Connecticut Public Interest Law Journal

CONNECTICUT PUBLIC INTEREST LAW JOURNAL

VOLUME 16 WINTER 2017 NUMBER 1

CONTENTS

ARTICLES

Immigration Detention in the Risk Classification Era ...... 1 Robert Koulish

Parsons’s Charge: The Strange Origins of Stand Your Ground ...... 39 Daniel L. Breen

The Word that Cannot Be Spoken: Notes from the Jurisprudential Underground ...... 80 Stephen Feldman

NOTES & COMMENTS

Getting DPA Review and Rejection Right ...... 101 Elizabeth Daniels

Once was Enough: Extending the Double Jeopardy Clause to Prohibit the Reprosecution of Defendants Who Were Wrongfully Convicted Because of Official Misconduct ...... 128 Jaclyn Kurin

CONNECTICUT PUBLIC INTEREST LAW JOURNAL

VOLUME 16 WINTER 2017 NUMBER 1

Editor-in-Chief Drew J. Cunningham Managing Editor Dorothy Diaz-Hennessey Assistant Managing Editor Miriam Elisa Hasbún Administrative Editor Kristie Beahm Senior Articles Editor Heidi Schneider Technology Editor Evelyn O’Regan Articles Editors Kaitlin Kontyko Shannon Noonan Cara Passaro Executive Editors Kristin Ahern John Crowell-Mackie Stephanie Helfrich Mayra Reyes Notes & Comments Editors Kacie Emerick Ashley Palma Cassandra Pilczak Nico Piscopo Nathaniel Pranaitis Symposium Editors Julie Leighton Scott Seger Membership Editor Stacey Samuel

Associate Editors

Gideon Asemnor Kelsey Bannon Sara Bonaiuto Benjamin Cantor John Conway Patricia Jackson Margaret Jaffe Alexandria McFarlane Nicole O’Connor Stephanie O’Loughlin Je’Quana Orr Laura Raymond Mark Vanaman, Jr. Igers Vangjeli

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Jill Anderson

The Connecticut Public Interest Law Journal (ISSN 1932-2038) is published in the fall and spring of each year by the Connecticut Public Interest Law Journal, University of Connecticut School of Law, 55 Elizabeth Street, Hartford, Connecticut 06105, and printed by Western Newspaper Publishing Company, Inc., 537 East Ohio Street, Indianapolis, Indiana 46204. Periodicals postage paid at Hartford, Connecticut and additional mailing offices.

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UNIVERSITY OF CONNECTICUT SCHOOL OF LAW

FACULTY AND OFFICERS OF ADMINISTRATION FOR THE ACADEMIC YEAR 2016-2017

Officers of Administration Susan Herbst, Ph.D., President, University of Connecticut Mun Choi, Ph.D., Provost and Executive Vice President for Academic Affairs Timothy S. Fisher, J.D., Dean, School of Law Paul Chill, J.D., Associate Dean for Clinical and Experiential Education Darcy Kirk, J.D., Associate Dean for Academic Affair and Associate Dean for Library and Technology Peter Siegelman, Ph.D., Associate Dean for Research and Faculty Development Karen L. DeMeola, J.D., Assistant Dean for Enrollment and Students

Faculty Emeriti Robin Barnes, B.A., J.D., Professor of Law, Emerita Phillip I. Blumberg, A.B., J.D., LL.D. (Hon.), Dean and Professor of Law and Business, Emeritus John C. Brittain, B.A., J.D., Professor of Law, Emeritus Deborah A. Calloway, B.A.; J.D., Professor of Law, Emerita Clifford Davis, S.B., LL.B., Professor of Law, Emeritus Hugh C. Macgill, B.A., LL.B., Dean and Professor of Law, Emeritus Patricia A. McCoy, B.A., J.D., Professor of Law Emerita R. Kent Newmyer, Professor of Law and History, Emeritus Nell J. Newton, B.A., J.D., Dean and Professor of Law, Emerita Leonard Orland, B.A., LL.B., Professor of Law, Emeritus Jeremy R. Paul, A.B., J.D., Dean and Professor of Law, Emeritus Howard Sacks, A.B., LL.B., Dean and Professor of Law, Emeritus George Schatzki, A.B., LL.B., LL.M., Dean and Professor of Law, Emeritus Eileen Silverstein, A.D., J.D., Professor of Law, Emerita Lester B. Snyder, B.S., LL.B., LL.M., Professor of Law, Emeritus Kurt Strasser, B.A., J.D., LL.M., J.S.D., Professor of Law Emeritus Colin C. Tait, B.A., LL.B., Professor of Law, Emeritus Carol Weisbrod, J.D., Professor of Law, Emerita Robert Whitman, B.B.A., J.D., LL.M., Professor of Law, Emeritus Nicholas Wolfson, A.B., J.D., Professor of Law, Emeritus

Faculty of Law Jill Anderson, B.A., University of Washington; J.D., Columbia University; Professor of Law Paul Bader, B.A., Duke University; J.D., Mercer University Walter F. George School of Law; Assistant Clinical Professor of Law Jon Bauer, A.B., Cornell University; J.D., Yale University; Richard D. Tulisano ’69 Human Rights Scholar and Clinical Professor of Law Loftus E. Becker, Jr., A.B., Harvard College; LL.B., University of Pennsylvania; Professor of Law Bethany Berger, B.A., Wesleyan University; J.D., Yale University; Wallace Stevens. Professor of Law Robert Birmingham, A.B., J.D., Ph.D. (Econ.), Ph.D. (Phil.), University of Pittsburgh; LL.M., Harvard University; Professor of Law Sara Bronin, B.A., University of Texas; M.Sc., University of Oxford (Magdalen College); J.D., Yale University; Thomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law Jessica Anna Cabot, B.A., Amherst College; J.D., American University Washington College of Law; William R. Davis Clinical Teaching Fellow Paul Chill, B.A., Wesleyan University; J.D., University of Connecticut; Associate Dean for Clinical and Experiential Education and Clinical Professor of Law John A. Cogan, Jr., B.A., University of Massachusetts Amherst; M.A., University of Texas; J.D., University of Texas School of Law; Associate Professor of Law and Roger S. Baldwin Scholar Mathilde Cohen, B.A., M.A., L.L.B., Sorbonne-École Normale Supérieure; LL.M., J.S.D., Columbia University, Associate Professor of Law and Robert D. Glass Scholar

Diane F. Covello, B.S., University of Kansas; J.D., Duke University School of Law; Assistant Clinical Professor of Law Anne C. Dailey, B.A., Yale University; J.D., Harvard University; Evangeline Starr Professor of Law Miguel F. P. de Figueiredo, B.A., Johns Hopkins University; M.A., University of Chicago; Ph.D., University of California, Berkeley; J.D., Yale University; Associate Professor of Law and Terry J. Tondro Research Scholar Timothy H. Everett, B.A., M.A., Clark University; J.D., University of Connecticut; Clinical Professor of Law Todd D. Fernow, B.A., Cornell University; J.D., University of Connecticut; Professor of Law and Director, Criminal Law Clinic Richard Michael Fischl, B.A., University of Illinois; J.D., Harvard University; Professor of Law Timothy S. Fisher, B.A., Yale University; J.D., Columbia University; Dean and Professor of Law Linda Gebauer, B.A., College of Wooster; J.D., Ohio State University; B.S., Cleveland State University; Assistant Clinical Professor of Law and Director, Intellectual Property and Entrepreneurship Law Clinic Hillary Greene, B.A., J.D., Yale University; Zephaniah Swift Professor of Law Mark W. Janis, A.B., Princeton University; B.A., M.A., Oxford University; J.D., Harvard University; William F. Starr Professor of Law Dalié Jiménez, B.S., Massachusetts Institute of Technology; J.D. Harvard Law School; Associate Professor of Law and Jeremy Bentham Scholar Richard S. Kay, A.B., Brandeis University; M.A.; Yale University; J.D., Harvard University; Wallace Stevens Professor of Law Emeritus and Oliver Ellsworth Research Professor of Law Darcy Kirk, A.B., Vassar College; M.S., M.B.A., Simmons College; J.D., Boston College; Professor of Law and Associate Dean for Academic Affairs and Associate Dean for Library & Technology Peter R. Kochenburger, A.B., Yale University; J.D., Harvard University; Associate Clinical Professor of Law, Executive Director of the Insurance LL.M. Program and Deputy Director of the Insurance Law Center Lewis S. Kurlantzick, B.A., Wesleyan University; LL.B., Harvard University; Zephaniah Swift Professor of Law Eneritus and Oliver Ellsworth Research Professor of Law James Kwak, A.B., Harvard College; Ph.D., University of California at Berkeley; J.D., Yale Law School; Professor of Law Alexandra Lahav, A.B., Brown University; J.D., Harvard University; Ellen Ash Peters Professor of Law Molly K. Land, B.A., Hamline University; J.D., Yale; Professor of Law and Associate Director of Human Rights Institute Leslie C. Levin, B.S.J., Northwestern University; J.D., Columbia University; Joel Barlow Professor of Law Peter L. Lindseth, B.A., J.D., Cornell University; M.A., M. Phil, Ph.D., Columbia University; Olimpiad S. Ioffe Professor of International and Comparative Law and Director, International Programs Joseph A. MacDougald, A.B., Brown University; M.B.A., New York University; J.D., University of Connecticut; M.E.M., Yale University; Professor-in-Residence; Executive Director, Center for Energy and Environmental Law; and Kurt Strasser Fellow Brendan S. Maher, A.B., Stanford; J.D. Harvard University; Professor of Law and Director of the Insurance Law Center Jennifer Brown Mailly, A.B., Brown University; J.D., Ohio State University; Assistant Clinical Professor of Law and Externship Director Jeremy R. McClane, B.A., Michigan State University; J.D., Harvard University; Associate Professor of Law and Cornelius J. Scanlon Research Scholar Barbara McGrath, B.A., Yale University; J.D., University of Connecticut; Executive Director, Connecticut Urban Legal Initiative, Inc. Willajeanne F. McLean, B.A., Wellesley College; B.S., University of Massachusetts; J.D., Fordham University; LL.M., Free University of Brussels; Professor of Law Thomas H. Morawetz, A.B., Harvard College; J.D., M.Phil., Ph.D., Yale University; Tapping Reeve Professor of Law and Ethics Ángel R. Oquendo, A.B., M.A., Ph.D., Harvard University; J.D., Yale University; George J. and Helen M. England Professor of Law

Sachin Pandya, B.A., University of California, Berkeley; M.A., Columbia University; J.D., Yale University; Professor of Law Richard W. Parker, A.B., Princeton University; J.D., Yale University; D.Phil., Oxford University; Professor of Law Lisa Perkins, B.S., J.D., Michigan State University; LL.M., Georgetown University Law Center; Associate Clinical Professor of Law and Director, Tax Clinic Hon. Ellen Ash Peters, B.A., Swarthmore College; LL.B., Yale University; LL.D., Yale University; University of Connecticut; et al.; Visiting Professor of Law Richard D. Pomp, B.S., University of Michigan; J.D., Harvard University; Alva P. Loiselle Professor of Law Jessica S. Rubin, B.S., J.D., Cornell University; Assistant Clinical Professor of Law Susan R. Schmeiser, A.B., Princeton University; J.D., Yale University; Ph.D., Brown University; Professor of Law Peter Siegelman, B.A., Swarthmore College; M.S.L., Ph.D., Yale University; Associate Dean for Research and Faculty Development and Phillip I. Blumberg Professor of Law Julia Simon-Kerr, B.A., Wesleyan University; J.D., Yale Law School; Associate Professor of Law and Ralph and Doris Hansmann Scholar Douglas Spencer, B.A., Columbia University; M.P.P., J.D., University of California Berkeley; Associate Professor of Law and Roger S. Baldwin Scholar James H. Stark, A.B., Cornell University; J.D., Columbia University; Roger Sherman Professor of Law and Director, Mediation Clinic Martha Stone, B.A., Wheaton College; J.D., LL.M., Georgetown University; Director, Center for Children’s Advocacy Stephen G. Utz, B.A., Louisiana State University; J.D., University of Texas; Ph.D., Cambridge University; Professor of Law Steven Wilf, B.S., Arizona State University; Ph.D., J.D., Yale University; Anthony J. Smits Professor of Global Commerce and Professor of Law Richard A. Wilson, BSc., Ph.D., London School of Economics and Political Science; Gladstein Chair and Professor of Anthropology and Law

Adjunct Faculty of Law Elizabeth Alquist, B.A., Mount Saint Mary College; J.D., University of Connecticut; Adjunct Professor of Law Morris W. Banks, A.B., Dartmouth College; LL.B., Columbia University; LL.M., New York University; Adjunct Professor of Law Anne D. Barry, B.S., University of Connecticut; M.S., Union College; J.D., University of Connecticut; Adjunct Professor of Law James W. Bergenn, B.A., Catholic University; J.D., Columbia University; Adjunct Professor of Law Hon. David M. Borden, B.A., Amherst College; LL.B., Harvard University; Adjunct Professor of Law Leonard C. Boyle, B.A., University of Hartford; J.D., University of Connecticut; Adjunct Professor of Law Michael A. Cantor, B.S., J.D., University of Connecticut; Adjunct Professor of Law Dean M. Cordiano, B.A., SUNY-Binghamton; J.D., Duke University; Adjunct Professor of Law Evan D. Flaschen, B.A., Wesleyan University; J.D., University of Connecticut; Adjunct Professor of Law Ira H. Goldman, B.A., Cornell University; J.D., Yale University; Adjunct Professor of Law Andrew S. Groher, B.A., University of Virginia; J.D., University of Connecticut; Adjunct Professor of Law Albert B. Harper, B.A., University of Texas; J.D., Ph.D., University of Connecticut; Adjunct Professor of Law Wesley Horton, B.A., Harvard University; J.D., University of Connecticut; Adjunct Professor of Law John J. Houlihan, Jr., B.A., Providence College; J.D., St. John’s University; Adjunct Professor of Law Daniel Klau, B.A., University of California; J.D., Boston University; Adjunct Professor of Law John Lawrence, B.S., Washington and Lee University; J.D., University of Virginia; Adjunct Professor of Law

Henry C. Lee, B.S., John Jay College of Criminal Justice; M.S., Ph.D., New York University; Dr.Sci. (Hon.), University of New Haven; Dr.Hum. (Hon.), St. Joseph College; Adjunct Professor of Law Thomas S. Marrion, A.B., College of the Holy Cross; J.D., University of Connecticut; Adjunct Professor of Law Joseph Mirrione, B.A., Marist College; J.D., Vermont Law School; Adjunct Professor of Law Thomas B. Mooney, B.A., Yale University; J.D., Harvard University; Adjunct Professor of Law Andrew J. O’Keefe, B.S., College of the Holy Cross; J.D., University of Connecticut; Adjunct Professor of Law Cornelius O’Leary, B.A., Williams College; M.A., Trinity College; J.D., University of Connecticut; Adjunct Professor of Law and Mark A. Weinstein Clinical Teaching Fellow Humbert J. Polito, Jr., A.B., College of the Holy Cross; J.D., University of Connecticut; Adjunct Professor of Law Elliott B. Pollack, A.B., Columbia College; LL.B., Columbia Law School; Adjunct Professor of Law Leah M. Reimer, B.S. Baylor University; J.D., University of Connecticut; Ph.D., Stanford University; Adjunct Professor of Law Patrick J. Salve, B.S., J.D., University of Pennsylvania; Adjunct Professor of Law Hon. Michael R. Sheldon, A.B., Princeton University; J.D., Yale University; Adjunct Professor of Law Jay E. Sicklick, B.A., Colgate University; J.D., Boston College; Adjunct Professor of Law Walter C. Welsh, B.S., Tufts Engineering; J.D., University of Connecticut; LL.M., New York University; Adjunct Professor of Law

CONNECTICUT PUBLIC INTEREST LAW JOURNAL

VOLUME 16 WINTER 2017 NUMBER 1

Immigration Detention in the Risk Classification Assessment Era

ROBERT KOULISH

This article provides the first empirical analysis of Immigration and Customs Enforcement’s (“ICE’s”) new computerized “risk assessment tool” for making custody decisions. The article analyzes risk assessment decisions by ICE’s Baltimore Field Office by examining decision summaries containing detailed criminal, immigration, and family histories gained from records and intake interviews. It provides a first take on whether risk assessment can viably reconcile “tough and humane enforcement.” The data set consists of almost six hundred risk assessment summaries from ICE’s Baltimore FOD databases, from approximately March to July 2013, concurrent with ICE’s March 2013 announcement that ICE nationally deployed risk assessment.

ARTICLE CONTENTS I. INTRODUCTION AND SUMMARY OF FINDINGS...... 3 II. U.S. IMMIGRATION DETENTION: THE STATUTORY FRAMEWORK ...... 8 A. Mandatory Detention ...... 9 1. Mandatory Detention for Prior Crimes ...... 9 2. Mandatory Detention in Non-Judicial Removal Proceedings ...... 10 B. Discretionary Detention ...... 12 C. Congress’s National Bed Minimum Requirement ...... 12 III. ICE’S RISK CLASSIFICATION ASSESSMENT (RCA) ...... 13 A. ICE’s RCA in Practice ...... 15 IV. FINDINGS: RCA IN PRACTICE IN THE BALTIMORE ICE OFFICE ...... 18 A. Mandatory Detention ...... 18 B. The Influence of Public Safety and Flight Risk Assessments on Detention Outcomes in Discretionary Cases ...... 20 C. ICE Supervisor Overrides of RCA Recommendations ...... 23 D. Population Characteristics Informing Public Safety and Flight Risk Recommendations ...... 27 V. DISCUSSION AND RECOMMENDATIONS ...... 29 A. Mandatory Detention for Prior Crimes and in Non-Judicial Removals Prevents Release of Low-Risk Individuals ...... 30 B. ICE’s Restrained Use of Alternatives to Detention for High Flight Risk, Low Public Safety Risk Individuals, Notwithstanding DHS Priorities ...... 33 C. A Special Vulnerability Did Not Dramatically Affect Detention Outcomes, Notwithstanding DHS Priorities ...... 34 D. The Congressional Detention Bed Minimum and RCA Public Safety Risk Assessments ...... 35 E. Immigration Enforcement Against Criminal Violators with U.S. Families ...... 36 VI. CONCLUSION ...... 36

Immigration Detention in the Risk Classification Assessment Era

ROBERT KOULISH†

I. INTRODUCTION AND SUMMARY OF FINDINGS Since 2013,1 Immigration and Customs Enforcement (ICE) has had the capacity to tailor immigration detention to those who are truly dangerous and to release others into community supervision for monitoring.2 Between 1996 and 2013, Congress relied on mandatory detention provisions (such as mandatory detention3 and minimum bed mandates4) and agency discretion to contain “violent aliens” and ensure immigrant appearances in court. In this article, I argue that these far-reaching punitive measures have become anachronistic in the risk era,5 a sentiment echoed by multiple 2016 presidential candidates6 and congressional members, who see the measures as wasteful, overbroad, and a violation of civil liberties.

