Rudderless and Without A Paddle - How and When Did American Criminal Justice Change Course

We did not all come over on the same ship, but we are all in the same boat.
 - Bernard Baruch

The dictionary defines the word "theft" as an unlawful taking, the felonious taking of personal property with the intent to deprive the rightful owner of it.  We learn from an early age that stealing is wrong.  Society, therefore, punishes theft.  Knowledge, on the other hand, should not be bound up in any one person's possession; knowledge is power and should be accessible to all who seek it.  Indeed, access to information is the basis of liberty and freedom itself.  And, so when a theft involves not personal gain, but greater good in more accessible information or greater liberty does society have any interest in punishing the theft itself?  Must we weigh the act of stealing with the purpose of the theft and should we value the intention at least as much as the act before determining whether every theft is a crime?

In the recent matter of Aaron Swartz, he was accused of appropriating scholarly documents in order to make them accessible to anyone who desired the information.  The theft was an act of civil disobedience as Mr. Swartz protested compensating publishers (not authors) of academic journal articles and he therefore sought to allow access to the information to all at no cost.  He never intended and never received personal gain.  He had no intention of depriving, and indeed, did not deprive the rightful owner of property as the property was information which cannot be owned.  Regardless of where people stand on the issue of hacking and accessibility and his methods of protest, the potential 35 year term (or, let's be frank, even the "generous" 6 month term and felony conviction barring him forever from voting and participating fully in his own government) are far too high a sentence.  Certainly, the penalty should not have been death.  That is too high a price not just for him and his family, but for society in the loss of a brilliant, committed, courageous activist.

In 1862, another young, courageous man committed an act of civil disobedience.  Robert Smalls was born a slave in 1839 in Beaufort, SC.  His wife was born a slave as well and in the "peculiar institution" that was slavery, although not free, he and his wife and children lived together in Charleston working various jobs, keeping a minimal pay and sending the remainder to their (separate) "owners."  In daily life, Mrs. Smalls was a maid at a hotel and Mr. Smalls worked along the quays skillfully learning to rig and sail.  With great acumen, he navigated Charleston Harbor in every conceivable manner.

He was 24 in 1862 with a war raging around him and, like several skilled enslaved Americans, he was assigned to perform duties for the Confederate cause.  He and several others worked on a munitions ship called The Planter until one day when they hijacked it, picked up their families at a rendezvous point, and sailed skillfully through Charleston Harbor, past Fort Sumter and, raising a white sheet, into the Union Navy to whom they "surrendered."  Indeed, Robert Smalls and his crew provided not only a ship with ammunition, but also a code book revealing the placement of mines and torpedoes and, most importantly, their support of the Union.

Mr. Smalls met personally with President Lincoln who rewarded him for stealing The Planter and providing his profound knowledge of the Southern waterways to the Union Navy.  It was Mr. Smalls who finally persuaded the administration to permit black men to fight for the Union.  Before the impressive Massachusetts 54th Infantry was mustered into duty in March, 1863, the 1st South Carolina Infantry, a unit composed of freed slaves, had seen action in Georgia and Florida.  Indeed, without these knowledgeable and fiercely brave warriors, navigation of Southern rivers would have been impossible.  As commanding officer Colonel Higginson astutely noted, these men had not left their homes and families to fight, they were fighting for their homes and families.  Surely, they fought for freedom in a more profound sense than any one of their white brothers could imagine.

Robert Smalls would go on to be a war hero assisting both the Union Navy and Army.  A public figure of great stature, he was a delegate to the 1864 Republican Convention.  Foreshadowing his descendants, he led a boycott of the segregated streetcars in Philadelphia which resulted in the desegregation of public transit in that city by 1867.   He returned to his beloved South Carolina as a commissioned Brigadier General in the state militia, obtained an education, opened businesses and started a school.  He would go on to serve in the state legislature and in Congress during the brief and undervalued period of Reconstruction.  Although it would not come to pass until 1948, Rep. Smalls sought to desegregate the military and he argued for the continuation of federal troops to protect freedmen from the rise of the Ku Klux Klan and affiliated groups.

