Overcriminalization for lack of better options: A celebration of Bill Stuntz

The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz

Volumn 9781107019416, Issue , 2011, Pages 64-86

  Richman, Daniel ^a  

^a The Earth Institute at Columbia University   (Canada)

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EID: 84928852601     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.2139/ssrn.1581752     Document Type: Chapter

References (105)

1. William J. Stuntz, Book Review: Christian Legal Theory, 116 Harv. L. Rev. 1707, 1744 (2003) (“Imagine how differently most law review articles would read if their authors admitted the possibility that they might be mistaken”); cf. Letter from Oliver Cromwell to the General Assembly of the Kirk of Scotland (Aug. 3, 1650), in The Writings and Speeches of Oliver Cromwell 3022-03 (Wilbur Cortez Abbott ed., 1939) (“I beseech you, in the bowels of Christ, think it possible that you may be mistaken”). When speaking of Bill, I’ve not altered the present tense in which this chapter was written. Bill will always live in his written work, in the minds (including mine) that he challenged to think harder, and in the people (including me) who loved him.
2. William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 507 (2001) [hereinafter Stuntz, Pathological Politics]; see also Douglas Husak, Overcriminalization: The Limits of the Criminal Law (Oxford 2008)
3. Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703 (2005)
4. John Coffee, Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193 (1991)
5. Sanford H. Kadish, The Crisis of Overcriminalization, 7 Am. Crim. L. Q. 17 (1968).
6. Stuntz, Pathological Politics, supra note 2, at 528.
7. See Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583 (2005).
8. William J. Stuntz, Unequal Justice, 121 Harv. L. Rev. 1969 (2008)
9. William J. Stuntz, The Collapse of American Criminal Justice (2011).
10. Stuntz, Pathological Politics, supra note 2, at, 529-533.
11. Stuntz, Pathological Politics, supra note 2, at 553.
12. Carol Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L. J. 775, 780 (1997)
13. Carol Steiker, The Limits of the Preventive State, 88 J. Crim. L. & Crim. 771 (1998)
14. Daniel Richman, “United States v. Salerno: The Constitutionality of RegulatoryDetention,” in Criminal Procedure Stories 413, 442 (Carol Steiker, ed. 2006)
15. Erin Murphy, Paradigms of Restraint, 57 Duke L. J. 1321 (2008).
16. Although the focus here is on the United States, the argument that overcriminalization in the United States is partially a function of peculiar doctrinal and institutional arrangements not found in, say, Europe, may, in passing, offer some comfort to Europeans scared that they are on the verge of taking “the punitive turn” down the American or English path. Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (2008).
17. For an excellent review essay, James Q. Whitman, The Comparative Study of Criminal Punishment, 1 Ann. Rev. Law Soc. Sci. 17 (2005).
18. Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005).
19. Lacey, supra note 9, at 104: On the Continent “this location of regulatory offenses within the framework of criminal law ‘proper’ would be regarded asmost unsatisfactory. Rather than drawing the old police power within the modern framework of criminal justice, the modern governmental settlements of European codification of the early nineteenth century were inclined to separate out this form of social regulation within a discrete framework, leaving regulatory offenses as a more visible and autonomous manifestation of state power.” Lacey, supra note 9, at 102.
20. Douglas Husak, Overcriminalization: The Limits of the Criminal Law 58 (2008).
21. Dixon v. United States, 548 U.S. 1, 15 (2006) (when setting contours of the duress defense under federal criminal law, Court gives “no weight” to the Model Penal Code formulation).
22. Gerard E. Lynch, Towards A Model Penal Code, Second (Federal?): The Challenge of the Special Part, 2 Buffalo Crim. L. Rev. 297, 299 (1998) (noting that the “Model Penal Code is a significantly less potent guide to the ‘special part’ of the criminal law today,” in part because “state legislatures have poured out new criminal statutes undreamed of by [that Code's] drafters”).
23. Julie C. Suk, Procedural Path Dependence: Discrimination and the Civil-Criminal Divide, 85 Wash. U. L. Rev. 1315 (2008)
24. Gabrielle S. Friedman & James Q.Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, 9 Colum. J. Eur. L. 241 (2003).
25. Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 Boston College Int’l and Comp. L. Rev. 317, 353, 357 (1995) (noting the “[n]arrower scope of the criminal law” in Germany as well as the commitment of tribunals to “finding the truth”)
26. Richard S. Frase, Comparative Criminal Justice as a Guide to American Law Reform: How the French Do It, How Can We Find Out, and Why Should We Care?, 78 Cal. L. Rev. 539, 568 (1990) (similarly noting narrower scope of French criminal law).
27. For insightful counsel on how the term state should be used when referring to the United States in comparative terms, Desmond King & Robert C. Lieberman, Ironies of States Building: Comparative Perspective on the American State, 61 World Politics 547 (2009)
28. William Novak, The Myth of the “Weak” American State, 113 Amer. Hist. Rev. 752 (2008).
29. J.M. Beattie, Policing and Punishment in London 1660-1750 (2002)
30. J. M. Beattie, Crime and the Courts in England, 1660-1800 (1986)
31. P. King, Crime, Justice and Discretion in England 1740-1820 (2000).
32. Eric Monkkonen notes how the Boston sewer department was essentially spun out of the city marshal's service in1837. Eric H.Monkkonen, Police in Urban America, 1860-1920, at 47 (2004 ed.) (noting how when Boston incorporated in 1822, the city marshal was given general responsibility for matters affecting the “health, security, and comfort of the city,” and that “[t]he only change in the power of the Boston marshal came in 1837, when the city created a separate department of sewers, run by a former deputy marshal”).
33. Desmond King & Robert C. Lieberman, supra note 19, at 573-574 (“A wellrehearsed motif in American political culture is that of being a strong nation with a weak state whose citizens prize decentralization and localism, that is, a political system less centralized, less interventionist, and less Weberian than that found in comparable advanced democracies, including some with strong federal systems such as Australia or Germany”).
34. Darryl K. Brown, Yick Wo and the Constitutional Regulation of Criminal Law, 2008 U. Ill. L. Rev. 1405, 1407.
35. William J. Stuntz, The Collapse of American Criminal Justice, 158-59 (2011).
36. U.S. 506 (1911).
37. Thomas W. Merrill & Kathryn T. Watts, Agency Rules with Force of Law, 116 Harv. L. Rev. 467, 501-502 (2002) (“Grimaud thus established what Congress could do: It could delegate power to an agency to adopt regulations subject to criminal penalties, provided that Congress itself legislated the penalties”).
38. Logan Sawyer, Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes, 24 J. L. & Pol. 171, 184 (2008).
39. Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 84 (1933) (“With respect to public welfare offenses involving light penalties the abandonment of the classic requirement of mens rea is probably a sound development. But courts should scrupulously avoid extending the doctrines applicable to public welfare offenses to true crimes. To do so would sap the vitality of the criminal law”).
40. William J. Stuntz, Criminal Procedure and Criminal Justice, 107 Yale L. J. 1, 66 (1997).
41. Lawrence v. Texas, 539 U.S. 558 (2003)
42. California v. Lambert, 355 U.S. 225 (1957).
43. James Q. Whitman, Equality in Criminal Law: The Two Divergent Western Roads, 1 J. Legal Analysis 119 (2009).
44. generally Douglas Husak, Crimes Outside the Core, 39 Tulsa L. Rev. 755 (2004) (discussing ways to distinguish the “core” of criminal law from its “periphery”)
45. Douglas Husak, Gardner on the Philosophy of Criminal Law, 29 Oxford J. Legal Stud. 169, 171 (2009) (referring to “offences such as murder, rape, theft and the like” as the “core of the criminal law”).
46. But Luis A. Aguilar, Speech at North American Securities Administrators Association's Winder Enforcement Conference, “Empowering the Markets Watchdog to Effect Real Results,” Jan. 10, 2009 (SEC commissioner argues “that Congress could greatly enhance enforcement of the securities laws by authorizing the Commission to prosecute criminal violations of the federal securities laws where the Department of Justice declines to bring an action”), available at http://www.sec.gov/news/speech/2009?spch011009laa.htm.
47. For a survey of the degree towhich state attorneys general get involved inwhat otherwise would be local prosecutions, Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 109 Mich. L. Rev. 519 (2010).
48. generally Michael C. Dorf & Jeffrey A. Fagan, Problem-Solving Courts: From Innovation to Institutionalization, 40 Am. Crim. L. Rev. 1501 (2003)
49. Phyllis Skloot Bamberger, Specialized Courts: Not a Cure-All, 30 Fordham Urb. L. J. 1091 (2003).
50. Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 Va. L. Rev. 939, 971-973 (1997) (citing studies).
