding these harms [such as tax fraud, perjury, or contempt of court], yet the liberal is committed to just that if he restricts legitimate criminalization to the prevention of grievance evils and cannot show the personal grievance in merely public harms.").
31. See FEINBERG, HARM TO OTHERS, supra note 15, at 223 (defining "common interests" as "interests that all or most persons in a community have in one and precisely the same thing," such as "maintenance of public services" like "police protection").
32. See FEINBERG, HARMLESS WRONGDOING, supra note 15, at 34-38 (describing "public harms"-and distinguishing them from "collective harms"-but defining both as cases in which "there can be genuine personal interests that would be protected by legislation forbidding what might otherwise seem to be non-grievance, even free-floating evils").
33. Green, supra note 2, at 1612.
34. Id.
35. Cf. Richman & Stuntz, supra note 3, at 608-09 (describing federal fraud statutes as "cover[ing] a great deal more than core fraud").
36. See Litman, supra note 3, at 1137;
37. Richman & Stuntz, supra note 3, at 584.
38. Richman & Stuntz, supra note 3, at 583;
39. see also Litman, supra note 3 (discussing generally the pretextual use of federal prosecutorial discretion). The most sustained body of work in this area is attributable to Professor Stuart Green.
40. See, e.g., GREEN, supra note 5;
41. Stuart P. Green, Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements, 53 HASTINGS LJ. 157 (2001);
42. Green, supra note 2;
43. Stuart P. Green, Uncovering Cover-Up Crimes, 42 AM. CRIM. L. REV. 9 (2005) [hereinafter Green, Cover-Up].
44. See Litman, supra note 3, at 1148 ("A prosecutor who files trumped-up charges against a defendant whom the prosecutor believes (or knows) to be a menace in the community has committed malfeasance, regardless of the pretextual element, because it is clearly and independently wrong to manufacture criminal charges.").
45. Fixing that line is not necessary for my purposes. This Article stakes no position on the legitimacy of pretextual prosecution generally.
46. See, e.g., id. at 1135.
47. Id.. at 1152.
48. See infra section IV.B.2.
49. For instance, Professor Stuart Green implicitly acknowledges the close relationship between process crimes and pretext prosecutions in his articles weighing the moral content of process offenses, which he calls "cover-up crimes." This term appears to have been coined by Kathleen Brickey. Kathleen F. Brickey, Andersen's Fall from Grace, 81 WASH. U. L.Q. 917, 958 (2003). Green defines a "cover-up crime" as an act by "a person ... under investigation for some putative course of illegal conduct [who] has allegedly lied to government agents about her involvement in such illegality, destroyed or altered evidence, intimidated a witness, violated a court order, or in some other way hindered the government's case."
50. Green, Cover-Up, supra note 23, at 9;
51. see also id at 36-37;
52. Griffin, supra note 4, at 333-34 (considering extent to which '"cover-ups' displace underlying crimes");
53. Strader, supra note 4, at 57 (referencing defendants "charged with cover-up crimes").
54. Litman, supra note 3, at 1155 (quoting then-Attorney General Robert Jackson).
55. See Richman & Stuntz, supra note 3, at 584 (noting that pretextual prosecution "has generated a standard debate, and the debate has a standard resolution").
56. Id... at 615.
57. That is not to say that a process charge cannot ever be viewed as illegitimate: think of Ken Starr and Bill Clinton. What raised great ire-especially the less certain it is that the defendant is guilty of the primary conduct-is that what began as a financial investigation turned into a sex scandal; the ultimate charges seemed so remote from the kind of behavior alleged in the primary offense.
58. Martha Stewart spoke with officials investigating a possible insider trading charge related to one of her stock sales, but she ultimately was convicted not of insider trading but of making false statements, conspiracy, and obstruction of justice; some people felt she was unfairly targeted. See, e.g., Scott Turow, Cry No Tears for Martha Stewart, N. Y. TIMES, May 27, 2004, at A29 (arguing that Stewart was righdy prosecuted, but recounting the views of those-including a Wall Street Journal editorial-who viewed the prosecution with skepticism).
59. Green, Cover-Up, supra note 23, at 36-37 (describing cover-up crimes as "'easier,'... cheaper to prosecute, more comprehensible to the jury, and less subject to subtle nuances in proof").
60. See, e.g., Raskolnikov, supra note 11, at 618 ("Well-known difficulties with obtaining convictions for any of these offenses suggest that proving intent to mislead or evade detection is not easy.").
61. See Green, Cover-Up, supra note 23, at 36-37 ("[C]over-up cases are typically cheaper to prosecute, more comprehensible to the jury, and less subject to subtle nuances in proof.");
62. Richman & Stuntz, supra note 3, at 617-19.
63. Richman & Stuntz, supra note 3, at 583. Professors Richman and Stuntz cite "four key features" of local law enforcement that detract from pretextual prosecution: (1) more of the docket of local prosecutors is "politically mandatory," in that they "do not have the option of ignoring violent felonies and major thefts"; (2) "[e]xtreme docket pressure" means that these offenses leave little time for extraneous matters; (3) local police and district attorneys bear immediate responsibility for upticks in substantive crimes; and (4) these substantive crimes are enforced largely as written and leave little room for creative pretext.
64. Id... at 600-05. As the final Part explains, there may well be more wiggle room in the state courts than these factors suggest.
65. Detroit Mayor Kwame Kilpatrick is the sole exception of those mentioned thus far. He was indicted by the Wayne County prosecutor for eight felony charges including perjury, obstruction of justice, and conspiracy to obstruct justice. Monica Davey & Nick Bunkley, Mayor of Detroit Faces 8 Counts in Perjury Case, N.Y. TIMES, Mar. 25, 2008, at A15.
66. See, e.g., Sanchirico, supra note 4, at 1333 (noting cases such as Enron, WorldCom, and Healthsouth as "reverberat[ing] through Congress, administrative agencies, and the courts").
67. See Richman & Stuntz, supra note 3, at 588 (describing one common characteristic of pretextual prosecutions as the targeting of a celebrity defendant).
68. Id.. at 618.
69. Indeed, in Professors Richman and Stuntz's authoritative article on pretextual prosecution, which describes such prosecution as "rare in state courts," id. at 600, the two exemplar cases cited by the authors as authorities on the legal status of pretextual prosecution both arose in state courts.
70. See id. at 596 (citing People v. Mantel, 388 N.Y.S.2d 565 (Crim. Ct. 1976) and People v. KaU, 501 N.E.2d 979 (111. App. Ct. 1986)).
71. Even the sole federal case, United States v. McFadden, 238 F.3d 198 (2d Cir. 2001), arose under conditions more typical of state than federal prosecution-a defendant arrested for riding his bicycle on a sidewalk. Richman & Stuntz, supra note 3, at 597.
72. See infra sections IVA and IV.C.2.b.
73. See infra section IV.D.
74. See Richman & Stuntz, supra note 3, at 587 (observing that defendants in local prosecutions frequently come to court after police officers' arrests, not after extended prosecutorial investigations).
75. Compare, e.g., THOMAS H. COHEN & BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRETRIAL RELEASE OF FELONY DEFENDANTS IN STATE COURTS 1 (Nov. 2007) ("Between 1990 and 2004, 62% of felony defendants in State courts in the 75 largest counties were released prior to the disposition of their case"),
76. with MARK MOTTVANS, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FEDERAL CRIMINAL JUSTICE TRENDS, 2003, at vii (Aug. 2006) (noting that 76% of all federal defendants were detained in 2003 and 58% were in 1994).
77. See, e.g., Peggy M. Tobolowsky & James F. Quinn, Pretrial Release in the 1990s: Texas Takes Another Look at Nonfinancial Release Conditions, 19 NEW ENG. J. ON CRIM. & Qv. CONFINEMENT 267, 269-85 (1993);
78. Robert J. Prince, Note, A Line in the Sand: Implementing Scene of the Crime Stay-Away Orders as a Condition of Pretrial Release in Community Prosecution, 92 VA. L. REV. 1899, 1905 1919 (2006).
79. See COHEN & REAVES, supra note 47;
80. MOTTVANS, supra note 47.
81. In this way, the idea is akin to the familiar offense of "contempt of cop," in which officers charge resisting arrest or failure to obey or other minimal procedural offenses simply to punish or exact retribution on disrespectful or non-submissive individuals. As one scholar recounts, the "experience conducting intake and interviewing potential clients at the American Civil Liberties Union of Maryland confirms that the act of questioning authority-is a common element of many encounters that end in legally dubious arrests." Reed Collins, Note, Strolling While Poor: How Broken Windows Policing Created a New Crime in Baltimore, 14 GEO. J. ON POVERTY L. & POL'Y 419,435 (2007);
82. see also Diana Roberto Donahoe, "Could Have," "Would Have:" What the Supreme Court Should Have Decided in Whren v. United States, 34 AM. CRIM. L. REV. 1193, 1208 (1997) (noting that "an individual often is jailed for a minor offense because he fails the 'contempt of cop' test by refusing to show the officer proper respect");
83. Eric Nalder et al., "Obstructing" Justice: Blacks are Arrested on "Contempt of Cop" Charge at Higher Rate, SEATTLE POST-INTELLIGENCER, Feb. 28, 2008, at Al (finding that "AfricanAmericans are arrested for the sole crime of obstructing eight times as often as whites when population is taken into account").
84. Cf. Alice Ristroph, Respect and Resistance in Punishment Theory, CAL. L. REV. (forthcoming 2009) (reading Hobbes as offering an account of punishment that acknowledges the natural right of the accused to resist condemnation by the state).