† Robert Koulish, Ph.D. is a political scientist at the University of Maryland. He is Joel J. Feller Research Professor in the Government and Politics Department, Director of MLAW Programs, and Lecturer of Law at UMD Carey School of Law. He wishes to acknowledge Tim Dekkers for his assistance on this article, Jose Cabezas, Maartje van der Woude, Maria Joao-Guia, Juliet Stumpf, Cesar Cuauhtemoc Garcia Hernandez, Lindsay Bramble and the many panelists and attendees at Law and Society Meetings since 2013 and formal and informal gatherings of the CINETS Crimmigration Control Net of Studies. The author is extremely grateful to his family: Stephanie, Valen, Olivia and Julian, whose patience, love and support are beyond words, and finally deep gratitude to those who have requested anonymity. 1 See U.S. DEP’T OF HOMELAND SEC., Office of Inspector Gen, OIG-15-22, 4 U.S. Immigration and Customs Enforcement Alternatives to Detention (Revised), (2015). https://www.oig.dhs.gov/assets/ Mgmt/2015/OIG_15-22_Feb15.pdf. 2 See U.S. DEP’T OF HOMELAND SEC, U.S. Immigration and Customs Enforcement Salaries and Expenses, Fiscal Year 2015 Congressional Justification, 64–66 (Feb. 2015) (ICE stated goals to “focus costly detention space on criminal and priority aliens,” and “[c]ontinue to prioritize aliens for ATD who present the highest risk of flight.”). 3 8 U.S.C. § 1226(c) (2012); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208 (1996). 4 Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 2(f)(II), 129 STAT. 2244, 257-58 (2015) (“funding made available under this heading shall maintain a level of not less than 34,000 detention beds”), https://www.congress.gov/bill/114th-congress/house-bill/2029/text. 5 See ULRICH BECK, RISK SOCIETY: TOWARDS A NEW MODERNITY (Sage Publications ed., 1992) (1986), for general discussion of the risk era. 6 Tierney Sneed, Clinton Criticizes Immigrant Detentions Under Obama, U.S. NEWS & WORLD REPORT, (May 6, 2015) (former Secretary Clinton: “[T]here is actually a legal requirement that so many beds be filled. So people go out and round up people in order to get paid on a per-bed basis. I mean that just makes no sense at all to me.”), http://usnews.com/news/articles/2015/05/06/hillary- clinton-criticizes-immigrant-detention-practices-under-obama; Bernie Sanders, A Fair and Humane Immigration Policy, BERNIE SANDERS (last accessed January 18, 2016), https://berniesanders.com/

4 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1

This article presents an empirical investigation of how, through risk assessment, ICE has detained a record-breaking 2.5 million immigrants during the Obama Administration, which early on announced its intention to oversee the decriminalization of immigration detention and its desire to see the use of detention limited to those who really need it.7 In 2009, an ICE study (the Schriro Report) recommended that ICE adopt risk assessment8—an actuarial tool designed to prioritize serious public safety risks using detailed, evidence-based assessments of individuals. ICE adapted the Risk Classification Assessment from the criminal justice system, where similar tools have reduced pretrial detention levels.9 In January 2013, ICE fully deployed RCA nationwide.10 As imagined in the Schriro Report, risk assessment would help serve as a technological palliative to the problem of draconian over-detention. It would improve the uniformity of detention decisions, effectively identify dangerous individuals, and increase ICE’s successful use of alternatives to detention (ATD). With RCA, ICE could limit detention for those identified with a “propensity for violence,” which the Report said was distinct from that of the criminally incarcerated.11 Plans for RCA also signaled new ICE enforcement priorities around dangerousness. In 2010, ICE Director John Morton revised ICE’s enforcement priorities to identify national security and public safety dangers as ICE’s “highest immigration enforcement priority.” Priority One thus included noncitizens convicted of crimes, especially “violent criminals, felons, and repeat offenders.”12 In November 2014, DHS Secretary Johnson clarified these priorities further. Today, Priority One includes those convicted of “aggravated felonies” or a state felony (other

issues/a-fair-and-humane-immigration-policy/ (advocating that “Congress defund the detention bed quota”). 7 Dora Schriro, Immigration Detention Overview and Recommendations 3 (Washington, DC: U.S. Immigration and Customs Enforcement (ICE), 2009), http://www.ice.gov/doclib/about/offices/ odpp/pdf/ice-detention-rpt.pdf. 8 Id. 9 See Pretrial Justice Institute, Pretrial Risk Assessment 101: Science Provides Guidance on Managing Defendants (Gaithersburg, MD: Pretrial Justice Institute, 2012), www.pretrial.org/ Featured%20Resources%20Documents/PJI%20Risk%20Assessment%20101%20(2012).pdf. 10 OIG-15-22, supra note 1, at 4. 11 Id. at 2, 17, 21. 12 Memorandum from U.S. Immigr. and Customs Enf’t Assistant Secretary John Morton, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, 2 (June 30, 2010) https://www.ice.gov/doclib/news/releases/2010/civil-enforcement-priorities.pdf. Within Priority One, the memo further defined sub-priorities as Level 1, those convicted of “aggravated felonies” or two felonies; Level 2, those convicted of any felony or three misdemeanors; and Level 3, those convicted of misdemeanors. Recent illegal entrants were Priority Two, and those with prior removal orders were Priority Three. Id. at 2–3.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 5 than an offense containing immigration status as an element). Priority Two includes those convicted of three misdemeanors arising out of separate incidents, or a “significant misdemeanor,” generally including convictions for which the penalty exceeds 90 days or certain domestic violence, driving under the influence (DUI), burglary, firearms, sexual abuse, and drug crimes. Priority Three includes those with removal orders issued after January 1, 2014.13 According to the enforcement priorities set in 2010 and 2014, ICE should reserve detention for noncitizens meeting public safety based priorities, or for those whom Congress mandated be detained.14 There is substantial overlap between these two groups, as Congress has mandated detention for individuals convicted of most felonies and many types of misdemeanors. Although ICE’s enforcement priorities failed to substantively discuss the role that flight risk should play in ICE’s detention decision making, ICE’s budget requests for supervised release programs, also known as “alternatives to detention” (ATD), 15 clearly refers to plans for flight risk assessment. Besides, flight risk is a central part of RCA assessment protocol even though ICE’s RCA guidance to its officers has emphasized that the “intended goal” of RCA methodology was “optimizing public safety,” rather than focusing on flight risk.16 With RCA and ATD, ICE would have capacity to achieve its enforcement priorities while also leaving detention as a last resort. Thus, ICE’s use of its RCA tool fits within a broader effort by U.S. Department of Homeland Security (DHS) in the Obama Administration—particularly since November 2014—to focus immigration enforcement resources on

13 Memorandum from U.S. Dep’t of Homeland Sec. Secretary Jeh Johnson, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants, 3–4 (November 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf. See also Memorandum from U.S. Dep’t of Homeland Sec. Secretary Jeh Johnson, Secure Communities, 2, (November 20, 2014), (changing policy to limit ICE detainer requests to requests for notification, for those in the first two priorities, only with criminal convictions) http://www.dhs.gov/sites/default/files/ publications/14_1120_memo_secure_communities.pdf. 14 Memorandum from U.S. Immigr. and Customs Enf’t Director John Morton, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, 3 (March 2, 2011), (“As a general rule, ICE detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law.”), https://www.ice.gov/doclib/news/releases/ 2011/110302washingtondc.pdf; Johnson, supra note 12, at 5 (similar). 15 U.S. DEP’T OF HOMELAND SEC, supra note 2. (ICE stated goals to “focus costly detention space on criminal and priority aliens,” and “[c]ontinue to prioritize aliens for ATD who present the highest risk of flight.”). 16 U.S. Dep’t of Immigrations and Customs Enf’t, RCA Quick Reference Guide 1.0 May 2012, http://www.americanimmigrationcouncil.org/sites/default/files/docs/lac/RCA%20Materials%20/ICE% 20RCA%20Materials%20%20RCA%20Quick%20Reference%20Guide%201.0,%20May%202012.pdf.

6 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 high priority cases and exercise discretion in other ones.17 But the degree to which RCA will reduce U.S. detention numbers remains unclear. To date, risk assessment appears to have had a minimal impact on ICE’s high rates of detention. According to a recent DHS Inspector General report, nationally, ICE detained 91.4 percent of those individuals upon whom ICE conducted RCA between July 30, 2012 and December 31, 2013.18 This article investigates the relationship between ICE enforcement priorities and mass detention at a time when computers increasingly make important legal decisions that affect individual liberty in the immigration context. Despite RCA’s promise, this article explains the limited impact of RCA on ICE detention outcomes (herein referred to as the Study) by analyzing 592 risk assessments that ICE’s Baltimore Field Office performed in spring 2013, based on data provided to the author through the Freedom of Information Act (FOIA). Similar to national rates, according to the Study ICE’s Baltimore office detained about 82 percent of those individuals upon whom ICE conducted RCA. From analyzing ICE’s Baltimore decisions, three primary factors explain the limited impact of ICE’s use of RCA on detention outcomes. First and foremost, statutory mandatory detention provisions prevent ICE from releasing a majority of its arrestees, including many that RCA identified as low public safety risks.19 The findings below show that nearly two-thirds (63 percent) of ICE’s Baltimore arrestees, identifiable as entering a particular type of removal process at the time ICE ran RCA, were classified as mandatorily detainable.20 In the future, the rates of those mandatorily detained are likely to increase, since DHS in November 2014 narrowed its enforcement priorities to those with serious criminal

17 See ROSENBLUM & MCCABE, DEPORTATION AND DISCRETION: REVIEWING THE RECORD AND OPTIONS FOR CHANGE 1–7 (Washington, DC: Migration Policy Institute, 2014), http://www. migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-change. 18 OIG-15-22, supra note 1, at 11–12, 25. In fiscal year 2013, ICE detained nearly 441,000 individuals nationally; JOHN SIMANSKI, IMMIGRATION ENFORCEMENT ACTIONS: 2013 (Washington, DC: DHS Office of Immigration Statistics, 2014), 5, https://www.dhs.gov/sites/default/files/publications/ois_ enforcement_ar_2013.pdf. 19 SHEBAYA & KOULISH, DETAINED WITHOUT PROCESS: THE EXCESSIVE USE OF MANDATORY DETENTION AGAINST MARYLAND’S IMMIGRANTS, (ACLU, 2016). 20 This report is the first to report a rate of mandatory detention among ICE arrestees. Nationally, U.S. GAO reported that 77 to 80 percent of noncitizens in detention facilities were mandatorily detained, from FY 2011 through FY 2013. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-15-26, 28, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness (2014). http://www.gao.gov/products/GAO-15-26. However, the percentage of those in detention facilities that are mandatorily detained may differ from the percentage of those arrested that are mandatorily detained.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 7 convictions, those apprehended at the border, and those with recent prior immigration violations.21 Second, ICE’s RCA tool classified a surprisingly large share of ICE arrestees as medium and high flight risks. This in turn resulted in high rates of detention recommendations even for those whom ICE had discretion to release. RCA identified only 4.9 percent as low flight risk (and correspondingly, only 1.7 percent as low flight risk and low public safety risk), while identifying 59.1 percent as high flight risk. In turn, RCA recommended only 0.8 percent of arrestees for release in Baltimore, similar to the nationally reported rate.22 Meanwhile, despite the focus on public safety in DHS’s formal enforcement priorities, public safety did not appear to be the primary determining factor in who was detained or not. The public safety risk of those detained in the Baltimore sample differed little from those released. Third, while ICE supervisors have the authority to override RCA recommendations, supervisors usually accepted the detention recommendations and overrode most of the few release recommendations. Overall, in the Baltimore sample, RCA recommended detention in 77.2 percent of cases, and ICE supervisors decided to detain 81.1 percent of cases.23 Furthermore, when RCA tasked supervisors with making a detention determination in 20.9 percent of cases, they opted to detain subjects in a majority (57.1 percent) of those cases as well.24 Given these three factors—mandatory detention provisions, RCA’s tendency to identify individuals as higher flight risks and recommend them for discretionary detention, and supervisors’ acceptance or independent choice of recommendations to detain—it appears unlikely that RCA as implemented in spring 2013 will facilitate reductions in detention. Additionally, these findings—and the data underlying them—more broadly inform public debate on several intersections between risk, ICE’s use of detention, DHS and ICE enforcement priorities, and Congressional detention mandates.25 For example, while ICE’s adherence to

21 U.S. DEP’T OF HOMELAND SEC., Fixing Our Broken Immigration System Through Executive Action - Key Facts, DHS (accessed January 18, 2016), http://www.dhs.gov/immigration-action. 22 Nationally, from July 30, 2012 to December 31, 2013, RCA recommended 0.6 percent for release on community supervision (1,558 out of 228,095). OIG-15-22, supra note 1, at 11, 25. The DHS Inspector General report did not report public safety and flight risk assessments. 23 Based on data pursuant to FOIA, from March-July, 2013. 24 Id. 25 Comprehensive immigration reform which passed the Senate but not the House in 2013 would have required ICE to report annually to Congress on “risk assessment results… including if the alien is subject to mandatory custody or detention.” Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong., 1st sess., § 3720(b)(10), (e).

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Congressional mandatory detention provisions may impede ICE’s efforts to tailor detention to public safety risks, advocates have asked DHS to reinterpret the statutory provision that mandates custody for individuals with certain prior crimes, and `2nto change its RCA process to account for asylum seekers found to have a credible fear of persecution. And while ICE continues to prioritize detention of public safety threats and aims to place high flight risks into ATD supervised release programs, ICE nevertheless detained most of the individuals in Baltimore that RCA assessed as low public safety but high flight risk. If similar nationwide, such findings would validate arguments that ATD programs have successfully ensured appearance at proceedings at lower cost.26 Further, mandatory detention provisions and ICE supervisor decisions led to the detention of many with special vulnerabilities, such as primary caretakers, the elderly, ill, persecuted, and LGBT individuals, even though ICE has de-prioritized their detention, and RCA specifically identifies those individuals.27 Moreover, if the nationwide population has a similarly low share of low public safety risks, such RCA assessments would undercut the rationale for Congress’ mandated national bed minimum of “not less than 34,000 detention beds daily.”28 Lastly, while President Obama has stated his intention that DHS focus enforcement on “felons, not families,”29 the Baltimore data suggest it will be difficult in practice to detain and deport criminal offenders without deporting some parents and other family members.

II. U.S. IMMIGRATION DETENTION: THE STATUTORY FRAMEWORK Decisions to detain are governed by the terms of section 236 of the Immigration and Naturalization Act (INA), 8 U.S.C. 1226. When taking a noncitizen into custody, ICE officers must decide whether to detain the individual or release him or her pending deportation. Two basic steps are involved in this decision. First, ICE determines whether the noncitizen individual is a member of certain classes that must be detained until their deportation proceedings end, per U.S. Congressional mandates (subject to

26 GAO-15-26, supra note 19, at 18, 30 (95 percent of those in the U.S. ATD program appear at a final removal hearing, and ATD costs U.S. $10.55 per day versus $158 per day for detention). 27 See infra § III.A. 28 See DORIS MEISSNER, DONALD M. KERWIN, MUZAFFAR CHISHTI AND CLAIRE BERGERON, IMMIGRATION ENFORCEMENT IN THE UNITED STATES: THE RISE OF A FORMIDABLE MACHINERY, 127 (2013). http://www.migrationpolicy.org/pubs/enforcementpillars.pdf. 29 “We’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families.” Barack Obama, President, Remarks by the President in Address to the Nation on Immigration (November 20, 2014). http://www.whitehouse.gov/the-press-office/2014/11/20/remarks- president-address-nation-immigration.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 9 some court-imposed limits). This is referred to as mandatory detention.30 Second, ICE officers and supervisors may exercise discretion in those cases where Congress has not mandated detention,31 and generally do so based on two categories of risk factors: flight and public safety. Additionally, Congress has mandated that ICE maintain a minimum number of detention beds nationwide on any given day—which may influence ICE to detain certain people who might otherwise be released, though it is unclear whether and how the bed-minimum affects discretion in individual cases. This is referred to as the "bed mandate."

A. Mandatory Detention Congress has imposed mandatory detention at the outset of removal processes on two groups of unauthorized immigrants and other removable noncitizens: (1) those convicted of certain prior crimes, and (2) those placed into non-judicial removal proceedings (i.e., removed administratively by DHS, rather than after a full hearing before an immigration judge). Additionally, at the end of removal processes, Congress has required mandatory detention for 90 days after an immigration judge issues a formal removal order.32

1. Mandatory Detention for Prior Crimes In 1996, against the backdrop of rising anti-immigrant and anti-crime sentiment, Congress mandated in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that immigration enforcement authorities “shall take into custody” pending removal individuals who committed a remarkably broad category of fairly minor crimes, “when the alien is released” from criminal custody.33

30 8 U.S.C. § 1226(c) 31 See id. §1226(a) 32 8 U.S.C. § 1231(a)(2) (2012). (“During the [90-day] removal period, the Attorney General shall detain the alien.”) After a removal order is issued, different statutes and standards apply to ICE’s detention decisions (i.e., 8 U.S.C. § 1231 and accompanying regulations). If ICE is unable to remove the individual within 90 days, ICE may conduct a custody review based primarily on flight risk and public safety risk. 8 C.F.R. § 241.4(d) (2016). Following the review, ICE may choose to continue to detain the noncitizen, or choose to release him or her under supervision. 8 U.S.C. §§ 1231(a)(3), (6) (2012),; 8 C.F.R. §§ 241.4–.5 (2016). Detention, however, may not constitutionally extend beyond a period “reasonably necessary to secure removal,” and the U.S. Supreme Court has held six months to be presumptively reasonable. Zadvydas v. Davis, 533 U.S. 678, 699–701 (2001). However, exceptions exist for individuals deemed to be especially dangerous or security risks. 8 C.F.R. § 241.14 (2016). 33 8 U.S.C. § 1226(c) (2012); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), supra note 3. Mandatorily detained noncitizen can request a conviction review hearing in immigration court. Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999). The noncitizen can appeal that bond redetermination to the Board of Immigration Appeals (BIA). 8 C.F.R. § 236.1(d)(3) (2016).

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The crimes requiring detention without a bond hearing pending removal include “aggravated felonies” and “crimes involving moral turpitude” under federal immigration law,34 which can include drug possession, disorderly conduct, and other relatively minor offenses.35 ICE must ensure that the offense matches those federal definitions before subjecting a noncitizen to mandatory detention. For state crimes—which most noncitizens removed for crimes have committed—the definitions “aggravated felonies” and “crimes involving moral turpitude” differ from state to state.36 As a recent ACLU report found, ICE nearly always resolves legal ambiguity from different states’ definitions of crimes in favor of the government, leaving noncitizens in detention.37 Although there is no public data on individuals mandatorily detained for criminal convictions, this number is potentially significant given the large number that DHS removes following a criminal conviction.38 Mandatory detention applies to lawful permanent residents (LPRs) as well as temporary residents and unauthorized immigrants. However, while ICE must take LPRs before immigration judges for a full removal hearing, ICE may use “administrative removal” on unauthorized immigrants and noncitizens without LPR status who have committed an aggravated felony. When ICE employs administrative removal, immigration judges review neither the removal nor detention.39

2. Mandatory Detention in Non-Judicial Removal Proceedings Congressional immigration laws also require detention for those removed through administrative processes—primarily through “expedited

34 Pursuant to 8 U.S.C. § 1226(c) (2012), DHS mandatorily detains a non-citizen if (s)he has previously committed an aggravated felony, two crimes involving moral turpitude at any time after admission into the US, one crime involving moral turpitude with a term of imprisonment of more than one year, a controlled substance offense, or a firearm offense. 35 See Mark Noferi, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings, 18 MICHIGAN J. OF RACE & L. 63, 84–85 (2012). 36 SHEBAYA & KOULISH, supra note 19. 37 Id. at 12. 38 Forty-five percent of DHS removals in FY 2013 (198,882 of 438,421 cases) were of individuals with a previous criminal conviction, though not all of those convictions were for aggravated felonies or removable offenses. ROSENBLUM & MCCABE, supra note 17, at 13, Table 2. 39 The noncitizen can challenge the removal in writing to DHS within 10 days, but not at a hearing. 8 U.S.C. § 1228(b) (2012); 8 U.S.C. § 1101(a)(43) (2012); 8 C.F.R. § 238.1 (2016); see also Madrane v. Hogan, 520 F. Supp. 2d 654, 656 (M.D. Pa. 2007). From FY 2003 to FY 2013, 3 percent of DHS removals (and 7 percent of interior removals) were administrative removals. ROSENBLUM & MCCABE, supra note 17, at 23.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 11 removal” and “reinstatement of removal.”40 In these cases, DHS removes the noncitizen without a full hearing before an immigration judge. As discussed above, ICE can remove unauthorized immigrants and temporary visa holders through such administrative processes, but not LPRs. Expedited Removal can be applied to certain “arriving aliens” DHS encounters at or within 100 miles of a border with insufficient or improper documents.41 Expedited removals constituted 44 percent of all removals in Fiscal Year 2013 (193,032 individuals).42 IIRIRA mandates detention of those subjected to expedited removal until their actual removal,43 with only limited exceptions, primarily for asylum seekers.44 Unlike the provision regarding prior crimes, this statutory provision specifically mandates “detention,” not just “custody,” for noncitizens in expedited removal proceedings.45 Reinstatement of Removal can apply to a noncitizen apprehended with a prior removal order, which includes both those who returned to the United States after being deported and those who absconded from a removal order and never left.46 Reinstatements constituted 39 percent of all removals in Fiscal Year 2013 (170,247 individuals).47 As with expedited removals, DHS similarly detains all noncitizens with reinstatements of removal orders until their actual removal, with only limited exceptions, primarily for asylum seekers.48 As above, this statutory detention provision mandates “detention,” not just “custody.”49

40 ROSENBLUM & MEISSNER, THE DEPORTATION DILEMMA: RECONCILING TOUGH AND HUMANE ENFORCEMENT 14 (Washington, DC: Migration Policy Institute, 2014), http://www.migrationpolicy. org/research/deportation-dilemma-reconciling-tough-humane-enforcement. 41 8 U.S.C. § 1225(b)(1)(A)(i) (2012); 8 U.S.C. § 1182(a)(6)(C) (2012); 8 U.S.C. § (7)(A)(i)(I) (2012); ROSENBLUM & MEISSNER, supra note 40, at 14 & n.31. The Immigration and Naturalization Service (INS) and DHS recently expanded this category–in 2002, to those encountered in between ports of entry, and in 2004, to those encountered within 100 miles of a US border, or who had not been continuously present in the U.S. for more than 14 days. See MEISSNER ET. AL., supra note 28, at 123. 42 SIMANSKI, supra note 17, at 5. 43 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (2012). 44 If a noncitizen expresses a fear of persecution or requests asylum to an immigration officer, USCIS interviews the noncitizen for credible fear of harm if removal occurred. 8 U.S.C. § 1225(b)(1) (2012). If the noncitizen passes the credible fear interview, (s)he is placed on a different track and referred into in-court removal proceedings. 8 C.F.R. § 235.6 (2016). 45 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (2012) (“Any alien subject to the procedures under this clause shall be detained . . . .”); 8 U.S.C. § 1225 (b)(2)(A) (2012). 46 8 U.S.C. § 1231(a)(5) (2012); 8 C.F.R. § 1241.8 (2016); see also MEISSNER ET. AL., FORMIDABLE MACHINERY 124. 47 SIMANSKI, supra note 17, at 5. 48 8 U.S.C. § 1231(a)(2) (2012); 8 C.F.R. § 1241.8(f) (2016). 49 8 U.S.C. § 1231(a)(2) (2012).