51. Alice Ristroph, Criminal Law in the Shadow of Violence, from The Law of Violence (forthcoming, Oxford University Press) (“In the criminal law, violent crime seems to verify the need for, and justice of, the state's own violence in policing and punishment”), available at www.law.berkeley.edu/img/Ristroph(1).pdf
52. James Q. Whitman, The Comparative Study of Criminal Punishment, 1 Ann. Rev. Law Soc. Sci. 17, 29-30 (2005) (discussing relationship between criminal punishment and social traditions of violence).
53. The same sort of cross-subsidy has historically supported extensions of federal criminal jurisdiction. Kathleen J. Frydl, Kidnapping and State Development in the United States, 20 Stud. in Am. Pol. Dev. 18, 20 (2006) (“The quintessential crime against the person, kidnapping, furnished opportunity to those eager to project the formal power of the state”).
54. Caaldarola v. County of Westchester, 343 F.3d 570 (2d Cir. 2003) (dismissing civil claim of corrections officers complaining about videotaped “perp walk” following their arrest for disability benefit fraud). The court noted: The “perp walk,” that is, when an accused wrongdoer is led away in handcuffs by the police to the courthouse, police station, or jail, has been featured in newspapers and newscasts for decades. The normally camera-shy arrestees often pull coats over their heads, place their hands in front of their faces, or otherwise attempt to obscure their identities. A recent surge in “executive perp walks” has featured accused whitecollar criminals in designer suits and handcuffs. Whether the accused wrongdoer is wearing a sweatshirt over his head or an Armani suit on his back, we suspect that perp walks are broadcast by networks and reprinted in newspapers at least in part for their entertainment value. Yet, perp walks also serve the more serious purpose of educating the public about law enforcement efforts. The image of the accused being led away to contend with the justice system powerfully communicates government efforts to thwart the criminal element, and it may deter others from attempting similar crimes. Id. at 572-573.
55. Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 Harv. L. Rev. 469, 480 (1996) (“By paying close attention to the facts of the cases they select as vehicles for novel statutory readings, federal prosecutors can highlight the benefits and suppress the costs of the interpretations that they favor”).
56. Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 L. & Contemp. Probs. 23, 54 (1997) (“The EPA or SEC lawyer may be better able to compare each case with other violations of securities or environmental laws, in terms of its importance to operating honest capital markets or protecting environmental quality, but the prosecutor is better equipped to compare the violation with other types of crime in terms of the moral blameworthiness of conduct, the degree of departure from general standards of citizenship, and the equity of imposing stigmatizing punishment”).
57. Mariano-Florentino Cuellar, “The Institutional Logic of Preventive Crime,” in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct 131, 139 (Anthony S. Barkow & Rachel E. Barkow, eds., 2011) (noting relative political insulation of criminal law enforcement bureaucracies).
58. See Peter H. Irons, The New Deal Lawyers 87 (1982).
59. United States v. A.L.A. Schechter Poultry Corp., 76 F.2d 617 (2d Cir. 1935), rev’d, 295 U.S. 495 (1935). The Second Circuit opinion in Schechter was written by Judge Martin Manton, who had just missed being appointed to the Supreme Court, and who later became the first federal judge convicted of receiving bribes. United States v.Manton, 107 F.2d 834 (2d Cir. 1939) (affirming conviction)
60. David R. Stras, Pierce Butler: A Supreme Technician, 62 Vand. L. Rev. 695, 710 n. 112 (2009). Bill loved these sorts of details and recently reminded me that another of his favorite New Deal cases, the “Hot Oil” case, Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), arose out of a National Industrial Recovery Act regime that threatened code violators with criminal prosecution. For a lovely tour of the criminal law in the midst of changes brought by its deployment for regulatory purposes
61. Livingston Hall, The Substantive Law of Crimes: 1887-1936, 50 Harv. L. Rev. 616, 618 (1937).
62. Irons, supra note 45, at 99.
63. A. L. A. Schechter Poultry v. United States, 295 U.S. 495 (1935) (finding poultry industry regulations to be outside Congress's Commerce Clause authority and to be unconstitutional delegations of congressional power).
64. The federal system doesn’t even have a formal criminal code, because codifiers have never been able to wrangle all the U.S. Code's penal provisions into a single title. See Kenneth Mann, Defending White-Collar Crime (1985)
65. Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 Ford. L. Rev. 2117 (1998).
