Post-trial Memoranda from Floyd v. City of New York (Stop-and-Frisk Litigation)

I haven’t been following the Floyd lawsuit that challenges New York City’s stop-and-frisk practices as closely as I should, and I need to fix that. Just today, I downloaded the postrial memoranda that the defendants and the plaintiffs filed with the district court, to read over the next week or so. In case any of you would like to read these documents, too, I have posted them here (defendants’ memorandum) and here (plaintiffs’ memorandum).

From the Archives: The ACLU Urges RFK to Prosecute (1963)

It’s strange to see ACLU brass support a criminal investigation, as occurred yesterday when executive director Anthony Romero issued a statement relating that it was “imperative that the Department of Justice thoroughly examine whether the [Trayvon] Martin shooting was a federal civil rights violation or hate crime.”

Strange, but not unprecedented. Back in 1963, the executive director of the ACLU wrote Robert F. Kennedy to encourage Kennedy’s Department of Justice to pursue more cases under 18 U.S.C. § 242, a federal civil-rights statute. John de J. Pemberton wrote his letter to RFK to discuss the filing of Moses v. Kennedy and Hoover, a lawsuit that sought to compel the Federal Bureau of Investigation and Department of Justice to investigate and prosecute, where appropriate, section 242 violations that were occurring non-stop in Mississippi.

(Aside: The lawyers for the plaintiffs in Moses were William Kunstler and William Higgs. Everyone still knows who Kunstler was. Higgs not so much, which is a shame; he’s one of the lost legends of the civil rights movement and had a fascinating, if short, life. A few snippets here and here.)

In his letter to Kennedy, de J. Pemberton wrote:

It is our understanding that few if any Section 242 prosecutions have been instituted in Mississippi within the past few years. With the dramatic increase in civil rights activity in the South, the need for protection and assistance, as demonstrated by the Moses suit, is made all the more imperative.We urge as forcefully as possible that the Department of Justice give serious attention to the questions raised in the Moses suit.

Ultimately, Moses was thrown out of court, as it had to be, with the judge concluding that the ”complaint must be dismissed because it seeks remedies which, in the context of the above pleadings, this Court has no power to grant.” (The district court’s decision tossing the case can be found at 219 F.Supp. 762.)

After the jump, I’ve posted photographs of de J. Pemberton’s letter, Burke Marshall’s response on RFK’s behalf, and de J. Pemberton’s reply. (These documents can be found in Box 76 of the Burke Marshall papers, within the Department of Justice Record Group at the National Archives in College Park.)

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Repeat Self-Promotion Alert: “Overcharging”

It looks like lots of people are saying that George Zimmerman was “overcharged,” so I guess that’s my cue to remind people of this short essay I wrote on “overcharging” a couple of months ago. It’ll be published in the Ohio State Journal of Criminal Law sometime next year, once I update the data, acknowledgments, etc.

My thanks to people who have read the draft and offered comments. Additional feedback is, of course, welcome. The essay’s abstract follows:

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining. 

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are. This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.

Federal Charges Against George Zimmerman?

I deliberately avoided coverage of the George Zimmerman trial, as I did the Casey Anthony trial, the O.J. Simpson trial, and most other high-profile cases. But upon waking up this morning, I did take notice of Zimmerman’s acquittal and ensuing calls for federal authorities to bring “civil rights charges” against him. This got me to thinking, what civil rights charges? And how likely is it that the federal authorities will file these charges?

Upon review, it appears that the closest “fit” among federal crimes would be 18 U.S.C. § 249, a recently enacted federal hate-crimes statute (officially, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). Section 249(a) provides:

(a) In General.—

(1) Offenses involving actual or perceived race, color, religion, or national origin— 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or
(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
Section 249(a)(2)* is to similar effect, except that it applies to crimes motivated by “the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and contains a more elaborate federal jurisdictional “hook.”
What is the government’s track record in section 249 cases? Well, there have been few section 249 prosecutions to date. In looking for cases that have concluded their district-court phase, I could find only the following:
United States v. Maybee: Last summer, in United States v. Maybee – timing-wise, the first appeal of a conviction under section 249 — the United States Court of Appeals for the Eighth Circuit affirmed a defendant’s jury-trial conviction under section 249. Per the government’s appellate brief, the evidence at trial “established that defendant, along with two others, while driving his truck, chased a car occupied by five young Hispanic men and deliberately used his truck to repeatedly strike the victims’ car, ultimately causing the car to crash and burst into flames.” The record also contained abundant evidence that the defendant and his companions (one of whom pleaded guilty to a section 249 charge prior to trial) used racial slurs against the victims just prior to the attack.