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B. Discretionary Detention Beyond those it is required to detain, ICE has significant discretionary authority to detain individuals whom it places in removal proceedings according to 8 U.S.C. 1226(a). The District Director makes the initial decision to detain, release, or release on bond on a case-by-case basis, ordinarily within 24 hours of the arrest.50 The District Director may initially detain an individual, release him/her, or set a bond of at least $1,500.51 The noncitizen may request a formal bond redetermination hearing in immigration court, at which the noncitizen bears the burden of showing (s)he does not pose a flight risk or danger to the public.52 The noncitizen can appeal the bond decision to the administrative Board of Immigration Appeals, but no further.53 With discretionary decisions to detain, RCA can operate unfettered by either mandatory detention provisions, or other mitigating requirements, like the bed mandate.54 Discretionary decisions can apply the scalpel of risk to ensure ICE detains only those who are likely to harm the community or flee.

C. Congress’s National Bed Minimum Requirement Additionally, a Congressional appropriations provision requires ICE to maintain a minimum number of detention beds, currently a little below 34,000.55 The statutory language is ambiguous as to whether the provision requires an average daily population of detainees (“heads in beds”), or merely the capacity to detain 34,000 daily. Some members of Congress have indicated that their interpretation is the former, though DHS Secretary Jeh Johnson has stated that his interpretation is the latter.56 The average daily population fluctuates throughout the year and from year to year. For example, during Fiscal Year 2013, the year for which the author obtained data on ICE detainees, ICE housed an average of 32,805 detainees each

50 8 C.F.R. § 236.1(d)(1) (2016). 51 8 U.S.C. § 1226(a) (2012). 52 8 C.F.R. § 236.1(c)(1) (2016); 8 C.F.R. § 236.1(d) (2016). 53 8 C.F.R. § 1003.19 (2016). 54 Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, 129 Stat. 2498, Division F, Department of Homeland Security Appropriations Act of 2016, Title II, “U.S. Immigration and Customs Enforcement” (2015) (“funding made available under this heading shall maintain a level of not less than 34,000 detention beds”), https://www.congress.gov/bill/114th-congress/house-bill/ 2029/text. 55 Id. 56 ROSENBLUM & MEISSNER, supra note 40, at 46 & n.124 (detailing DHS Secretary testimony to Congressional members).

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 13 day57 and 34,451 at the end of January 2013.58 This number recently dropped to approximately 26,000 in April 2015, according to reports.59 Federal government auditors found that the national bed minimum has at times influenced ICE to detain more individuals, although the precise impact on any individual case was unclear. According to a recent DHS Office of Inspector General (OIG) report, the bed minimum required ICE “to make release decisions based on bed space availability, not only whether detention [was] necessary for public safety or to effect removals.”60 For example, OIG found that ICE field offices might have discretionarily detained a higher proportion of noncitizens during periods of lower apprehensions (when bed space was abundant) while releasing more noncitizens during periods of higher apprehensions (when bed space was scarce).61

III. ICE’S RISK CLASSIFICATION ASSESSMENT (RCA) ICE’s RCA is a computerized tool, adapted from analogous criminal justice settings.62 It is designed to mitigate uncertainty associated with the future conduct of noncitizens in immigration custody. Using statistics, it predicts whether an individual is likely to put public safety at risk.63 The risk tool also administers ICE detention priorities and tailors ICE detention

57 U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-153, IMMIGRATION DETENTION: ADDITIONAL ACTIONS NEEDED TO STRENGTHEN MANAGEMENT AND OVERSIGHT OF FACILITY COSTS AND STANDARDS 7 (2014), http://www.gao.gov/assets/670/666467.pdf. 58 DEP’T OF HOMELAND SECURITY, OFFICE OF THE INSPECTOR GENERAL (OIG), OIG-14-116 (Revised), ICE’S RELEASE OF IMMIGRATION DETAINEES 9 (2014), http://www.oig.dhs.gov/assets/Mgmt/2014/ OIG_14-116_Aug14.pdf. 59House Judiciary Committee, Hearing: Oversight of U.S. Immigration and Customs Enforcement EventID=103305, YOUTUBE (Apr. 14, 2015), https://youtu.be/INz2b9INXP4. 60 DEP’T OF HOMELAND SECURITY, supra note 58, at 18. ICE officials also reported average daily population statistics weekly to Congress, in response to Congress’ bed minimum. Id. at 16. 61 Id. at 18. 62 While ICE’s RCA is adapted from analogous criminal justice settings, its implementation is unique in practice, because immigration enforcement operates on differing legal bases, through differently-structured institutional actors. For example, while prosecutorial arrest discretion has long existed in criminal justice, DHS’ publication of extremely detailed prosecutorial discretion guidance may affect the characteristics of the population arrested and subsequently detained. While pretrial detention in the criminal context serves to ensure appearance at trial, detention in the immigration context extends to ensuring removal, both after a hearing and where no hearing will be held. While criminal court judges determine initial detention based on a prosecutor’s recommendation, executive branch immigration officials (i.e. DHS) both determine and execute initial detention, subject at times to a different executive branch redetermination (i.e. by Department of Justice immigration judges). And the two systems have different tools in place to enforce subsequent court appearances. These and other disconnects are discussed at Mark Noferi & Robert Koulish, The Immigration Detention Risk Assessment, 29 GEORGETOWN IMMIGR. L.J 45, 78–87 (2015), https://articleworks.cadmus.com/geolaw/ zs900115.html. 63 Id.

14 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 to dangerousness.64 Per the Schriro Report,65 "dangerousness"66 is assessed in terms of prior crimes, disciplining in detention, and membership in gangs. Possible equities, such as the likelihood of relief from removal, are not considered, nor are subjective factors, such as the individual’s credibility. Rather, RCA assesses public safety risk via static data from existing immigration databases. Although a supervisor makes the final detention decision, the supervisor decisions begin (and often end) with the computer generated RCA. The supervisor never lays eyes on the individual.67 In addition to public safety and flight risk, RCA recommends detention or release, the amount of bond (if any), and detention or supervision levels.68 ICE conducts RCA on nearly all noncitizens taken into ICE custody for more than a few days, even though a large share is subject to statutory detention mandates.69 DHS and ICE have also emphasized the role of RCA in identifying noncitizens with special vulnerabilities, presumably so they would not be detained.70 As enumerated in RCA, special vulnerabilities include “serious physical illness,” “serious mental illness,” “disabled,” “elderly,” “pregnant,” “nursing,” “primary caretaking responsibility,” “risk based on

64 Id. 65 In Section III, unless otherwise noted, information derives from sources fully collected with citations in Section II of Koulish, id. at 59–68. Samples of RCA Detailed Summaries conducted in Baltimore and provided to author through FOIA are available at http://mlaw.umd.edu/facultyprofile/ Koulish/Robert%20 (Research tab), last accessed January 18, 2016. Certain guidance documents provided to the American Immigration Council through FOIA are available at http://www.americanimmigrationcouncil.org/sites/default/files/docs/lac/RCA%20Materials%20/RCA% 20FOIA%20Docs.pdf, last accessed January 18, 2016. 66 Robert Castel, 1989 67 Conversation with the author. Notes on file with author. 68 Samples of RCA Detailed Summaries conducted in Baltimore and provided to author through FOIA are available at http://mlaw.umd.edu/facultyprofile/Koulish/Robert%20 (Research tab), last accessed January 18, 2016. 69 As described below, ICE does not conduct RCA on individuals who are mandated for detention and removal and expected to be in custody for less than five days. 70 ICE, Detention Reform Accomplishments, https://www.ice.gov/detention-reform#tab1 (RCA “requires ICE officers to determine whether there is any special vulnerability that may impact custody and classification determinations.”); Written testimony of DHS Secretary Janet Napolitano to the Senate Committee on Appropriations, Subcommittee on Homeland Security (Mar. 8, 2012), www.dhs.gov/news/2012/03/08/written-testimony-dhs-secretary-janet-napolitano-senate- appropriations-subcommittee. In June 2014, the White House highlighted the role of RCA in helping to protect LGBT refugees and asylum seekers. Press Release, Office of the Press Secretary, FACT SHEET: Advancing The Human Rights of LGBT Persons Globally (June 24, 2014), http://www.whitehouse.gov/the-press-office/2014/06/24/fact-sheet-advancing-human-rights-lgbt- persons-globally, last accessed January 18, 2016.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 15 sexual orientation/gender identity,” “victim of persecution/torture,” “victim of sexual abuse or violent crime,” and “victim of human trafficking.”71

A. ICE’s RCA in Practice ICE employs RCA during its booking process for nearly all noncitizens entering ICE custody, including those referred by Border Patrol and other DHS components, with one significant exception: ICE does not run RCA on any noncitizen for whom detention is mandatory and whose departure or removal will likely occur within five days.72 This exception likely includes many individuals placed into expedited removal or reinstatement of removal without a chance of relief. Indeed, the vast majority of noncitizens coming into ICE custody are apprehended by the Border Patrol and only held for a few days before their deportation.73 RCA assesses two factors—risk to public safety and risk of flight from immigration court proceedings—and it produces an assessment of high, medium, or low for each risk factor.74 RCA collects extensive data to assess these risks, and also collects data on special vulnerabilities that might offset such risks.75 RCA’s public safety risk assessment is based on abstract fragments of objective information that, by definition, avoids consideration of subjective factors related to the individual. For example, RCA does not assess an individual’s credibility. Rather it considers mainly “static” (i.e. previously- existing) data on criminal history: records of criminal charges, dispositions and sentences; open wants or warrants; supervision history (e.g., bond breaches, or supervision violations); and disciplinary infractions.76 The one “dynamic” factor that could change over time is ICE’s evaluation of gang affiliation (also termed “Security Threat Group”) status, based on information gathered by an ICE officer during the intake interview.77 From

71 DHS OIG, supra note 1, at 29-30. 72 Certain guidance documents provided to the American Immigration Council through FOIA are available at http://www.americanimmigrationcouncil.org/sites/default/files/docs/lac/RCA%20Materials %20/RCA%20FOIA%20Docs.pdf, last accessed January 18, 2016. 73 Partly for this reason, ICE used RCA for only 168,087 of the 554,247 noncitizens ICE processed in FY 2013. U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-26, ALTERNATIVES TO DETENTION: IMPROVED DATA COLLECTION AND ANALYSES NEEDED TO BETTER ASSESS PROGRAM EFFECTIVENESS, 16, 28 (Nov. 2014), http://www.gao.gov/products/GAO-15-26. Also, ICE nationally deployed RCA tool only midway through the fiscal year, in February 2013. Id. at 8 n. 20. 74 Samples of RCA Detailed Summaries conducted in Baltimore and provided to author through FOIA are available at http://mlaw.umd.edu/facultyprofile/Koulish/Robert%20 (Research tab), last accessed January 18, 2016. 75 Id. 76 Id. 77 Id.

16 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 static criminal history, RCA also assesses whether Congress has mandated that the noncitizen in custody be detained for a prior crime, in which case mandatory detention trumps RCA’s detention recommendation.78 RCA’s flight risk assessment is based primarily on dynamic information collected by an officer through ICE’s intake interview, including: local ties (e.g., a U.S. citizen spouse or child), family history, history of U.S. residence, substance abuse history, work authorization, and legal representation.79 Certain static data also influences the flight risk assessment, including immigration violation history, history of absconding (apparently in criminal or immigration proceedings),80 and the existence of a pending USCIS benefit application.81 Based on an overall weighting of these two factors by secret algorithm, RCA then produces one of four recommendations: (1) detain without bond, (2) detain with eligibility for bond, (3) defer the decision to the ICE supervisor, or (4) release (see Table 1). RCA always produces a recommendation to detain without bond if the individual in custody is subject to mandatory detention.82 As of spring 2013, RCA recommendations for the non-mandatory detained were made following this decision matrix, which was developed by the author based on analysis of the Baltimore sample described later in this report:

78 Even when mandatory detention applies, RCA apparently performs the risk assessment so as to recommend security levels within detention (i.e. low/medium/high-security). 79 Samples of RCA Detailed Summaries conducted in Baltimore and provided to author through FOIA are available at http://mlaw.umd.edu/facultyprofile/Koulish/Robert%20 (Research tab), last accessed January 18, 2016. 80 The history of absconding factor appears to encompass both criminal and immigration proceedings to some degree. RCA records “bond breach immigration and criminal,” “fled or used other means to avoid removal after an immigration judge has issued a final order,” “violation of conditions of supervision for immigration,” “prior revocation of supervision for immigration,” “walk-away from a non-secure facility or ATD,” or any combination thereof. 81 Samples of RCA Detailed Summaries conducted in Baltimore and provided to author through FOIA are available at http://mlaw.umd.edu/facultyprofile/Koulish/Robert%20 (Research tab), last accessed January 18, 2016. 82 In August 2013, ICE streamlined RCA process in expedited removal cases by generating an automatic detain decision, thus allowing field officers to skip those submission and approval steps. DHS OIG, supra note 1, at 13.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 17

Table 1: RCA Recommendation Matrix, ICE Baltimore Field Office Sample, Spring 201383

Public Safety Risk

Low Medium High Supervisor Detain (with or Low Release to Determine without bond) Supervisor Supervisor to Detain (with or Medium Flight to Determine Determine without bond) Risk Detain (with or Detain (with or Detain (with or High without bond) without bond) without bond)

Additionally, for those with “special vulnerabilities” who are not mandatorily detained, RCA automatically defers the decision to the supervisor by producing a “Supervisor to Determine” recommendation.84 For those individuals determined to be eligible for release with bond, RCA also recommends a bond amount.85 For those detained, RCA also recommends a custody classification level (high, medium/high, medium/low, and low).86 ICE officers then make the final custody determination, after at least one level of supervisory review.87 A supervisor who overrules an RCA recommendation must enter an explanation for that decision into the system.88 Additionally, only an ICE supervisor may initiate an RCA redetermination after an initial determination, and the supervisor must provide a justification for the re-determination.89

83 Source: Analysis of risk classification assessment (RCA) Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through the Freedom of Information Act (FOIA). On file with author. 84 Id. 85 RCA Detailed Summary samples provided to the authors did not reflect the bond amount, however. Additionally, as a general rule, it appears that RCA does not recommend eligibility for bond if the individual has a final removal order. 86 For those released, RCA also has the ability to recommend a community supervision level (i.e. “technology” or “no technology”). However, it is unclear whether in practice ICE officers employ RCA recommendation for supervision level, or whether ICE’s alternatives to detention (ATD) officers follow it; see DHS OIG, supra note 1, at 12. 87 Certain guidance documents provided to the American Immigration Council through FOIA are available at http://www.americanimmigrationcouncil.org/sites/default/files/docs/lac/RCA%20Materials %20/RCA%20FOIA%20Docs.pdf, last accessed January 18, 2016. 88 Id. 89 Certain guidance documents provided to the American Immigration Council through FOIA are available at http://www.americanimmigrationcouncil.org/sites/default/files/docs/lac/RCA%20Materials %20/RCA%20FOIA%20Docs.pdf, last accessed January 18, 2016.

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IV. FINDINGS: RCA IN PRACTICE IN THE BALTIMORE ICE OFFICE To produce this report, the author analyzed 59290 Risk Classification Assessment Detailed Summaries, provided by ICE through the Freedom of Information Act in 2013 and 2014. These 592 cases reportedly represent all the risk assessments that ICE’s Baltimore Field Office conducted from March 1 to June 17, 2013. The average age of the individuals was 32.64 years, with ages ranging from 18 to 81. 90.2 percent (534) of the individuals were male, and 9.8 percent (58) were female. 66.7 percent (395) of the individuals came from the Northern Triangle (Guatemala, Honduras, or El Salvador). Another 10.5 percent (62) were citizens of Mexico.91 ICE detained 81.1 percent (480 out of 592)—most without bond (69.5 percent, 408 of 592)—and released 18.1 percent (107 of 592) of the Baltimore sample. Although high, these rates of detention in the Baltimore sample were slightly below the national rate around that time. DHS reported that between July 30, 2012 and December 31, 2013, ICE detained 91.4 percent of the individuals upon whom ICE conducted RCA—most without bond (78.1 percent).92

A. Mandatory Detention Perhaps the most important factor contributing to high detention rates was the large share of those screened through RCA who were subject to mandatory detention without bond (see Table 2). About 42 percent of those in custody (248 out of 592 cases) were mandatorily detainable regardless of the RCA assessment of their particular public safety and flight risks.93

90 A previous unpublished version of this report is based on 485 cases that were in the author’s possession at the time it was prepared. The author is now in receipt of two additional installments of RCA summaries from ICE pursuant to an RCA request, the addition of which explains the complete data set at 592 cases. 91 The nationalities of individuals in this RCA sample from ICE’s Baltimore office differ considerably from the national population in ICE custody in FY 2013. During that fiscal year, of initial admissions to ICE detention facilities, 55.5 percent were Mexican and 34 percent were from Northern Triangle countries. SIMANSKI, IMMIGRATION ENFORCEMENT ACTIONS: 2013, 5. 92 DEP’T OF HOMELAND SECURITY, OFFICE OF THE INSPECTOR GENERAL (OIG), OIG-15-22, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ALTERNATIVES TO DETENTION (REVISED) 11–12, 25 (Feb. 4, 2015), https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf. For those individuals for whom ICE set bond, some may have posted bond to ICE and secured release. Others whom ICE detained may have subsequently received a bond redetermination hearing before an immigration judge, and successfully argued to the judge to change detention without bond to detention with a bond or to lower ICE’s bond amount, and then posted that amount and secured release. 93 The “mandatorily detainable” row encompasses those listed by RCA Detailed Summary as 1) mandatorily detainable for criminal history, including non-LPRs placed into “administrative removal” processes because they had committed an “aggravated felony” under immigration laws; 2) placed into expedited removal or reinstatement of removal, in the “processing disposition” value, because they are

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Table 2: Detention Outcomes for Mandatorily Detainable and Discretionary Cases, ICE Baltimore Field Office, Spring 201394

Detained Released Total Mandatorily 241 (97.2%) 7 (2.8%) 248 detainable Discretionary case 239 (70.5%) 100 (29.5%) 344 Total 480 (81.8%) 107 (18.2%) 592

For this 41.9 percent share of cases, the mandatorily detainable classification represents ICE’s assessment at the moment when ICE conducted RCA. Others in the sample, however, may have been mandatorily detainable at some prior point in time. Specifically, individuals whose 90-day removal window had elapsed represented a significant number of discretionary cases.95 If one were to examine only

initially mandatorily detainable by law; or 3) subject to a final removal order within the previous 90 days at the time ICE conducted RCA. Some placed into expedited removal or reinstatement of removal may have subsequently passed a “credible fear” or “reasonable fear” interview, and were released by ICE in its discretion, posted bond, or successfully litigated a bond redetermination hearing in immigration court. The “discretionary” row reflects all other cases, including those listed as placed into judicial immigration proceedings, all of whom do not have a final removal order (125 cases—73 detained and 52 released); those listed as “bag and baggage” cases (i.e. with a set date for removal, see ROSENBLUM & MCCABE, DEPORTATION AND DISCRETION 25 & n.52 (2014)) (107 cases—81 detained, 26 released), and those listed with “other” case statuses (26 cases—23 detained, 3 released). The “Released” column reflects those whom ICE chose to release on community supervision. Notably, five individuals that were “mandatorily detainable” but whom ICE officers nevertheless released on community supervision are listed as both “mandatorily detainable” and “released.” See § IV.C of this article. 94 Source: Analysis of risk classification assessment (RCA) Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through FOIA. On file with author. 95 For example, of the 107 discretionary cases listed as “bag and baggage” at the time RCA was run, 104 were listed as having a final removal order, with all showing that RCA was not run within 90 days of that final removal order. One explanation is that ICE conducted RCA after it had re-apprehended individuals sometime after their removal order. For example, after an immigration court issued a removal order, ICE may have released the individual, or the individual remained out of ICE custody pending an appeal. Either way, after the removal order was finalized, ICE may have then sent a “bag and baggage” letter setting a date for removal. But, the individual absconded, ICE apprehended him or her, and upon intake ICE conducted RCA, now regarding post-removal order custody. Some of these individuals may have been mandatorily detainable when initially placed into removal processes, whether for criminal history or because they were placed into expedited removal or reinstatement of removal. That said, we are unable to determine this from the Baltimore RCA Detailed Summaries. Also, when ICE conducts RCA on individuals with a prior removal order, it does not screen for mandatory detention for criminal history. See ICE, “RCA Quick Reference Guide 1.0,” 6. Another possible explanation is that in spring 2013, ICE’s Baltimore office was conducting RCA on individuals already in its custody, some of whom already had final removal orders more than 90

20 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 individuals identifiable as within removal processes at the time RCA was conducted, 63 percent were mandatorily detainable.96 While detention of individuals whom ICE assessed as mandatorily detainable was near-universal, ICE supervisors did release five of these individuals, as discussed in Section IV.C below.