85. State v. Davis, 749 N.E.2d 322, 324 (Ohio Ct. App. 2000) (Gorman, J., dissenting);
86. see also FEINBERG, HARMS TO OTHERS, supra note 15, at 244-45;
87. Green, Cover-Up, supra note 23, at 41 (referring to crimes as hindering the government's case).
88. See FRANKLIN E. ZIMRING, THE GREAT AMERICAN CRIME DECLINE 4 (2007).
89. See id. ;
90. Surell Brady, Arrests Without Prosecution and the Fourth Amendment, 59 MD. L. REV. 1, 36 (2000).
91. For example, in the Bureau of Justice Statistics report on Felony Defendants in Large Urban Counties, 2000, the category "[ojther public-order offenses" includes "flight/escape, parole or probation violations, prison contraband, habitual offender, obstruction of justice, rioting, libel, slander, treason, perjury, prostitution, pandering, bribery, and tax law violations." GERARD A. RAINVILLE & BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 2000, at 38 (2003).
92. See ZIMRINO, supra note 53, at 4 ("The local nature of crime data means that different places will often use different criteria of crime classification-").
93. See, e.g., Sanchirico, supra note 3, at 1242-43 (observing the difficulty in obtaining precise data for perjury given the familial limitation of coding done only for the '"most serious offense' charged").
94. Additionally, it may also seriously impair attempts to collect federal data. Federal prosecutors have specifically been instructed to charge "the most serious readily provable charge" in the Principles of Prosecution. This instruction was a change from the earliest, 1980s version of the Manual, which instructed prosecutors to "ordinarily" charge the most serious offense but to exercise caution widi regard to mandatory life imprisonment charges. David A. Sklansky, Starr, Singleton, and the Prosecutor's Role, 26 FORDHAM URB. L.J. 509, 533-34 (1999). As a result, in any case in which the process offense is not the one that carries the most time, it will be all the more unlikely that the process offense will be recorded in national reports.
95. For instance, "[a] small number of arrests, prosecutions, and convictions for perjury is consistent with both rampant perjury due to lax enforcement and tight enforcement leading to very little perjury." Sanchirico, supra note 3, at 1244.
96. Id... at 1246.
97. Cf. 4 WILLIAM BLACKSTONE, COMMENTARIES 127 (describing crimes against public justice as a "species of crimes ... subdivided into such a number of inferior and insubordinate classes, that it would much exceed the bounds of an elementary treatise, and be insupportably tedious to the reader, were I to examine them all minutely, or with any degree of critical accuracy").
98. The well known tale involves six blind men, each of whom feels a part of an elephant and reaches a different conclusion about what they have encountered (a wall, a spear, a snake, a tree, a fan, and a rope). It was made famous in many sources, including die nineteenth century poem by John Godfrey Saxe of the same name, mat ends: "So oft in theologie wars/ The disputants, I ween/Rail on in utter ignorance/Of what each other mean/And prate about an Elephant/Not one of them has seen!" JOHN GODFREY SAXE, THE POETICAL WORKS OF JOHN GODFREY SAXE 111 (2007).
99. Of course, such study would be immensely beneficial.
100. See, e.g., Giles v. State, 52 Ala. 29 (1875) (upholding conviction for willful failure to appear pursuant to 1873 enactment by Alabama assembly).
101. The idea that defendants deserved a right to the consideration of bail is well rooted in American history, as inherited from a similarly entrenched English position. Kurt X. Metzmeier, Preventive Detention: A Comparison of Bail Refusal Practices in the United States, England Canada, and Other Common Law Nations, 8 PACE INT'L L. REV. 399, 403-04 (1996).
102. See generally Caleb Foote, The Coming Constitutional Crisis in Bail, in STUDIES ON BAIL, at 181,192-207 (Caleb Foote, ed. 1966).
103. The United States Constitution prohibits "excessive bail," U.S. CONST, amend. VIII, and by the "mid 19th century most state constitutions included some sort of right to bail -" Metzmeier, supra, at 405;
104. see also LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 242 (1993) ("Bail was an old institution .... The point was to make sure the defendant showed up for trial."). The U.S. Constitution also explicitly recognizes that defendants might abscond: Article IV provides that a person who "shall flee from Justice, and be found in another State, shall on Demand ... be delivered up, to be removed to the State having jurisdiction of the Crime." U.S. CONST, art. IV, §2, cl. 2.
105. The Judiciary Act of 1789, section 17 provides that courts shall have the authority "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority." Judiciary Act of 1789, ch. 20, §17,1 Stat. 73 (1789).
106. See James M. Grippando, Fear of Flying-The Fugitive's Fleeting Right to a Federal Appeal, 54 FORDHAM L. REV. 661, 678 (1986);
107. Metzmeier, supra note 65, at 400-05;
108. Tobolowsky & Quinn, supra note 48, at 269-85 (discussing the evolution of pretrial release practices).
109. Grippando, supra note 67, at 678.
110. Caleb Foote et al., Compelling Appearance in Court: Administration of Bail in Philadelphia, in STUDIES ON BAIL, supra note 65, at 1,40;
111. see also id. at 261 n.323 (providing a 1958 federal statute and a 1966 Minnesota statute that punished bail jumping).
112. Id... at 40.
113. Id... at 41.
114. 1966 Bail Reform Act, Pub. L. No. 89-465, §3(a), 80 Stat. 214, 216 (1966) (outlining §3150, "Penalties for failure to appear");
115. Grippando, supra note 67, at 678.
116. 1966 Bail Reform Act §3(a).
117. Metzmeier, supra note 65, at 407-09;
118. Tobolowsky & Quinn, supra note 48, at 279-81.
119. See generally John S. Goldkamp, Danger and Detention: A Second Generation of Bail Reform, 76 J. CRIM. L. & CRIMINOLOGY 1, 14-16 (1985) (telling state and federal story);
120. Thomas E. Scott, Pretrial Detention Under the Bail Reform Act of 1984: An Empirical Analysis, 27 AM. CRIM. L. REV. 1, 4-8 (1989) (recounting evolution of federal bail provisions).
121. District of Columbia Court Reform and Criminal Procedures Act of 1970, D.C. CODE §§23-13211323 (2001 & Supp. 2008).
122. Scott, supra note 74, at 4-5.
123. 1984 Bail Reform Act, Pub. L. No. 98-473,98 Stat. 1983,1984 (1984).
124. Id.. (setting out additional affirmative defense of "uncontroUable circumstances," which survives today as 18 U.S.C. §3146(c)).
125. CAL. PENAL CODE §1320 (West 1996);
126. 720 III. COMP. STAT. 5/32-10 (2000);
127. LA. REV. STAT. ANN. §14:110.1 (1993);
128. MASS. GEN. LAWS ANN. ch. 276 §82A (West 2004);
129. MINN. STAT. ANN. §609.49 (West 1999);
130. OHIO REV. CODE ANN. §2937.99 (West 2002);
131. OKLA. STAT. ANN. tit. 22, §1110 (West 1999).
132. 1977 Ala. Laws 881-82 (codified as ALA. CODE §13A-10-39 (1977));
133. 1966 Alaska Sess. Laws 5-6 (codified as ALASKA STAT. §12.30.060 (2000));
134. 1977 Ariz. Sess. Laws 755 (codified as ARE. REV. STAT. ANN. §13-2507 (1997));
135. (1975 Ark. Acts 280 (codified as ARK. CODE ANN. §5-54-120 (1991));
136. 1979 Colo. Sess. Laws 663 (codified as COLO. REV. STAT. §18-8-212 (2005));
137. 1969 Conn. Pub. Acts 1607 (codified as CONN. GEN. STAT. §53a-172 (1998));
138. 58 Del. Laws 1718 (1972) (codified as DEL. CODE ANN. tit. 11 §1271 (1995));
139. 84 Stat. 648 (1970) (codified as D.C. CODE §23-1327 (2001));
140. 1971 Fla. Laws 961 (codified as FLA. STAT. ANN. §843.15 (West 1997));
141. 1980 Ga. Laws 387 (codified as GA. CODE ANN. §16-10-51 (1997));
142. 1972 Haw. Sess. Laws 115 (codified as HAW. REV. STAT. §710-1024 (2004));
143. 1983 Idaho Sess. Laws ch. 25 §3 (codified as IDAHO CODE ANN. §19-3901A (2009));
144. 1976 Iowa Acts 66 (codified as IOWA CODE ANN. §805.5 (West 1996));
145. 1969 Kan. Sess. Laws 474 (codified as KAN. STAT. ANN. §21-3814 (1993));
146. 1974 Ky. Acts 859 (codified as KY. REV. STAT. ANN. §520.070 (West 1975));
147. 1972 Mo. Laws 1027 (codified as Mo. REV. STAT. §544.665 (1996));
148. 1973 Mont. Laws 1385 (codified as MONT. CODE ANN. §45-7-308 (1973));
149. 1971 Neb. Laws 1 (codified as NEB. REV. STAT. §29-908 (1977));
150. 1971 N.H. Laws 674 (codified as N.H. REV. STAT. ANN. §642:8 (1992));
151. 1964 NJ. Laws 974 (codified as NJ. STAT. ANN. §2C: 29-7 (West 1981));
152. 1973 N.M. Laws 231 (codified as N.M. STAT. ANN. §31-3-9 (West 1999));
153. 1983 N.Y. Laws ch. 277 §1 (codified as N.Y. PENAL LAW §215.55 (McKinney 1983));
154. 1973 N.C. Sess. Laws ch. 1286 §1 (codified as N.C. GEN. STAT. §15A-543 (2001));
155. 1973 N.D. Laws 235-36 (codified as N.D. CENT. CODE §12.1-08-05 (1973));
156. 1971 Or. Laws 1930 (codified as OR. REV. STAT. §162.195 (2003));
157. 1979 R.I. Pub. Laws ch. 35, §1 (codified as R.I. GEN. LAWS §11-1-8 (1979));
158. 1976 S.D. Sess. Laws 287-88 (codified as S.D. CODIFIED LAWS §23A43-31 (2006));
159. 1973 Tex. Gen. Laws 951 (codified as TEX. PENAL CODE ANN. §38.10 (Vernon 1994));
160. 1980 Utah Laws 149-50 (codified as UTAH CODE ANN. §77-7-22 (1980));
161. 1975 Va. Acts 872 (codified as VA. CODE ANN. §19.2-128 (1999));
162. 1975 Wash. Sess. Laws 855 (codified as WASH. REV. CODE ANN. §9A.76.170 (West 2001));
163. 1969 Wis. Sess. Laws 616 (codified as Wis. STAT. ANN. §946.49 (West 2003));
164. see also Scott, supra note 74, at 5 (counting thirty-four states).