United States v. Hatch Earlier this month (July 2013), in United States v. Hatch, the Tenth Circuit affirmed a conviction, upon the defendant’s guilty plea (reserving right to appeal), of conspiracy to violate the statute. According to the Court of Appeals, “In April 2010, a mentally disabled Navajo man—whom the record identifies only as ‘V.K.’—came to [a] restaurant. [Another individual] convinced V.K. to come to [his] apartment. Hatch and [a third person] later joined [them] there. At [the] apartment, the three white men drew on V.K.’s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.’s arm.” One of Hatch’s two co-defendants also was convicted upon plea of a section 249 charge; the other was convicted upon plea of conspiracy to violate this law.

In both Maybee and Hatch, the defendants argued that section 249 was unconstitutional, in that Congress lacked authority to enact the statute. Both Courts of Appeals rejected this argument, concluding that the Thirteenth Amendment conferred sufficient authority upon Congress.

United States v. Mullet: Some of you may have heard about this case, in which the defendants were charged with federal crimes for, inter alia, cutting off the beards of their foes within the Amish faith. The lead defendant, Samuel Mullet, Sr., was convicted by a jury of violating section 249, as well as other crimes. More than a dozen co-defendants also were convicted of conspiring to violate the statute.

United States v. Thompson: Here, the defendant pleaded guilty to a single section 249 count. The felony information, filed in the District of Minnesota in July 2011, alleged that Thompson struck an elderly Muslim man of Somali descent while telling him to “go back to Africa.”

United States v. Hall: A 2013 guilty plea by a member of the Aryan Brotherhood. Hall, an inmate in a federal prison in Texas, assaulted another inmate whom he believed was gay.

United States v. Larson: A guilty plea associated with an assault upon a Sikh cab driver in Washington state. The incident took place in October 2012; Larson entered his plea in June 2013 in the Western District of Washington.

United States v. Jenkins: This federal prosecution, brought in 2012, stemmed from the kidnapping and assault of a gay man in Kentucky. Two female defendants pleaded guilty to aiding and abetting a hate crime assault, in violation of section 249. Their two male co-defendants pled not guilty and went to trial. At trial, the men both were convicted of kidnapping and conspiracy charges, but were acquitted of the section 249 crime.

Unfortunately, I don’t know if these cases represent all section 249 prosecutions to date. I may have missed a case, especially if it led to a dismissal or acquittal (making the DOJ somewhat less enthusiastic about issuing a press release).

Nevertheless, it’s pretty clear that the feds don’t file very many section 249 charges. Why? Well, as I’ve written elsewhere, civil-rights crimes can be very difficult to prove. The failure to earn convictions on the section 249 count as against the Jenkins defendants who chose to go to trial underscores the difficulty in proving, beyond a reasonable doubt, the specific intent necessary to establish a hate-crime offense. My sense is that federal prosecutors, aware of these difficulties, properly are reserving section 249 charges for relatively clear-cut cases. (Indeed, section 249 cases are so rare that the DOJ’s press releases for two different cases (Thompson and Hatch) both identified the case as the first to be brought under the Shepard-Byrd Act. Oops.) I have not read anything about the Zimmerman case that would lead me to believe that the section 249 case against him is comparably obvious, but again, I have not been following the case closely.

Turning the page, some of you who recall the federal prosecutions of the police officers involved in the Rodney King beating may wonder about the applicability of those crimes to the Zimmerman case. These offenses, 18 U.S.C. §§ 241 and 242, don’t apply to the Zimmerman matter. The first of these crimes is a conspiracy offense, and you can’t have a one-person conspiracy. Per the Department of Justice’s website, the second of these offenses “makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States,” But Zimmerman wasn’t acting under “color of law” insofar as I can tell, so I don’t think that crime would fit, either.