B. The Influence of Public Safety and Flight Risk Assessments on Detention Outcomes in Discretionary Cases Mandatory detention did not apply to 58.1 percent of the Baltimore sample (344 out of 592 cases), over whose detention or release ICE had discretion. But a second factor that likely contributed to high detention rates in the Baltimore sample is that RCA assessed the vast majority of these discretionary cases as being medium or high for at least one risk factor. RCA did not recommend release if either risk factor was medium or high, as Table 1 showed. Ultimately, ICE detained over two thirds of these discretionary cases: 70.5 percent, or 239 of 339 cases (184 of those detentions without bond).97 At the same time, a careful analysis shows that RCA’s risk assessment classifications appear to have had a limited impact on actual discretionary detention outcomes. As noted above, the RCA tool assesses two factors (risk to public safety and risk of flight), produces an assessment of high, medium or low for each risk factor, and then considers the two factors to make a detention recommendation. RCA assessed the vast majority of these discretionary cases as being medium or high flight risks, medium or high public safety risks, or both. Flight risk particularly skewed medium or high. A majority of these discretionary cases were classified as high flight risks (57.5 percent, 195 of 339 cases), and almost all of the remainder (38.9 percent, 132 of 339 cases) were classified as medium flight risks (Table 3b). By comparison, just 21.2 percent were classified as high public safety risks (72 of 339 cases) and 37.5 percent were classified as medium public safety

days old. However, because ICE’s Baltimore office had already piloted RCA starting in summer 2012, several months before national rollout, it is less likely that by March 2013, ICE’s Baltimore office would have needed to conduct RCA on everyone already in its custody. 96 I.e. 209 of 334 individuals that RCA Detailed Summaries clearly identified in the “processing disposition” value as in a particular type of removal proceeding (i.e. judicial (197 cases), administrative removal (29 cases), expedited removal (34 cases), or reinstatement of removal (74 cases)). Samples of RCA Detailed Summaries conducted in Baltimore and provided to author through FOIA are available at http://mlaw.umd.edu/facultyprofile/Koulish/Robert%20, last accessed January 18, 2016. 97 Most of the detentions without bond represented individuals listed as “bag and baggage,” because as noted, RCA does not appear to recommend eligibility for bond for those with a removal order. 118 of the 119 individuals listed as “bag and baggage” and detained were detained without bond. Other detentions without bond included 29 listed as in judicial proceedings, and 35 listed as “other.”

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 21 risks (127 of 339 cases) (Table 3a).98 Flight and public safety risk were somewhat inversely related (presumably because many immigrants with limited histories in the United States were assessed as high flight risks but lacked derogatory information that would lead to an adverse public safety finding). Thus, the most common overall RCA assessment was high flight risk and low public safety risk (27 percent, 92 of 339 cases) (Table 4). Conversely, comparatively few were classified high-risk for both public safety and flight (12.3 percent, 42 of 339 cases). Almost none were classified low-risk for both public safety and flight (only 1.5% percent, 5 of 339 cases)—the only classification that would result in an RCA recommendation to release (Table 1). When the two public-safety and flight risk factors are analyzed together, it is difficult to discern any strong patterns of correlation between either risk factor and detention outcomes (see Table 4). Overall, those assessed as high flight risk were detained at slightly higher rates than those assessed as medium flight risk, while those assessed as low flight risk were more likely to be detained, albeit in such small number (just a total of ten cases) that conclusions are hard to draw. Surprisingly, given ICE’s priorities, RCA assessments of public safety risk did not appear to be strongly related to detention outcomes. 73.6 percent of those assessed as low public safety risk were detained, as were 64.6 percent of those assessed as medium risk, and 75 percent of those assessed as high risk. Thus, ICE detained a higher share of low public safety risk individuals than medium risk individuals (see Table 3b). This held true for those assessed either as medium or high flight risk (see Table 4).

98 The individuals listed as “bag and baggage” tended to skew towards higher flight risk and lower public safety risk compared to the individuals listed as in judicial proceedings. Of the 157 “bag and baggage” individuals, RCA assessed 79 percent (124 of 157 cases) as high flight risk, 19.1 percent (30 of 157 cases) as medium flight risk, and 1.9 percent (3 of 157 cases) as low flight risk; while RCA assessed 17.2 percent (27 of 157 cases) as high public safety risk, 28.7 percent (45 of 157 cases) as medium public safety risk, and 54.1 percent (85 of 157 cases) as low public safety risk. The higher flight risk assessments may be because individuals with a “bag and baggage” letter have a final removal order, and thus are assumed to have less incentive to appear for removal. Additionally, ICE may have re-apprehended many of these individuals after absconding. 50 of 107 individuals are listed with a history of absconding, and of those 50, 47 are assessed as high flight risk. Comparatively, of the 125 individuals in judicial proceedings, RCA assessed 31 percent (39 of 125 cases) as high flight risk, 62 percent (78 of 125 cases) as medium flight risk, and 6 percent (8 of 125 cases) as low flight risk; while RCA assessed 22 percent (27 of 125 cases) as high public safety risk, 54 percent (67 of 125 cases) as medium public safety risk, and 25 percent (31 of 125 cases) as low public safety risk. Only 2 of the 125 individuals are listed with a history of absconding.

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Table 3a: Detention Outcomes for Discretionary Cases, by Public Safety Risk, ICE Baltimore Field Office, Spring 201399

Detained Released Total Low 103 (73.6%) 37 (26.4%) 140 Medium 82 (64.6%) 45 (35.4%) 127 High 54 (75%) 18 (25%) 72 Total 239 (70.5%) 100 (29.5%) 339

Table 3b: Detention Outcomes for Discretionary Cases, by Flight Risk, ICE Baltimore Field Office, Spring 2013100

Detained Released Total Low 10 (83.3%) 2 (16.7%) 12 Medium 78 (59.1%) 54 (40.9%) 132 High 151 (77.4%) 44 (22.6%) 195 Total 239 (70.5%) 100 (29.5%) 339

99 Source: Analysis of RCA Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through FOIA. On file with authors. 100 Source: Analysis of RCA Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through FOIA. On file with authors.

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Table 4: Detention Outcomes for Discretionary Cases, by Flight Risk and Public Safety Risk, ICE Baltimore Field Office, Spring 2013101

Public Flight Safety Detained Released Total Risk Risk Low 4 (80%) 1 (20%) 5 Low Medium 4 (80%) 1 (20%) 5 High 2 (100%) 0 (0%) 2 Low 27(62.8%) 16 (37.2%) 43 Medium Medium 32 (52.5%) 29 (47.5%) 53 High 19 (67.9%) 9 (32.1%) 28 Low 72 (78.3%) 20 (21.7%) 92 High Medium 46 (75.4%) 15 (24.6%) 61 High 33 (21.4%) 9 (33%) 42 Total 239 (70.5%) 100 (29.5%) 339

C. ICE Supervisor Overrides of RCA Recommendations A third factor that likely contributed to high detention rates is that ICE supervisors typically favored detention in the 58.3 percent of cases in which RCA did not make a recommendation, but instead deferred the detention decision to supervisors. Also, although ICE supervisors can override RCA recommendations, they overrode RCA recommendations to detain relatively infrequently. Overall, RCA recommended detention in 77.8 percent of cases (without bond in 59.1 percent of cases), and ICE supervisors decided to detain in 81.9 percent of cases (without bond in 69.6 percent of cases).102 Supervisors’ discretion to override detention recommendations was limited

101 Source: Analysis of RCA Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through FOIA. On file with authors. 102 Nationally, ICE supervisors appeared to shift even more individuals to be detained without bond. Between July 30, 2012 and December 31, 2013 nationally, RCA recommended 52 percent to be detained without bond, 28 percent to be detained but eligible for bond, deferred 18 percent to the supervisor, and recommended 0.6 percent for release. After the ICE supervisor decision, ICE detained 78 percent without bond, detained 13 percent but eligible for bond, and released 9 percent. DEP’T OF HOMELAND SECURITY, OFFICE OF THE INSPECTOR GENERAL (OIG), OIG-15-22, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ALTERNATIVES TO DETENTION (REVISED) 25 (Feb. 4, 2015), https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf.

24 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 because many cases were mandatorily detainable. That said, in seven cases out of 248 mandatorily detainable individuals, supervisors did override to release individuals.103 Among the cases in which RCA recommended discretionary detention, supervisors ordered detention without bond in 80.1 percent (109 of 136) cases in which RCA recommended detention without bond, and they ordered detention in 74.3 percent (58 of 78) cases—without bond in 33.3 percent (26 of 78) cases—in which RCA recommended detention with bond. In a total of 47 out of 214 cases (22 percent), RCA recommended some form of discretionary detention but ICE supervisors ordered the subjects of the recommendations to be released on community supervision. Additionally, RCA recommended that individuals be released in just five cases (1.5 percent of the total), all of which were discretionary cases. Supervisors overrode this decision and ordered that subjects be detained in four of the five cases. Lastly, RCA recommended that the ICE supervisor make determinations in 21.2 percent of the cases (124 of 592), with this group including individuals that were comparatively lower-risk or vulnerable. When RCA directed supervisors to make determinations, ICE supervisors chose detention in a majority of cases, but at comparatively moderate rates. Leaving aside individuals that appear to have been in fact mandatorily detainable,104 ICE supervisors chose to detain 57.1 percent (68 of 119 cases), and detain without bond 37.8 percent (45 of 119 cases), while choosing to release a comparatively high percentage—42.8 percent (51 of 119 cases).105

103 Three individuals were older individuals in their 40s, in judicial proceedings, whom RCA identified as mandatorily detainable for criminal history and recommended detention without bond; however, all three reported having a U.S. citizen spouse or child, and were released. Another was a 33- year old man, placed into reinstatement of removal, whose only criminal history was a pending charge for illegal re-entry—but who also had “significant assets” in the United States. In Table 5, those four individuals are included in the rows reflecting RCA recommendations to detain without bond. The fifth was a 29-year old woman, with multiple theft convictions, who had received a final removal order 36 days earlier, and had a date set for removal—but also was assessed with a special vulnerability, and reported having family members in the local community. In her case, RCA recommended “supervisor to determine” for unknown reasons, even though she was mandatorily detainable as within 90 days of her final removal order. In Table 5, she is included in the rows reflecting RCA recommendations for “supervisor to determine.” 104 Of these eight anomalous individuals, four were mandatorily detainable for a prior crime and in administrative removal, all of whom ICE ultimately detained. Three had final removal orders within the last 90 days, one of whom ICE released, and the other two whom ICE detained. One was in expedited removal, was assessed with a special vulnerability, but also had a prior homicide conviction. ICE detained that person. 105 Baltimore ICE supervisors released slightly more individuals than ICE supervisors nationally when RCA deferred the detention decisions. Nationally, of those decisions RCA deferred to the ICE supervisor, ICE supervisors detained without bond 41.9 percent, detained eligible for bond 28.6

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Table 5: Detention Outcomes for Discretionary Cases, by Flight Risk and Public Safety Risk, ICE Baltimore Field Office, Spring 2013106

ICE Supervisor Decision Detain Detain, Release on Total Without Eligible Community Bond for Bond Supervision 407 106 Total 585107 72 (12.3%) (69.6%) (18.1%) Detain Without 346 (58.4%) 311 1 34 Bond Mandatorily 210 202 1 7 detainable Discretionary 136 109 - 27 case Detain, Eligible for 110 (18.6%) 42 48 20 Bond Mandatorily RCA 32 16 16 0 Rec. detainable Discretionary 78 26 32 20 case Release on Community 5 (0.8%) 4 0 1 Supervision Supervisor to 124 (20.9%) 50 23 51 Determine Mandatorily 5 0 0 5 detainable Discretionary 119 45 23 51 case

percent, and released 29.5 percent. DEP’T OF HOMELAND SECURITY, OFFICE OF THE INSPECTOR GENERAL (OIG), OIG-15-22, at 25. In that national report, it is impossible to know how many individuals fell into the categories we classify here as “mandatorily detainable.” 106 Source: Analysis of RCA Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through FOIA. On file with authors. 107 Seven of the 592 samples are excluded from this Table. RCA recommendation for one individual is illegible and for another is missing. Both were mandatorily detainable—one for prior criminal history in administrative removal, and one placed into reinstatement of removal.

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Among the small sample of individuals that ICE assessed as having a special vulnerability—i.e. “serious physical illness,” “serious mental illness,” “disabled,” “elderly,” “pregnant,” “nursing,” “primary caretaking responsibility,” “risk based on sexual orientation/gender identity,” “victim of persecution/torture,” “victim of sexual abuse or violent crime,” and “victim of human trafficking”—detention occurred at a lower rate, albeit not markedly lower. Of the 42 individuals that ICE identified with at least one special vulnerability, ICE detained 59.5 percent without bond (25 individuals), detained 4.8 percent with bond eligibility (2 individuals), and released 35.7 percent (15 individuals). RCA recommendations to detain individuals with a special vulnerability occurred at a much lower rate, since RCA recommended either that the ICE supervisor make the determination or to detain without bond if mandatory detention applied, and did not recommend discretionary detention. However, detention outcomes were not much lower. Like the overall population, mandatory detention impacted the ability of RCA to make a difference for those with a special vulnerability. 40.5 percent (17 of 37 cases) were mandatorily detainable.108 And ICE supervisors did not release vulnerable individuals at markedly higher rates. Among the supervisor-determined cases in the Baltimore sample, leaving aside individuals that appear to have been in fact mandatorily detainable, the release rate was not markedly different for those with a special vulnerability (48 percent) than those without (43 percent):

108 These 16 individuals included 13 individuals that received an RCA recommendation to detain without bond—12 individuals mandatorily detainable for criminal history (one whom an ICE supervisor nevertheless released), and one placed into reinstatement of removal. Three mandatorily detainable individuals nevertheless received an RCA recommendation of “supervisor to determine”— one mandatorily detainable for criminal history in administrative removal, one placed into expedited removal, and one within 90 days of a final removal order.

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Table 6: ICE Supervisor Detention Decisions, by RCA Recommendations, for Individuals Assessed with Special Vulnerabilities, Baltimore ICE Office Sample, Spring 2013109

ICE Supervisor Decision Detain Detain, Release on Total Without Eligible for Comm. Bond Bond Supervision Total 42 23 (62%) 2 (5%) 12 (32%) Detain 15 Without 12 0 1 (35.7%) Bond Mandatorily 15 13 0 2 detainable Discretionary 0 - - - RCA case Rec. Supervisor 27 to 11 2 11 (64.3%) Determine Mandatorily 2 2 0 0 detainable Discretionary 25 10 2 13 case

D. Population Characteristics Informing Public Safety and Flight Risk Recommendations Finally, a key value of examining RCA data is that it provides both criminal and family history in great detail. Indeed, RCA uses these factors to determine public safety and flight risk assessments, which in turn influence detention outcomes. Among the public safety risk factors, two-thirds of the Baltimore sample (386 out of 592 cases) had a criminal conviction. Individuals with criminal convictions comprised all but one of those (110 out of 111) who were mandatorily detained for criminal convictions, as would be expected. But individuals with criminal convictions also comprised about two thirds

109 Source: Analysis of RCA Detailed Summaries from ICE’s Baltimore Field Office, March through June 2013, provided by ICE through FOIA. On file with authors.

28 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 of those discretionarily detained and half of those released. Most likely, the type of criminal conviction contributed to detention outcomes. 39 percent of the sample had a criminal charge (not necessarily a conviction) associated with the encounter in which ICE took the individual into custody, and there was not much variation in this share between those mandatorily and discretionarily detained. A much higher share of those released had a criminal charge connected to the ICE encounter: 60.7 percent. It may be that these were relatively minor charges that did not warrant ICE detention or that the individual was never convicted of the crime for which they were charged. Other research has shown that a large share of arrests leading to ICE custody have been for relatively minor crimes, as ICE expanded its cooperation with state and local law enforcement agencies leading up to 2013.110 3.4 percent of the sample (20 individuals) were confirmed or strongly suspected to be security threat or have a gang affiliation, and all but one of these individuals were detained. Among the flight risk factors, 54.1 percent of the sample had a stable residence in the United States for at least six months. As might be expected, this residentially stable group comprised a higher share of those released and those discretionarily detained than of those mandatorily detained. Nonetheless, a significant number (64 out of 320) were mandatorily detained due to a criminal conviction. Only a small number of the residentially stable group (78 out of 265) were released. Another 14.4 percent of the sample had a stable U.S. residence for less than six months; this group comprised similar shares of those mandatorily detained, discretionarily detained, and released. Thus, having a stable residence is not a strong predictor of being assessed as a low flight risk, or being eligible for release or released from detention. It may be that those detained generally had criminal convictions triggering mandatory detention, or discretionary detention based on public safety risk. There was significant overlap between the residentially stable groups and those with criminal convictions: 37.2 percent of the entire sample (220 of 592) had both a criminal conviction and reported a stable residence for at least six months, while another 13.8 percent (53 of 592) had both a criminal conviction and reported a stable residence for less than six months. Similarly, most of the individuals in the Baltimore sample who had family ties to the United States were detained. 29.7 percent of the sample reported having a U.S. citizen spouse or child, and another 20.6 percent reported having a non-U.S. citizen spouse or child, or other family, in the local community. There was little variation in the shares of either group

110 See ROSENBLUM & MCCABE, supra note 93, at 12-15.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 29 among those mandatorily detained, discretionarily detained, and released, although a higher share existed among those mandatorily detained due to a criminal conviction than those mandatorily detained on other grounds. As with the residentially stable groups, there was significant overlap between the groups with family ties and those with criminal convictions: 21.6 percent of the entire sample (128 of 592) both had a criminal conviction and reported a U.S. citizen spouse or child, while another 14.5 percent (86 of 592) both had a criminal conviction and reported a local family tie.