165. Jurisdictions vary in whether they charge bail jumping as a misdemeanor or a felony. In 1989, Georgia created a felony bail-jumping statute so that its misdemeanant absconders could be extradited back to the state. Rochelle Bozman, Bonds and Recognizances: Release Surety from Liability at the Discretion of the Court When the Principal Uses a False Name, 14 GA. ST. U. L. REV. 106,106-107 (1997).
166. ME. REV. STAT. ANN. tit. 15, §1091 (2004);
167. MD. CODE ANN., CRIM. PROC. §5-211 (West 2001);
168. Miss. CODE ANN. §9-1-17 (1993);
169. NEV. REV. STAT. §199.335 (1999);
170. TENN. CODE ANN. §39-16-609 (2004);
171. W. VA. CODE §62-lC-17b (1984);
172. WYO. CT. R. CRIM. P. 46.4 (2001).
173. Michigan and South Carolina do not seem to penalize failure to appear at all. Pennsylvania has a provision for "default in required appearance," 18 PA. STAT. ANN. §5124 (West 2007), but it appears to not be commonly used. Indiana provides only for forfeiture of bond. IND. CODE §27-10-2-12 (2003).
174. See, e.g., COLO. REV. STAT. ANN. §18-8-212 (West 2005) (amending statute in 1982,1985, 1989, 1991, and 2005);
175. 720 III. COMP. STAT. 5/32-10 (2000) (amending statute in 1973, 1976, 1982, 1985, 1994, 1995, and 2000);
176. OR. REV. STAT. §162.195 (2003) (amending statute in 1973, 1993, 1999, 2001, and 2003).
177. See, e.g.. United States v. Bernardine, 237 F.3d 1279,1281,1283-84 (11th Cir. 2001) (upholding conviction of defendant indicted and tried for contempt under 18 U.S.C. §401(3) for failing to appear at a court-ordered hearing, by holding that a court may delegate the duty to issue a summons to a probation officer).
178. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 1992-2004. The very fact that data was not even coUected between 1984, when the Bail Reform Act was passed, and 1992 underscores the likelihood mat prior records for failure to appear were not considered either significant or measurable enough as considerations for bail determinations.
179. Id... Unfortunately, the data still suffer from numerous shortcomings. For starters, in measuring rates for prior "faüures to appear," there exists little uniformity among pretrial services agencies as to how they define that term. It seems likely that, for reasons of convenience, the vast majority determine "prior failures to appear" from records of convictions for the same. However, some agencies may rely on internal data about whether a bench warrant has ever been issued in that jurisdiction for the defendant, regardless of whether a charge or conviction resulted, and others may look to arrest data, as opposed to prosecution or conviction.
180. See Emails between author and David Levin, Pretrial Justice Institute (Mar. 27, 2008) (on file with author).
181. ST CENTURY: A SURVEY OF PRETRIAL SERVICES PROGRAMS, at viii (2003).
182. This is a longstanding issue in such calculations. See WAYNE H. THOMAS, JR, BAIL REFORM IN AMERICA 88,92 (1976) ("Computing the nonappearance rate of defendants on pretrial release is not an easy task and is subject to manipulation.").
183. See COMPENDIUM OF FEDERAL JUSTICE STATISTICS, supra note 85.
184. This arguably suggests that the rise in failure to appear did not correspond to an increase in defendants acting in flagrant defiance of court orders to appear, as such defendants would be more likely to be detained in later cases. See id
185. James R. Marsh, Reducing Unnecessary Detention: A Goal or Result of Pretrial Services?, FED. PROBATION, Dec. 2001, at 16, 17-18 (discussing rising detention rate alongside constant failure to appear rate).
186. Because the records of prior failures to appear would include convictions from state court as well as federal court, it is possible that the actual failure to appear rate in state courts could skyrocket while the federal rate remained constant. However, it seems equally plausible that the notion of what constitutes a "failure to appear" has changed over time, ramer than that the rate at which defendants themselves appear has dramatically altered in one system but not the other.
187. See, e.g., Timothy P. Cadigan, Pretrial Services in the Federal System: Impact of the Pretrial Services Act of 1982, FED. PROBATION, Sept. 2007, at 10 (observing that 'he failure to appear rates and rearrest rates in all four districts were very low under both the former and current bail laws");
188. Rodney Kingsnorth et al., Preventive Detention: The Impact of the 1984 Bail Reform Act in the Eastern Federal District of California, 2 CRIM. JUST. POL'Y REV. 150 (1987) (comparing detention and failure to appear rates from period fifteen months before and twenty-one months after implementation of Bail Reform Act and finding both unaffected by the legislation);
189. see also id at 164-65 (noting that "the EasternFederal District" is not "exceptional in this regard," as studies suggest rates remained constant throughout federal system).
190. Cadigan, supra note 91, at 13 & tbl.5 (calculating percentage of cases in which released defendant failed to appear, using denominator of all cases-released and detained-closed); accord
191. James Byrne & Jacob Stowell, The Impact of the Federal Pretrial Services Act of 1982 on the Release, Supervision, and Detention of Pretrial Defendants, FED. PROBATION, Sept. 2007, at 31, 32 (commenting that "there were no changes in ... the percentage of defendants who failed to appear in court (2.3 percent vs. 2.2 percent)" from 1994 to 2003).
192. Marsh, supra note 89, at 16.
193. Id.. at 17.
194. U.S. GEN. ACCOUNTING OFFICE, CRIMINAL BAIL: HOW BAIL REFORM IS WORKING IN SELECTED DISTRICT COURTS 36 (1987).
195. Id.. at 11-13 (explaining methodology, which entailed two random samples of felony defendants in northern Indiana, Arizona, southern Florida, and eastern New York, drawn from the period of January to June in 1984 and again in 1986).
196. Id.. at 37.
197. Id.. at 38.
198. Id.. (noting that thirty-one defendants were returned to custody, but disposition data were missing for one).
199. PRETRIAL JUSTICE INST., FACT SHEET, UNDERSTANDING THE FINDINGS FROM THE BUREAU OF JUSTICB STATISTICS REPORT, "PRETRIAL RELEASE OF FELONY DEFENDANTS IN STATE COURT" (2008), available at http://www.pretrial.org/Docs/ Documents/factsheetresponse08bjs.doc.
200. Most significantly, these data look only at felony defendants, and not misdemeanants. Because misdemeanants make up such a large percentage of the total number of defendants prosecuted in state courts, their absence is notable. Moreover, it is likely that misdemeanants such as drug users or ' homeless and mentally ill persons are among those most likely to incur failures to appear. Cf. Foote, supra note 65, at 8 (reporting on Philadelphia study from 1950s that "found that most bail jumping was for minor crimes and that there was none for the most serious offenses").
201. COHEN & REAVES, supra note 47, at 8.
202. Keith W. Cooprider et al.. Pretrial Services in Lake County, Illinois-Patterns of Change over Time, FED. PROBATION, Dec. 2003, at 33, 38.
203. ADELE HARRELL ET AL., URBAN INST. JUSTICE POLICY Cm, THE EVALUATION OF MILWAUKEE'S JUDICIAL OVERSIGHT DEMONSTRATION 31 (2006).
204. Id... at 35.
205. Id... at 36.
206. Id... at 37-38.
207. Id... at 34 n.3.
208. Bail jumping there was a misdemeanor or felony depending on the underlying offense. Id
209. State v. Khadijah, 909 A.2d 65, 66 (Conn. App. Ct. 2006).
210. Id.. at 66-67;
211. Brief of Defendant-Appellant at 23, Khadijah, 909 A.2d 65 (A.C. 25518).
212. Khadijah, 909 A.2d at 68-69.
213. Id... at 69.
214. Id... at 71.
215. Alison Leigh Cowan, Failure To Show, A Crime in Itself, Has Day in Court, N. Y. TIMES, Feb. 2, 2007, at Al.
216. Foote, supra note 65, at 260.
217. See id. at 92 n.92.
218. See WAYNE H. THOMAS, JR., BAIL REFORM IN AMERICA 88 (1976).
219. Id... at 88.
220. Id... at 93.
221. The implementation of automated case tracking systems likely also bad an effect, both in the federal and state systems. Byrne & Stowell, supra note 92, at 35-37 (discussing effect of PACTS in pretrial monitoring);
222. Cooprider, supra note 103, at 38 (reporting changes as a result of implementation of automated system).
223. BARRY MAHONEY ET AL., NAT'L INST, OF JUSTICE, PRETRIAL SERVICES PROGRAMS: RESPONSIBILITIES AND POTENTIAL 8 (2001);
224. Marie VanNostrand & Gena Keebler, Our Journey Toward Pretrial Justice, FED. PROBATION, Dec. 2007, at 20,22.
225. Byrne & Stowell, supra note 92, at 31.
226. Cadigan, supra note 91, at 10;
227. Betsy Kushlan Wanger, Note, Limiting Preventive Detention Through Conditional Release: The Unfulfilled Promise of the 1982 Pretrial Services Act, 97 YALE L.J. 320, 325-30 (1987).
228. Wagner, supra note 123, at 329.
229. Id... at 330-31.
230. Cadigan, supra note 91, at 11.
231. MAHONEY ET AL., supra note 121, at 8.
232. See Byrne & Stowell, supra note 92, at 37;
233. Kingsnorth, supra note 91, at 164
234. 18 U.S.C. §1001 (2006);
235. see Paul Glastris, "False Statements": The Flubber of All Laws, U.S. NEWS & WORLD REP., Mar. 30, 1998, at 25 (describing the statute as "elastic, all-purpose, and fearsome").
