Deadly dilemmas III: Some kind words for preventive detention

Journal of Criminal Law and Criminology

Volumn 101, Issue 3, 2011, Pages 781-802

  Allen, Ronald J ^a   Laudan, Larry ^b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b UNIVERSIDAD NACIONAL AUTÓNOMA DE MÉXICO   (Mexico)

Author keywords

[No Author keywords available]

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EID: 84857570740     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. When John Mitchell, Nixon's Attorney General, announced the Administration's plan for introducing federal legislation that would permit judges at bail hearings to use dangerousness as a criterion for denying bail, Laurence Tribe wasted no time in condemning the proposal. The legislation, he insisted, was likely to be the first step of a profound shift in our system of criminal justice-a system that, at least until now, has operated on the premise that crime should normally be prevented by the threat of subsequent punishment rather than the imposition of prior imprisonment.... [The proposed legislation relies] on a mode of constitutional discourse exceptionally hospitable to the authoritarian values of "order" and dangerously inimical to the libertarian values of "law. " Laurence Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 375 (1970). He concluded that "the acceptance of the [Nixon-Mitchell] proposal... would undermine the role of the Constitution as an embodiment of principled restraints on government. " Kansas v. Hendricks, 521 U.S. 346 (1997) at 376. Then-Senator Sam Ervin characterized the Nixon preventive detention proposal as "pervert[ing] the historic and legitimate purpose of bail-to assure the appearance of the accused at trial. " Sam J. Ervin, Jr., Preventive Detention, A Species of Lydford Law, 52 Geo. Wash. L. Rev. 113, 114 (1983).
2. Ronald J. Allen & Larry Laudan, Deadly Dilemmas, 41 Tex. Tech. L. Rev. 65 (2008).
3. Larry Laudan & Ronald J. Allen, Deadly Dilemmas II: Bail and Crime, 85 Chi.-Kent L. Rev. 23 (2010).
4. Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 3 (2009).
5. Property law in part is concerned with preserving property, obviously. Tort law is designed in part to reduce harm to people and things. Contract law provides for the efficient trading of things of value and limits predatory behavior. Even election law and constitutional law have the interests of people and property as their objects; it is hard to imagine what other interests there might be to protect. For example, separation of powers matters not for the purity of the government but because of its pragmatic consequences for the citizenry.
6. See sources cited Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)2.
7. For example, as George Fletcher pointed out, Michael S. Moore wrote a wonderful book on placing blame and never mentioned victims. George P. Fletcher, The Place of Victims in the Theory of Retribution, 3 Buff. Crim. L. Rev. 51, 51 (1999) (citing Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (1997). Larry Alexander and Kim Ferzan wrote an equally wonderful book examining risk as the basis of criminal liability and never inquired into how the resulting criminal law could be enforced. Alexander & Ferzan, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)3; see also Ronald J. Allen, Modeling Criminal Law, 29 Law & Phil. 469 (2010).
8. Ordinance of Conspirators, (1305), 33 Edw. I.
9. Alan Haynes, The Gunpowder Plot: Faith in Rebellion 107 (1994).
10. Peter Parley, Tales About Great Britain and Ireland 417 (4th ed. 1845).
11. Act of March 3, 1825 ch. 65, § 23, 4 Stat. 115, 122 (1825).
12. For a review of such provisions, see Wayne R. LaFave, Criminal Law 568-723 (4th ed. 2003).
13. 18 U.S.C. § 922(g) (2006).
14. See for an even fuller list of those whose possession of a gun constitutes a federal felony.
15. Kansas v. Hendricks, 521 U.S. 346 (1997) § 842.
16. Kansas v. Hendricks, 521 U.S. 346 (1997)
17. Ky. Rev. Stat. Ann § 511.050 (West 2010).
18. Green v. State, 591 So. 2d 965 (Fla. App. 1991).
19. Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. Crim. L. & Criminology 829, 859 (2001). This figure does not include misdemeanor possession offenses.
20. This type of law was struck down by the Supreme Court in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
21. Papachristou v. Jacksonville, 405 U.S. 156 (1972), casts doubt on vagrancy laws, but public order offenses made a comeback fifteen or so years later under the influence of James Q. Wilson and George Kelling's arguments about broken windows policing. Cf. James Q. Wilson & George L. Kelling, Broken Windows, Atlantic Monthly, Mar. 1982, at 29. These laws in turn were dealt a blow by City of Chicago v. Morales, 527 U.S. 41 (1999), striking down the Chicago gang ordinance. Immediately after the Morales decision, the Chicago City Council enacted a new anti-loitering, anti-gang statute tailored to respond to the case: Chicago, Ill. Mun. Code § 8-4-015 (1992). For a discussion, see Ronald J. Allen, Joseph L. Hoffmann, Debra A. Livingston & William J. Stuntz, Criminal Procedure: Investigation and Right to Counsel 590-623 (2005).