V. DISCUSSION AND RECOMMENDATIONS As much potential as risk assessment holds for ICE to limit detention, ICE continues to detain immigrants at record numbers—and unnecessarily so in many instances, as this study has shown. Studying ICE’s use of risk assessment, it is clear that immigrants are needlessly over-detained. The analysis reveals three key features of ICE’s detention system that promoted unnecessarily high detention rates. First and foremost, a substantial share of cases involved mandatory detention, and ICE supervisors rarely overrode RCA’s detention recommendations in those cases. Second, where ICE had broad discretion to detain or to release subjects, RCA almost always (94.6 percent of the time) considered individuals to be high or medium flight risks and usually (62.1 percent of the time) considered them to be high or medium public safety risks. As a result, RCA only recommended 0.8 percent of total cases for release, compared to 77.2 percent of cases in which RCA recommended detention (58.4 percent without bond and 18.8 percent with bond). Third, while ICE supervisors have authority to override RCA recommendations, supervisors usually accepted most detention recommendations and overrode most release recommendations. And when RCA tasked supervisors with making a detention determination in 20.9 percent of cases, they opted to detain subjects in a majority of those cases (57.1 percent). In considering these findings, it is clear that many immigrants who have been placed in detention are there unnecessarily. Many of those in mandatory detention without bond should not be deprived of their liberty without due process and many of those in mandatory or discretionary detention would likely be better served in an alternative to detention. In the meantime, the findings suggest a renewed public debate about ICE’s use of detention, DHS and ICE enforcement priorities, and Congressional

30 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 detention mandates (although caution should be used in drawing national conclusions from a small sample of cases in a single ICE field office).111

A. Mandatory Detention for Prior Crimes and in Non-Judicial Removals Prevents Release of Low-Risk Individuals Mandatory detention provisions prevent ICE from reducing the rates of detention for individuals ICE’s RCA tool assesses as low or medium public safety risk, in accordance with a primary goal of the DHS and ICE civil enforcement priorities to tailor detention to public safety risk.112 Some advocates and at least one Senator have argued that the relevant statute allows ICE to exercise discretion to release those individuals classified as mandatorily detainable based on criminal history, because 8 U.S.C. § 1226(c) requires “custody”—not more explicitly “detention.”113 DHS has stated in litigation that the statute does not afford the agency discretion to release in such cases.114 However, data show that ICE supervisors overrode this “mandatory detention” requirement for individuals with a U.S. citizen spouse or child on at least three occasions in 2013, indicating that ICE officials do indeed exercise discretion in such cases, if on a case-by-case basis and minimally. It is also clear from the findings that Congress should revise or reinterpret 8 U.S.C. § 1226(c) not to require detention. ICE could likely release into supervision a significant number of the low and medium public safety risks with prior criminal convictions without significant increases in crime or flight from proceedings, and thus free up resources for ICE to detain more significant public safety threats while minimizing humanitarian concerns based on family separation; 75 percent of

111 For example, it is likely that the population booked and detained by an ICE field office closer to the southern border would contain a higher percentage of individuals placed into non-judicial proceedings (i.e. expedited removal or reinstatement of removal), as Border Patrol would refer more apprehended individuals to ICE there than in the interior of the United States. 112 Concurrently, ICE officials have identified mandatory detention laws as an impediment to expanding ICE’s alternatives to detention programs. U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-26, ALTERNATIVES TO DETENTION 28 (2014). Regarding post-removal order mandatory detention, it is difficult to draw conclusions from the Baltimore data, because of the small sample size of those within 90 days of their removal order. 113 Memorandum to David Martin, Office of General Counsel, US Department of Homeland Security: The Use of Electronic Monitoring and Other Alternatives to Institutional Detention on Individuals Classified under INA § 236(c), American Immigration Lawyers Association (Aug. 6, 2010), www.nilc.org/document.html?id=94; Letter from Sen. Richard Blumenthal to Secretary Jeh Johnson, (Mar. 24, 2014), http://www.aila.org/advo-media/whats-happening-in-congress/ congressional-updates/sen-blumenthal-letter-to-dhs-on-detention. 114 Rodriguez v. Robbins, 715 F.3d 1127, 1132 (9th Cir. 2013) (Government argued that INA § 236(c) “unambiguously requires mandatory detention with no limit on the duration of imprisonment”). See also MEISSNER ET. AL., FORMIDABLE MACHINERY, 128 (discussing issue).

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 31 individuals mandatorily detainable for criminal history were not assessed as high public safety risks.115 Additionally, many of those mandatorily detained for criminal history reported strong ties to the United States— family ties, a stable U.S. residence, and work authorization116—which suggests those individuals were longer-term residents and relatively low flight risks.117 Although ICE did not release data on the date of criminal convictions, many individuals may have completed their criminal activity that triggered mandatory detention some time before they were taken into ICE custody, and built U.S. community ties in the meantime.118 Risk data can also inform ongoing litigation seeking to narrow the applicability of the mandatory detention provision regarding individuals previously released from criminal proceedings,119 as well as litigation seeking to provide a bond hearing after six months to those mandatorily detained.120 Regarding those mandatorily detainable in non-judicial proceedings for immigration violations, current statutes mandate “detention,” not “custody,” and thus provide ICE with less interpretive discretion. The large

115 Of individuals mandatorily detained for criminal history, 17 percent (18 of 104 cases) were assessed as low public safety risk, 58 percent (60 of 104 cases) were assessed as medium public safety risk, and 25 percent (26 of 104 cases) were assessed as high public safety risk. 116 SHEBAYA & KOULISH, supra note 19; KOULISH, USING RISK TO ASSESS THE LEGAL VIOLENCE OF MANDATORY DETENTION (2016). 117 Data from the Baltimore sample supports this. Of individuals mandatorily detained for criminal history, a greater share—particularly individuals in judicial proceedings—were assessed as comparatively lower flight risk than the overall population in the sample. Of individuals mandatorily detained for criminal history, 15 percent (16 of 104 cases) were assessed as low flight risk, 54 percent (56 of 104 cases) were assessed as medium flight risk, and 31 percent (32 of 104 cases) were assessed as high flight risk. Of individuals mandatorily detained for criminal history in judicial proceedings— excluding, notably, non-LPRs placed into administrative removal—21 percent (15 of 72 cases) were assessed as low flight risk, 61 percent (44 of 72 cases) were assessed as medium flight risk, and 18 percent (13 of 72 cases) were assessed as high flight risk. Comparatively, of the overall population in the Baltimore sample, 5 percent (26 of 485 cases) were assessed as low flight risk, 36 percent (177 of 485 cases) were assessed as medium flight risk, and 58 percent (282 of 485 cases) were assessed as high flight risk. 118 In the Baltimore sample, a majority (61 percent, 63 of 104 cases) of individuals mandatorily detained for criminal history were mandatorily detained for a crime unrelated to their recent ICE encounter. See Table 7. 119 DHS has interpreted the requirement of 8 U.S.C. § 1226(c) for custody “when the alien is released” to require detention at any time after release from criminal custody—including years later— rather than only at the time of actual release. Rojas, 23 I. & N. Dec. 117 (B.I.A. 2001). That interpretation is being heavily litigated in federal courts. E.g., Khoury v. Asher, No. 13-CV-1367 (W.D. Wash. Mar. 11, 2014) (class action), https://www.aclu.org/cases/khoury-v-asher; Gerard Savaresse, When Is When? 8 U.S.C. § 1226(c) and the Requirements of Mandatory Detention, 82 FORDHAM L. REV. 285 (2013), http://ir.lawnet.fordham.edu/flr/vol82/iss1/7/. 120 Multiple federal judicial circuits, to avoid constitutional concerns, have interpreted 8 U.S.C. § 1226(c) to require a bond hearing after six months of mandatory detention, at which ICE must establish by clear and convincing evidence that the detainee poses a flight risk or a danger to the community. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015).

32 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 numbers detained under these statutes will likely contribute to a failure by ICE to achieve its stated goals to detain public safety risks and prioritize high flight risks for alternatives to detention.121 Most mandatorily detainable individuals in non-judicial proceedings were assessed as high flight risks but low public safety risks.122 Most had few family or other community ties, but few had criminal convictions.123 At the moment, individuals cannot generally seek release from detention during expedited removal or reinstatement processes until: they assert asylum or a similar protection-based claim, U.S. Citizenship and Immigration Services (USCIS) finds that they have a credible or reasonable fear of returning to their home country, and ICE refers them into judicial removal proceedings.124 The number of asylum seekers in non-judicial processes is growing, as Central American violence has risen.125 If individuals asserting protection-based claims generally matched the risk profile of those in Baltimore, however, strong arguments exist for releasing them on supervision. ICE could also change its internal processes to presumptively re-run RCA to account for a finding of credible or reasonable fear rather than requiring a supervisor’s justification to do so, as advocates have suggested.126 A non-frivolous asylum claim may provide additional incentive to appear at proceedings.127

121 See Mark Noferi, Immigration Detention: Behind the Record Numbers, CENTER FOR MIGRATION STUDIES, Feb. 13, 2014, http://cmsny.org/immigration-detention-behind-the-record- numbers/. 122 For example, RCA in Baltimore assessed 100 percent of those in expedited removal as “high” flight risk (34 of 34 cases) and 88 percent as “low” public safety risk (30 of 34 cases). The disparity was not quite as pronounced for those in reinstatement, who previously spent some time in the U.S. RCA assessed 86 percent (64 of 74 cases) as high flight risk and 14 percent (10 of 74 cases) as medium flight risk; and 35 percent (26 of 74 cases) as low public safety risk, 45 percent (33 of 74 cases) as medium public safety risk, and 20 percent (15 of 74 cases) as high public safety risk. Additionally, many in reinstatement of removal may have returned to join family members in the United States and may have strong incentives against flight, despite RCA’s assessment as “high” flight risk. 123 SHEBAYA & KOULISH, supra note 19. 124 Section 235.3 https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0- 0-0-22466/0-0-0-22583.html. 125Asylum Abuse: Is it Overwhelming our Borders? Before the H. Comm. on the Judiciary, 113th Cong. 14–16 (2013) (statement of Ruth Ellen Wasem, Specialist in Immigration Policy, Congressional Research Service), http://judiciary.house.gov/?a=Files.Serve&File_id=5D634F9D-D515-4545-A3F7- F8E6C83DA86D. 126 HUMAN RIGHTS FIRST, HOW TO REPAIR THE U.S. IMMIGRATION DETENTION SYSTEM 13 (2012). 127 Research indicates that those seeking asylum may arrive uniquely inclined to appear for immigration proceedings, even absent U.S. ties. MARK NOFERI, A HUMANE APPROACH CAN WORK: THE EFFECTIVENESS OF ALTERNATIVES TO DETENTION FOR ASYLUM SEEKERS (Washington, DC and New York, NY: American Immigration Council and Center for Migration Studies, July 2015), http://immigrationpolicy.org/special-reports/humane-approach-can-work-effectiveness-alternatives- detention-asylum-seekers.

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B. ICE’s Restrained Use of Alternatives to Detention for High Flight Risk, Low Public Safety Risk Individuals, Notwithstanding DHS Priorities In Baltimore, ICE’s risk assessments showed that many ICE arrestees are higher flight risk and lower public safety risk, yet were nevertheless detained—even where ICE possessed discretion to release them into alternatives to detention. These outcomes likewise diverge from DHS’s and ICE’s prioritization of detention for higher public safety risks, and additionally from ICE’s goal to employ ATD for higher flight risks. ICE detained over two thirds of individuals (69.5 percent) that it had discretion to release. And ICE detained 78.3 percent of high flight risk, low public safety risk individuals over which it had discretion, despite the potential to place them into ATD. To encourage ICE supervisors to employ ATD, ICE could change its RCA tool to increase the percentage of RCA recommendations to release, or for a supervisor to determine detention, for those assessed as flight risks but not serious public safety risks. Fewer RCA affirmative recommendations to detain would likely result in fewer ICE decisions to detain. Additionally, the data supports increasing ICE’s discretionary use of ATDs, such as electronic monitoring devices and mandatory check-ins, that ensure appearance at proceedings at a lower cost than detention. ICE’s alternatives to detention program, called the Intensive Supervision Appearance Program (“ISAP”), has demonstrated remarkably high success in ensuring appearance at court hearings.128 From Fiscal Years 2011 to 2013, 95 percent of participants in ISAP’s “full-service” program, which involves supervision, technology monitoring (either electronic GPS tracking or phone reporting), periodic visits and case management, appeared at their scheduled removal hearings.129 If alternatives to detention were implemented more broadly—and in conjunction with reductions in

128DHS INSPECTOR GENERAL ASSESSES ICE ALTERNATIVES TO DETENTION, CRIMMINIGRATIONhttp://crimmigration.com/2015/03/10/dhs-inspector-general-assesses-ice- alternatives-to-detention/. 129 U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-26, at 30–31. Concurrently, DHS’ Inspector General reported that in FY 2012, only 4.9 percent of ISAP participants absconded, and 4 percent were arrested by another law enforcement agency. DEP’T OF HOMELAND SECURITY, OFFICE OF THE INSPECTOR GENERAL (OIG), OIG-15-22, at 6. These ATD success rates echo earlier findings. For example, an earlier U.S. study from 1997 to 2000 showed that 92% of criminal aliens released under supervision attended all of their hearings, and concluded that “mandatory detention of virtually all criminal aliens is not necessary.” VERA INSTITUTE, TESTING COMMUNITY SUPERVISION FOR THE INS: AN EVALUATION OF THE APPEARANCE ASSISTANCE PROGRAM 33–36, 42 (2000), http://www.vera.org/sites/default/files/resources/downloads/INS_finalreport.pdf.

34 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 detention—significant cost savings would result.130 A U.S. GAO report found the average daily cost of ICE’s ISAP program to be $10.55 per day, compared to the estimated $159 per day cost of detention.131 Immigrant advocates have also argued that ATDs impose far fewer social burdens on immigrants and their families.132

C. A Special Vulnerability Did Not Dramatically Affect Detention Outcomes, Notwithstanding DHS Priorities Notably, the existence of a special vulnerability did not dramatically affect the chances of detention, even though DHS and ICE have de- prioritized detention of vulnerable individuals. Mandatory detention provisions prevented release of many with special vulnerabilities, as with the general population, even though DHS memoranda direct ICE officers to specially consult with ICE lawyers for those identified as mandatorily detainable with a special vulnerability.133 For other individuals with special vulnerabilities, although RCA automatically defers the decision to detain or release them to the ICE supervisor, supervisors did not release vulnerable individuals at markedly higher rates. Suggestions that RCA would moderate the incidence, as well as conditions, of detention of vulnerable individuals do not appear to have been borne out.134 To moderate detention, ICE could also use prosecutorial discretion for those with a vulnerability, rather than initiating proceedings at all.

130 MEISSNER ET. AL., FORMIDABLE MACHINERY, 130–31. ICE requested $122 million for ATD in FY 2016—an increase of $28 million over the President’s FY 2015 budget, albeit still much less than ICE’s $2.4 billion request for detention. DHS, U.S. Immigration and Customs Enforcement Salaries and Expenses, FISCAL YEAR 2015 CONG. JUSTIFICATION, Feb. 2015, at 45, 64–67 (seeking to increase the daily ATD population from 27,219 participants at the end of FY 2014 to 53,000 participants). 131 U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-26, at 18. 132 ROSENBLUM & MEISSNER, DEPORTATION DILEMMA, at 46. 133 See SHEBAYA & KOULISH, supra note 19. 134 When DHS finalized a regulation under the Prison Rape Elimination Act (PREA), DHS noted that “commenters and advocacy groups encouraged DHS to consider options other than detention for vulnerable populations.” For example, “that vulnerable individuals—including LGBT and mentally ill detainees—should be detained in only extraordinary circumstances,” or that “LGBT individuals or sexual abuse victims who cannot be safely housed by the government be released or granted prosecutorial discretion rather than be detained.” DHS responded that “existing ICE screening methods and practices sufficiently address the concern expressed by these commenters,” and that RCA “evaluates the potential vulnerability of all individuals apprehended by ICE to determine whether detention is appropriate.” Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities, 79 Fed. Reg. 13100, 13130 (Mar. 7, 2014) (to be codified at 6 C.F.R. pt. 155), http://www.gpo.gov/fdsys/pkg/FR-2014-03-07/pdf/2014-04675.pdf.

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D. The Congressional Detention Bed Minimum and RCA Public Safety Risk Assessments Additionally, the low share in the Baltimore sample of individuals that ICE assessed as significant public safety risks, if similar nationwide, undercuts the rationale for a Congressional national detention bed minimum of “not less than 34,000 detention beds daily.” And notably, as Baltimore is a non-border field office, detainees nationwide (especially in border areas) may be even more likely to be higher flight risk and lower public safety risk, as were the Baltimore arrestees placed into non-judicial processes. Put another way, if ICE could accurately tailor detention to public safety risk, there may not exist enough high public safety risks to fill 34,000 beds daily—which raises the question of the utility of the detention bed mandate, particularly in light of the cost savings referenced above. National indicators already exist that detention prioritized for public safety would result in fewer individuals detained on a daily basis. After ICE implemented its new November 2014 enforcement priorities, ICE’s number of average detainees daily dropped to approximately 26,000 by April 2015.135 Repeal of mandatory detention provisions, revised interpretations thereof (by either ICE or courts), or changes in ICE’s discretionary practices regarding detention or ATD, as described above, might result in even further reductions to ICE’s average daily detention population. And though ICE has defended their reductions in detention,136 the Administration has requested reductions in the bed minimum,137 and multiple 2016 Presidential candidates138 and Congressional members have

135 ICE, DHS releases end of fiscal year 2015 statistics (2015), https://www.ice.gov/news/releases/dhs-releases-end-fiscal-year-2015-statistics. 136 Department of Homeland Security Appropriations for 2016 Before the H. App. Comm., Subcomm. on Homeland Sec., 114th Cong., 52–53 (2015) (statement of Rep. John Culberson: “We want you to use 34,000 beds…. I feel very confident you could find an extra 9,000 criminal aliens that needed to be detained to fill those beds in a heartbeat.”) (statement of ICE Director Sarah Saldaña: “It’s not the sole purpose and goal to fill a bed; it’s to fill it in the right way.”), https://www.gpo.gov/fdsys/pkg/CHRG-114hhrg96904/pdf/CHRG-114hhrg96904.pdf. 137 For FY 2015, the Administration had requested Congress to lower the required average daily population to 30,539 beds, which ICE estimated would save by itself $155 million per year. DHS, U.S. Immigration and Customs Enforcement Salaries and Expenses, FISCAL YEAR 2015 CONGRESSIONAL JUSTIFICATION, Feb. 2015, at 81. 138 Tierney Sneed, Clinton Criticizes Immigrant Detentions Under Obama, U.S. NEWS & WORLD REPORT, May 6, 2015 (former Secretary Clinton: “[T]here is actually a legal requirement that so many beds be filled. So people go out and round up people in order to get paid on a per-bed basis. I mean that just makes no sense at all to me.”), http://www.usnews.com/news/articles/2015/05/06/hillary-clinton- criticizes-immigrant-detention-practices-under-obama; BERNIESANDERS.COM, A Fair and Humane Immigration Policy, https://berniesanders.com/issues/a-fair-and-humane-immigration-policy/ (advocating that “Congress defund the detention bed quota”), last accessed January 18, 2016.

36 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 criticized the bed minimum,139 ICE retains significant Congressional support, as shown by the failure of a 2013 House vote to repeal it.140

E. Immigration Enforcement Against Criminal Violators with U.S. Families Lastly, while President Obama has stated his intention for DHS to focus on “felons not families,” these data show that it will likely be difficult in practice to detain and deport criminal violators without deporting some parents and other family members. Nearly two-thirds (65.2 percent, 386 of 592 cases) of the ICE arrestees in the 2013 Baltimore sample had at least one criminal conviction. But 21.6 percent (128 of 592 cases) both had a criminal conviction and reported a US citizen spouse or child, while another 14.5 percent (80 of 592 cases) both had a criminal conviction and reported a local family tie. Of those mandatorily detained for a prior crime, for example, 36.9 percent reported a US citizen spouse or child (41 of 111 cases) and another 26.1 percent (29 of 111) reported a local family tie. Moreover, many criminal violators may have committed misdemeanors rather than felonies, or committed their crimes long ago, making them particularly sympathetic cases if they have families as well.

VI. CONCLUSION Actuarial risk has the potential to enhance the effectiveness of immigration detention. The tool can predict the likelihood of future acts of violence and ensure that immigrants who really are high risk to public safety remain detained for the duration of their immigration proceedings. At the same time, the risk tool itself generates risks associated with a secretive algorithm that lacks transparency. Additionally, in instances of mandatory detention, the lack of access to bond, and the lack of discretion given to the ICE District Director on the front end of the detention process and the immigration judge on the back end of the process combine to create serious legal obstacles for the individuals enduring the process.141 The findings to this study show how the risk tool can achieve what mandatory detention policy intended to achieve—weed out violent

139 See e.g. Letter from Congress to President Barack Obama (Sept. 25, 2013), http://teddeutch.house.gov/uploadedfiles/deutch_foster_detention_letter.pdf (65 Members of Congress expressed opposition to detention bed minimum in appropriations legislation). 140 An amendment to DHS’ Fiscal Year 2014 appropriations legislation that would have stricken the bed minimum language failed 232-190 in a floor vote on June 5, 2013. H. Amend. 107 to H.R. 2217, 113th Cong., https://www.congress.gov/amendment/113th-congress/house-amendment/107; http://clerk.house.gov/evs/ 2013/roll198.xml. 141 SHEBAYA & KOULISH, supra note 19.

2017] IMMIGRATION DETENTION IN THE RISK CLASSIFICATION ASSESSMENT ERA 37 criminal aliens from the general public—with more precision, at less cost, and with fewer due process violations. Since mandatory detention and the bed mandate impede the risk tool’s effective use, however, I conclude by saying in light of the findings to this study, it is becoming beholden upon Congress to reinterpret or eliminate mandatory detention and the bed mandate and permit RCA to function effectively for this would allow ICE to tailor detention decisions to those who really need it. Along the way, immigration detention might come to be seen as more humane and less excessive and punitive.