236. 18 U.S.C. §288 (2006).
237. Id.. §1038.
238. Id.. §1158.
239. See 18 U.S.C. §923 (2006) (firearms licensing and purchase);
240. 18 U.S.C.A. §924 (West 2009) (providing penalties for §923);
241. 18 U.S.C. §1011 (2006) (mortgages);
242. 18 U.S.C.A. §1014 (West 2009) (credit applications);
243. 18 U.S.C. §1015 (2006) (citizenship and naturalization);
244. 18 U.S.C. §1020 (2006) (highway projects);
245. 18 U.S.C. §1026 (2006) (farm indebtedness);
246. 18 U.S.C. §1027 (2006) (ERISA);
247. 18 U.S.C. §1029 (2006) (access devices);
248. 18 U.S.C. §§1542, 1546 (2006) (passports);
249. 18 U.S.C. §1919 (2006) (federal unemployment);
250. 18 U.S.C. §1920 (2006) (federal compensation);
251. 18 U.S.C.A. §2342 (West 2009) (trafficking in contraband);
252. 18 U.S.C. §2386 (2006) (registration of organizations);
253. 18 U.S.C. §2388 (2006) (seditious activities).
254. Other titles of the United States Code also have provisions for false statements, such as those made with regard to taxes, see, e.g., 26 U.S.C. §7206 (2006),
255. Medicare, see, e.g., 42 U.S.C. §300e-17 (2006), or immigration,
256. see, e.g., 8 U.S.C.A. §1255a (West 2009) (adjustment of status).
257. 134. Act of Mar. 2, 1863, ch. 67, 12 Stat. 696, 696-97 (1863);
258. see also Hubbard v. United States, 514 U.S. 695,704 (1995).
259. Hubbard, 514 U.S. at 705.
260. Act of Oct. 23,1918, ch. 194 §35,40 Stat. 1015,1015-16 (1918);
261. Hubbard, 514 U.S. at 705.
262. Hubbard, 514 U.S. at 706.
263. United States v. Yermian, 468 U.S. 63, 72 (1984) (reporting that the 1934 act was "needed to increase the protection of federal agencies from the variety of deceptive practices plaguing the New Deal administration").
264. In United States v. Cohn, the Court rejected the argument that the statute should apply not just to statements that caused actual pecuniary or property losses, but also generally to all deceit of government. 270 U.S. 339, 346-47 (1926).
265. Partially in response to this ruling, Congress amended the statute in 1934 and enacted a false statement provision that did not contain any language that suggested a loss requirement. Yermian, 468 U.S. at 71.
266. Act of June 18, 1934, ch. 587, §35, 48 Stat. 996.
267. For a nuanced account of the legislative history preceding this enactment, see Peter W. Morgan, The Undefined Crime of Lying to Congress: Ethics Reform and the Rule of Law, 86 Nw. U. L. REV. 177, 202-08 (1992).
268. In 1948, Congress did officialy separate out the false claims portion of liability from the false statements aspect discussed here, creating separate statutory section 287. Act of June 25, 1948, §§287, 1001, 62 Stat. 698, 749;
269. Bregan v. United States, 522 U.S. 398,413 n.4 (1998).
270. A minor amendment in 1994 simply updated the penalty provisions. Act of Sept. 13,1994, Pub. L. No. 103-322, Title XXXIII, § 330016(1)(L), 108 Stat. 2147. The principal changes began in 1996.
271. Act of Oct. 11, 1996, Pub. L. No. 104-292, §2, 110 Stat. 3459; Brogan, 522 U.S. at 416 ("Congress has been alert to our decisions in this area, as its enactment of the False Statements Accountability Act of 1996 (passed in response to our decision in Hubbard v. United States) demonstrates." (internal citations omitted)). The Court had previously held that statements to the legislative branch were covered by §1001. United States v. Bramblett, 348 U.S. 503, 509 (1955).
272. Intelligence Reform and Terror Prevention Act of 2004, Pub. L. No. 108-458, Title VI, §6703(a), 118 Stat. 3766 (2004).
273. Act of July 27, 2006, Pub. L. No. 109-248, Title I, §141(c), 120 Stat. 603 (2006).
274. See Todd S. Kurihara & Kenneth T. Whang, False Statements and False Claims, 44 AM. CRIM. L. REV. 491, 493-94 (2007).
275. Of course, there are other statutes that deal with false statements that also were interpreted during this time, but for practical reasons this analysis concentrates on §1001. Nevertheless, cursory examination reveals a similar broadening trend. See, e.g., United States v. Wells, 519 US. 482 (1997) (holding that materiality is not an element of the crime of false statements to banks).
276. Perhaps ironically, the last case prior to the Supreme Court's ruling in 1984 was the Bryson decision, decided in 1969, which belongs to a cluster of cases addressing prosecutions brought under §1001 related to allegedly false denials of membership in the communist party. See Bryson v. United States, 396 U.S. 64 (1969); Killian v. United States, 368 U.S. 231 (1962); Travis v. United States, 364 U.S. 631 (1961); Jencks v. United States, 353 U.S. 657 (1957). Such cases may lend support to the fears that the false statements statute is subject to ready manipulation for political or other unsavory purposes.
277. United States v. Rodgers, 466 U.S. 475, 479 (1984). The defendant in Rodgers had called the FBI to report mat his estranged wife had been kidnapped and that she was part of the plot to assassinate the president in an effort to have them locate her whereabouts. Id at 477.
278. United States v. Yermian, 468 U.S. 63, 75 (1984).
279. Id... at 74. In Yermian, the defendant misrepresented several aspects of his history on a Department of Defense Security Clearance form, including false statements about employment with prior companies and the failure to disclose a prior conviction. The defendant claimed that he filled out the form in a manner consistent with misrepresentations he had made to his employer, a private company that contracted with the Department of Defense. Id at 65-66.
280. United States v. Woodward, 469 U.S. 105 (1985).
281. Id... at 108.
282. United States v. Brogan, 522 U.S. 398, 408 (1998).
283. Id.. at 402.
284. Cf. United States v. Gilliand, 312 U.S. 86, 92-93 (1941) (suggesting that purpose of statute is to protect against perversion of government function).
285. Since the modern incarnation of §1001 came into existence in 1934, there have been roughly ten Supreme Court cases addressing substantive aspects of the statute. Five of those were decided after 1984, one was decided in the immediate aftermath of the 1934 passage of the statute, and the remaining cases cluster around the anti-communism period of the 1950s and 1960s.
286. Hubbard v. United States, 514 U.S. 695 (1995).
287. Id.. at 715.
288. Id... at 714.
289. See supra note 142.
290. See, e.g.. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2003 17,31 (2003).
291. See infra Part III (introductory portion).
292. See supra text accompanying notes 130-33.
293. Dale A. Oesterle, 1 OHIO ST. J. CRIM. L. 443, 445 (2004) (describing one emerging theme as "prosecutors' use of sideshow charges").
294. Kurihara & Whang, supra note 145, at 493.
295. Id... at 494.
296. Emily Lambert, It's a Fib Thing, FORBES, Apr. 12, 2004, at 62. Unfortunately, my efforts to verify mese numbers proved unfruitful.
297. Glastris, supra note 129, at 25 (describing the statute as "elastic, all-purpose, and fearsome").
298. Id... at 26
299. Id... at 25-26.
300. The Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591-99 (2006).
301. See Glastris, supra note 129, at 26. Interestingly Glastris claims that "until the Cisneros case no one had every been prosecuted for lying on a background check." Id at 25. But of course, Cisneros was indicted in 1997 and at the very least Yermian, the defendant who was prosecuted for lying on his Department of Defense background check documents, had his conviction affirmed in 1984. United States v. Yermian, 468 U.S. 63, 65 (1984).
302. See Glastris, supra note 129, at 25.
303. Oesterle, supra note 164, at 447-48 (describing difficulties with these kinds of investigations); Richman & Stuntz, supra note 3, at 600-04.
304. MODEL PENAL CODE AND COMMENTARIES § 241.3 cmt. at 150 (Official Draft and Revised Comments 1980). However, both Georgia and North Dakota enacted statutes shortly after the drafting of the Model Penal Code section that were similarly broad in scope. See id at 150 n.2.
305. See Alexandra Bak-Boychuk, Comment, Liar Laws: How MPC §241.3 and State Unsworn Falsification Statutes Fix the Flaws in the False Statements Act (18 U.S.C. §1001), 78 TEMP. L. REV. 453,460 n.67 (2005) (listing statutes).
306. John F. Decker, The Varying Parameters of Obstruction of Justice in American Criminal Law, 65 LA. L. REV. 49, 83 (2004) (citing Wis. STAT. § 946.65 (1996 & Supp. 2002)); Oesterle, supra note 164, at 469 (referring to coordination efforts by New York, Utah, Massachusetts, New Jersey, California, Connecticut, Arizona and Florida);
307. Fairfield, Conn. Files $75m Suit Against Madoff Family, BOSTON GLOBE, Apr. 1, 2009, at B10;
308. Glaxo Accused of Fraud and Bribery in New York Probe, EVENING STANDARD (London), Feb. 14, 2003, at 42 (reporting on drug companies charged by New York Attorney General with false statements, among other things).
309. See, e.g., Henri E. Cauvin, Deal Made in District Election Scandal; 2 Admit Their Guilt, Will Aid Prosecutor, WASH. POST, Feb. 24, 2006, at B1 (reporting on guilty plea to false statements in local prosecution for election fraud).