* An earlier version of this post mistakenly referred to this subdivision as section 249(b).


Departing from the Guidelines Range for Methamphetamine Offenses

In case you missed it, United States District Judge Mark Bennett (N.D. Iowa) wrote a very  thorough, interesting opinion last week explaining why he was departing downward from the United States Sentencing Guidelines range “because of a fundamental policy disagreement with the Guidelines range for methamphetamine drug-trafficking offenses.” Judge Bennett’s full opinion in United States v. Hayes is here.

Because I have a pathological need to connect every news story to myself, however tangentially, I’ll add that a couple of years ago, I wrote an Essay predicting that, in light of the Fair Sentencing Act of 2010 and its readjustment of the “sentencing ratio” for offenses involving crack and powder cocaine, some judges would start to do what Judge Bennett has done, and depart downward from the sentencing range that the Guidelines prescribe for methamphetamine trafficking.

Regardless of whether you agree with Judge Bennett’s disagreement with the Guidelines, he did (I thought) a very good job of spelling out a broad array of policy arguments in support of the downward departure.

John Roberts on Computer Crime Legislation (1984)

While continuing to procrastinate, I decided that today would represent a terrific day to clean up my office and recycle some old paperwork. While looking through these stacks, I came across this, a memorandum written by Chief Justice John Roberts back when he was a young White House attorney. Like other Roberts memos that I’ve posted before (here, here, and here), I obtained this document on a visit to the Reagan Library last year. For whatever reason, when posting the other documents, I forgot to include this one.

This April 1984 memo addresses a Department of Justice proposal to add new computer crimes to the federal code. I don’t know the precise terms of the proposal, but to my untrained eye, its (loosely described) provisions resemble certain of those found in the Computer Fraud and Abuse Act, a 1980s statute that recently has prompted much controversy.

The memorandum is short and to the point. It contains one nice rhetorical flourish, where Roberts observes that the proposal’s forfeiture provision “is designed to deter the junior high school computer whizzes who break into the Los Alamos computers and do such things as change the targets on all our nuclear missles [sic] to various points in New Jersey.”

If the DOJ’s proposal in fact mirrored the controversial terms of today’s CFAA, I suppose one could infer from Roberts’ lack of objections to the proposal a similar absence of unease with the CFAA’s broad scope. But I am not a CFAA expert, or even particularly familiar with its specific terms; thus I don’t know if the DOJ proposal and the statute are congruent in this respect. Plus, 1984 was a long time ago, and perhaps Roberts’s views have shifted over the years.

What Will Get a Police Officer Decertified? Records from the Florida Department of Law Enforcement

In most jurisdictions, it’s well-nigh impossible to obtain records or data that relate to police-officer disciplinary proceedings. But there exist a few jurisdictions, such as Florida, that make this information available under open-records laws. Seizing upon this opportunity, not long ago reporters for the Sarasota Herald-Tribune submitted dozens of public-records requests to state and local law enforcement authorities, to ascertain whether and under what circumstances police officers were being disciplined for crimes they committed and other derelictions of duty.

This laborious project ultimately produced a series of extremely interesting articles, which you can access at this link. More to the point of this post, one of the authors of this series, reporter Anthony Cormier, was kind enough to share with me a series of databases assembled in connection with these stories.

The databases consist of records from the Florida Department of Law Enforcement (FDLE). In Florida, police and corrections officers must have a “certificate” in order to ply their trade. The FDLE is the state agency responsible for issuing, and revoking, these certificates. An officer may get reported to the FDLE following an internal affairs investigation, their arrest, or some other prompt. The FDLE then determines whether to revoke the officer’s certificate, impose lesser sanctions, or take no action.

The databases that I was sent comprise records relating to many years’ worth of complaint proceedings, involving more than 28,000 complaints in all. I am still getting my arms (and head) around the data, but I don’t mind conducting the initial stages of this process in public, so long as none of you hold me too closely to what I say here.

One of the first things I want to glean from the data concerns the types of offenses (criminal violations, poor work performance, etc.) that get police and corrections officers in hot water the most, and least, often, both in absolute terms and as a percentage of referred cases. As an initial stab at this information, I transferred some of the databases over to Microsoft Excel, merged a few of these tables using the VLOOKUP function, and then ran an Excel pivot table to arrange the cases based on their (1) outcomes and (2) the principal offense that the officer was accused of committing. By pulling these strings, I could tell which “offenses” — a term that, in this context, encompasses both criminal violations and other gaffes — led to the most decertifications.