By any estimate, Robert Smalls is an American hero - a brave warrior, an ardent champion of civil rights, an effective representative for the people of South Carolina and an inspiration for thousands, if not millions, of Americans of all races.  But, he was a thief.  He stole The Planter and some folks were just not about to let him forget about that.  So, as a duly elected representative of the Palmetto State, he was falsely accused of accepting a bribe, faced a trial and was convicted.  He was sentenced to three years in prison.

Robert Smalls would only serve three days - he was released pending appeal - which he lost.  But, the governor of South Carolina granted him a pardon and ultimately - through several more fights - he did return to Congress.  In the interim, President Hayes had withdrawn the troops from the South, voter suppression had begun in earnest, the state Republican party was rife with scandal and the Democrats were taking hold in what would lead to gerrymandering and ultimately the devastation of the Jim Crow South.  However, Mr. Smalls would be appointed by two presidents as the collector at the port of Beaufort, SC and his life was one of great contribution to this nation until his death in 1915.

Had he not stolen that munitions ship when he was 24 years old, America never would have had the courageous leader that was Robert Smalls.  Had he been prosecuted for that theft rather than lauded as a hero, America would never have had the courageous leader that was Robert Smalls.  Had the misguided abuse of discretion now practiced by prosecutors prevailed, America never would have had the courageous leader that was Robert Smalls.

When the United States government indicted Aaron Swartz, he, too, was 24 years old.  He, too, had great skills and intelligence and gifts and courage and honor to share with his country and the world.  He sought to liberate information into the public domain.  No one would get hurt, no one would die, honestly few would even notice since the accessible academic articles live lonely lives of neglect.  Instead of viewing him as a hero for knowledge and freedom of speech and celebrating the purpose of his intent, his own government - the one that could have benefited the most from his brilliance and his energy and his knowledge and his curiosity and his courage dogged him with a prosecution and a prison term and the loss of his vote - his voice.  It may be unfair to say that the United States Attorney's office killed him, but it is irrational to say that it had nothing to do with his death.

In 1862, when Robert Smalls stole a ship and a code book and guided them through the dark of night into Union hands, we, the people, celebrated him as a hero.   We, the people could see that although he was undeniably a thief, his intent was to liberate and not to harm.  We, the people in the midst of an uncertain and gruesome war welcomed his expertise and his bravery.  His courage began to turn the tide of battle for without African American troops - troops he requested be commissioned -  the war would have lasted longer with countless more deaths.  We had a direction and purpose by then; to end the war, to abolish slavery, to unite these bedraggled states into one nation, indivisible with liberty and justice for all.  Even in the fog of war we had our compass set right.

150 years later, in relative peace and ease of life, we are adrift.  The reason the United States Attorney for the District of Massachusetts is so defensive and sees nothing wrong in the prosecution of Aaron Swartz for, essentially, copyright infringement where the holders of the copyright did not want to press charges, is that we have no moral compass left in criminal cases.  The instructions courts provide to juries in criminal matters are obscene: juries are not told of their time honored right to nullify the actions of their legislatures.  With the vanishing of the mens rea  requirement, living has become a crime so that no matter who is indicted, the likelihood is that s/he will not walk out of the court without a restraint on liberty. This blog has noted that by pleading out over 95% of criminal cases, juries have become a rare commodity.  Without juries, we the people are silenced.

We will never know what Aaron Swartz would have been able to teach us because he, tragically, took his own life in the face of pressure from the unwavering hammer of the Department of Justice.  If Robert Smalls could, by stealing a ship, lend his knowledge and his service to this country for another 50 years in positions of authority and power, then the least we could have done is give Aaron Swartz the opportunity to share his quest for freedom of information for another day.

But it is not just the tragedy of Aaron Swartz, it is all of those who suffer without dying due to our ruthless and ineffective criminal justice system.  There are many holding Mr. Swartz up as the reason we must revisit federal prosecutorial discretion, sentencing guidelines and the authority of any unelected official to wield such relentless power - and that is fair and just; a conversation long overdue.  But, it is not just the federal government and the extreme sentencing guidelines and the unelected officials - it is us, all of us who are to blame for the spiral from 22 federal crimes at the inception of the country to thousands and thousands today.  We are to blame for the complacency of both parties and most Americans and the elected District Attorneys in incarcerating over one million of our citizens at a cost that is bankrupting us at a quicker, and more consistent, rate than the misbegotten wars we are fighting. 