310. OHIO REV. CODE ANN. § 2921.31 (West 2006) (proscribing "any act" done with a purpose to "prevent, obstruct, or delay the performance by a public official of any act within the public official's official capacity," which had formerly been a misdemeanor but in 1999 became a felony);
311. Armond D. Budish, Even Little White Lies Could Land You in Jail, CLEVELAND PLAIN DEALER, Jan. 24, 2004, at E9 ("False oral statements also can result in legal trouble.").
312. See, e.g.. CONN. GEN. STAT. § 53a-302 (2007) (enacting in 2002 an anti-terrorism provision that proscribes false representations "with intent to intimidate or coerce the civilian population or a unit of government and with respect to any criminal matter"); Miss. CODE ANN. § 97-7-10 (2006) (enacting in 1988 general proscription against false statements made "with intent to defraud"); VT. STAT. ANN. tit. 13, §3016 (1998) (prohibiting in 1987 the making of false representations); VA. CODE ANN. §18.2498.3 (2004) (enacting in 1980 a statute that penalizes false statements);
313. see also David A. Lieb, Missouri House Votes To Toughen Penalties for Mortgage Fraud, ASSOCIATED PRESS, Apr. 3, 2008 (reporting mat Missouri house unanimously passed bill to penalize false statements made in connection with mortgage lending).
314. ALA. CODE §15-5-30 (2003); ARIZ. REV. STAT. ANN. §13-2412 (2005); ARK. CODE ANN. §5-71-213(a)(1) (2004); COLO. REV. STAT. §16-3-103(1) (2003); DEL. CODE ANN. tit. 11, §§1902(a), 1321(6) (2003); FLA. STAT. §856.021(2) (2003); GA. CODE ANN. §16-11-36(b) (2003); 725 ILL. COMP. STAT. §5/107-14 (2004); IND. CODE §34-28-5-3.5 (1998); KAN. STAT. ANN. §22-2402(1) (2003); LA. CODE CRIM. PROC. ANN. art. 215.1(A) (2004); Mo. REV. STAT. §84.710(2) (2003); MONT. CODE ANN. §46-5-401(2)(a) (2003); NEB. REV. STAT. §29-829 (2003); NEV. REV. STAT. §171.123(3) (2007); N.H. REV. STAT. ANN. §§594:2, 644:6 (1986); N.M. STAT. ANN. §30-22-3 (West 2004); N.Y. CRIM. PROC. LAW §140.50(1) (2004); N.D. CENT. CODE §29-29-21 (2003); OHIO REV. CODE ANN. §2921.29 (West 2006); R.I. GEN. LAWS §12-7-1 (2003); UTAH CODE ANN. §77-7-15 (2003); VT. STAT. ANN. tit. 24, §1983 (2003); Wis. STAT. §968.24 (2003). Municipalities also have local variations. See, e.g., Arlington County, Va. Code §17-13(c) (1957).
315. See, e.g., ALA. CODE §15-5-30 (2003); 725 ILL. COMP. STAT. §5/107-14 (2004); KAN. STAT. ANN. §22-2402(1) (2003); see also Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 183 (2004) ("In some States, a suspect's refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws.").
316. See, e.g., ARK. CODE ANN. §5-71-213(a)(1) (2004); FLA. STAT. §856.021(2) (2003).
317. Hiibel, 542 U.S. 177.
318. See, e.g., Kolender v. Lawson, 461 U.S. 352, 361 (1983) (invalidating a stop and identify statute that bestowed unrestrained power); Papachristou v. Jacksonville, 405 U.S. 156, 167-71 (1972) (invalidating vagrancy law as void for vagueness). But see City of Chi. v. Morales, 527 U.S. 41 (1999) (striking down Chicago anti-gang loitering ordinance).
319. Terry v. Ohio, 392 U.S. 1,20 (1968).
320. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 137 (2000) (holding officer had a reasonable articulable suspicion when suspect fled in low income neighborhood); Whrën v. United States, 517 U.S. 806,819 (1996) (allowing pretextual traffic stops).
321. Chimel v. California, 395 U.S. 752, 762-63 (1969) ("When an arrest is made, it is reasonable for the arresting officer to search me person arrested....").
322. State v. Aloi, 911 A.2d 1086, 1087-89 (Conn. 2007).
323. Id.. at 1089.
324. Id.. at 1092.
325. Id... at 1095 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 183 (2004)).
326. Decker, supra note 177, at 129 ("An examination of obstruction of justice laws in me United States reveals significant differences in their definition and scope.").
327. Julie R. O'Sullivan, The Federal Criminal "Code" is a Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 678 (2006).
328. Decker, supra note 177, at 130.
329. Sanchirico, supra note 3, at 1249.
330. Bloom v. Illinois, 391 U.S. 194, 202-03 (1968) (explaining history of contempt statute). The general notion that obstructing justice constitutes an offense goes back "over four centuries."
331. Daniel A. Shtob, Note, Corruption of a Term: The Problematic Nature of 18 U.S.C.§ 1512(c), the New Federal Obstruction of Justice Provision,- 57 VAND. L. REV. 1429, 1434 (2004);
332. see also Federal Crimes Act of 1790,1 Stat. 112.
333. The Judiciary Act of 1789, section 17 provides that courts shall have me authority "to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before same." Judiciary Act of 1789, ch. 20, §17,1 Stat. 73.
334. See United States v. Reed, 773 F.2d 477, 485-86 (2d Cir. 1985) (recounting the history of and response to the impeachment of Judge James H. Peck).
335. See Walter Nelles & Carol Weiss King, Contempt by Publication in the United States: To the Federal Contempt Statute, 28 COLUM. L. REV. 401, 423-24 (1928).
336. Id... at 428.
337. Id.. at 429.
338. Id... at 430.
339. Id.. at 430.
340. Act of Mar. 2,1831, ch. 99; 4 Stat. 487.
341. Id..
342. Id...
343. See Cooke v. United States, 267 U.S. 517, 537 (1925) ("Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation.").
344. United States v. Poindexter, 951 F.2d 369, 380 (D.C. Cir. 1991) (citing Act of March 4, 1909, ch. 321, §135, 35 Stat. 1113). In the 1948 enactment of Title 18, Congress definitively placed §1503 in Chapter 73, which was titled "Obstruction of Justice" and contained the provisions presently found at §§1501-06. Act of June 25,1948, ch. 645, §§1501-06, 62 Stat. 769-70.
345. Poindexter, 951 F.2d at 380-81 (citing Act of Jan. 13,1940, ch. 1, §135(a), 54 Stat. 13).
346. See, e.g., 18 U.S.C. §1501 (assault on process server, 1948); id §1502 (resistance to extradition agents, 1948); id. §1503 (catch-all, 1909); id §1504 (influencing juror by writing, 1948); id. §1505 (obstructing agencies or committees, 1948); id §1506 (false bail, 1948). See generally O'Sullivan, supra note 194, at 643 (noting that the "closest Congress has come to enacting a code was its creation of Title 18 of the United States Code in 1948").
347. Victim Witness and Protection Act, Pub. L. No. 97-291, 96 Stat. 1248 (1982). Prior to that, Congress had enacted a handful of isolated obstruction provisions, some likely as a response to civil rights skirmishes. See 18 U.S.C. §1507 (2006) (picketing, passed in 1950); id §1508 (recording deliberating grand jury, passed in 1956); id. §1509 (obstructing court orders, passed in 1960); id §1510 (obstructing criminal investigations, passed in 1967); id. §1511 (obstructing state or local law enforcement, passed in 1970).
348. 18 U.S.C. §1512 (2006); Pub. L. No. 97-291, §4a, 96 Stat. 1248 (1982).
349. 18 U.S.C. §1513; Pub. L. No. 97-291, §4a, 96 Stat. 1248 (1982).
350. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (2002). "Congress's apparent object in passing Sarbanes-Oxley's obstruction provisions was to combine section 1503(a)'s broader definition of obstructive acts with section 1512's weaker nexus requirement." Sanchirico, supra note 3, at 1251&n.141.
351. 18 U.S.C. §1512 (witness tampering, passed 1982 and since then amended frequently); id §1513 (retaliating against witness, passed in 1982 and since men amended frequently).
352. Id.. §1516 (obstructing federal audit, passed in 1988); id. §1517 (obstructing examination of financial institution, passed in 1990); id. §1518 (obstructing health care investigations, passed in 1996).
353. Id... §1521. The U.S. Code also criminalizes other forms of obstructive conduct in separate chapters of the code. See, e.g., id §201 (bribery); id §2231 (resistance during search warrants).
354. Id.. §1510;
355. see also Lawrence B. Solum & Stephen Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 EMORY L.J. 1085, 1110 (1987).
356. See 18 U.S.C. §1505 (revision in 2004); id §1510 (revisions or enhancements in 1989, 1994, and 2006); id §1512 (revisions or enhancements in 1986, 1988, 2002, and 2008); id §1513 (revisions or enhancements in 1994, 1996, 2002, and 2008).
357. For instance, me 1982 acts removed "witness" references from §1503 and made separate provisions, and "the circuits are divided on whether Congress intended witness tampering to be removed from the scope of section 1503." Decker, supra note 177, at 64; see also id. at 71-72. Or, by way of another example, the Supreme Court in United States v. Aguilar held that §1503 required a nexus between the obstructive activity and the administration of justice. 515 U.S. 593, 599 (1995). The Court applied the same rule again in the Arthur Andersen case, even though it was prosecuted under §1512, which has less favorable language. Arthur Andersen, LLP v. United States, 544 U.S. 696, 707-08 (2005).
358. See Sanchirico, supra note 3, at 1251-52 & n.142 (charting "convoluted" legislative history). Although it remains to be seen how prosecutors will wield it and courts will interpret it, me statute unquestionably broadens me scope of liability.
359. See Jeffrey R. Kallstrom & Suzanne E. Roe, Obstruction of Justice, 38 AM. CRIM. L. REV. 1081, 1107 (2001);
360. Sanchirico, supra note 3, at 1255. But see Kallstrom & Roe, supra, at 1108-09 (noting that courts have read certain acts from the list narrowly).