22. See, e.g., Lancaster, CA, Code of Ordinances § 12.04.050 (requiring a permit to use city parks between 11:00pm and 6:00am).
23. Kenton County, KY, City Ordinances § 94.16 (making it unlawful to be in any park between dusk and dawn).
24. For a remarkable compendium of such law, see National Coalition for the Homeless: Reports and Papers, http://www.nationalhomeless.org/publications/reports.html (last visited Apr. 11, 2011). A Washington statute forbade sitting on sidewalks during business hours. City of Seattle v. McConahy, 937 P.2d 1133 (Wash. Ct. App. 1997).
25. Scales v. United States, 367 U.S. 203, 223 (1961).
26. U.S. Dep't of Justice, Office of Juvenile Justice & Delinquency Prevention, Gang Prosecution Manual (2009), http://www.nationalgangcenter.gov/Content/Documents/Gang-Prosecution-Manual.pdf.
27. Numerous states have such laws. See, e.g., Ga. Code Ann. § 16-5-60 (West 2008).
28. Cal. Penal Code §§ 667(e)(2)(A)(ii), 1170.12(c)(2)(A)(ii) (West 2004).
29. Ahmed A. White, The Juridical Structure of Habitual Offender Laws and the Jurisprudence of Authoritarian Social Control, 37 U. Tol. L. Rev. 705, 705 (2006).
30. See, e.g., Mont. Code Ann. § 46-18-401 (2009).
31. See, e.g., Or. Rev. Stat. § 161.735, 161.737 (2009).
32. For a discussion of some of the complexities that arise, see Hayward v. Marshall, 603 F.3d 546 (9th Cir 2010) (en banc).
33. See, e.g., Mo. Rev. Stat. § 558.018 (West 1999).
34. Federal Sentencing Guidelines Ch. 4, pt. A (2010).
35. The Guidelines are no longer mandatory under bizarre rulings from the Supreme Court. See, e.g., United States v. Booker, 543 U.S. 220 (2005).
36. U.S. Sentencing Guidelines Manual § 4A1.3(a)(1) (2010).
37. Kansas v. Hendricks, 521 U.S. 346 (1997) § 4A1.3(a)(2)(A).
38. Kansas v. Hendricks, 521 U.S. 346 (1997) § 4A1.3(a)(2)(E).
39. Paul H. Robinson, Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders, 83 J. Crim. L. & Criminology 693 (1993).
40. Kansas v. Hendricks, 521 U.S. 346 (1997) at 701.
41. Approved by Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407 (2002).
42. 18 U.S.C. § 4248 (2006).
43. Comstock v. United States, 130 S. Ct. 1949 (2010).
44. 518 U.S. 37 (1996).
45. For a critical discussion, see Ronald J. Allen, Foreword: Montana v. Egelhoff-Reflections on the Limits of Legislative Imagination and Judicial Authority, 87 J. Crim. L. & Criminology 633 (1997).
46. The Supreme Court has also facilitated social hygienic practices by implicitly letting states exclude unreliable evidence on mental states. See, e.g., Ronald J. Allen, Clark v. Arizona: Much (Confused) Ado About Nothing, 4 Ohio St. J. Crim. L. 135 (2006).
47. See sources cited Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008).
48. The Statute of Westminster in 1275 eliminated the discretion of sheriffs (and thus, ultimately, of the King) with respect to which crimes would be bailable, conferring that decision on Parliament itself. Statute of Westminster I, 1275, 3 Edw. 1, c. 12 (Eng.). Bailable and non-bailable offenses were specifically enumerated. In the U.S., the Judiciary Act of 1789 provided that all noncapital offenses were bailable. Ch. 20, § 33, 1 Stat. 73, 91 ("[U]pon all arrests in criminal cases, bail shall be admitted, except where punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.... ").
49. Tracey Kyckelhahn & Thomas H. Cohen, Bureau of Justice Statistics, U.S. Dep't of Justice, Felony Defendants in Large Urban Counties, 2004, at 2 (2008). We cite this trend as starting in 1970 with Congress's passage of a pretrial detention statute as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473, 642 (1970) (codified in scattered titles and sections of the D.C. Code). This legislation made it much easier to deny bail on grounds of dangerousness. What began as a law for the District of Columbia was quickly extended nationwide.
50. The Supreme Court often pretends that jail time served while on bail is not "punishment" but simply community protection; that distinction in this context seems strained at best. United States v. Salerno, 481 U.S. 739 (1987).
51. Tribe, Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008), at 372 n.3. Similarly, David Rabinowitz claimed a few years later that "[s]tudies have revealed a low recidivism rate for individuals on bail. " David J. Rabinowitz, Preventive Detention and United States v. Edwards: Burdening the Innocent, 32 Am. U. L. Rev. 191, 201 (1982). The most recent figure for recidivism rates among those on bail who are convicted of crimes committed while on bail can be estimated at about 15%. Of those who are on bail, 21% were arrested for a new offense, and we can assume that 68% of those arrested will be convicted based on the general conviction rate. See Thomas H. Cohen & Brian A. Reaves, Felony Defendants in Large Urban Counties, 2002, at 24 tbl.23 (2002).