The reason the prosecutors do not think it is morally reprehensible to threaten a civil activist with the possibility of 35 years in prison is because while America was becoming an army of AR-15-toting soldiers intent on battling the evils of birth control, the rights that men like Robert Smalls spent their lives fighting for have faded into history.  We must reclaim our ship of freedom and democracy and guide her with the conviction of decency and morality and fairness as we re-set our course toward a more perfect union.

After 40 Years, It is Time to Declare Roe Wrong

40 years ago this week, Roe v. Wade became law.   It is largely believed by both "pro-life" and "pro-choice" groups to be a Supreme Court decision that "legalized" abortion.  That false, pervasive opinion has dominated the national scene for far too long.

The only thing Roe v. Wade did was muddy very clear waters.  Colonial women enjoyed the right to abort unplanned and unwanted pregnancies.  Indeed, abortion was a safer alternative than childbirth and it was an accepted practice.  The right to an abortion is inherent in the Ninth Amendment not created in the Fourteenth.  Roe is wrong not because it guaranteed safe and legal abortion, but because it failed to guarantee safe and legal abortion.

Abortion, a known and accepted practice since 1550 BCE,  became a crime in the Nineteenth Century after lobbying by the medical community as part of its quest to eliminate competition with midwifery. The medical community, however, was not as we may think of it today: there was no formal curriculum for medical school and no standardized testing until 1935.  While midwives shared knowledge gained over centuries, the folks who changed the abortion laws had gone to a semester or two of lectures and called themselves experts.   At common law, before a woman was "quick with child" (approximately 16-18 weeks pregnant), abortion was neither criminal nor abhorrent.  The folks who urged change did so primarily for paternalistic reasons (men must care for the frailty of women) and misogynistic reasons (the purpose of a woman, especially a married woman, was to bear and raise children), and financial reasons (midwives enjoyed, deservedly, much more trust and respect than physicians and this was one way doctors were able to corner a previously unattainable - and growing - market). 

In Massachusetts, over 200 years ago, when a single woman voluntarily sought a "draught or potion" to induce miscarriage and the man who impregnated her so provided it, he was tried and convicted of inducing abortion.  The conviction was overturned because (1) there was no evidence that any abortion occurred and (2) there was no evidence that the woman was "quick with child". Commonwealth v. Bangs, 9 Mass. 387 (1812).  An 1845 case relying on the judicial reasoning in Bangs declared outright that no common law offense existed for abortion prior to quickening.  Indeed, the decision expressed its opinion on the immorality of the procedure, but it denounced criminal sanctions when the woman consented and there was no evidence that she was quick with child.  Almost immediately after that case, at the behest of physicians (even then an influential bunch in Massachusetts), the general crime of abortion was born.   Interestingly, activists in the early 1970's were convicted of aiding and abetting abortions by facilitating safer options for women seeking termination of unplanned and unwanted pregnancies under that (still extant) law. In Massachusetts, abortion remains a felony to this day. 

But, what is shocking is that it was not the religious zealots or a Biblical concept of the beginning of life; the push to end the idea of quickening and life's nascence later than conception came from the physicians - the same ones who had essentially no scientific background and little education.  At the time this occurred, the majority of abortion seekers were white, middle class, married and Protestant.  Rather than develop better methods of birth control, the medical establishment dug in its heels against highly trained women providing abortions.  This opposition was not premised upon medical data or statistics on failed abortions or those resulting in death of the mother - it was based upon the idea that women who aborted ignored their duties of the marriage contract.  Doctors, in their own manifesto in 1871, averred that women should not be involved in public life and that by shirking maternal duties any woman seeking abortion was essentially letting her country down.