361. Decker, supra note 177, at 53-54 (noting that §1503 is the basis of the "majority of federal prosecutions").
362. 18 U.S.C. 1503(a) (2006) ("Whoever corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice ....").
363. Kallstrom & Roe, supra note 222, at 1085.
364. Id... at 679.
365. Pettibone v. United States, 148 U.S. 197, 205-06 (1893).
366. See, e.g.. United States v. Neiswender, 590 F.2d 1269, 1274 (4th Cir. 1979). Other circuits have since followed suit. Decker, supra note 177, at 58-59;
367. Jeremy McLaughlin & Joshua M. Nahum, Obstruction of Justice, 44 AM. CRIM. L. REV. 793, 800-01 (2007).
368. See, e.g., BUREAU OF JUSTICE STATISTICS, supra note 161, at 17, 31.
369. All calculations are drawn from the Compendia of Federal Justice Statistics issued by the Bureau of Justice Statistics on an annual basis, although data for 1987 and 1991 are excluded. See supra note 85.
370. Kallstrom & Roe, supra note 222, at 1082 ("[I]t appears to me mat white-collar prosecutors are increasingly electing to rely on obstruction charges in high-profile cases..."); see also Decker, supra note 177, at 129 (cautioning "participants and observers of our criminal justice system ... not [to] overlook the growing importance of the crime of obstruction of justice"); O'Sullivan, supra note 194, at 677.
371. Decker, supra note 177, at 51.
372. Id..
373. Griffin, supra note 4, at 311-12. In relating these theories, Professor Griffin warns against such prosecutorial power because "[a]n employee may have a reasonable fear of prosecution mat leads to evasive behavior later charged as obstructive, even mough that employee may have been innocent of any wrongdoing prior to questioning." Id at 334; see also id at 361.
374. Id.. at 371; see also Sanchirico, supra note 3, at 1244 n.111 ("The new section 1503 [obstruction of justice] charge provides another round of ammunition for the prosecutor in the plea bargaining process." (alteration in original)).
375. Griffin, supra note 4, at 371-72.
376. Id... at 372-73.
377. See id.
378. Decker, supra note 177, at 79-81.
379. Id... at 77.
380. See id at 81. Every state has statutes that target specific conduct. Id. at 76. Confusingly, a handful of states have statutes with tides that reflect variations on "obstructing justice," but which instead refer to conduct more popularly referred to as accomplice liability or accessorial liability after-the-fact. Id at 83.
381. Id... at 121 (citing statutes from Ohio, New York, and Pennsylvania).
382. Id.. at 121 n.569.
383. See id Of course, it may be that jurisdictions less inclined to report trial cases nonetheless have few obstruction cases, or it may simply be that those cases tend not to see the light of appellate review and written report.
384. Id... at 121.
385. Id... at 51 (giving examples of obstruction cases that include a "child [who] shouts obscenities at his public school teacher, shoves her, and leaves the classroom" and "[t]wo middle-aged women [who] privately state that they believe a recent arson was committed by the local police").
386. State v. Stayton, 709 N.E.2d 1244 (Ohio Ct. App. 1998).
387. Decker, supra note 177, at 109.
388. Id... at 110.
389. Id... at 110-11 (giving examples, including a jaywalker who "quickened his pace" when asked by an officer to stop).
390. Id... at 105-13.
391. Id...
392. Id... at 51.
393. Id... at 117 (citing cases).
394. See BLACKSTONE, supra note 61, at *324; see also id at *126 (describing the offense of "dissuad[ing] a witness from giving evidence").
395. Decker, supra note 177, at 90;
396. Green, Cover-Up, supra note 23, at 19 & n.39 (referring to §1512).
397. Common enough that a Wikipedia link to "Commonly Charge Offenses" in the California Criminal Law section in turn lists "dissuading a witness" among thirteen other highlighted "Crimes Against the Public." Fannon & Stromberg, Attorneys at Law, Criminal Law: Commonly Charged Offenses, http://www.amadorcrimialdefense.com/crim-Law. html#crimespub (last visited Mar. 22,2009).
398. CAL. PENAL CODE §136.1 (West 1999).
399. Id... at §136.1(f)
400. Id.. at §136 (1872)
401. (amended and updated at CAL. PENAL CODE §137 (West 2009)).
402. Enacted as §136, this section became §136.1 in 1980.1980 Cal. Stat. 2076.
403. 1980 Cal. Stat. 2076-77.
404. CAL. PENAL CODE §136(c) (West 1979) That provision now is lodged in the section of the code that deals with influencing testimony.
405. CAL. PENAL CODE §137 (West 2009).
406. People v. McElroy, 24 Cal. Rptr. 3d 439, 441 (Cal. Ct. App. 2005).
407. Id.. at 444-45.
408. Id... at 444.
409. Id.. at 445.
410. 1980 Cal. Stat. 2077.
411. See, e.g., John A. Birdsall, Trouble Ahead: Wisconsin's New Domestic Abuse Laws, Wis. LAWYER, Feb. 2004, at 8 (referring to scope of dissuading a witness charge).
412. See CAL. PENAL CODE §422 (West 1999).
413. However, not every jurisdiction has authorized this hovel theory of obstruction. See, e.g., People v. Hollenquest, 570 N.Y.S.2d 155 (App. Div. 1991) (rejecting witness tampering theory where defendant threatened individual who observed him commit robbery, but did so at time prior to being arrested or charged with robbery).
414. Commonwealth v. Casiano, 876 N.E.2d 475, 478-79 (Mass. App. Ct. 2007) (upholding conviction for influencing a witness where defendant pointed a camera phone at a row of police officers waiting to testify at his trial and snapped photo).
415. Commonwealth v. King, 866 N.E.2d 938, 940-41 (Mass. App. Ct. 2007).
416. King, 866 N.E.2d at 943
417. (quoting MASS. GEN. LAWS ch. 268, §13B (1970));
418. accord People v. Dayot, No. B189206, 2008 WL 344230 (Cal. Ct. App. Feb. 8, 2008) (upholding conviction for dissuasion in which carjackers warned victim at scene not to report crime); State v. Méndez, 459 N.W.2d 578, 581 (Wis. Ct. App. 1990) (upholding conviction for dissuading a witness where robbers, as leaving scene, cut telephone cords and threatened to kill victim if she reported crime).
419. King, 866 N.E.2d at 944-45.
420. Id.. at 945.
421. United States v. Reeves, 61 M.J. 108, 109 (C.A.A.F. 2005).
422. Id...
423. Id.. at 110.
424. See, e.g., State v. D.A., 923 A.2d 217, 221-22 (N.J. 2007) (rejecting government argument that "every defendant who commits a crime and attempts to silence a witness" is tampering).
425. 18 U.S.C. §401 (3) (2006).
426. Sanchirico, supra note 3, at 1258 (quoting 18 U.S.C. §401).
427. See, e.g., Green, Cover-Up, supra note 23, at 21 (citing cases).
428. United States v. Dixon, 509 U.S. 688, 694 (1993).
429. Id... at 691.
430. Id... at 692.
431. Id... at 698. Accordingly, some of the counts could proceed because they had not served as the basis for the contempt convictions even though arising from the same transaction. Id at 700-02.
432. Id... at 694.
433. Green, supra note 2, at 1613.
434. Earl C. Dudley, Jr., Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 VA. L. REV. 1025, 1026 (1993). Indeed, me early struggle to define the contours of contempt consisted largely of distinguishing between those acts punishable summarily and those that required ordinary criminal processes. It was not until 1941 that the Supreme Court definitively circumscribed courts' power by limiting summary contempt to acts occurring "near to" the court geographically, rather than metaphysically. Nye v. United States, 313 U.S. 33, 48-49 (1941) (interpreting 18 U.S.C. §241 language of "near to" as "physical proximity not relevancy").
435. Dixon, 509 U.S. at 694-95.
436. PRETRIAL JUSTICE INST., supra note 100 (remarking on "growing practice" of imposing "nonfinancial conditions [of release] in combination with a money bail").
437. Id.. at 700.
438. See supra section IVA (discussing failure to appear).
439. Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2 (2006).
440. Id... at 48. Several jurisdictions have expressly held that consent of the victim is not a defense to violation of a stay away order. State v. Branson, 167 P.3d 370, 373 (Kan. 2007); cf. Ba v. United States, 809 A.2d 1178, 1183 (D.C. 2002) (dodging consent question by noting that victim revoked any alleged consent).
441. Suk, supra note 295, at 18.
442. Id.. at 19.
443. Id... at 10.
444. Id... at 21.
445. Id..
446. Id.. at 43 n.172. The remaining charges included other forms of harassment or property offenses. Id
447. (citing RICHARD R. PETERSON, N.Y. CRIMINAL JUSTICE AGENCY, COMPARING THE PROCESSING OF DOMESTIC VIOLENCE CASES TO NON-DOMESTIC VIOLENCE CASES in NEW YORK CITY CRIMINAL COURTS 30 (2001), http://www.cjareports.org/reports/dv01.pdf).
448. Id..
449. Id... at 54 & nn.226-27 (describing sentencing provisions).
450. See Myrna Raeder, Remember the Ladies and the Children Too, 71 BROOK. L. REV. 311, 327 (2005);
451. Deborah Tuerkheimer, Renewing the Call To Criminalize Domestic Violence: An Assessment Three Years Later, 75 GEO. WASH. L. REV. 613, 617-18 (2007);
452. see also SANDRA J. CLARKE ET AL., COORDINATED COMMUNITY RESPONSES TO DOMESTIC VIOLENCE IN SIX COMMUNITIES (1996), http:// www.urban.org/publications/ 406727.html (describing Minnesota program aimed at securing criminal contempt for batterers who do not attend civilly-ordered rehabilitation programs).