I’ll post the resulting chart, after the jump.

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For all of us who have been a little confused about what the word “overcharging” means, as used in recent conversations concerning the Aaron Swartz, George Zimmerman, and Casey Anthony cases, I have a short (~25 pages) Essay out on the topic of “overcharging” by prosecutors. Here’s the abstract:

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining. 

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are.  This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.

I already have received some helpful comments on this draft that I haven’t incorporated quite yet. (And thanks again to those of you who have read the Essay.) Additional comments are of course very welcome.

To summarize the Essay, in its first half I explain that there exist three “core” meanings of overcharging, which commentators frequently collapse together. The differences among these meanings matters, I argue, because not all of the proposed solutions to overcharging address the somewhat distinct, fundamental concerns that lie behind each definition of the term.

In the second half of the piece, I propose some rudimentary metrics for measuring “overcharging,” at least under one definition of the term. I then apply these metrics to a very large database of federal charging and conviction data, and draw therefrom a series of “rankings” of the nation’s U.S. Attorney’s offices. Here, I acknowledge that these measurements provide only modest insight into possibly pervasive overcharging. My principal reason for writing, however, isn’t to dictate a particular form of analysis, but instead to suggest that if people are serious about overcharging being a bad thing that merits condemnation and reform, they should be careful and comprehensive in their efforts to define and track the practice.

Is the U.S. Attorney’s Office for the District of Massachusetts Really “Particularly Immoral”?

As part of the ongoing conversation over the charging practices of federal prosecutors, prompted by the death of Aaron Swartz, one commentator observed that the United States Attorney’s Office for the District of Massachusetts–which prosecuted Swartz–was, based on her experience, “particularly immoral.”

The writer cited only two instances of perceived “immorality” in support of this charge. I suspect the commentator had other examples in mind, but wished to spare readers a series of war stories. But the accusation, as well as the rather slender evidence advanced to support it, got me to wondering. If one wanted to prove that a particular U.S. Attorney’s office was “particularly immoral,” how would one go about doing it?

Since most of the criticisms of the Swartz prosecution sound in perceived “overcharging” by the prosecutors involved, I decided to focus on “overcharging” as evidence of “immorality.” Here, it’s important to define what I mean by “overcharging,” which people use to describe several distinct, though often overlapping, phenomena. In addressing the issue at hand, I concentrated on those species of “overcharging” in which prosecutors allege crimes with the intent to either reduce or dismiss them as part of a plea bargain to other offenses. Attacks on this type of overcharging don’t (necessarily) accuse the prosecutor of filing charges on “insufficient” proof, whatever that means. Instead, the argument accuses the prosecutor of engaging in an illegitimate practice by using criminal charges as bargaining chips.

So, if this practice amounts to overcharging, and this sort of overcharging represents an “immoral” practice, how to measure it? Here, I tapped a series of datasets I have pulled together from data compiled by the Administrative Office of the United States Courts (AOUSC) and the Executive Office for United States Attorneys (EOUSA), which I have used for other purposes in the past. These datasets reflect the disposition of charges filed in cases terminated in United States District Courts between October 2002 and September 2009. The data can be sorted by judicial district, and thereby yield a picture of charge dispositions in each U.S. Attorney’s jurisdiction.

Now, the data have their flaws. They contain some inputting errors, for one thing. Though they are portrayed as comprehensive, I have spotted at least a few missing cases. The data do not distinguish between cases handled by the local U.S. Attorney’s office, and those prosecuted out of Main Justice. Finally, and most important, while the data relate the charges filed against each federal defendant (with the AOUSC data relating only the five “most serious” charges, as measured by base offense level), the records do not include information specific to each offender (such as his or her criminal history). This gap means that  one can’t divine from the data alone where on the Sentencing Guidelines a particular defendant would fall, if convicted.