It was a time of great change; the Fifteenth Amendment had been ratified in 1870.  The Southern states were still occupied by Northern soldiers; and due to this occupation, African Americans exercised their voting rights for the first time.  Just months before the American Medical Association questioned the patriotism of women seeking abortions, Susan B. Anthony was arrested for trying to vote.  A few months after the AMA's declaration, Elizabeth Cady Stanton petitioned Congress on this pesky voting conundrum.  While the right to life community has sought to co-opt early feminists as anti-abortion activists, the reality could not be further from the truth.  With no offense intended to physicians today (although, really, they should acknowledge their complicity in the history), the truth is that the anti-abortion activists were those who were trying to make money; they had no concern for science.  The "life begins at conception" idea was fabricated by them, not religious doctrine, and sold as part of this unsavory bill of goods.  The push to criminalize abortion was a sham from the outset.  For an interesting and detailed article on law and the politics of abortion (where much of the above information was gleaned), click here.

The rise of the Nineteenth Century factions should have been beaten down by the other graces of the day: humanity, compassion, reform.  And if that was not enough, the Twentieth Century remnants  should have been met with logic, science and, eventually, the women's vote.  But, something went terribly awry.  Note in reading the full opinion of Roe v. Wade how Justice Blackmun rests on "medical" positions rather than law - the very same lunacy that started the criminalization of abortion was being sought to find a remedy.  Indeed, by failing to understand history, misconception implanted and grew into this destructive spawn, alive and well and destroying our country.  Rather than a reasoned approach to a simple legal question, the bizarre opinion widened a gulf that theretofore really did not exist.

Query whether the Court got it all manifestly wrong.  Abortion is not a protected right under the Fourteenth Amendment or any hidden, secret right to "privacy."  Abortion is a right retained by women, certainly those pregnant but not quick with child, that existed long before the Revolution and before the Constitution; it is one of the unenumerated rights which cannot be denied or disparaged under the Ninth Amendment.  It is curious that Justices White and Rehnquist, in their dissent from Roe v. Wade could find nothing in the language or the history of the Constitution to support the decision of the majority.  It is amazing what one cannot find when one chooses not to look.
Realistically, there was no prohibition to abortion before quickening recognized at the time of ratification.  The Ninth Amendment does not just kick the matter back to the states.  This is not part of the tradition of "states rights" and federalism, it is in the tradition of individual liberties which does not enjoy even state interference.  For the words of the Constitution to mean anything, the Ninth and the Tenth Amendments must mean different things.  The Ninth talks about rights of the people as individuals; the Tenth talks about the rights of the state to legislate.

There are serious and important issues facing this nation and the world, but criminalizing abortion - even talking about abortion - is not one of them.  Our confused nation insists on fighting wars we clearly cannot afford as we deny emergency assistance to our own citizens which we can.  Amongst other things, poverty, pollution, economic malaise, enforcement of civil rights and international kerfuffles that involve us whether we like it or not should take up most of the allotted time on the agenda.  Yet, folks talk about "limited government" as if it is 1789 and there are no roads or cars to put on them, no public water supplies, no air, water or noise pollution to control, no regulation of professional degrees or licenses, etc.  When the final vote was cast to ratify the Constitution, the Cabinet consisted of 4 posts (Secretary of State, Secretary of War, Secretary of the Treasury and Attorney General), 20% of the population was held in bondage BUT women had access to abortion without the interference by the state. 

Ensuring safe and legal access to abortions denies the government the opportunity to infringe upon liberty which sums up the notion of limited government in any event.  If America is to live up to even a portion of its promise, we need to start talking about things that matter and stop talking about things that do not.  40 years after nine men engaged in a bizarre and troubling decision residing in the then very popular Fourteenth Amendment when they could have settled matters in the Ninth - not as an issue for the states to infringe upon as they chose but as a matter that no government could deny or disparage, at least within the first 16-18 weeks of pregnancy which accounts for roughly 95% of all abortions in the United States - we are fighting harder and more divisively than we were when they rendered the decision. 