453. ERICA L. SMITH ET AL., U.S. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, STATE COURT PROCESSING OF DOMESTIC VIOLENCE CASES 2 (2008).
454. See, e.g. STATE OF ALASKA, FY2004 GOVERNOR'S OPERATING BUDGET, DEP'T OF LAW, CRIMINAL Drv., available at http://www.gov.stete.ak.us/omb/04-OMB/budget/ Law/bru33.pdf;
455. Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 790 (2005).
456. Byme & Stowell, supra note 92, at 32.
457. See Walter J. Dickey & Peggy A. McGarry, The Search for Justice and Safety Through Community Engagement: Community Justice and Community Prosecution, 42 IDAHO L. REV. 313, 363-73 (2006) (describing strategic use of stay away orders);
458. Prince, supra note 48, at 1901, 1903-1904
459. Byrne & Stowell, supra note 92, at 32, 37; Kingsnorth, supra note 91, at 164. Notably, the number of detained defendants also increased during mat time, so the rise in imposition of release conditions and violations might arguably appear incongruous. Byrne & Stowell, supra note 92, at 32, 36; see also id at 36-37 (noting that increase in imposition of release conditions is surprising, given mat a greater percentage of all defendants are detained, and dismissing argument that profile of offenders has changed).
460. RAINVILLE & REAVES, supra note 55, at 21. Only 16% of all released defendants committed new offenses, and roughly 22% of all released defendants failed to appear, so even assuming no overlap, a not insignificant number of defendants committed a less substantial violation. Id at 21-22.
461. Grant v. United States, 734 A.2d 174, 178 (D.C. 1999); see also Lee v. Municipality of Anchorage, 70 P.3d 1110, 1113 (Alaska Ct. App. 2003).
462. Elizabeth Dinan, Man Charged with Felony After Flipping Finger, SEACOAST ONLINE, Feb. 6, 2009, http://www.seacoastonline.com/articles/20090206-NEWS- 90206019.
463. Steve Herbert & Katherine Beckett, Zoning Out Disorder: Assessing Contemporary Practices of Urban Social Control, STUD. L. POL. & SOC'Y (forthcoming), at 3;
464. see also Lindsay Crawford, Comment, No Way Out: An Analysis of Exit Processes for Gang Injunctions, 97 CAL. L. REV. 161, 165 (2009) (describing use of contempt to enforce gang injunctions).
465. Herbert & Beckett, supra note 314, at 8.
466. Virginia v. Hicks, 539 U.S. 113, 124 (2003) (upholding housing authority policy to issue barring notices to individuals, without any procedural safeguards, and then secure arrests when the individual violates the notice). In Hicks, the city of Richmond conveyed several public streets around a public housing project to the local housing authority, a political subdivision of the state. Id at 115-16. Thereafter, a police officer showed Hicks a "barring notice" informing him that he could not return, and he was arrested for trespass when he did. Id. at 117. The court upheld die policy. Id at 124. At the time of mese events, Hicks' mother, children, and his children's mother all lived at the housing authority, and after he received his barring notice, he twice requested permission to enter the area and was twice denied. Brief for Respondent at 8-9, Hicks, 539 U.S. 113 (No.02-371).
467. However, those outsiders are nonetheless often state or local employees such as housing authority administrators.
468. Katherine Beckett & Steve Herbert, Dealing with Disorder: Social Control in the PostIndustrial City, 12 THEORETICAL CRIMINOLOGY 5, 11 (2008).
469. Id... at 25 n.12.
470. Id... at 12.
471. Richard H. Underwood, Perjury: An Anthology, 13 ARE. J. INT'L & COMP. L. 307, 307-308 (1996).
472. Green, Lying & Misleading, supra note 23, at 174.
473. Id... at 174-175
474. United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969); see also Green, supra note 2, at 1612 (noting that harm is both the "untrue court testimony" and the "damage to the authority of the government").
475. William J. Stuntz, Self-Defeating Crimes, 86 VA. L. REV. 1871, 1880 (2000).
476. Id.. at 1880-1881.
477. Id.. at 1881.
478. See, e.g., MASS. GEN. LAWS ch. 268, § 1 (2006); N.C. GEN. STAT. § 14-209 (2007); TEX. PENAL CODE ANN. § 37.03 (Vernon 2003).
479. 18 U.S.C. §§ 1621-1623 (2006).
480. See generally Danielle L. Davis, Perjury, 44 AM. CRIM. L. REV. 829 (2007) (reviewing federal statutes).
481. Act of June 25, 1948, ch. 645, §§ 1501-1506, 62 Stat. 769-770
482. Act of March 4, 1909, ch. 321, §§ 125-126, 35 Stat. 1111.
483. 18 U.S.C. § 1621 (2006);
484. see also Davis, supra note 330, at 833. Section 1622 penalizes subornation of perjury .
485. H.R. REP. NO.91-1549, at 33 (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4008.
486. 18 U.S.C. § 1623(2006).
487. See Davis, supra note 330, at 844 (noting that one witness and corroborating evidence had been held to suffice).
488. H.R. REP. 91-1549.
489. Davis, supra note 330, at 846.
490. Id..
491. Id.. at 845; Sanchirico, supra note 3, at 1259-1260
492. Davis, supra note 330, at 847.
493. Bronston v. United States, 409 U.S. 352, 353 (1973). In Bronston, the defendant was asked whether he ever had a Swiss bank account, and he answered that his company had one. Id. at 354. The Court found this answer, although evasive and nonresponsive, not to constitute perjury. Id. at 357.
494. See G. Edward White, The Reinstatement of Alger Hiss's Law License, 8 GREEN BAG 383, 388 (2005).
495. Duff Wilson & Michael S. Schmidt, Bonds Charged with Perjury in Steroids Case, N.Y. TIMES, Nov. 16, 2007, at A1 (reporting on charges against baseball player related to steroid investigation).
496. Julia Preston, Jury Selected for Perjury and Obstruction Trial of Lil Kim, N. Y. TIMES, Mar. 1, 2005, at B1 (discussing case of rapper accused of lying to a grand jury investigating a shooting).
497. Constance L. Hayes, Ex-Chief of Federated Stores Is Indicted on Charges of Perjury, N.Y. TIMES, Jan. 5, 2005, at C2 (reporting on retired chairman of department store chain indicted for statements made about conversations he had regarding product sales to competitor store).
498. Colin Moynihan, Ink Expert in Stewart Trial Found Not Guilty of Perjury, N. Y. TIMES, Oct. 6, 2004, at C2 (reporting on acquittal of document expert in Martha Stewart trial).
499. Monica Davey, Detroit Mayor Is Charged in Scandal, N.Y. TIMES, Mar. 25, 2008, at A15 (reporting on charges filed against Detroit mayor in relation to statements made under oath in a civil case regarding possible extramarital affair).
500. Starr Report, H.R. Doc. No.105-310, at 128 (1998).
501. Sanchirico, supra note 3, at 1241-42. The same type of coverage has repeatedly flared up in the wake of more recent scandals.
502. See, e.g., Adam Liptak, Threats and Responses: The Law: Prosecutions for Perjury in Legislative Settings Are Unusual, N.Y. TIMES, March 31, 2004, at A21 (claiming "perjury prosecutions for testimony given in legislative settings are not common").
503. Dennis Cauchon, Perjury Charges Rare in Civil Cases, USA TODAY, Jan. 29, 1988, at 5A.
504. Sanchirico, supra note 3, at 1241.
505. Id... at 1242.
506. Gil Klein & Mark Johnson, Indictments for Perjury Commonplace, TAMPA TRIB., Sept. 18, 1998, at 8 (stating that "[f]ederal prosecutors... have indicted plenty of people, including politicians, for perjury).
507. William Glaberson, In Truth, Even Those Little White Lies Are- Prosecuted Once in a While, N.Y. TIMES, NOV. 17, 1998, at A1.
508. Id..; see also State v. Abrams, 178 P.3d 1021, 1025 (Wash. 2008) (requiring jury to determine materiality of falsehood in case where defendant testified that he was not read his Fifth Amendment rights).
509. Glaberson, supra note 355.
510. Id...
511. Sanchirico, supra note 3, at 1243.
512. Id..
513. Id.. (observing problem of "most serious offense" charged coding standard obscuring data, for instance).
514. Id.. (noting further that, because perjury carried a longer sentence, it showed up as the "most serious offense" charged even though "[t]ypically, prosecutors in this county would then drop the perjury charges and conviction would follow only on welfare fraud").
515. Id...
516. Underwood, supra note 321, at 379.
517. DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY: A STUDY IN SOCIAL THEORY 281 (1990).
518. Symposium, Plea Bargaining from the Criminal Lawyer's Perspective: Plea Bargaining in Wisconsin, 91 MARQ. L. REV. 357, 363 (2007) (quoting panelist Deja Vishny, Office of the Wisconsin State Public Defender). On the flip side, however, prosecutors might strategically refuse to drop process-related charges because they want to leave a record for the future. For instance, the federal prosecutor's manual endorses pursuit of bail-jumping charges so that "law enforcement personnel and judicial officials who encounter [the defendant] in the future will be aware of the risk of releasing [the defendant] on bail."
519. U.S. DEP'T OF JUSTICE, PRINCIPLES OF FEDERAL PROSECUTION § 9-27.230.B.8, available at http://www.usdoj.gov/usao/eousa/foia-reading-room/ usam/title9/27mcrm.htm#9-27.220.
520. It is worth noting, although beyond the scope of this Article, that the use of process crimes against jurors and attorneys also in some instances is properly classified as obstinacy prosecutions and arguably is a product of the same pressures enumerated above. See, e.g. People v. Kriho, 996 P.2d 158, 162-64 (Colo. App. 1999) (reversing contempt conviction of juror who failed to disclose eleven-yearold LSD possession conviction, impermissibly locked up sentence on internet, and who later became lone holdout for acquittal of one of three charges in drug case);
521. Debra Cassens Weiss, D.C. Judge Cited for Ordering Detention of Talkative PD, ABAJOURNAL.COM, Mar. 21, 2008, http://www.abajournal.com/ news/dc-judge-cited-for-ordering-detention-of-talkative-pd/ (reporting sanction for judge who ordered a public defender shackled and held in cell for forty-five minutes after refusing to stop her arguments for her client).