Parsons’s Charge: The Strange Origins of Stand Your Ground

DANIEL BREEN

In the last decade, over half of the states have passed so-called “Stand Your Ground” statutes, allowing for successful pleas of self-defense even when the defendant made no attempt to retreat from a non-lethal assault. Modern commentators have challenged these laws on the grounds that they are racist in application, that they only worsen the problem of gun violence, and that they are part of a greater strategy on the part of the National Rifle Association to promote gun ownership. This article argues that even at the time of its American common law beginnings, in the 1806 Massachusetts case of Commonwealth v. Selfridge, there was substantial popular opposition to Stand Your Ground. Moreover, then as now, there were powerful reasons to suppose that the doctrine served to advance specific political interests, rather than the cause of justice. This article is the first to examine the highly contested nature of the origins of Stand Your Ground.

ARTICLE CONTENTS

I. INTRODUCTION ...... 41 II. FEDERALISTS ON THE DEFENSIVE: THE POLITICAL BACKGROUND ...... 44 A. “Murder at Noon-Day” ...... 46 III. THE LEGAL PROBLEM: WHAT HAD SELFRIDGE ACTUALLY DONE? ...... 53 A. The Federalists’ Problem: The Political Uses of Manslaughter ...... 59 B. The Giant of the Law ...... 62 C. Parsons’s Charge: “The Most Palpable Absurdities and Glaring Contradictions” ...... 63 IV. STAND YOUR GROUND AS AN OFFENSE AGAINST “NEIGHBORLINESS” ...... 70 V. CONCLUSION ...... 76

Parsons’s Charge: The Strange Origins of Stand Your Ground

DANIEL BREEN†

I. INTRODUCTION On the evening of January 3, 1807, a crowd of perhaps a thousand men marched through the streets of Boston on their way to the Common. Once there, the marchers constructed a pair of gallows from which they suspended two effigies. One depicted a lawyer named Thomas O. Selfridge, who a week before had been acquitted on charges of manslaughter arising from the death of Charles Austin. The trial had been politically explosive, as the victim was the son of Benjamin Austin, a longtime chief figure in Boston’s Republican Party; the assailant was a fervent Federalist. The other effigy depicted Theophilus Parsons, Chief Justice of the Supreme Judicial Court (SJC), whose charge to the Grand Jury in November had produced an indictment for manslaughter, rather than murder.1 Chief Justice Parsons’s charge was a watershed moment in legal history. It paved the way for Selfridge’s acquittal at trial: the first successful assertion in American law of the doctrine now known as “Stand Your Ground.”2 As presently codified in twenty-four states, Stand Your

† Dr. Daniel L. Breen received his JD from the University of Georgia School of Law in 1987, and his Ph.D. in History from Boston College in 2003. He is currently a full-time instructor in the Legal Studies program at Brandeis University. 1 See THE REPERTORY, Jan. 6, 1807, for accounts of the “Selfridge Riots;” BOSTON GAZETTE, Jan. 12, 1807; BOSTON GAZETTE, Jan 15, 1807; 3 WILLIAM BENTLEY, DIARY OF WILLIAM BENTLEY, 270 (1905); Letter from Fisher Ames to Josiah Quincy, Jr. (Feb, 3, 1807), in 1 WORKS OF FISHER AMES, 393-94 (Seth Ames, ed., Boston, Little-Brown 1854); THE DIARY OF DR. NATHANIEL AMES OF DEDHAM, MASSACHUSETTS, 862 (Robert Hansen, ed., 1998) (while accounts differ as to the size and orderliness of the crowd that night, all agree on the essential facts that the effigies depicted Selfridge and Parsons). 2 As Richard Maxwell Brown notes, the doctrine was later adopted by Francis Wharton in his 1855 textbook The Law of Homicide, citing the Selfridge case as authority. See RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERICAN HISTORY AND SOCIETY 7 (1994) (for the importance of the Selfridge case in the legal evolution of the Stand Your Ground doctrine). Later, the influential Ohio case of Erwin v. State, 29 Ohio 186 (1876), also used Parson’s charge in support of the proposition that a “true man” should not have to flee from a person who seeks to do him serious harm. 29 Ohio at 197-99. See also Jennifer Randolph, How to Get Away with Murder: Criminal and Civil Immunity Provisions in ‘Stand Your Ground’ Legislation, 44 SETON HALL L. REV. 599, 602 (2014); P. Luevonda Ross, The Transmogrification of Self-Defense by National Rifle Association-Inspired Statutes, 35 S.U.L. REV. 1, 6-7 (2007); Richard Singer, The Resurgence of Mens Rea: Honest but Unreasonable Mistake of Fact in Self-Defense, 28 B.C. L. REV. 459, 477 (1987); Cynthia Ward, ‘Stand Your Ground’ and Self Defense, 42 AM. J. OF CRIM. L. 89, 100 n.39 (2015).

42 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1

Ground laws provide that a person accused of homicide may successfully assert a claim of self-defense, even if there was no attempt to retreat, and the victim was not threatening deadly force, so long as the defendant reasonably believed his or her life to be in danger. Modern critics of these laws, at least in their recent forms, have placed their attacks on two foundations: a broad social critique based on the proposition that such laws tend to encourage deadly violence3 and are too often racist in their application,4 and a more narrow political critique, based on the contemporary role of the National Rifle Association (NRA) in lobbying for such statutes as a way to promote gun ownership.5 Modern polling suggests that the doctrine “splits the country sharply along political, general, and racial lines,” with Republicans (and especially white men) favoring Stand Your Ground laws by a wide margin and Democrats (and especially women and African-Americans) aligning almost as strongly against them.6 This divide is familiar to us today, but the actions of the effigy-builders that night in 1807 should instruct us that even at a very early stage in its development, Stand Your Ground did not go uncontested. Just as today, it split observers along partisan and cultural lines and delineated two distinct outlooks about the world. Specifically, Parsons’s charge and the popular response to it throw into relief a tension between two sets of expectations in the early nineteenth century. One stems from an “honor culture,” in which gentlemen like

N.B., examples of Stand Your Ground statutes include: ALA. CODE § 13A-3-23 (2012); FLA. STAT. § 776.012 (2013); 18 PA. CONS. § 505 (1998); and TENN. CODE § 39-11-611(b)(1) (2010). 3See, e.g., American Bar Association, Nat'l Task Force on Stand Your Ground Laws, Final Report and Recommendations (Sept. 2015), http://www.americanbar.org/content/dam/ aba/images/abanews/SYG_Report_Book.pdf. 4 See, e.g., D. Marvin Jones, He’s a Black Male…Something is Wrong with Him, 68 U. OF MIAMI L. REV. 1025 (2014) (One leading argument against Stand Your Ground is the common stereotype that young black men have a propensity for committing violent acts—a stereotype that is all too likely to make an armed person open fire on the assumption that he or she is under threat). Patrik Johnson, Racial Bias and Stand Your Ground Laws: What the Data Show, CHRISTIAN SCIENCE MONITOR, August 6, 2013; Marc H. Morial, Stand Your Ground Laws: A License to Kill, PHILADELPHIA TRIBUNE, Oct. 7, 2015; and Khalil El-Assaad, Stand Your Ground Laws: The Enshrinement of Racism under the Guise of Self-Defense, (Sept. 3, 2014), http://www.racialjusticeproject.com/stand-your-ground-laws- the-enshrinement-of-racism-under-the-guise-of-self-defense/. 5 See, e.g., According to Mayor Michael Bloomberg, for example, in pushing for Stand Your Ground laws, NRA leaders “weren’t interested in public safety. They were interested in promoting a culture where people take the law into their own hands....” E. J. Donne, Jr., Why the NRA Pushes Stand Your Ground, WASHINGTON POST, April 15, 2012,; Samantha Lachman, The NRA is Directly Behind a Bill Loosening Florida’s ‘Stand Your Ground’ Law, The Huffington Post, huffingtonpost.com/2014/01/17/nra-guns-florida-_n_4619171.html; How Gun Rights Harm the Rule of Law, THE ATLANTIC, April 1, 2015. 6 This, at any rate, is the finding of a 2013 Quinnipiac University Poll, summarized at www.qu.edu/news-and-events-quinnipiac-university-poll/national/release-detail?ReleaseID=1931.

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Selfridge had to preserve their public reputations at all costs.7 The other comes from an older and broader “culture of neighborliness,” in which social harmony was the greater, overriding virtue. If the former tended to be cherished by a largely (although not exclusively) Federalist, professional, and mercantile class in Boston, the latter found support among a broader mass of people on whom Jeffersonian Republicans depended for support. In this article, I would like to explore that divide by examining the origins of the Selfridge case. Crucial to the story are the particular dilemmas the case posed for Selfridge’s fellow Federalists—among whom was the newly appointed Chief Justice of the SJC. I will contend that, given its decidedly shaky common law foundations, the charge is best understood as an artful but ultimately unsuccessful attempt by Parsons to improve Federalist chances in the upcoming gubernatorial election of 1807. This essay, in fact, will be the first to situate the American origins of Stand Your Ground in the particular political context of the time. Despite Parsons’s probable intentions, the charge backfired. By offending longstanding ideals about community “neighborliness”—ideals that historian Barbara Clark Smith has placed at the core of popular opposition to British policies during the Revolutionary Era, and which still loomed large in Republican party rhetoric thirty years later—the charge may have helped elect James Sullivan as Massachusetts’ first Republican governor. From its very beginnings, Stand Your Ground has been ensnared in a web of conflict, in which one’s opinions about the doctrine have as much to do with one’s identity and background as anything else. In Part II, I summarize the political situation that faced Massachusetts Federalists in 1806. The facts suggest that the killing on State Street was the culmination of an intentional effort on Selfridge’s part to publicly embarrass Ben Austin and thus improve Selfridge's party’s prospects at the

7 The leading work on the honor culture of the early republic remains Joanne B. Freeman’s Affairs of Honor: National Politics in the New Republic (2001) (For Freeman, in a political culture that had not yet developed established parties and traditions, public figures were driven to a near-obsessive concern for maintaining their reputations for honesty and courage in order to recommend themselves most effectively to the public and their peers. The result, in extreme cases, could be a duel). See also, Christopher G. Kingston & Robert E. Wright, The Deadliest of Games: The Institution of Dueling, 76 S. ECON. J. 1094 (2010) (The authors explain how certain sets of circumstances could conspire to make a duel a rational choice.) As Freeman notes, this honor culture prevailed most intensely among the professional elite, whose ambitions put them most often in the public eye. However, rather than springing up naturally on American soil, the rituals of this honor culture owed much to the influence of the French upon the American officer corps during the Revolution. See Richard Bell, The Double Guilt of Dueling: The Stain of Suicide in Anti-Dueling Rhetoric of the Early Republic, 29 J. OF THE EARLY REPUBLIC 383, 390 (2009).

44 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 next election. I argue that, when Austin’s son assaulted Selfridge to chastise him for this course of conduct, Selfridge’s professional status left him no choice other than to “stand his ground” and resist the assault through deadly force. In Part III, I summarize the complex legal consequences of Selfridge’s actions, and how they presented a political problem for his fellow Federalists. While a murder indictment would usually have followed from Selfridge’s arrest, significant political benefits would follow for Federalists if the indictment was for manslaughter instead. These benefits help account for the otherwise extraordinary charge to the grand jury by Chief Justice Parsons. It was that charge that established Stand Your Ground as a feature of American law. Previous commentators on the case, notably Richard Singer, have failed to appreciate the crucial extent to which the charge shaped the course of the ensuing trial and led directly to Selfridge’s acquittal.8 Finally, in Part IV, I examine the political reaction to the charge by Massachusetts Republicans, led by the grieving father, Ben Austin. That reaction, based on venerable cultural values of harmony and “neighborliness,” helps us understand what the crowd thought it was doing when it constructed those gallows on Boston Common, and may provide links to our own contemporary suspicions about Stand Your Ground statutes.

II. FEDERALISTS ON THE DEFENSIVE: THE POLITICAL BACKGROUND In the summer of 1806, Caleb Strong, a Federalist, was in the midst of his seventh consecutive term as governor of Massachusetts. In a union increasingly dominated by Jeffersonians, the Bay State stood out as one of the few remaining places where Strong’s party commanded significant popular support. But the enemy was at the gates. Behind the standard of Attorney General James Sullivan, Republicans had been edging ever closer to victory in the state’s annual gubernatorial elections, buoyed by a rapidly growing, and heavily Republican, District of Maine.9 In the most recent

8 Richard Singer, The Resurgence of Mens Rea, Part II, 28 BC. L. REV. 459, 476-78 (1987). By focusing on Justice Parker’s charge to the trial jury—which only elaborated on what Parsons had already said in the Grand Jury charge—Singer misses the vital fact that (as discussed below) it was only the manslaughter indictment that lent legal viability to the argument that Selfridge had no duty to retreat. 9 Maine was the fastest growing state in the region, and most of the newcomers were voting Republican. Hancock and Washington Counties, for example, had cast a total of 1841 votes in the 1804 election, of which 874 went to Sullivan. In 1805, the counties cast 2177 total votes, of which 1355 went to Sullivan. The Republican nominee’s percentage of the total vote thus rose from 46% to 60% in only one year. Similar trends in other Maine counties did not make for encouraging reading for the state’s

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 45 election, held as usual on the first Monday in April, Strong had eked out a victory by the very slimmest of margins, a mere 40 votes out of an official total of over 72,000 ballots.10 The writing was on the wall: if the trend continued, Sullivan would finally eject Strong from the governor’s chair in 1807.11 That he had yet to do so was due in no small part to the personal appeal of Governor Strong, whose integrity was apparently unassailable.12 Accordingly, ith no major intervening issue around which they might rally the voters, the Federalists reminded the electorate that it was no use exchanging a known and respected quantity like Strong for Sullivan, whose considerable resume did not include the governor’s office, and whose “jacobinical” party could be bent on unknown mischief.13 As the Newburyport Herald put it:

the farmer, who should pull up a flourishing hill of corn, to see if there was a worm at the root, would be thought unwise. Surely he can have no greater claim to wisdom, who overturns a prosperous and happy government, because there are some fancied defects.14

This “if it ain’t broke don’t fix it” argument had some force with the voters. In 1806, after all, Strong had won a majority of votes in April even as his party lost both houses of the legislature in May.

Federalist leadership. Returns of Votes for Governor, 1804-1805 (on file with the Massachusetts State Archives). 10 Return of Votes for Governor, 1806 (on file with the Massachusetts State Archives). 11 Leading Federalists understood this very well, even if they did their best to maintain a braver front in the party press. In 1804, for example, Harrison Gray Otis had written that “our Governor may be saved for a year or two, but the precipitate course of this dreadful (Jeffersonian) torrent will finally overwhelm and perhaps destroy us.” Letter from Otis to John Rutledge (Dec. 20, 1804) (on file with the South Caroliniana Library, John Rutledge Papers). 12 James Trumbull, History of Northampton 602 (1902). Strong had little in common with such merchant nabobs as Harrison Gray Otis and James Handysyd Perkins, having grown up in rural Northampton rather than Essex or Suffolk Counties. He seems to have learned to mix easily with people from all backgrounds during his upbringing there, and there is no reason to doubt his biographer’s judgment that Strong was distinguished for his “humble, condescending, mild, cheerful, just, temperate, and devout temper.” Alden Bradford, Biograph of the Hon. Caleb Strong 28 (Boston, West, Richardson & Lord 1820). Even the Republican Salem Register admitted that he was honest, while finding it necessary to add that the assassin of King Henry IV was also “honest” in his own way. To the Electors of Salem, SALEM REGISTER, April 3, 1806. 13 See Look Before You Leap: An Address to the People of Massachusetts 4 (Newburyport, MA, E.M. Blunt 1805); Daniel Webster, An Appeal to the Old Whigs of Massachusetts 6-11 (1806) (contrasting the “well-known” character of Strong to the “concealed and serpentine” habits of Sullivan). 14 To the Freeholders of Essex, NEWBURYPORT HERALD, March 28, 1806.

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When that legislature met in June, however, Republicans badly overplayed their hand. Seizing on a set of minor irregularities in the gubernatorial returns (residents of the Maine plantation of Davistown, for example, had purported to vote for one “Caleb Srong,” and Isleboro residents had cast 12 votes for “Caleb Stoon”),15 they tried to frustrate the obvious intent of the voters by rejecting such ballots and delivering the victory to Sullivan. They backed down from this inept bit of power- grabbing at the last minute, but by then the damage had been done. Federalists, reveling in their opponents’ “mortification and disgrace,”16 could argue with enhanced plausibility that the state was better off with the tried and true, eminently principled Strong at the helm. “After the outrage [Republicans] came so near perpetrating,” sniffed the Boston Gazette, “we are no longer left to conjecture the nature of their designs.”17 The whole sordid business would, according to The Repertory, “open the eyes of many a misled and deceived citizen.”18 Indeed, that summer the Federalist press contained many pleas for “undecideds” and lukewarm Republicans to heed the lesson of the election chicaneries and rally to their standard.19 Perhaps those efforts would succeed, but Federalists could not afford a misstep. For the past three years, every stroke of the axe in the District of Maine had been bringing Sullivan (a son of Maine himself) closer to victory. The last thing Federalists needed was a new controversy that would erase memories of Republican ballot manipulations and put them back on the defensive.

A. “Murder at Noon-Day” The failed Republican political coup of June planted the seeds for the death of Charles Austin. What was expedient for Republicans as a whole was perfectly galling to Benjamin Austin, the chief organizer and polemicist of Boston Republicans.20 The elder Austin insisted that Strong

15 REPORT OF THE COMMITTEE OF THE MASSACHUSETTS LEGISLATURE APPOINTED TO EXAMINE THE RETURNS FOR THE SEVERAL TOWNS, LEGISLATIVE RECORDS, MASSACHUSETTS STATE ARCHIVES, 258–460 (1806); Edward Stanwood, The Massachusetts Election of 1806, in 20 Proceedings of the Massachusetts Historical Society, 12 (1906). 16 Letter from Samuel Cabot to Samuel Williams (June 13, 1806); Samuel Cabot Papers, (Mass. Historical Society). 17 BOSTON GAZETTE, July 17, 1806. 18 THE REPERTORY, June 13, 1806. 19 See, e.g., To Honest Democrats, BOSTON GAZETTE, July 17, 1806; A Spectator, HAMPSHIRE FEDERALIST, July 1, 1806; Senate Protest, COLUMBIAN CENTINEL, June 11, 1806. 20 Austin—whose father had been an associate of Samuel Adams during the 1770s—long regarded himself as a link between Boston’s revolutionary past and its Republican present. JEFFREY L. PAISLEY, THE FIRST PRESIDENTIAL CONTEST: 1796 AND THE FOUNDING OF JEFFERSONIAN DEMOCRACY 341 (2013); Benjamin Austin, Jr., DICTIONARY OF AMERICAN BIOGRAPHY 432. The

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 47 should not be certified as governor, going to the absurd length of arguing that the men of Isleboro could have intended to vote for a real live “Caleb Stoon.”21 His next move should be understood in the context of his disappointment with those moderate Republicans—probably including Sullivan himself, with whom Austin had long been at odds22—who had acquiesced in Strong’s certification. With the Fourth of July looming in three weeks, Austin was determined to rally the faithful by holding a special Republican Independence Day celebration. Stymied by the Federalist Board of Selectmen in his attempt to secure Faneuil Hall for the purpose,23 he decided to shift the celebration to Copp’s Hill, in the North End. There, “on the ruined battlements of the British troops,” Republican citizens would be invited “to give a display of their patriotism on the great principle of American Independence,”24 mostly through a series of anti- Federalist speeches and toasts. Austin had sponsored such open air “political fêtes”25 to foment opposition to the Washington administration fifteen years before; now he would return to the tactic in order to regain momentum for his party—and not incidentally, remind moderates like Sullivan of Austin’s political importance. The story of what happened next has been told before,26 and nothing but the most essential details need be repeated here. Austin’s Republican