40 is a significant number to the Biblical crowd who now runs the country.  Moses was 40 when he first left Egypt.  40 years later, he returned to free the Israelites.  He toiled for 40 days on the Commandments; they wandered for 40 years - as the story goes - needlessly and due only to their own obstinance and idolotry - before reaching the land of milk and honey.  For 40 years we have been living with and yelling about and bullying each other over one well-intentioned but misbegotten decision.  In that time, we have gone from a fairly cohesive nation with relatively common values and reasonable politics to a polarized, contentious, maelstrom of inanity. 

Pro-life or pro-choice, Americans should realize that it all started with Roe v. Wade.  Unlike some other horrendous cases, it cannot be overturned; overturning Roe before righting the record on the Ninth Amendment would be devastating to women's health and women, generally, which is very bad for America.  Although the right to an abortion unequivocally existed at the time of this nation's founding, because women were not permitted to vote in order to protect that right, it went dormant.  In its place, a new but tenuous "right" emerged from the Court under the Fourteenth Amendment.  While it is hard to ratchet back rights once they are declared, what the Court giveth it is now intent upon taking away.  Once the Ninth Amendment right is secure, we can overturn Roe; we will have reached the Promised Land.

Doublethink: The Impossibility of Withdrawing from Conspiracies

Doublethink means the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them.

 - George Orwell

It is an axiom of due process that the government bears the burden to prove beyond a reasonable doubt every element of the charge and that that burden never shifts to the defendant.  Normally, when a defendant raises an affirmative defense, this requires the government to disprove that defense beyond a reasonable doubt in order to comport with due process of law.  In Smith v. United States, the Court changed the paradigm for conspiracy cases by declaring that because withdrawal of a conspiracy does not negate any element of the "conspiracy crimes" the defendant bears the burden of proof by a preponderance of the evidence to assert this affirmative defense.  

Unpacking that a bit: conspiracy (agreement to commit a crime with knowledge of that agreement where at least one participant takes a step in furtherance of the conspired act) is a crime separate and apart from the substantive offenses.  If the government has its quantum proof that an individual agreed to such an arrangement at any time, the defendant bears the burden - not of production of evidence that he withdrew from the agreement, but with a preponderance of the evidence of withdrawal from that agreement - because "withdrawal presupposes that the defendant committed the offense."  The Court did not explain how any defendant could possibly so demonstrate when his co-conspirators - to whom he needed to convey his withdrawal - are probably not talking.

In truth, ALL affirmative defenses presume that the defendant committed the offense; that is kind of the point.  Duress, insanity, and self defense all presume that action occurred; the element in question is the mens rea for those actions to be considered criminal.  Similarly, withdrawal of a conspiracy presumes that the defendant initially agreed but then changed his mind about participating and cannot be held responsible for the later intentional acts of others.  Affirmative defenses excuse or justify; they do not deny. 

For example, self defense provides a complete exoneration of wrongdoing.  For a defendant to obtain a jury instruction on self-defense, the evidence is viewed in the light most favorable to the defendant.  That is, the court need not believe the defense, but because it is a jury question, submission of any evidence to so suggest vaults this evidence over the bar of getting to the jury and receiving the benefit of the self defense jury instruction. In Massachusetts, there are two separate self defense instructions: one for deadly force and the other for non-deadly force.  The two standards are not equivalent: to justify the employment of deadly force (force intended or likely to cause death or great bodily harm), the actor must reasonably believe he was in danger of death or serious bodily harm; to justify the employment of nondeadly force (force neither intended nor likely to cause death or great bodily harm), the actor must have reasonably feared for his personal safety. But, the resulting injury is irrelevant to the analysis.

The burden to the defendant, however, is to raise even the slightest evidence to demonstrate that he acted out of self defense and that the force he used was appropriate given his legitimate fear in the moment.  Once he satisfies that burden of production, the prosecution must disprove that claim beyond a reasonable doubt to satisfy the burden of proof.  This is due process of law.  "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970).  Intent is an element of the offense and a fact necessary to prove any crime.  Smith morphs the traditional burden of production into a burden of proof in contravention of all notions of due process of law.

