"The Foolishness of Our Federal Criminal Code"

 That's the title of a piece I co-wrote with my daughter Kate Markus for the Daily Business Review.  It starts like this:

There’s been a lot of talk about overcriminalization in recent years. Prosecutors are going after folks for everything you can imagine. In one famous example, retired race car driver Bobby Unser was prosecuted by the feds for driving his snowmobile on protected federal land. Unser had gotten lost during a snowstorm and was seeking shelter. Closer to home, members of a religious outreach group were arrested and prosecuted for feeding the homeless in a Fort Lauderdale park because they violated a food sharing law.

Because our trial system has turned almost exclusively into a system of pleas (97% of cases resolve by way of plea agreement), one might think that all of these prosecutions must be justified. That could not be further from the truth. The system has made the risks of trial so daunting—with a defendant likely to receive a sentence many times longer if he has the audacity to declare his innocence and proceed to trial—that most defendants fall on the sword and plead guilty, even if they are innocent.

The list of federal crimes has become so lengthy that it is unknown how many there actually are. This is in stark contrast to the federal criminal code in 1790, which included just 30 crimes. By the 1980s, that number was more than 3,000. Although the Department of Justice (DOJ) has not catalogued all of the crimes on the books now, there are over 300,000 statutes and regulations that carry federal criminal penalties.

BONUS EPISODE OF FOR THE DEFENSE: BARRY POLLACK FOR RIC BLAKE (Chicken Antitrust case)

    It's Bonus Episode time -- we've got former NACDL president Barry Pollack discussing the chicken antitrust trials, which have garnered quite a bit of press because the original trial involved 10 defendants, which hung.  Then the government decided to try it a second time against all 10 defendants even though the majority of jurors voted to acquit.  After a second lengthy trial, the jury hung again as to all 10 defendants.  The government announced it would try them a third time, which led the district judge in Denver to call in the head of the antitrust division to explain why that was the right thing to do.  The government then dismissed as to 5 of the defendants but decided to try for a third time the 5 remaining individuals.  That third trial starts next week (June 6, 2022).  The head antitrust prosecutor has said a third trial is needed because he is not part of the "chickenshit club."  Have a listen to Barry explain the twists and turns of these two very interesting criminal price-fixing trials on your favorite podcast platform -- all of which are available at our website here.

Thanks again for listening.

--David

 

Hosted by David Oscar Markus and produced by rakontur
 

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What interview questions do you ask?

Malcolm Gladwell asks whether you know how to drive a manual transmission:

In Tyler Cowen and Daniel Gross’s excellent new book, Talent: How to Identify Energizers, Creators, and Winners Around the World, the authors suggest alternative questions for job interviews. For example: What tabs are open on your browser right now? (In my case: a draft of an upcoming Revisionist History episode, a Youtube video of a Canadian businessman who personally sponsored 50 Syrian refugees, a journal article on the merit of homework, and the Car and Driver review of the new special edition Golf R.)

Cowen and Gross think this kind of indirect question is a better way of assessing someone’s interests and curiosity than simply asking them a direct question. I agree. The standard interviewing process—with its conventional set of easily anticipated questions—is just too easy to game. (“Where do you see yourself in 10 years?” “In your chair!”)

This reminds me of a question I used for years in interviewing potential assistants: Do you know how to drive a manual transmission? If you said no, you didn’t get hired.

I know that sounds terribly arbitrary. But here’s my reasoning. It is not necessary to know how to drive a stick in the 21st century—particularly if you’re 22 years old. So the only people who do are those who are willing to take the time to master a marginally useful skill. Now why would a 22-year-old do that? One reason is that they like knowing how to do things that most people do not. Another is that they realize that the most fun cars in the world to drive are sports cars, and the most fun sports cars to drive are the ones with manual transmission, and they like the idea of being able to turn a rote activity (driving) into an enjoyable activity. I want to work with the kind of person who thinks both those things.

Interesting. I like the idea of alternate questions for a job interview.  What do you ask potential associates?  