These limitations mean that the data don’t yield what would represent one useful measure of overcharging–juxtaposing the maximum possible sentence that would adhere in a case, as charged, against the prosecution’s actual plea-bargain demand to the defendant. But one can tap the data in other useful ways. For example, because the data identify the district in which each case was brought, one might parse, shuffle, and collect the data to rank U.S. Attorneys’ offices along the following lines (among others):

Dismissals in Pled Cases: the percentage of charges that were dismissed in cases resolved by guilty or no contest plea. Here, a high dismissal rate would seem suggestive of aggressive charge-bargaining;

“Most Serious Charge” Reductions: the percentage of cases, resolved by plea, in which the offense designated as the “most serious charge” at the time of initial case filing no longer held this status at the time of case termination. Once again, higher dismissal rates would tend to suggest aggressive charge-bargaining; and

Dismissals of “Bargaining Chips” in Pled Cases: the frequency with which, in pled-out cases, prosecutors dismissed a charge that practitioners widely appreciate as a bargaining chip, such as the firearm enhancement found at 18 U.S.C. 924(c).

I concede that none of these metrics come close to perfection. Even assuming the accuracy of the data, they are subject to skewing influences such as docket composition and prosecutorial tactics such as threatening to file a more severe superseding indictment, instead of “bargaining down” an existing case. But if properly understood and limited, these metrics have their uses. Especially to the extent that the data corroborate each other, they may yield “yellow flags,” spotlighting offices whose practices may warrant further scrutiny (or praise).

So, what do these analyses yield? Well, I am writing up a short essay that relates the results, while trying to clarify what is meant by the term “overcharging.” I should have a draft done within the next week or two; toss me a line if you’d like a copy, or if you edit a law review that has very low standards. For now, I’ll just say that many of the same judicial districts tend to pop up again and again at the extremes of these rankings.

And, toward the point of this post, what about the District of Massachusetts? Well, with the caveat that I still need to double-check the data, it appears that this District (meaning, presumably, the U.S. Attorneys who practice there) has built a record that does not suggest pervasive charge manipulation–at least relative to other U.S. Attorney’s offices. Specifically, among federal districts, the District of Massachusetts had either the second- or the third-lowest charge-dismissal rate over the studied time span (the difference depends on whether one relies on the AOUSC data or the EOUSA data on this point). The District also had the seventh-lowest rate of 18 U.S.C. 924(c) plea-deal charge dismissals.

So, while acknowledging that the measures I used don’t exhaust the possible grounds for a finding of “immorality,” I don’t perceive from my preliminary review of the data much substantiation for the charge that the Massachusetts U.S. Attorney’s office is “particularly immoral.”


Some Thoughts on the Computer Fraud and Abuse Act

The death of Aaron Swartz last week has drawn renewed attention to the Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030). If you’ve made it this far in the post, I will assume that you know what the CFAA is, and what it criminalizes.

My aim here isn’t to criticize or defend the CFAA generally, or the Swartz prosecution specifically. Instead, I simply want to offer up some data that fleshes out how, and how often, federal prosecutors have invoked the statute, from which others may draw their own conclusions.

As I explain to anyone who spends more than four minutes with me–which guarantees that very few persons do–I have complied a database of information on all federal prosecutions that terminated in federal district courts between October 2002 and September 2009 (FY 2003 — FY 2009).* The data come from the Administrative Office of the United States Courts (AOUSC), which compiles the information from terminated federal cases and makes it available to researchers through the Interuniversity Consortium for Political and Social Research. Though the data are far from perfect — humans input the information for each case, and humans make mistakes — they shed light on matters such as how often federal prosecutors invoke particular crimes, and what sorts of dispositions these cases produce.

Earlier this evening I ran a few searches on my database,** searching for prosecutions terminated between October 2002 and September 2009 that included at least one count alleged under 18 U.S.C. § 1030.*** (The database includes only the five “most serious” charges, so it doesn’t capture all counts in all cases, but it comes close.) Here’s what I found:

Total Number of § 1030 Cases. Altogether, 905 federal cases that terminated between October 2002 and September 2009 included at least one count under 18 U.S.C. § 1030 among the five “most serious” initial charges, or the five “most serious” charges at the time of case termination. (Note that here, the database identifies each defendant in a multi-defendant case as a separate “case.”)