 

Conspiracy itself consists of an agreement to commit wrongful acts where at least one of those who is party to the agreement takes an overt step in committing the underlying crimes.  The agreement and its continuing nature is an element of the offense.  Indeed, allegations of conspiracy so radically alter the rules of evidence and the notion of fair play that if the government can demonstrate by a preponderance of the evidence that a conspiracy existed, then statements of all other confederates are admissible against all involved in the conspiracy.  The rationale behind this is that statements in furtherance of a conspiracy are admitted not because of their reliability but because of the legal concept of agency, that co-conspirators speak with one voice. United States v. Inadi, 475 U.S. 387, 395 (1986); Bourjaily v. United States, 483 U.S. 171, 188 (1987) (Blackmun, J. dissenting).  And, to obtain submission of this type of evidence, the government need only demonstrate the agreement by a civil law standard.

The agreement to conspire creates a new world for the criminal venture linking everyone like a Borg and, according to the Court this continues ad infinitum until such point as the defendant can prove that he unequivocally conveyed to the other members of the conspiracy (even if he did not know them or what they were doing) that he was not interested any longer and that he could somehow - without violating the 5th Amendment privileges of all of those to whom he so conveyed - could prove this to a jury by a preponderance of the evidence.  As an aside, this is not and never has been the rule in Massachusetts where the defendant must raise an affirmative defense passing the ball to the government's court to disprove it beyond a reasonable doubt.

The Smith case presented two affirmative defenses: (1) the defendant presented evidence that he withdrew from the conspiracy outside the limitations period with no applicable tolling period and (2) the statute of limitations prevented prosecution for the conspiracy as to him. The withdrawal provides immunity for all acts after such withdrawal and the statute of limitations defense would bar prosecution outright.  For both, the defendant should be entitled to raise the defense with disproof by the government.  Yet,

[t]he State is foreclosed from shifting the burden of proof to the defendant only when an affirmative defense does negate an element of the crime.  Where instead it excuses conduct that would otherwise be punishable, but does not controvert any of the elements of the offense itself, the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.

Smith v. United States, slip. op. at *3 (emphasis in original, internal quotation marks and citations omitted).

That headsnap is called whiplash.  Mental state IS an element of the offense, any offense...that's what makes it criminal in the first place.  Affirmative defenses negate the mens rea of the crime in some capacity - even the statute of limitations affirmative defense so demonstrates as it infers the legislative directive that after a certain period of time, the defendant's inability to defend trumps the state's interest in prosecution.

Statutes of limitations primarily serve, in both equity and law, as statutes of repose.  In Toussie v. United States, 397 U.S. 112, 114 (1970), the Court stated that,

[t]he purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.  Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.  For these reasons and others, we have stated before the principle that criminal limitations statutes are to be liberally interpreted in favor of repose.  We have also said that statutes of limitations normally begin to run when the crime is complete. 

 Id. at 114 (internal quotation marks and citations omitted).

The most conservative interpretation is that statutes of limitation, legislative animals all, prohibit the executive branch from bringing any charges and admonish the judiciary from entertaining such charges.  In Smith, the Court manifestly alters the equation and states that while a statute of limitations "may inhibit prosecution, it does not render the underlying conduct noncriminal."  Well, duh - the underlying conduct WAS criminal but the state failed to prosecute it within its own self-prescribed timetable and therefore, no matter how criminal the acts, if the limitations period has run, the defendant cannot be prosecuted.  Not any more, at least not for conspiracies: "[c]ommission of the crime within the statute-of-limitations period is not an element of the conspiracy offense." Smith, slip.op. at *4 (emphasis in original).

In Stogner v. California, the Court reflected upon the resurrection of an offense after the statute of limitations had passed.  In its analysis under ex post facto jurisprudence, the Court stated that, “a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict.” Id.  That same year, in United States v. Jimenez Recio, the Court reaffirmed that the essence of conspiracy is the agreement. Combining those cases, one would presume that if the essence of the crime ceased to exist outside the limitations period, then the crux of the crime ended as to this individual and the government had no interest in prosecuting him.

A decade later the Court is saying something very different; it is looking to a preponderance of evidence related to guilt in deciding the efficacy of a procedural tool designed to protect the interests of due process of law and then declaring that subverting established due process is not a violation of the Constitution.   It makes virtually impossible the ability to demonstrate proof of withdrawal from a conspiracy once any proof of an original agreement occurs and it then ensnares all those accused of conspiracy at any point into every act committed by any conspirator.

