Fowler, Federalization, and Statutory Interpretation

Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes.  The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.

Here’s what happened.  While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed.  Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).

Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense.  The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer.  There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops.  But does the statute really require the defendant to be thinking about federal involvement?

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SCOWIS Approves LWOP for 14-Year-Old Killers

Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide.  The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes.  Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.

Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds.  As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.

As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:

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Simon Lecture

Video of Jonathan Simon’s wonderful lecture yesterday, “How Should We Punish Murder,” is available here.  Alan Borsuk’s blog post on the event is here.

Fear of Violence and the Penal Severity Revolution

I’ve already noted here Jonathan Simon’s upcoming lecture at Marquette on punishment for murder.  Jonathan tells me that the lecture will build on his 2009 Hood Lecture at Oxford, which he has shared with me.  The Hood paper is a provocative work, in which Jonathan makes the case that homicide law and public fear of lethal violence have played an important role in the American phenomenon of mass incarceration.  He is playing here a bit against conventional wisdom, which would emphasize the war on drugs as the main driving force in the prison population explosion of the past generation.

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Simon to Speak on Punishment for Murder

I’m looking forward to the upcoming George and Margaret Barrock Lecture on Criminal Law.  Jonathan Simon will be visiting us here at Marquette on January 24 to speak on punishment for murder.  Here is the teaser:

Although the death penalty may be dying out in the United States, the end stage of capital punishment leaves us grasping more than ever for principles that could govern the power to punish those who are convicted of society’s most feared and loathed category of crime. This need is particularly acute in the United States, where the rise of general incapacitation as the dominant purpose of punishment has produced sentences that are far in excess of international and historic American standards. Professor Simon will suggest that these sentences help to anchor an overall structure of imprisonment that appears unjust and unsustainable, argue for a new version of selective incapacitation limited by dignity as the central purpose of imprisonment, and propose a restructuring of the law of murder to effectuate those goals.

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Research on Wrongful Convictions: Half-Full or Half-Empty?

Jon Gould and Richard Leo have an interesting new paper entitled “One Hundred Years Later: Wrongful Convictions After a Century of Research.”  They are responding to a recent claim by Samuel Gross and Barbara O’Brien that researchers “do not know much about false convictions.”  Gould and Leo essentially take the “glass is half-full” position – although our knowledge may be less precise than we might like, we have nonetheless come a long way since American researchers first began to study wrongful convictions a century ago, especially as a result of studies of DNA-based exonerations over the past twenty years.  In advancing the claim, Gould and Leo provide a helpful overview of the burgeoning empirical literature on the frequency, consequences, and causes of wrongful convictions.

Here are a few tidbits I found especially intriguing:

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SCOWIS Okays Piling on Homicide Charges

Patrick Patterson gave Oxycodone to his seventeen-year-old girlfriend, which led to her death by overdose.  He was then convicted of both reckless homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence.  On Wednesday, the Supreme Court of Wisconsin affirmed both convictions over Patterson’s multiplicity objection.

In theory, multiplicity doctrine might help to protect defendants from disproportionately harsh punishment by preventing prosecutors from piling on charges arising from the same course of conduct.  However, as Patterson illustrates, the protections are hardly robust.  Somehow, amidst the formal analysis of elements and the tea-leaf reading of legislative intent, proportionality largely drops from view.   Continue reading “SCOWIS Okays Piling on Homicide Charges”

SCOTUS to Address Requirements for Federal Murder Statute

Yesterday, the Supreme Court agreed to decide what “federal nexus” must be proven in a murder prosecution under 18 U.S.C. § 1512(a)(1)(C).  The statute makes it a federal crime to kill “another person, with intent to . . . prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a federal offense.”  The specific question before the Court is whether a defendant may be “convicted of murder under § 1512(a)(1)(C) without proof that information regarding a possible federal crime would have been transferred from the victim to federal law enforcement officers or judges.”  Additionally, the case presents interesting questions regarding the interpretation of statutory state-of-mind requirements and the scope of federal criminal jurisdiction.

The decision below was United States v. Fowler, 603 F.3d 702 (11th Cir. 2010).  Here’s what happened.

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Milwaukee Homicide Numbers Take Turn for the Worse

The Milwaukee Journal-Sentinel reports today that the number of homicides in Milwaukee so far this year has already matched last year’s total (72).  It’s hard to know what to make of this news, though.  Is Milwaukee becoming a more violent place?  Probably not — other categories of violent crime have continued their long-term decline as homicides have gone up, and even the number of shootings is down.  Have the police become less effective in preventing homicides?  I’m not aware of any reason to think that is true.

Homicide is a relatively rare crime, and a certain amount of year-to-year variation is surely a matter of random chance that reveals nothing about the underlying state of the city and its police force.

More generally, the recent crime numbers in Milwaukee present a glass half-empty versus half-full scenario.  Continue reading “Milwaukee Homicide Numbers Take Turn for the Worse”

Mississippi Lifers Exonerated in Rape-Murder Case

Phillip Bivens was released yesterday after serving thirty years of a life sentence for a rape-murder in 1979.  As reported by the New York Times, Bivens and a codefendant pled guilty in the case, while a third defendant was convicted by a jury.  New DNA analysis of the rape kit exonerated all three men earlier this year, although only Bivens was still serving time — one codefendant died in prison, and the other had already been released for medical reasons.  Little evidence connected the men to the crime aside from their own incriminating statements, which had apparently been coerced from them. 

DNA exonerations in recent years have done a great deal to highlight the reliability problems with confessions that are uncorroborated by physical evidence.  I wonder, though, to what extent these problems have really sunk in with the lay public.  On their face, confessions seem such extraordinarily compelling evidence — what could be more reliable than a statement so directly and profoundly against personal interest?

The Mississippi case is also interesting as an illustration of reliability problems with guilty pleas, particularly when the death penalty is available.  Bivens entered his false guilty plea in order to avoid facing the death penalty.  My own views about the death penalty are neither strongly for nor strongly against, but I have long thought that the biggest problems with the death penalty are not in the very small number of cases in which it is actually imposed, but in the possibly much larger number of cases in which fear of the death penalty leads to a guilty plea and an undeserved life sentence.