Year-by-Year Breakdown. The number of filed cases that incorporated at least one 18 U.S.C. § 1030 charge, either at the time of case filing or case termination, increased a bit as the 2002–2009 timeframe progressed. The database contains 115 such cases that were filed in FY 2003; 98 cases filed in FY 2004; 131 cases filed in FY 2005, 143 cases filed in FY 2006, 145 cases filed in FY 2007, 129 filed in FY 2008, and 144 filed in FY 2009. Moreover, the actual number of § 1030 cases filed in FY 2008 and FY 2009 is certainly higher than the numbers above suggest. The database includes only terminated cases, and many cases filed during these fiscal years remained pending as of September 30, 2009, the last day of FY 2009.

Geographic Variation.  Prosecutors in the Central District of California filed the largest number of cases that included at least one § 1030 charge at case initiation or termination (82), followed by the Eastern District of California (48), Southern District of New York (37), the Eastern District of Virginia (also 37), and the Eastern District of Pennsylvania (35). Significantly, these were the only districts that averaged more than five § 1030 cases a year over the seven-year period. About half of all United States districts averaged one, or less than one, § 1030 case per year. The District of Massachusetts, where Swartz was prosecuted, saw sixteen (16) terminated section 1030 cases over the FY2003–FY2009 span.

Case Outcomes. Here, I focused on felony charges brought under 18 U.S.C. § 1030(a). Of the total of 893 counts under this subdivision with recorded dispositions over the studied period, 59 percent led to convictions. Section 1030(a) counts went to trial a bit more often than the “average” crime did. The trial rate of 6.7% for § 1030(a) charges was about half again the overall 4% trial rate for all charges in the dataset–but since only sixty § 1030(a) counts went to trial, it’s probably best not to draw any broad conclusions from this discrepancy. Tried § 1030(a) counts led to acquittals 18.3% of the time, meanwhile, a figure close to the dataset’s overall trial-acquittal rate of approximately 20%.

Sentencing Outcomes. On this point, I looked exclusively at the subset of 18 U.S.C. § 1030 cases in which the AOUSC identified § 1030 as the “most serious” charge at filing. Among these 767 cases, just south of 500**** led to no prison time for the defendant, either because of a dismissal, acquittal, or a sentence upon conviction that called for no custody time. The most commonly appearing prison sentences were pretty low; they were, in order, 12 months (the sentence in 34 cases), 5 months (25 cases), 18 months (also 25 cases), 15 months (14 cases), and 24 months (also 14 cases). But some cases — about 10 percent of all cases that led to a prison term (31 out of 279) — led to prison sentences of 57 months or more. Most of these big-sentence cases, however, also involved charges brought under statutes other than § 1030, as Swartz’s case did.

* * *

The data are open to a variety of interpretations. To get the ball rolling, here are a few thoughts of my own.

First, assuming the perpetuation of the trends discussed above, in most judicial districts there exist a handful of § 1030 prosecutions each year–at most. This fact means that (the applicable sentencing guideline notwithstanding) there exists no established “going rate” for plea bargains involving the offense. The lack of a “going rate” likely enhanced the uncertainty that Swartz internalized as his case progressed. Furthermore, because prosecutors don’t try very many § 1030 cases, they may have an incentive to allege a large number of counts in any given case, in order to enhance the somewhat opaque odds of conviction.

Second, I was somewhat surprised at the list of jurisdictions in which § 1030 prosecutions were most common. I would have thought that the Eastern District of New York  and the Northern District of California would have been among the leaders in CFAA prosecutions. And while these districts weren’t too far behind those listed above (the Northern District of California had 29 prosecutions containing a § 1030 count; the Eastern District of New York, 21), I wonder whether CFAA investigations weren’t prioritized in these districts, or whether U.S. Attorneys in these jurisdictions were, for some reason, relatively apathetic about prosecuting the crime.

Third, the 59 percent conviction rate for section 1030(a) charges is higher than the conviction rates for most of the other frequently alleged federal crimes, suggesting that these counts aren’t used as bargaining chips by federal prosecutors as often as many other crimes are.

* * *

* I’m working on getting some more recent data.

** Here, let me stress that I ran the data while also watching “Archer: Season  Two” on DVD. So please take the numbers presented here with a pinch of salt.