Like all affirmative defenses, statutes of repose and limitation, by their own definition, presume that a criminal act occurred.  However, they also reflect a balance between society’s interest in prosecuting wrongdoing and an individual’s interest in having fair notice and the ability to defend himself against accusations which could deprive him of liberty.  Additionally, proof beyond a reasonable doubt of every element of the charge has consistently been presumed as a fundamental principle of due process.  The flippancy of this unanimous decision bodes poorly when considering the significant number of cases affecting individual liberties before the Court this term. 

Criminal conspiracy has always been troublesome, but this case adds an uncomfortable new barrier to defense.  It affirms that due process of law exists for everyone except for this defendant under these circumstances - two contradictory beliefs one is asked to hold simultaneously.  Maybe this one should be rethought.

Make Amends: Remorseful Confessions and Justice

The confession of evil works is the first beginning of good works. -Saint Augustine

Literature blesses us with sympathetic criminals and history gives us great confessors allowing compassion to overwhelm us with forgiveness.  Yet, when life presents the sympathetic, confessing actor, somehow we stumble.

Two cases recently reported in the press call into question ideas about crime and punishment:

In Massachusetts, a heartbreaking case covered headlines years ago condemning a young man in the press for his rash actions behind the wheel of a car causing devastating injuries to a State Trooper.  She was left with permanent, severe brain damage and she never recovered.  Because he thought it was the right thing to do, the man confessed to his offense and spent more than two years behind bars.  He has since led an admirable life, starting a business and employing 20 people.  After years in a long-term facility for the severely disabled, the Trooper died in 2011.  Despite the earlier guilty plea and jail sentence, the DA has decided to press charges related to homicide.  If convicted, the man will face a possible additional 15 years in prison.

In Florida, another heartbreaking case led to a far different approach and result.  There, a young man, about the same age as the Massachusetts man, killed his girlfriend.  This was not an accident.  Yet, it was not a homicidal rampage either.  Immediately after the shooting, the young man turned himself in to the police, tearfully explaining his actions.  In that case, both families worked to get some level of justice for all involved.  They hired an expert in restorative justice, they pleaded for mercy with the prosecutor, they managed to reconcile an impossible-to-understand death of a young woman and the potential of life in prison for her killer.  In a remarkable meeting where nothing said could ever be used against him in court, the young man explained everything that happened, essentially telling her parents that she begged him not to shoot and for reasons that no one will ever comprehend, he did anyway.  He thought to commit suicide but could not pull the trigger again.  He is serving 20 years in prison.  Her family visits him once a month.

In both cases, the young men - both teenagers barely old enough to be called men at all - stepped up, admitted their crimes, and faced the penalty like, well, men.  In Florida, the state reluctantly went along with a lower sentence - the families have incredibly come to a place of forgiveness and some modicum of peace.  In Massachusetts, the state is seeking to reopen wounds that will never really heal anyway for the Trooper's beloved and devoted companion and her devastated daughter, yet the impetus is the state's, not the family's.  It is hard to fathom, especially in a cash-strapped court system, and a penitent defendant who has done everything right after a horrible wrong, why this case should be re-prosecuted.

As an old story of poverty and crime and promises and redemption - where the protagonist serves 20 years for stealing a loaf of bread and then, after being shown kindness and love, seeks to live virtuously (including a confession that can return him to prison for life) - haunts current cinemas, these cases call confessions within our justice system into question.

The Supreme Court of the United States has declared that, "confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Maryland v. Shatzer, 130 S.Ct. 1213, 1222 (2011)(internal citations and quotation marks omitted).  The Court's announcement indicates that the legal community wants people to confess in order to punish them.  But, this has not been our tradition since those accused of witchcraft would be put to death upon confession (and put to death without confession).

Voluntary confessions serve a purpose, but the purpose must be more meaningful than identification and punishment in a criminal justice world fiercely protective of the right not to be compelled to self-incriminate.  The system manages to obtain more than 95% of convictions through guilty pleas.  But, those who plead have already been identified as potentially involved in an offense; and, there is a notion that confession may lead to a discount in punishment.  So, the purpose must be something other than finding and punishing.