Republican Independent Chronicle served as the vehicle through which Austin constantly depicted Republicans as the true heirs of the principles of 1775, with Federalists playing the role of “Old Tories.” Indeed, “for twenty years at least, hardly a number of the Chronicle was issued, without containing something from the pen of Mr. Austin.” JOSEPH BUCKINGHAM, SPECIMENS OF NEWSPAPER LITERATURE 373 (1850). 21 INDEPENDENT CHRONICLE, June 16, 1806. 22 “They are men,” Sullivan wrote, clearly referring to Austin, “who have a seat in the front rank of republicanism, who constantly express sentiments that are not congenial to any form of government that can subsist among men…” Letter from Sullivan to William Eutis (Jan. 17, 1802) (on file with the Mass. Historical Society), in THOMAS C. AMORY, 2 LIFE OF JAMES SULLIVAN (Boston: Phillips, Sampson & Co. 1859), 97. He had long felt that way about Austin having written fifteen years before that Austin’s anti-lawyer polemics in the Chronicle were nothing more than “vagaries of a distempered brain.” INDEP. CHRON., June 1, 1786. See also JAMES SULLIVAN, "TO HONESTUS," JAMES SULLIVAN PAPERS (on file with the Massachusetts Historical Society); A confirmed moderate, adept at shifting with the political winds as they blew beyond Boston Neck, Sullivan was never likely to share Austin’s hard and fast commitment to Boston’s urban radical tradition, even as he depended on the force of Austin’s pen to rally the voters. Federalists were well aware of the tension between the two Republican leaders and were not shy about pointing it out. See, e.g., Sydney, COLUMBIAN CENTINEL Jan. 11, 1804. 23 MINUTES OF SELECTMEN MEETINGS 1799-1810 (Boston: Municipal Printing Office 1904) 302. 24 INDEP. CHRON., June 30, 1806. 25 For the importance of such festive gatherings in the politics of the Early Republic, see DAVID WALDSTREICHER, IN THE MIDST OF PERPETUAL FETES: THE MAKING OF AMERICAN NATIONALISM 1776-1820 (1997); SIMON P. NEWMAN, PARADES AND POLITICS OF THE STREET: FESTIVE CULTURE IN THE EARLY AMERICAN REPUBLIC (1997). 26 The fullest account is still found in CHARLES WARREN, JACOBIN AND JUNTO 183-214 (1931); Warren, however, devotes most of his attention to Selfridge’s trial, rather than Chief Justice Parsons’s grand jury charge, despite the fact that it was the charge that most enraged Republican opinion in

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“fête” succeeded all too well. Among the invited guests on Copp’s Hill that afternoon was the ambassador from Tunisia and his retinue, on their way home from an official visit to President Jefferson.27 The prospect of gawking at the gorgeously-arrayed North Africans led twice as many people to attend the event as expected. This created a major problem for Mr. Eben Eager, who had contracted with Austin and Boston’s Republican Committee to provide food and drink for only 300 guests. Having instead been forced to satisfy the hunger and thirst of nearly 600 celebrants, Eager naturally demanded in the days following the event that Austin and the Committee increase his pay accordingly. This Austin refused to do, probably because many of the extra attendees had not bothered to pay the Committee for a ticket. A frustrated Eager then sought the advice of 31-year old Thomas Selfridge, a lawyer who despite his youth had ample experience in debt collection matters.28 Selfridge also happened to be a committed Federalist,29 who, according to Sullivan, was in the habit of behaving with “impudence” towards Massachusetts’ few Republican lawyers, and enjoyed being “huzzahed and applauded” by his fellow partisans.30For a man of Selfridge’s political convictions, Eager’s tale would have presented a tantalizing opportunity. Federalists were never slow to paint Austin as a hypocrite; they had long been pointing out that after years of “indecent abuse of the funding system” designed by Hamilton, Austin was now happily collecting a salary for selling bonds issued by Jefferson’s treasury.31 And now here was the most notorious Jacobin in Boston refusing to pay the bill of an honest tradesman. Going public with the matter of the unpaid bill would strengthen the hypocrisy charge, exposing Austin and his party to acute

Boston. Jack Tager’s emphasis is also on the trial and its place in the “honor culture” of the early republic. Jack Tager, Politics, Honor and Self-Defense in Post-Revolutionary Boston: The 1806 Manslaughter Trial of Thomas Oliver Selfridge, HIST. J. MASS 84–104 (2009). Neither author traces the vital influence of the charge on the ensuing trial, nor do they place the charge in its full political context. Id. 27 The ambassador had been sent by Jefferson and Madison for a tour of the major northeastern cities as a way to dispel the (all too accurate) impressions of American weakness he might have taken back with him had his only experiences been in tiny Washington. Letter from James Madison to William Eustis (May 19, 1806) (William Eustis Papers, Library of Congress). 28 Mostly as a plaintiff seeking to collect fees owed him by his clients. See, e.g., Selfridge v. Lovering, (Suffolk Court of Common Pleas, May 20, 1806), in SUFFOLK COUNTY RECORD BOOK (Boston: Mass. Judicial Archives), 69. 29 THOMAS OLIVER SELFRIDGE, JR., WHAT FINER TRADITION: THE MEMOIRS OF THOMAS O. SELFRIDGE, JR. 4 (1987) (Selfridge’s name appears regularly on lists of party operatives entrusted with the task of handing out Federalist ballots during Boston election days). 30 Letter from Sullivan to James Madison (August 16, 1806) (James Madison Papers, Library of Congress). 31 See, e.g., COLUMBIAN CENTINEL, Feb. 13, 1805.

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 49 embarrassment just when they were trying to recover from the election debacle of the previous month. And in this connection, no one would have been happier to hear about the case than John Park, editor of The Repertory, whose attacks on Austin had been frequent and bitter.32 Finally, as a lawyer, Selfridge had special reasons to detest Austin. Twenty years before, writing under the pseudonym Honestus, (which is what Federalists would call him ever afterwards), Austin had made his reputation with a series of angry attacks on the legal profession and its allegiance to common law,33 and he continued to malign lawyers at every turn.34 Hence, since few (if any) other Federalists could have known the details of Eager’s problems with Austin, it is reasonable to conclude that Selfridge was the source of the following letter in Park’s Repertory of July 15, 1806:

I confess that I am a Democrat, and like to see fair play and no hucking.—I wish to know if the Committee on Arrangements, who provided for the democratick party, on the 4th of July, have paid the Jefferson Tavern keeper, for the entertainment which they and their associates partook of on Cop’s Hill?—If not, whether they intend doing it without a lawsuit from the said Tavern keeper, who has been defied to commence a suit by one of the Committee, not very remarkable for mild language, and lowness of voice, and as well known for his nice Economy as generosity.35

Of course, no real democrat would have written about Austin this way. But Park would have, and Selfridge had every incentive to give him the materials for doing so.36

32 Park was a master of invective, who on various occasions had referred to Austin as “an arch- hypocrite” and “a veteran in slander.” THE REPERTORY, July 23, 1805; THE REPERTORY, November 1, 1805. Park had only recently called attention to Austin’s position as loan officer. See, e.g., THE REPERTORY, July 11, 1806. The unpaid bill would have represented a chance too good to be missed. 33 Austin’s essays appeared originally in 1786 as occasional pieces in the Independent Chronicle, but were later compiled—in edited form—under the title OBSERVATIONS ON THE PERNICIOUS PRACTICE OF LAW (Boston: True & Weston, 1819). See Aaron T. Knapp, Law’s Revolution: Benjamin Austin and the Spirit of ’86, 25 YALE J. OF LAW & THE HUMANITIES 271 (2013), for a detailed summary of Austin’s anti-lawyer critique. 34 See, e.g., The Examiner, no. 40, INDEP. CHRON., July 11, 1805. 35 THE REPERTORY, July 15, 1806. 36 Park later implied that he had come by knowledge of the collection suit by other means, and had even suppressed a “communication” on the matter on Selfridge’s request. He went on to claim that

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At any rate, Eager’s unpaid bill was a distraction Republicans did not need, and the matter was settled by informal arbitration shortly after Selfridge filed the suit. There matters might have stood, had not Austin held his own suspicions about the propriety of Selfridge’s actions. On July 28, 1806 the day of the settlement, Austin was holding court as usual at Russell’s Insurance offices on State Street. When someone asked him about the suit, Austin answered that the whole thing had been cooked up by “a federal lawyer.”37 Given the insular world of commercial life in Boston, it is not surprising that the remark made its way to Selfridge’s office two blocks awayat the Old State House. According to his later account, Selfridge took mortal offense at the comment and decided that he could not simply let it pass without a response.38 It may be that Selfridge was offended, but his later claims that he had to do something to rescue his cherished professional reputation ring hollow. The truth is that nothing Austin said could have lowered that reputation among the men who mattered most to the young lawyer: the largely Federalist mercantile and legal community of Boston. No man in New England was more reviled in that community than the lawyer-baiting Honestus. Harrison Gray Otis had only the month before, during the election controversy, called him a “prevaricator and a slanderer,”39 and the lawyer (and future Governor) Christopher Gore considered him a man of “false and dastardly temper.”40 Austin’s repute among Selfridge’s colleagues is captured by the following bit of doggerel:

In the Reign of Democracy, dead to all shame, The Demons of falsehood infect us; Vice and Folly assume Wit and Virtue’s fair name, And the devil himself’s called Honestus.41

he only published what he knew when informed that the suit had been settled. “Mr. Park’s Deposition,” in THOMAS O. SELFRIDGE, A CORRECT STATEMENT OF THE WHOLE PRELIMINARY CONTROVERSY BETWEEN THO O. SELFRIDGE AND BENJ. AUSTIN 24 (Charlestown, Samuel Etheridge 1807). This cannot be true. The suit was settled on July 28th, while the above-cited “letter” appeared in Park’s Repertory on July 15th. 37 Austin never denied that he had said something like this, but insisted that he had done so only in the “jocular tone” he customarily used among his circle at Russell’s. INDEP. CHRON., March 9, 1807. 38 SELFRIDGE, supra note 36, at 33. 39 COLUMBIAN CENTINEL, June 21, 1806. 40 Letter from Christopher Gore to Rufus King (Aug. 24, 1806), in 4 THE LIFE AND CORRESPONDENCE OF RUFUS KING 538 (Charles R. Kind ed., New York, G.P. Putnam & Sons, 1897). 41Anonymous, Epigram. [In the reign of Democracy, dead to all shame] (1809), reprinted in THE CITIZEN POETS OF BOSTON 90 (Paul Lewis ed., 2016).

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Nevertheless, Selfridge demanded that “the devil himself” retract his remark in the hearing of anyone who had been present at Russell’s that afternoon; and professing to be dissatisfied with Austin’s efforts to do so, “posted” him as “a COWARD, a LIAR, and a SCOUNDREL” in the August 4 issue of the Boston Gazette. Only a week had passed since the remarks were made. Joanne B. Freeman has reminded us that in the “honor culture” of the early nineteenth century, a man of standing in the community might resort to the device of a “posting” in order to publicly humiliate a person who had violated the man’s honor while refusing a formal challenge to a duel.42 Selfridge, however, had never issued such a challenge, and at any rate, a duel between the two was an exceedingly unlikely prospect.43 Moreover, the indecent haste with which Selfridge published his post, compared to the lengthy negotiations that usually comprised affairs of honor at the time, seems puzzling. But if one believes Selfridge was the man who leaked news of Eager’s suit to Park, and if one recalls the unlikelihood that Austin’s unguarded remarks had truly put Selfridge’s public character and reputation at stake, the posting becomes part of an intelligible pattern. The young Federalist was trying to subject Austin to further public embarrassment, at a time when the election controversy offered them a renewed hope of persuading “honest but deluded” Republicans to support the congenial Governor Strong in his bid for an eighth term. Selfridge’s posting was probably a tactic in the affairs of politics, rather than in a legitimate affair of honor. Nevertheless, if the posting did not really arise from an offended sense of honor, it immediately created one. In the elite professional and political milieu of the early republic, in which “death before dishonor was a predominant reality in most…social and familiar circles,”44 a son was expected to defend a father’s reputation when the father could not very well do so himself. Only the year before, Sullivan’s son had notoriously beaten Benjamin Russell on Court Street for

42 JOANNE B. FREEMAN, AFFAIRS OF HONOR: NATIONAL POLITICS IN THE EARLY REPUBLIC 172 (2001). General James Wilkinson, for example, had similarly “posted” John Randolph when the latter contemptuously refused the general’s challenge at the time of the Burr treason trial. 43 For one thing, Austin was twenty years older than Selfridge. And there was also the notorious fact that in 1792, Columbian Centinel publisher Benjamin Russell had publicly spit on Austin in State Street owing to statements Austin had made in the last town meeting. Austin had not challenged Russell over the insult, but had filed a lawsuit instead. A man who would not issue a challenge after being spit on would certainly refuse another’s challenge. See Letter from John Quincy Adams to Thomas Boylston Adams (Jan. 28, 1792), in 9 ADAMS FAMILY CORRESPONDENCE, 252-56 (Margaret A. Hogan et al. eds., 2009). 44 RYAN CHAMBERLAIN, PISTOLS, POLITICS AND THE PRESS: DUELING IN NINETEENTH CENTURY AMERICAN JOURNALISM 38 (2009).

52 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 printing insulting remarks about the candidate in the Centinel.45 Accordingly, after reading the highly-insulting posting, Ben Austin’s 18 year old son Charles, a newly-minted Harvard graduate, purchased a short hickory cane with the probable intention of administering a sound beating on Selfridge.46 The latter knew that the younger Austin was lying in wait for him on State Street,47 which in 1806 acted as the town’s public stock exchange, where lawyers and merchants met every day to conduct business. Nevertheless, shortly after noon, Selfridge emerged from his office and entered State Street as usual. In his pocket was a loaded pistol. Seeing Selfridge approach, Austin stepped towards him with arm and cane upraised, confronting Selfridge nearly on the precise spot of the Boston Massacre of 1770. As the cane descended, Selfridge pulled out his pistol and opened fire. The cane made a serious gash in Selfridge’s forehead; the bullet pierced Austin’s chest and caused a fatal wound. Amidst the tumult of the surrounding crowd (which included the Tunisians), Selfridge shouted “I am the man who did it,” while Austin died on the floor of a nearby shop. The killing astonished the town, where for many years afterward the day was known as “Black Monday.” For Republicans, who were always quick to link Federalists to “old Tories,” the associations with the Massacre of 1770 were obvious; another innocent defender of liberty had been cut down by a representative of monarchy and privilege. Parts of the next edition of the Chronicle were bordered in black, as the Boston Gazette had been after the Massacre, and a large gathering of townspeople followed Charles Austin’s funeral procession, as another gathering had done in March, 1770.48 Later that day, Selfridge was confined to the stone fastness

45 The incident is referred to in the NEW ENGLAND PALLADIUM, Mar. 15, 1805. 46 Charles Austin had an example near at hand of a son’s obligations in matters like this. Only three months before, young James Elliott had fought a duel with Charles’ cousin William, after the latter had insulted the integrity of James’ father. WALTER AUSTIN, A LONG FORGOTTEN DUEL (Boston, privately printed, 1914). Why Charles did not issue a challenge to Selfridge must remain a matter for speculation. The Austins were an old and established family in Boston, and Charles may have considered the social-climbing Selfridge, whose father was a Hubbardston farmer, too socially inferior for a duel. More likely, Charles suspected that Selfridge had not been acting out of a concern for honor, but rather for political advantage. If so, his motives may have seemed craven enough to merit a beating rather than a challenge. 47 THOMAS LLOYD & GEORGE CAINES, TRIAL OF THOMAS O. SELFRIDGE, ATTORNEY AT LAW, BEFORE THE HON. ISAAC PARKER, ESQUIRE 32 (Boston, Russell & Cutler 1807). 48 INDEP. CHRON., Aug. 7, 1806; BOSTON DEMOCRAT, Aug. 6, 1806 (“The universal sentiment of commiseration and abhorrence which this melancholy event has excited in every class of the community has never been equaled since the fatal Massacre of the 5th of March.”). Letter from William Sumner to Hannah Austin (Aug. 8, 1827) (on file with the William Sumner Papers, Massachusetts Historical Society).

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 53 of the Boston Gaol, to await his arraignment on charges yet to be determined.

III. THE LEGAL PROBLEM: WHAT HAD SELFRIDGE ACTUALLY DONE? No one doubted that Selfridge had fired the pistol. There were dozens of onlookers, and of course the lawyer had loudly proclaimed his responsibility as Austin lay dying. But what exactly, if anything, was Selfridge guilty of? In the absence of systematic law reports from their own courts,49 the Massachusetts bench and bar could only make legal sense of the events of Black Monday by resorting to the definitions passed down through the common law, as embodied in the classic works of the British treatise writers. Selfridge’s fate would necessarily rest upon them. Based upon the discussions of homicide contained in those treatises, all signs pointed to a murder indictment. The authorities were in substantial agreement that murder consisted of “the willful killing of any subject through malice aforethought,”50 and that a defendant killed out of malice when his actions displayed a “wicked, depraved, malignant spirit.”51 Selfridge, of course, bore no particular ill will towards Charles Austin. But this did not resolve the issue. The authorities agreed that a defendant who killed one person out of malice towards another was guilty of murder.52 Since “antecedent menaces” and “former grudges” on the part of the defendant were evidence of malice,53 a jury could reasonably conclude, on the basis of everything that had happened since Eager’s visit to his office, that Selfridge had persistently sought to injure the contemptible Honestus, had goaded him beyond any rational necessity and that in taking the son’s life, had continued to act out of this pre-existing malice towards the father.

49 Massachusetts had only begun publishing SJC decisions in 1804. 50 1 WILLIAM HAWKINS, A TREATISE ON THE PLEAS OF THE CROWN 78 (London, Eliz. Nutt 1716). See also Discourse II, Of Homicide, in 2 MICHAEL FOSTER, DISCOURSES UPON A FEW BRANCHES OF THE CROWN LAW 255–56 (London, E. and R. Brooke 1792); 4 WILLIAM BLACKSTONE, COMMENTARIES 194–95 (Oxford, Clarendon Press 1769); 1 EDWARD EAST, A TREATISE ON THE PLEAS OF THE CROWN 214 (London, A. Strahn 1803). 51 2 FOSTER, supra note 50, at 307–08; 4 BLACKSTONE, supra note 50, at 199. 52 “[I]f one shoots at A and misses him and kills B, this is murder, because of the previous felonious intent, which the law transfers from one to another.” 4 BLACKSTONE, supra note 50, at 201; See also 1 HAWKINS, supra note 50, at 83; 1 EAST, supra note 50, at 230. 53 4 BLACKSTONE, supra note 50, at 199.

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More generally, “malice” could be inferred in any situation where the defendant, acting out of a “depraved inclination to [do] mischief,” acted in such a way that homicide was the probable consequence.54 It would not be difficult for a good prosecutor (and Attorney General Sullivan was certainly that) to persuade a jury that Selfridge had knowingly created a state of affairs in which—given the “honor culture” that prevailed among Boston’s elite—Ben Austin’s son was all too likely to be lying in wait for him that afternoon; and that, having been informed of the son’s presence, Selfridge’s decision to enter State Street with a loaded pistol in his pocket was therefore so “manifestly attended with danger” as to compel a guilty verdict.55 For these reasons, anyone familiar with the common law of homicide would have expected Selfridge to face a murder indictment.56 If the Boston bar had a dream team of legal talent in 1806, it was certainly the trio of Federalists who would be representing Selfridge at trial: Samuel Dexter, Christopher Gore and Harrison Gray Otis. Yet even they would be hard-pressed to overcome the presumption of malice that would have accompanied such a murder indictment. Under the common law, they would have to argue affirmatively that the killing amounted to either “justifiable homicide” or “excusable homicide.” Neither option seemed to fit the facts of Black Monday. To support a justifiable homicide defense, for example, they would have to persuade the jury that Selfridge had used deadly force to prevent Charles Austin from committing a “known felony.”57 If this were the case, Selfridge would have been under no duty to retreat when Austin approached him with his upraised cane—he could legally have done just what he did: “stand his ground” and use deadly force to prevent the felony.58 Crucially, at least some of the treatise writers—anticipating the gist of modern Stand Your Ground laws- agreed that even if the deceased had not intended to commit a felony, the defense would still apply as long as “the party killing had reasonable grounds for believing that the person slain had a felonious design against him…”59

54 1 EAST, supra note 50, at 231. See also 4 BLACKSTONE, supra note 50, at 200; 1 MATTHEW HALE, HISTORY OF THE PLEAS OF THE CROWN 465–66 (London, E. Rider 1800) 55 1 EAST, supra note 50, at 231. 56 This was certainly what Sullivan expected—See Indictment, Commonwealth v. Selfridge, (Boston: Mass. Judicial Archives 1806). 57 See, e.g., 2 FOSTER, supra note 50, at 274; 1 HALE, supra note 54, at 486-87. 58 1 HALE, supra note 54, at 484. See also, Sarah L. Ochs, Can Louisiana’s Self-Defense Law Stand Its Ground? 59 LOYOLA L. REV. 673, 681 (2013). 59 1 EAST, supra note 50, at 273.

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For two reasons, however, this language was not likely to cause Sullivan to lose much sleep. First, immersed as he was in the honor culture of Boston’s elite, and given everything that had happened between himself and Ben Austin, Selfridge would have known (along with everyone else) that Charles Austin did not intend to kill him, nor had he intended to commit any other known felony. To the contrary, Austin’s intent was clearly to chastise Selfridge for the insulting post he had published that morning in the Gazette.60 A chastisement amounted to an assault and battery, which was not a felony under common law. Second, and even more seriously for Selfridge’s dream team, a successful justifiable homicide defense demanded, as Blackstone said, that the killer had to be entirely blameless, culpable “not even in the minutest degree;”61 and any fair evaluation of Selfridge’s conduct in the weeks before Black Monday casts grave doubt on his ability to pass that rigorous test. Were Sullivan to conduct a searching inquiry into Selfridge’s conduct over that time span, the jury would hear evidence suggesting a good deal more than minute blame on the defendant’s part. Even less promising was the option of predicating a defense on the grounds of excusable homicide. According to Blackstone, this defense was available where the defendant had killed another “in the course of a sudden brawl or quarrel” by way of defending himself against an assault.62 The key word here is sudden. All the authorities agreed that the defense was not available where the killing resulted from some preexisting design on the defendant’s part.63 More importantly, a successful plea of excusable homicide demanded that the defendant show that before striking the fatal blow, he had “declined any further combat, and had retreated as far as he could go with safety.”64 Justice Trowbridge had emphasized this “duty to retreat” in his instructions to the jury in the Boston Massacre trials65—a meaningful precedent indeed, given the spot where Selfridge had opened fire.