Better Late Than Never

By Michael Caruso

 

Yesterday, at the behest of an 8th-grade civics class, Massachusetts lawmakers formally exonerated Elizabeth Johnson a mere 329 years after she was convicted of witchcraft and sentenced to death (thankfully, she was not executed). Johnson was 22 when she was caught up in the hysteria of the witch trials and sentenced to hang. Then-Gov. William Phips threw out her punishment, but while dozens of suspects officially were cleared, including her own mother, Johnson's name wasn't included in various legislative attempts to set the record straight. Until now.

Similarly, former President Trump used his pardon power to right very old wrongs, including the boxer Jack Johnson—convicted in 1913 of a Mann Act violation—and Susan B. Anthony—convicted in 1872 of voting fraud. (Although the Susan B. Anthony Museum rejected the pardon as she would have wanted).

The wrongly convicted and unduly punished should not have to wait that long. Currently, there are about 17,000 petitions for pardons and commutations pending. Critics like Professors Rachel Barkow and Mark Osler have assailed the modern use of the pardon power as "too often ignored or used to create calamities rather than cure them." They, along with others, recently testified at a House Oversight Committee hearing about our clemency system's issues.

And earlier this year, Attorney General Merrick Garland selected Elizabeth Oyer, a former federal public defender, and Mayer Brown partner as the U.S. Pardon Attorney. Ms. Oyer began her career as a law clerk for our very own 11th Circuit Court of Appeals Judge Stanley Marcus.

In this role, Ms. Oyer presides over the office that reviews and evaluates federal clemency applications. Earlier this month, several clemency advocates privately met with Ms. Oyer, "a rare occurrence that left them cautiously optimistic about forthcoming changes to a strained system."

For the clemency system to function, however, we need lawyers. Families Against Mandatory Minimums does excellent work recruiting, training, and assisting lawyers who want to lend a hand. It's never too late to right a wrong, but the sooner, the better.

Big Tech and Guns

 

By John R. Byrne

A couple of big decisions issued by the Eleventh Circuit yesterday, both authored by Judge Newson.

In Netchoice, LLC et al. v. Attorney General, State of Florida, et al., the Court handed a victory to "Big Tech," holding Twitter, Facebook, and other companies were entitled to a preliminary injunction against a Florida law that would have barred them from, among other things, "deplatforming" political candidates. The Court found it "substantially likely" that social media companies are "private actors" (and, thus, have First Amendment rights) and that many (but not all) of the law's provisions violate those rights. Read it here.

In  United States v. Ignacio Jimenez-Shilon, the Court held that a law making it illegal for illegal aliens to possess firearms does not run afoul of the Second Amendment. Judge Newsom's opinion digs into Justice Scalia's opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) offers a detailed account of the history of gun rights/laws in this country. Weirdly enough, Judge Newsom also wrote a concurrence to his own opinion, laying out what he considers the right analytical framework to apply to challenges to the Second Amendment. Read it here.

Judge Newsom's Jimenez-Shilon opinion is already drawing some fire on Twitter, tying the two opinions together.

Judge Scola to take senior status in October 2023

Judge Scola is the best. I’m truly happy for him but sad for all of us. He was always fair, smart, and thoughtful. The perfect judge. 

At least we keep him till October 2023. Let’s see if the White House can get its act together and get some judges confirmed  

Sentencings

I've often written about how our criminal justice system coerces pleas.  One of the reasons is the trial tax.  If you go to trial and lose, your sentence is likely to be many many times the plea offer -- sometimes more than a decade longer.  It's unjust.

Because there were almost no trials during the pandemic, and many judges were more compassionate during that time (it’s all relative), it was easy to forget about the awful trial tax in our system.

But recent sentences in our District and others are showing that there is absolutely no let up for the trial tax -- even for non-violent offenders. Most judges, who have never represented a criminal defendant, have no sense what a 5 *year* sentence does to a person, a family, a community. It’s completely devastating. 

One possible solution -- at a sentencing post-trial, judges should be told what the plea offer was.  If a plea offer was X, the government shouldn't be asking for 4X. 