522. FEINBERG, HARMLESS WRONGDOING, supra note 15, at 37 (warning that "by enlarging our conception of what can count as 'harm' and what can count as 'wrong,' the acknowledgement of coUective harms may render respectable some versions of 'impure legal moralism in the broad sense' that the liberal, given his respect for autonomy, has every motive to exclude").
523. See, e.g., Litman, supra note 3; Richman & Stuntz, supra note 3.
524. Compare Richman & Stuntz, supra note 3 (arguing against pretextual prosecution), with Litman, supra note 3, at 1159-1161 (arguing in favor).
525. Litman, supra note 3, at 1148 (endorsing pretextual prosecutions but listing critics' complaints).
526. Richman & Stuntz, supra note 3, at 585-586 (citing "strong social interest in non-pretextual prosecution").
527. Id... at 583.
528. Id.. at 583, 586; see also Green, supra note 2, at 1536 ("[A]pplying criminal sanctions to morally neutral conduct is both unjust and counterproductive. It unfairly brands defendants as criminals, weakens the moral authority of the sanction, and ultimately renders the penalty ineffective. It also squanders scarce enforcement resources and invites selective, and potentially discriminatory, prosecution.").
529. See, e.g., Litman, supra note 3, at 1178-1179
530. Id... at 1175.
531. Id... at 1174-1177
532. Id... at 1160-61; see also id at 1167 (adding that in "the great majority of federal cases that employ the Al Capone approach," the determination to charge "rest[s] on differences between putative defendants whose moral relevance is relatively uncontroversial").
533. Id.. at 1162-1163
534. Id.. at 1163-1164
535. Green, Cover-Up, supra note 23, at 9.
536. Id... at 11.
537. Id... at 12 (quoting Stephen Bainbridge).
538. See id. at 10 ("One of the things that is so intriguing about such cases is how dramatically people's moral and legal judgments of them vary."); id. at 11 ("[T]he strikingly broad range of moral judgments mat colors cases like these has less to do with the identity of individual defendants than with a deeper form of moral ambivalence that pervades our understanding of the cover-up offenses and of white collar crime more generally.").
539. Of course, "empire-building government has been a central premise of constitutional discourse since the Founding," especially as regards the striking of a balance of powers between the federal government and the states. Daryl Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 918 (2005).
540. Professor Levinson expresses skepticism at this account, id. at 937, stating that democratic accountebility of both elected officials and institutional bureaucrats tempers any systematic attempts at self-aggrandizement. Id. at 927-30, 932-33. But it is important to note that, as regards criminal justice, such political safeguards may be less dependable, because the interested constituencies may lack both organization and public sympathy. Id at 967-968 (imagining various political outcomes of the use of money damages to compensate for political constitutional violations in the criminal context).
541. John Schwartz, Pinched Courts Push To Collect Fees and Fines, N.Y. TIMES, Apr. 7 2009 at A17.
542. Id...
543. See generally JONATHAN SIMON, GOVERNING THROUGH CRIME: How THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 109 (2007) (probing politics of public discourse of crime control and noting that "[f]or more than three decades, the making of crime laws has offered itself rather explicitly as the most important subject for expressing the common interest of the American people").
544. See, e.g., Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations', N.Y. TIMES, Apr. 23, 2008, at A1.
545. See, e.g., ZIMRINO, supra note 53, at 3.
546. KRISTEN HUGHES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, JUSTICE EXPENDITURE AND EMPLOYMENT IN THE UNITED STATES, 2003, at 2 (2006) (internal citations omitted) (noting also that the federal government expanded roughly 10% annually whereas states and localities grew 8% and 7%, respectively). The report notes that, between 1982 and 2003, the federal government increased expenditures as follows: 708% on police protection, 573% on judicial and legal services, and 925% on corrections. Id. at 2. The parallel state and locality rates were respectively: 293.4% and 305.8%, 474.3% and 368.2%, and 550.9% and 519.6%. Id. at 2-3.
547. Id... at 2.
548. The report does not adjust for inflation; however, it does note that spending far outpaced inflation. Id. at 3 (calculating that if total expenditures were limited to the rate of inflation, in 2003 they would amount to $65.7 billion-using the consumer price index-rather than the documented $185.5 billion). In addition, a report that did adjust for inflation found that "operating costs per officer rose 38% for State agencies, 30% for sheriff's offices, 27% for county police, and 21% for municipal police" from 1990 to 2000. BRIAN A. REAVES & MATTHEW J. HICKMAN, U.S. DEP'T OF JUSTICE: LAW ENFORCEMENT MANAGEMENT AND ADMINISTRATIVE STATISTICS, 2000: DATA FOR INDIVIDUAL STATE AND LOCAL AGENCIES WTTH 100 OR MORE OFFICERS, at v (2004).
549. HUGHES, supra note 391, at 7.
550. Id... at 1.
551. Id... at 7. In the state courts, caseloads nationwide grew dramatically from 1987 to 2004. LYNN LANGTON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, STATE COURT ORGANEATION, 1987-2004, at 2 (2007). The Bureau of Justice Statistics (BJS) reports that trial court filings increased roughly 45% in limited jurisdiction courts and 43% in general jurisdiction courts during that time. Id. Appellate courts experienced a 32% increase, id., and an increasing number of states added intermediate specialized jurisdiction courts to buffer the caseload between the trial courts and courts of last resort. Id. at 3. Not surprisingly, the staff of state courts-including judges, support staff, and law clerksincreased accordingly. Trial courts raised judicial staffing roughly 11%, and intermediate courts increased by roughly 25%. Id. Law clerks increased 55% in intermediate courts and 27% in courts of last resort. Id. The federal courts' caseload appears to have increased less dramatically. MOTTVANS, supra note 47, at vii.
552. HUGHES, supra note 391, at 7 (2006).
553. Id.. As of September 2004, state and local law' enforcement agencies had 1,076,897 full-time personnel, 5.6% more than the 1,019,496 employed in 2000. From 2000 to 2004 the number of full-time sworn personnel increased from 708,022 to 731,903. In 2003, local police departments cost about $93,300 per sworn officer and $200 per resident to operate for the year. Sheriffs' offices cost about $124,400 per officer and $82 per resident for the year. Id
554. Id..
555. CALLIE RENNISON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMEATION 2001, CHANGES 2000-01 WITH TRENDS 1993-2001, at 2 (2002).
556. Id..
557. Id.. at 2-3.
558. Id... at 2-3. Property crimes fell from roughly 400 per household in 1983 to half that in 2003.
559. MICHAEL R. RAND ET AL., CRIMINAL VICTIMEATION 1973-1995, at 4 (1997). The national crime victimization survey was redesigned in 1992 in an effort to improve its accuracy, and that redesign appears to have resulted in a bump in victimization rates.
560. CHARLES KINDERMANN ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, EFFECTS OF THE REDESIGN ON VICTIMIZATION ESTIMATES 2 (1997). However, the survey data in Criminal Victimization 1973-1995, were adjusted to take that change into account. RAND ET AL., supra, at 4.
561. RAND ET AL., supra note 403, at 4;
562. CHERLY RINGEL, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMEATION 1996, CHANGES 1995-1996 WITH TRENDS 1993-1996, at tbl.1 (1997).
563. ZIMRING, supra note 53, at 24.
564. Compare BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1993 tbl. 4.6 (Kathleen Maguire & Ann L. Pastore eds., 1994)
565. with BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003 tbl. 4.6 (Ann L. Pastore & Kathleen Maguire eds., 2004)
566. [hereinafter SOURCEBOOK 2003].
567. Id...
568. SOURCEBOOK 2003, supra note 406, at app. 3. This general name, "all other offenses," often also includes driving under the influence, offenses against family, gambling, and even weapons possession offenses. But each of those is separately specified in the table. See id. (listing categories as: murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny/theft, motor vehicle theft, arson, other assaults, forgery and counterfeiting, fraud, embezzlement, stolen property, vandalism, weapons, prostitution and commercial vice, sex offenses (other than rape and prostitution), drug abuse violations, gambling, offenses against famliy and children, driving under the influence, liquor laws, drunkenness, disorderly conduct, vagrancy, all other offenses, curfew and loitering, and runaways). Thus, it is not unreasonable to think that public order offenses such as escape, bau jumping, witness intimidation, contempt, obstruction, and bribery may constitute a significant portion of these arrests.
569. See generally Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. CRIM. L. & CRIMINOLOGY 829, 908 (2001) (cataloging ills associated with criminalizing drug possession, and describing such statutes as "the new vagrancy" laws). In addition, possession charges often serve as a form of pretextual liability for alleged, but unconvictable, sellers. See id. at 936.
570. Strader, supra note 4, at 85-87 (discussing mail and wire fraud).
571. KELLY STRADER, UNDERSTANDING WHITE COLLAR CRIME 239 (2002).
572. See, e.g. Federal Sentencing Guidelines, 18 U.S.C. § 5K1.1 (2006) (substantial assistance to aumorities); id § 3E1.1 (acceptance of responsibility). But see id. § 5K1.2 (noting that a refusal to assist authorities should not constitute an aggravating factor).
573. See supra note 367.
574. Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIG. L.J. 611, 632 (2003) (describing increasing use of deportation based on criminal allegations).
575. See generally JONATHAN SIMON, POOR DISCIPLINE 227-28 (1993) (describing "tightening feedback loop between supervision and incarceration");
576. Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications, 30 CRIMINOLOGY 449, 452 (1992).