52. Kyckelhahn & Cohen, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)46, at 2.
53. In 2000, there were some 13,000 murders committed in the U.S. U.S. Census Bureau, Statistical Abstract of the United States: 2002, at 186 tbl.287, available at http://www.census.gov/prod/2003pubs/02statab/law.pdf (presenting 2000 statistics). Thirteen percent of them resulted in the arrests of bailees or fugitives. See Brian Reaves, Bureau of Justice Statistics, U.S. Dep't of Justice, Violent Felons in Large Urban Counties (1990-2002), 4 tbl.5 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/vfluc.pdf. Approximately one in every 152 persons on bail for a violent crime is charged with a murder committed while on bail. That is, 0.6% of these bailees were charged with homicide. By contrast, the likelihood that a randomly selected adult citizen was charged with murder in 2000 is 0.004%. See U.S. Census Bureau, Statistical Abstract of the United States: 2011, at 205 tbl.323 (2011) (utilizing 2008 data), available at http://www.census.gov/compendia/statab/2011/tables/11s0323.pdf.
54. Reaves, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)49, at 4 tbl.5. Reaves points out that the BJS data on crime in the seventy-five largest counties accounts for "about half of all reported violent crimes nationwide. " Kansas v. Hendricks, 521 U.S. 346 (1997) at 1.
55. See, e.g., Alexander & Ferzan, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)3.
56. Moore, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)6. See also Attorney General Mitchell's bail plan, discussed Nicholas J. G. Winter, Dangerous Frames: How Ideas About Race & Gender Shape Public Opinion 4 (2008).
57. Robinson, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)36, at 707-08.
58. There is a lot of talk from criminal law theorists about such matters, but we are unaware of any study that convincingly sorts out such effects from other consequences of the criminal process, and certainly none that establishes that this is a concern of the citizenry as compared to the theorists. We are most definitely not saying that moral condemnation has no effects; the question is what the law does in addition to the moral condemnation emanating from individuals' own moral views. In our opinion, this is an example of where the rhetoric of the literature runs far ahead of any serious empirical support. Tom R. Tyler's Why People Obey the Law (1990 rev. 2006) is often cited in favor of various propositions about the moral force of the law. Tyler's main finding was that the perception of the law as legitimate did affect compliance (although he did not sort out deterrence effects adequately), but that the primary determination of the perception of legitimacy was procedural not substantive justice. That does not say much about the issues under examination here.
59. For an example of the thousands of outraged news accounts, see Ramon Antonio Vargas, Murdered Woman in New Orleans Tried but Could not Escape Abusive Boyfriend, Times-Picayune (Sept. 28, 2010, 7:50 PM), http://www.nola.com/crime/index.ssf/2010/09/murdered_woman_in_new_orleans.html.
60. The locus classicus and one of the inspirations for the empirical study of the determinants of the behavior of elected officials is David Mayhew's Congress: The Electoral Connection (1973).
61. See Part III, supra, for discussions of the "three strikes" law phenomenon.
62. Fed. Bureau of Investigation, U.S. Dep't of Justice, Uniform Crime Reports 1993, at 74 tbl.5 (1993).
63. Fed. Bureau of Investigation, U.S. Dep't of Justice, Table 5-Crime in the United States, by State 2009 (Sept. 2010), http://www2.fbi.gov/ucr/cius2009/data/table_05.html.
64. Kansas v. Hendricks, 521 U.S. 346 (1997)
65. Fed. Bureau of Investigation, U.S. Dep't of Justice, Table 1-Crime in the United States 2009, (Sept. 2010), http://www2.fbi.gov/ucr/cius2009/data/table_01.html.
66. For evidence of the impact of preventive detention on crime rates, see Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. Econ. Persp. 163 (2004). As a precaution against reading too much into such empirical evidence, we should mention Reconsidering Incarceration: New Directions for Reducing Crime by the Vera Institute of Justice, for a sophisticated discussion of the limits of empirical research such as Levitt's. Don Stemen, Center on Sentencing and Corrections, Reconsidering Incarceration: New Directions for Reducing Crime (2007), available at http://www.vera.org/download?file=407/veraincarc_vFW2.pdf.
67. Again, this is not to editorialize for any particular program. For example, we think the War on Drugs is pretty perverse-plainly perverse, actually.
68. See 4 Encyclopedia Britannica 369 (11th ed. 1910). 64Allen, Office of the Pardon Attorney, U.S. Dep't of Just., Federal Statutes Imposing Collateral Consequences upon Conviction 1 (2003)6.