Since COVID, prosecutors have also candidly told me that they are now asking for much higher than they believe is appropriate at all sentencings because they believe that most judges will vary down from their recommendation.  The typical scenario is that a prosecutor believes that a sentence of 10 years is warranted.  The defense believes 3 years is right.  The prosecutor knows that if both sides ask for those sentences, a judge is likely to give 5-6 years, so the prosecutor asks for 12 or 15 years in the hopes of getting 10.  Judges then feel like they didn't give the prosecutor everything they asked for, when they actually did just that.  

Anyway, that's my Sunday morning rant.  Sentences are on the uptick again post-COVID.  Incarceration rates are moving higher again.  While COVID remains, the compassion during the pandemic seems to be fleeting.  

"Is the Justice Department Incompetent?"

 That's the title of this extensive article by New York Magazine.  Here's how it starts out:

“I’m here to declare that we are not part of the chickenshit club.”

That announcement came last month courtesy of Jonathan Kanter, the head of the Justice Department’s antitrust division and one of the stewards of the Biden administration’s ambitious, all-purpose antitrust-enforcement agenda. Kanter was speaking at the University of Chicago and was, improbably, in good spirits following a series of high-profile losses for prosecutors in his office. There had been acquittals in separate, closely watched criminal cases in Colorado and Texas, both involving alleged collusion in labor markets, as well as a second mistrial in a much-touted criminal price-fixing case involving executives in, appropriately, the chicken industry. After the department decided to try the chicken case a third time, the presiding judge ordered Kanter, whose job leading the antitrust division’s 700 employees is the first he has ever held at the department, to fly to Denver and explain the decision to him in person.

Kanter’s invocation of “the chickenshit club” was an apparent statement of purpose for a newly emboldened DOJ. The term became popular after the publication of a 2017 book of the same name by Jesse Eisinger, which held, in its simplest form, that government prosecutors failed to pursue big, white-collar criminal cases in the wake of the financial crisis because they were scared of losing.

Kanter argued that the department’s antitrust lawyers would not be deterred by the losses (which he tried, unconvincingly, to portray as partial victories). But a casual follower of the Justice Department’s performance in recent months might have detected a larger trend extending beyond Kanter’s purview overseeing the department’s civil and criminal antitrust cases.

Early this year, an appeals court reversed the convictions of two former Deutsche Bank employees who had allegedly manipulated a financial benchmark rate known as LIBOR. In March, a jury in Texas acquitted the one and only person charged in connection with the department’s investigation of Boeing following two crashes of its 737 Max jets after deliberating for just 90 minutes. A jury in Washington, D.C., acquitted two defendants who had been charged in a campaign straw-donor scheme. (As I have noted before, I used to work in the office that brought the Boeing prosecution and know some of the prosecutors, but I was not involved in the investigation. Before my time at DOJ, I worked on the internal investigation for Deutsche Bank that resulted in the LIBOR prosecution.)

Then last month, prosecutors lost the trial over the alleged plot to kidnap Michigan governor Gretchen Whitmer after a jury acquitted two of the four defendants and hung on the charges against the others. Strictly speaking, this was not a white-collar case (unless you count the fact that so many of the alleged plotters were apparently working for the FBI), but it had some rough similarities — not just a major, highly publicized case that the department tried hard to win but also one in which deterrence was a major objective.

There have been victories, too — most notably the case against Elizabeth Holmes, who was indicted in mid-2018 and convicted following a trial last year after pandemic-related delays. More recent was the conviction in Brooklyn of a former Goldman Sachs employee who participated in a massive bribery and kickback scheme connected to a Malaysian sovereign wealth fund. Outside of the white-collar realm, the department has also been exceedingly busy with the January 6 prosecutions, and whatever concerns some of us may have about the scope and pace of that investigation, prosecutors’ performance in the courtroom has been impressive.

But the slew of recent setbacks has been hard to ignore, particularly in the middle of the department’s effort to tout its white-collar enforcement record and agenda. At this moment, well into the tenure of Merrick Garland, the notion that the department’s major problem is a failure of resolve seems less compelling in recent memory than ever, prompting some legitimate questions. Among them is whether Garland’s vision for the department and his understanding of its difficulties during the Trump years is as comprehensive as it needs to be.