66. Two former executives at the Southern District of New York U.S. Attorney's office recently noted: “In our experience, it is not uncommon for defense counsel to seek non-criminal or deferred resolutions when, in view of the charging precedent of the office, prosecutorial practice and the facts and circumstances of the case, such request is not realistic.” Lev L. Dassin and Guy Petrillo, Pre-Charge Presentations to a U.S. Attorney's Office and the Department of Justice (2010) (unpublished draft).
67. Atwater v. City of Lago Vista, 532 U.S. 318 (2001); Wayne A. Logan, Street Legal: The Court Affords Police Constitutional Carte Blanche, 77 Ind. L. J. 419, 458 (2002) (“[B]y disavowing any need to correlate reasonableness with offense gravity, the Atwater majority missed an opportunity to provide legislatures with an incentive to undertake critical reexaminations of their criminal codes, a task that is long overdue.”)
68. Sameer Bajaj, Note: Policing the Fourth Amendment: The Constitutionality of Warrantless Investigatory Stops for Past Misdemeanors, 109 Colum. L. Rev. 309 (2009).
69. Eric Lichtblau, “U.S. Uses Terror Law to Pursue Crimes from Drugs to Swindling,” New York Times, Sept. 28, 2003 (detailing federal government expansive application of investigatory powers granted to it under the USA PATRIOT Act)
70. Risa Berkower, Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations, 73 Fordham L. Rev. 2251 (2005) (explaining the increasing availability of administrative subpoenas to criminal investigators).
71. Peter J. Henning, “White Collar Watch: Using Drug War Methods to Look for Insider Trading,” New York Times, Sept. 30, 2010, at F7.
72. William J. Stuntz, O. J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842 (2001).
73. Judith Greene & Marc Mauer, Downscaling Prisons: Lessons from Four States (Sentencing Project 2010); Pew Center on the States, Prison Count 2010: State Population Declines for the First Time in 38 Years (March 2010).
74. Compare John C. Coffee, Jr., Corporate Crime and Punishment: A Non-Chicago View of the Economics of Criminal Sanctions, 17 Am. Crim. L. Rev. 417 (1980)
75. Richard A. Posner, Optimal Sentences for White-Collar Criminals, 17 Am. Crim. L. Rev. 409 (1980)
76. Gary Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1968).
77. Sanford H. Kadish, The Crisis of Overcriminalization, 7 Am. Crim. L. Q. 17, 27-28 (1968).
78. Kay Levine, The New Prosecution, 40 Wake Forest L. Rev. 1125, 1211 (2005).
79. Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 72 (2007).
80. Nancy Wolff, Courts as Therapeutic Agents: Thinking Past the Novelty of Mental Health Courts, 30 J. Am. Acad. Psychiatry L. 431, 433 (2002).
81. Cecelia Klingele, Michael S. Scott, & Walter J. Dickey, Reimagining Criminal Justice, 2010 Wisc. L. Rev. 953, 981 (2010) (noting that “prosecutors possess a level of credibility and moral authority within many communities that could enable them to engage members of the community in active partnerships and to garner support for new initiatives”)
82. Elizabeth Glazer, Thinking Strategically: How Federal Prosecutors Can Reduce Violent Crime, 26 Fordham Urb. L. J. 573, 605 (1999) (“It is not that the prosecutors will run the after-school programs, but rather they have the wherewithal to bring to the table the front-line service providers who know how to make the world of legitimate work more attractive to… children than the world of their drug-dealing friends”).
83. General Accountability Office, “Securities and Exchange Commission: Greater Attention Needed to Enhance Communication and Utilization of Resources in the Division of Enforcement,” 17-24 (March 2009), available at www.gao.gov/new.items?d09358.pdf
84. Securities and Exchange Commission, Office of Inspector General, “Program Improvements Needed Within the SEC's Division of Enforcement” (Sept. 29, 2009), available at http://www.sec-oig.gov/AuditsInspections/Reports.html
85. Donald C. Langevoort, The SEC and the Madoff Scandal: Three Narratives in Search of a Story, 2009 Mich. St. L. Rev. 899.
86. Daniel Richman, Political Control of Federal Prosecutions, 58 Duke L. J. 2087 (2009).
87. Daniel Richman, Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, 57 DePaul L. Rev. 295, 314 n. 90 (2008) (highlighting sketchy and somewhat contradictory evidence as to the extent of criminal resources committed to white-collar prosecutions during the Bush Administration).