In the Florida case, the confession seems to have allowed those affected to move forward in their lives, as broken as they may be, but only because it also limited the full extent of the law's reach.  First degree murder can lead to death in Florida; if not death then life without parole.  But, this confessed killer will serve the same amount of time as Victor Hugo's bread thief.  He is, by all accounts, remorseful and, apparently still somewhat bewildered at his own capacity for violence.  Those involved in that restorative format of justice seem confident that, once released, this man will lead a life tinged with regret and sorrow, but one deserving of the second chance he has been given. 

In the Massachusetts case, the second chance has proven fruitful.  The confessed offender now wears holes in his shoes walking everywhere, never having driven again after that fateful crash.  His life forever changed, he seeks to live worthy of the opportunity provided to him.  Even on the outside chance that the Commonwealth could meet its burden of proving causality a decade after the event, the difference between the Trooper's severe brain injury and her death, while significant, does not alter the reality of the initial crash or the remorse or the penance or the value of the defendant's life.  If not an actual violation of double jeopardy, using his confession and guilty plea against him a decade later hardly seems to reflect any kind of good, let alone an unmitigated good.

Why exactly does the justice system crave confessions?  Is it really to find, convict and punish offenders?  And to what end this punishment?  What of the restorative value to the family who heard, in naked, brutal terms, the last moments of their daughter's life?  Like the kind Bishop in Victor Hugo's story, their ability - and indeed the state's ability in that case - to find forgiveness, compassion and love has value as well.  Giving that offender a chance to live a life of redemption has social worth, too, not only for him and his family but for the greater good as well.  Enforcing laws reeking of retribution and vengeance does not always reflect the best interest of the community, whether or not the offender confesses. Indeed, the muscle of harsh sentencing laws may obtain weak, illusory confessions while putting aside the potential of the sentence may result in heartfelt absolution.

As the criminal justice community observes the anniversary year of Gideon v. Wainwright, an admittedly historic decision, the Court rendered another monumental case 50 years ago in Wong Sun v. United States.  Remembered as a the "fruit of the poison tree" case, the actual decision reaches much further.  Indeed, it extended the exclusionary rule to verbal evidence (where previously it applied to tangible evidence).  Neutral declarations unlawfully obtained gained protection of the exclusionary rule.  And, it confirmed both that conviction cannot rest upon uncorroborated admission of the accused and that a tainted confession of a co-defendant or items unlawfully seized from a co-defendant carry no corroborative weight for the confession.  In that matter, the confession was a mirage, not contrition.  But, it was the confession that the government fought to include at trial.

For, juries are persuaded by confessions - even false confessions - just as they are persuaded by eyewitness testimony and jailhouse informants even though this type of evidence is the least reliable in ascertaining guilt.  Hollow confessions serve little benefit to either finding or punishing the offender.  Query the post-conviction admissions of Emmett Till's murderers, Roy Bryant and J.W. Milam, free of remorse confessing their brutal crime once out of reach of the law.  Contrast that heartlessness with Isaac Turnbaugh, acquitted of murder but desperate to be punished for his actions. Or even the reluctant but complete confession of Kenneth Bianchi resulting in life in prison but solving the Hillside Strangler cases.  Or, the death row inmates who confess to more offenses as they face execution.  Certainly, some confessions fail to fulfill the stated purpose of the Court: to find and punish the accused.

We know that what's done cannot be undone.  But, before we place stock in confessions, truly remorseful and questionably obtained alike, it is incumbent upon us to determine their purpose: punishment or forgiveness or some combination thereof?  Mustn't we determine why confessions are important before we obtain them and use them in the restraint of liberty? 

Lawyers cannot advise a client to remain silent or to unburden his soul without guidance as to the consequences of either action.  Forcing the government to prove every element of an offense protects us from a police state; granting the offender the opportunity to begin a healing process lays the groundwork for amazing grace.  Both have benefits.  It is the role of counsel to get directions before sending the client down either road.