*** This search encompassed four “charge codes”: 18:1030A.F; 18:1030A.M, 18:1030B.F, and 18:1030B.M. The first of these charges was, by far, the most common.

**** There were a handful of AOUSC codes for custodial provisions that I didn’t take the time to decode. Suffice it to say that the number of non-prison outcomes may be as low as 467 and as high as 488, and is probably on the high end of this range.

A Thought on Circuit Splits vs. State / Federal Splits Involving the Fourth Amendment

Over at the Hkolov Cabal, Orin Kerr recently had a post commenting on an upcoming article by Wayne Logan, “Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment.”

It’s an interesting and well-developed article. That said, I am much less concerned with splits across federal circuits, which Professor Logan focuses upon, than with splits between the Fourth Amendment rules adopted by a given state’s courts on the one hand, and the “local” federal Court of Appeals on the other.

Here in California, we have a bunch of these state / federal splits — many of which are due, I suspect, to relatively conservative state courts, limited by Proposition 8 in their application of the exclusionary rule, as contrasted with the somewhat schizophrenic, occasionally hyperliberal Ninth Circuit.  A few weeks ago, I ran a Westlaw search in the CA-CS (California cases) database to illustrate the point. The search yielded 20 hits for this phrasing: ”Fourth Amendment” and (“Ninth Circuit” /p “not binding”).

I discuss two of these divides in my Criminal Procedure class. First, in People v. Thompson (2006), the California Supreme Court held that an officer may enter a residence on probable cause of a recent DUI, in order to preserve evanescent blood-alcohol evidence; in Hopkins v. Bonvicino (2009), the Ninth Circuit respectfully disagreed with this analysis, and found (in a section 1983 civil-suit context) that officers not only could not enter a residence under these circumstances, but they also could not claim qualified immunity for their actions.

Another split arose just a few months ago. In United States v. Murphy (2008), the Ninth Circuit built upon the United States Supreme Court’s decision in Georgia v. Randolph (2006) to hold that an “equal co-occupant” ‘s objection to the search of a premise prevails over a co-occupant’s consent to such a search, even after the objecting co-occupant has been removed, lawfully, from the premise. This past August, in People v. Fernandez, a California Court of Appeal joined the majority of courts to have addressed this issue in holding that under the circumstances, officers properly can rely upon the co-occupant’s grant of consent.

Why are these state / federal splits at least as, and possibly more important than circuit splits? Well, more so than intercircuit splits, state / federal divides sow confusion in specific police officers, and police departments. Take, for example, the Thompson / Hopkins divide. State courts say that blood-alcohol evidence obtained as a result of an entry on probable cause will be admissible in a criminal prosecution; at the same time, the Ninth Circuit says that officers will be held civilly liable if they enter to seize this evidence.  In a given investigatory circumstance that might implicate this split, what should officers do? How should they be trained? Perhaps most important, are they even going to be aware of the existence of two sets of applicable rules?

All this is not to say that intercircuit splits aren’t consequential. But at least these splits might be justified by regional variations in the “amount” of Fourth Amendment protections that are desired (an analysis with which Professor Logan disagrees), and only rarely generate confusion within particular police departments, and officers.

Anyway, just a thought. Professor Logan states in a footnote to his article that he’ll look at state / federal divides in a future work; I look forward to his thoughts on the subject.

United States v. Jones (the GPS case): the Motion to Suppress and Other Court Documents

I haven’t figured out quite yet how I’m going to integrate the United States Supreme Court’s recent decision in United States v. Jones into my criminal procedure course next fall.  (I’d better figure it out pretty fast, since I’m teaching the course at two different schools next semester. Eep.)

To get a better grasp of the facts behind the decision, I downloaded the pertinent Motion to Suppress (as later supplemented, and with its exhibits), Opposition Brief, and Order from the originating United States District Court’s website, via PACER. I’ve made these documents available at this link, if any of you want to download them for your own use.

Just as a head’s up, the “lead” document on this web page is Jones’ Omnibus Pretrial Motion (with its attack on the GPS device being found at pages 17-18 of the motion); links to other, related documents, including the Supplement to the Omnibus Motion (in which Jones raised additional arguments regarding the use of the GPS device) can be found at the bottom of the page.