88. at 297-302 (recounting the Bush Administration's response to congressional concerns about the Justice Department's corporate attorney-client privilegewaiver policies). John C. Coffee, Jr., Law and the Market: The Impact of Enforcement, 156 U. Pa. L. Rev. 229 (2007) (highlighting value of public enforcement).
89. Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604, 642 (1996) (Thomas, J. concurring), quoting with approval the argument by appellants in Buckley v. Valeo: “If a small minority of political contributions are given to secure appointments for the donors or some other quid pro quo, that cannot serve to justify prohibiting all large contributions, the vast majority of which are given not for any such purpose but to further the expression of political views which the candidate and donor share. Where First Amendment rights are involved, a blunderbuss approach which prohibits mostly innocent speech cannot be held a means narrowly and precisely directed to the governmental interest in the small minority of contributions that are not innocent” (Quoting Brief for Appellants in Buckley v. Valeo, O. T. 1975, Nos. 75-436 and 75-437, pp. 117-118). See also Testimony of Roger Pilon, Cato Institute, before the House Committee onHouse Administration: Constitutional Issues Related to Campaign Finance Reform (July 22, 1999) (“If there is quid-pro-quo corruption, then let the Justice Department investigate it. All the evidence suggests, however, that money buys access, it does not buy votes”), available at http://www.cato.org/testimony/ct-rp072299.html
90. also Citizens United v. Federal Election Comm’n, 130 S. Ct. 876, 908 (2010) (in the course of striking down campaign finance restrictions, Court notes that bribery laws cover quid pro quo arrangements).
91. Daniel C. Richman, “Project Exile” and the Allocation of Federal Law Enforcement Authority, 43 Ariz. L. Rev. 369 (2001)
92. Jackie Calmes, “Administration Invites N.R.A. to Meet on Gun Policies, But It Declines,” New York Times, Mar. 15, 2011, at A24 (noting, in connection with efforts by the White House to reach out to the NRA, that President Obama's recent column had “emphasized, ‘First we should begin by enforcing laws that are already on the books’-a line long used by the gun lobby”).
93. David Garland, Culture of Control (2001).
94. David Garland, Concepts of Culture in the Sociology of Punishment, 10 Theoretical Criminology 419, 437 (2006).
95. Loıc Wacquant, “The Place of the Prison in the New Government of Poverty,” in After the War on Crime: Race, Democracy, and a New Reconstruction 23, 24 (Marie-Louie Frampton, I an Haney L opez and Jonathan Simon, eds., 2008)
96. Loıc Wacquant, Ordering Insecurity: Social Polarization and the Punitive Upsurge, 11 Radical Philosophy Rev. 9 (2008). I’m grateful to Jim Whitman and David Garland for pointing me toward Wacquant's work.
97. William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. Contemp. Legal Issues 1, 29 (1996).
98. Christine Hurt, The Undercivilization of Corporate Law, 33 J. Corp. L. 361 (2008).
99. Gail Collins ed., New York Times, Feb. 14, 2010.
100. Robert A. Kagan, American Legalism: The American Way of Law (2003) (suggesting that even in its civil mode, American-style regulation has too much in common with criminal prosecutions).
101. This may be one justification for the no-drop policies and other such institutions and procedures that have been explored in domestic violence cases. Andrew R. Klein, “Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges,” National Institute of Justice Report, 2009, available at http://www.ojp.usdoj.gov/nij/topics/crime/intimate-partner-violence/practicalimplications-research/welcome.htm
102. Michelle Madden Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (2009) (exploring moral dimensions of prosecutorial policies in this area).
103. Shawn D. Bushway, Labor Market Effects of Permitting Employer Access to Criminal History Records, 20 J. Contemp. Crim. J. 276 (2004).
104. Nicole B. Porter, The Perfect Compromise: Bridging the Gap Between At-Will Employment and Just Cause, 87 Neb. L. Rev. 62, 78-84 (2008).
105. Dennis E. Curtis, Gender, Race, and the Politics of Supreme Court Appointments: The Import of the Anita Hill/Clarence Thomas Hearings: The Fake Trial, 65 S. Cal. L. Rev. 1523, 1525 (1992). Simon, supra note 62, at 17.