60 Beatings on a family member’s behalf for the purpose of chastisement were common in Selfridge’s Boston. In 1804, for example, Jacob Eustis had caned The Repertory’s John Park for the latter’s insulting remarks about Eustis’s brother, a member of Congress. See THE REPERTORY, Nov. 27, 1804. And just before the 1805 election, Sullivan’s son had beaten the Centinel’s Benjamin Russell when Russell persisted in questioning his father’s integrity. Letter from Christopher Gore to Rufus King (Mar. 10, 1805) in 4 THE LIFE AND CORRESPONDENCE OF RUFUS KING 448 (Charles R. Kind, ed., New York, G.P. Putnam & Sons 1897). 61 4 BLACKSTONE, supra note 50, at 182. See also, Marc O. DeGirolami, Culpability in Creating the Choice of Evils, 60 ALA. L. REV. 597, 598 (2009). 62 4 BLACKSTONE, supra note 50, at 184. 63 See, e.g., EAST, supra note 50, at 283; HALE, supra note 54, at 479. 64 EAST, supra note 50, at 280. 65 See FREDERIC KIDDER, HISTORY OF THE BOSTON MASSACRE 262 (1870).

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Dexter and company would obviously find themselves in trouble if they staked Selfridge’s defense on excusable homicide. Their client’s troubles with Ben Austin had been percolating for over a week, and he had carried that loaded pistol onto State Street after being told that Austin’s son was waiting for him with a cane. These were hardly the makings of a sudden quarrel. Moreover, he did not try to retreat “as far as he could go,” even though he had plenty of room to do so in a street filled with dozens of people who could have helped him. His position was the opposite of the British soldiers of March 1770, whose backs were literally to the wall. Selfridge’s back was to the middle of State Street, the daily bustle, and the safety of the Exchange. Sullivan, then, was on firm legal ground when, two weeks after the killing, he determined that there could be no question of a successful defense on the grounds of justifiable or excusable homicide.66 For all these reasons, a murder indictment would have presented Selfridge’s lawyers with grave problems, fastened upon them by that same common law which their party liked to extol as the repository of “the immutable principle of justice” by which alone liberty and life are enjoyed.67 Under Massachusetts law, such an indictment would have meant that three members of the all Federalist Supreme Judicial Court would have had to preside over the trial.68 A verdict of guilty would mean a mandatory death sentence for Selfridge.69 Short of an outright acquittal, however, Selfridge might still escape that fate if the jury, despite the murder indictment, found him guilty of the lesser included offence of manslaughter instead. (Murder indictments, of course, had produced just this result in regard to two of the Boston Massacre defendants). Defense lawyers in Massachusetts routinely saw it as their duty to steer juries towards “lesser included offenses,” especially when outright acquittals seemed unlikely and the original indictment carried the death penalty.70 Hence, while manslaughter indictments were uncommon in

66 Letter from James Sullivan to James Madison (Aug. 16, 1806) (on file with the Library of Congress). 67 The Supreme Judicial Court, COLUMBIAN CENTINEL, Apr. 12, 1806, at 1. 68 ACTS AND LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, 141 An Act Making Further Provision for the Judicial Department, § 1804, ch. 105 (1898). 69 ACTS AND LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, 179 An Act Providing for the Punishment of Murder, Manslaughter, Felonious Maims and Assaults, and Dueling, and for the Prevention Thereof, § 1804, ch. 123 (1898). 70 See IRENE QUENZLER BROWN & RICHARD BROWN, THE HANGING OF EPHRAIM WHEELER 65 (2003). Such dispositions were especially common in burglary indictments, which still carried the death penalty in early nineteenth century Massachusetts. See, e.g., Commonwealth v. Harris, 256 (Feb. Term, Suffolk County, 1802) (Mass Judicial Archives).

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Massachusetts,71 manslaughter convictions did occasionally follow from murder indictments. As Alan Rogers has pointed out, in fact, where some sort of killing had occurred, the usual course in Massachusetts was for the grand jury to indict the killer for murder, “leaving it to the [trial] jury to determine whether the crime was homicide, manslaughter or ‘misadventure.’”72 Unfortunately for Selfridge, the classic definition of manslaughter was “the killing of another without premeditation or malice aforethought.”73 Since a murder indictment would allow Sullivan to delve into the entire history of Selfridge’s dealings with Ben Austin, it would not be hard for him to show, as we have seen, that the lawyer’s actions were at least characterized by “general malice.” Unlike other cases where the jury had delivered manslaughter verdicts on murder indictments,74 this simply did not seem to be one where the killing had arisen from the “heat of blood,” or in a “sudden affray.” Nor was it a case of a sudden provocation, in which a person had killed before he had had time to “cool off.”75 On the contrary, Selfridge’s actions in leaving his office and striding out on to State Street indicate a calculated decision to meet Charles Austin’s assault with deadly force rather than allow a beating to take place. The lawyer had never been in a “heat of passion” in the first place; there was nothing to “cool off" from.

71 Sullivan, in fact, claimed during the Selfridge case that they were all but unknown. Trial of Thomas Oliver Selfridge, supra note 47, at 27. In fact, Massachusetts grand juries did occasionally issue manslaughter indictments. Examples include Commonwealth v. Robins, SJC Hampshire Term 1795 (Reel 26, p. 88, Mass. Judicial Archives) and Commonwealth v. Foster, referenced in Independent Chronicle, (Jan. 1, 1789). These cases, however, bore no resemblance to the events of Black Monday. Robins involved an act of sudden violence with no evidence of a prior grudge between the parties, and Foster involved a purely accidental killing following a militia muster. 72 ALAN ROGERS, MURDER AND THE DEATH PENALTY IN MASSACHUSETTS 16 (2008). See also 2 THOMAS C. AMORY, LIFE OF JAMES SULLIVAN, 168 (1859). According to Amory, “it had been usual, in similar cases, to find a bill for murder, because, in such an indictment, the prisoner could be convicted of the lesser included offense of manslaughter” if evidence of malice were lacking at trial. 73 HAWKINS, supra note 50, at 76. 74 See, e.g., Commonwealth v. Haskell, Nathan Dane, “Docket Book,” Box 18, File 7, Nathan Dane Papers, Mass. Historical Society (an Essex County case where the defendant had killed the victim with a scythe as part of a sudden brawl); Commonwealth v. Pierce, Cumberland Term, 1790, 23 Reel 143 (where the defendant got into a sudden fight and struck the victim with a wooden mallet); Commonwealth v. Kelley, Hampshire Term, 1781, 18 Reel 42 (where the defendant had recklessly given the infant-victim half a pint of rum). 75 Mitchell N. Berman & Ian P. Ferrell, Provocation Manslaughter as Partial Justification and Partial Excuse, 52 WM. & MARY L. REV. 1027, 1039 (2011); See Elise J. Percy, et al.,“Sticky Metaphors” and the Persistence of the Voluntary Manslaughter Doctrine, 44 U. MICH. J. L. REFORM 383, 389–90 (2011).

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And precisely here was the real difficulty from a common law perspective. Nothing in the treatises really captured the concrete situation in which the defendant found himself on the afternoon of Black Monday. Whatever his motivations might have been towards the despised Honestus, powerful social conventions, rather than a truly “malignant spirit” or the “heat of blood,” prompted Selfridge to act as he did in regard to the man who was waiting for him with that cane. As legal historian Allison LaCroix wrote, an affair of honor in the early republic was always a public affair, in which a gentleman had to be seen behaving with courage, or else lose his vital public reputation.76 Honor was a matter of public bearing. Having received word that Charles Austin was waiting for him, Selfridge could not cower in his office after the noon hour. He had to walk out on to State Street, and be seen to do so, because as a lawyer, that is where he customarily would have been. Nor could he have left his pistol behind, for the alternatives—enduring the beating or else running away-- would have been unthinkable to a gentleman in 1806. As he himself put it after the trial, to have acted otherwise than he did would have been to exist as “a living monument to disgrace,”77 unworthy of the trust and respect of his peers.78 The common law insisted that concerns for personal honor had to be put aside in situations like this, and that a man should retreat in the face of a non-felonious assault. But Blackstone’s writ did not run on State Street. In short, having by his posting triggered an affair of honor, Selfridge was no caught in its snares. Ultimately, as we will see, Selfridge’s lawyers would try to persuade the jury that the rules of the honor culture had left Selfrige no choice but to “stand his ground.”79 In the meantime, the common law landscape outlined above also presented Federalists with a serious political dilemma. Unlike the men who constructed those gallows on the Common in January, modern commentators have not considered the crucial political aspect of the upcoming trial. It is that aspect, however, that explains the successful introduction into American law of "Stand Your Ground." Just as the political agenda of the NRA helps account for the spate of Stand Your

76 Allison LaCroix, To Gain the Whole World and Lose His Own Soul: Nineteenth Century Dueling as Public Law and Private Code, 22 HOFSTRA L. REV. 501, 503 (2004). 77 SELFRIDGE, supra note 36, at 44 (emphasis in original). 78 In fact, acting otherwise would have put an end to Selfridge’s own sense of self-worth; which, after all, for a gentleman, was always shaped by the quality of the “public gaze” that was always evaluating his actions. Joanne B. Freeman, Dueling as Politics: Reinterpreting the Burr-Hamilton Duel, 53 WM. & MARY Q. 289 (1996); See LaCroix, supra note 76, at 549. 79 As indeed it eventually did. During his closing argument, Dexter concentrated on the overriding need for a gentleman to preserve his honor regardless of the consequences. See Trial of Thomas Oliver Selfridge, supra note 47, at 126–27.

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Ground statutes, so the political agenda of Massachusetts Federalists helps explain the way the doctrine appeared in the Selfridge case.

A. The Federalists’ Problem: The Political Uses of Manslaughter As noted above, Republican polemicists were quick to draw comparisons between Black Monday and the Boston Massacre. If anything, they insisted, Selfridge’s deed was worse, for he used a “concealed weapon” to kill Charles Austin, whereas the British soldiers wielded their muskets openly.80 By constantly reiterating this point, Republicans skillfully placed the killing in the context of years of charges that Federalists had concealed designs to subvert democratic institutions and restore the evils of monarchy on American shores;81 “every day,” Ben Austin had proclaimed during the last election season, in a typical specimen, “unfolds the designs of a faction against the Republican form of government, against the social compact which forms and binds the United States as a nation.”82 Gore was perfectly correct in suspecting that Republicans hoped that the case would allow them to regain some of the ground they had lost due to the election fiasco.83 This was a problem that the party did not need, given the discouraging electoral trends since 1804. Leverett Saltonstall may have had this in mind when he urged a friend in Boston to “[h]ang Selfridge if you can.”84 In fact, the case presented Federalists with more serious dangers—just as Governor Strong was once more preparing to face the electorate. Owing to the circuit-riding schedule of the justices of the SJC, no grand jury could be convened in Boston until November. If the indictment was for murder—the most likely legal result—Massachusetts law demanded that three justices preside over the ensuing trial. All of them would be Federalists, and all would be entitled to give instructions to the jury and join in considering evidentiary rulings. In the event of an

80 See, e.g., INDEP. CHRON., Aug. 11, 1806. 81 As Salem’s Joseph Story had said, Federalist rhetoric was really “a mere stalking puppet, to deceive us of our liberties; a pantomimic ghost . . . to beguile us into hereditary government.” Joseph Story, Speech in Commemoration of National Independence, in AN ORATION PRONOUNCED IN SALEM ON THE FOURTH DAY OF JULY, 1804, at 31. See also An Address to the People of Massachusetts, INDEP. CHRON., Feb. 27, 1806; Electioneering, INDEP. CHRON., May 5, 1806. 82 Proof Positive of British Influence, INDEP. CHRON., Mar. 13, 1806. Sullivan was as a rule less excitable than his old enemy Honestus, but he also thought that Federalists silently yearned for a monarchy. See, e.g., Letter from James Sullivan to James Monroe (May 9, 1806) in 4 THE WRITINGS OF JAMES MONROE, 482, 482–83 ( Stanislaus Murray Hamilton ed., 1902). 83 Letter from Christopher Gore to Rufus King (Aug. 24, 1806), in 4 THE LIFE AND CORRESPONDENCE OF RUFUS KING 538, 338 (Charles R. King ed., 1897). 84 Letter from Leverett Saltonstall to William Minot (Aug. 5, 1806) in 81 COLLECTIONS OF THE MASSACHUSETTS HISTORICAL SOCIETY 326, 326 (Robert Earle Moody ed., 1974).

60 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 acquittal, or even a conviction on the lesser included offense of manslaughter, the opportunity for Republicans to allege judicial favoritism would be clear and obvious. They had long claimed that the bench and bar were arrayed against them,85 and anything less than a conviction on the murder charge would go far towards making that allegation more compelling. A murder conviction would present an even more urgent problem. Since the mandatory sentence in that event would be death, Selfridge and his friends would no doubt petition Governor Strong for a pardon.86 In keeping with his likable image, Strong regularly pardoned men and women who had been convicted of minor crimes, and were languishing in jail because they were too poor to pay their fines.87 Occasionally, however, he also pardoned individuals facing the death penalty if the prisoner’s friends could attest to his lack of “malignity of heart,” and if the death sentence seemed to serve no useful purpose.88 Petitioners on Selfridge’s behalf could plausibly make this claim, for aside from Black Monday, the lawyer had led an exemplary professional life, and boasted a growing family. Still, if in the midst of the 1807 campaign Strong pardoned Selfridge in response to these petitions, he would jeopardize that reputation for moderation and impartiality that remained the strongest remaining arrow in the quiver of Massachusetts Federalists. Just that summer he had denied pardons to James Halligan and Dominick Daley, Irish laborers whose murder convictions, given gaps in the factual evidence, seemed tainted by anti-Irish sentiment on the jury.89 If Strong pardoned Selfridge, who had unquestionably entered State Street with a loaded pistol and the knowledge that Charles Austin was waiting for him, Republicans would be quick to

85 See, e.g., NAT’L AEGIS, Sept. 10, 1806, at 3 (“it has often been discovered in our Supreme Court” that party feeling governs decisions); see also Letter from Jacob Crowninshield to William Bentley (Nov. 13, 1803) (on file with the Peabody Essex Museum). 86 The Governor’s Council—all Federalists—would receive such petitions and issue recommendations. Occasionally, political considerations weighed heavily in these matters. Governor Hancock, for example, had pardoned those convicted of treason after Shays’ Rebellion, partly in order to dull the appeal of Austin’s anti-judicial radicalism. John Dryden Kazar, Jr., No Early Pardon for Traitors: Rebellion in Massachusetts in 1786, 33 HIST. J. OF MASS. 109, 122 (2005). 87 See, e.g., “Petition of Alexander Clark,” (Aug. 21, 1805) (on file with the Pardon Files, Massachusetts State Archives). 88 Such was the case with Jacob Azzet Lewis, who had been convicted of rape. When Lewis’s friends petitioned for his pardon on the grounds that the circumstances indicated no evil intent, but rather cultural confusion, Strong commuted the sentence to deportation back to Lewis’s native India. “To His Excellency the Governor and Honorable Council of Massachusetts,” (Dec. 1801) (on file with the Pardon Files, Massachusetts State Archives). 89 Petition of Ann Daley (May 27, 1806) (on file with the Pardon Files, Massachusetts State Archives). See REPORT ON TRIAL OF DOMINIC DALEY AND JAMES HALLIGAN (Northampton, S&E Butler 1807).

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 61 question his motives. Even before the trial Republicans were noting the contrast between Federalist support for Selfridge and their silence on behalf of Harrigan and Daley.90 If, on the other hand, Strong allowed Selfridge to be hanged, he risked alienating some members of his party at a time when Federalists needed all the votes they could get.91 These men would not vote for Sullivan in 1807, but they might stay home, giving in to the “supineness and lethargy” that Boston Federalists always worried would play into the hands of Republicans.92 Hence, the inevitable pardon petitions would present Strong with an impossible quandary. One decision promised to anger crucial “middle of the road” voters while the other promised to lessen the fervor of the faithful. Given the governor’s miniscule margin of victory in 1806, alienating either group would certainly deliver the state to Sullivan. There was only one way to escape the conundrum. If, instead of a murder indictment, the grand jury should take the unusual step of indicting Selfridge for manslaughter, three results would follow, all of them good for Federalists. First, only one Federalist judge, not three, would have to preside over a manslaughter trial. In the event of an acquittal, Republicans would find it harder to allege judicial favoritism. Second, a manslaughter conviction would not carry the death sentence. Absent the immediate threat of capital punishment, any application for a pardon would create fewer partisan pressures on Governor Strong, who in any case could easily delay a decision until after the election in April. Finally, a manslaughter indictment would actually—and paradoxically—make an acquittal more likely than (in the event of a murder indictment) a conviction for manslaughter as a lesser included offense. It was a matter of timing. Manslaughter involved a non-premeditated killing that arose from a “sudden passion.” Hence, if the indictment were for manslaughter, Sullivan would have to limit most of his case to the events of August 4th. That meant that it would be difficult for Sullivan to show the considerable degree to which Selfridge, in the preceding week, had needlessly goaded the father and so invited the son’s assault. He would certainly not be able to introduce evidence tending to show that Selfridge had leaked word of the lawsuit to the Repertory’s John Park.

90 See Be Just and Fear Not, NAT’L AEGIS, Sept. 3, 1806. 91 Federalist papers constantly reminded their readers that party fortunes depended on every Federalist going to the polls. See, e.g., Attend to the Election—and Nothing Else, BOSTON GAZETTE, Apr. 2, 1807, at 2. 92 Central Committee Circular Letter, (1805)(on file with the William Shaw Papers, Boston Athenaeum).

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If the indictment were for murder, Sullivan could introduce such evidence in order to show Selfridge’s “general malice,” making it hard indeed for the jury either to acquit (on the basis of justifiable homicide) or to find that the killing had really arisen from a sudden passion. But if the indictment were for manslaughter, it would be much harder for Sullivan to introduce that evidence. This, in turn, would make a jury finding of acquittal based on justifiable homicide—by which a man was under no duty to retreat-- at least within the reach of Otis, Dexter and Gore. It would also, not incidentally, embarrass Sullivan just before the beginning of his fourth attempt to displace Strong from the governor’s office.

B. The Giant of the Law None of this could possibly have been lost on Chief Justice Theophilus Parsons, the man who would deliver the grand jury charge when the SJC met for its next Suffolk Term in November. In fact, no man in Massachusetts had a more capacious grasp of common law doctrines than Parsons, whose mastery of those materials had earned him the sobriquet “the Giant of the Law.”93 During his long career as an attorney, his contemporaries had the impression that Parsons remembered the details of every case he had ever read, for he could “quote from memory passages so apposite to the case at hand, that his opponents were sometimes tempted to suspect that he made the law, which he pretended to recite.”94 Parsons continued the custom as a judge, occasionally annoying leading attorneys like Dexter by interrupting oral arguments in order to bring up authorities he felt they were neglecting.95 The pronouncements of Hale, Hawkins, Blackstone and East were as familiar to Parsons as that morning’s edition of Benjamin Russell’s Centinel. Moreover, there was no doubt of his thoroughgoing Federalism. Parsons’s home on Pearl Street was often the site of meetings of Boston’s party committee,96 and his recent elevation to the SJC was largely the work

93 WILLIAM SULLIVAN, THE PUBLIC MEN OF THE REVOLUTION 394 (Philadelphia, Carey & Hart 1847). See also ROGERS, supra note 72, at 71. According to his colleague, Justice Isaac Parker, Parsons’s habit of “looking deeply into the ancient books of the common law, and tracing back settled principles to original decisions…was the principle source of his early and continued celebrity.” ISAAC PARKER, A SKETCH OF THE CHARACTER OF THE LATE THEOPHILUS PARSONS 11–15 (Boston, John Eliot 1813). 94 Such was the opinion of Senator William Plumer, as related by his son. WILLIAM PLUMER, JR., LIFE OF WILLIAM PLUMER, 176 (Boston, Phillips, Sampson & Co. 1856). 95 Theophilus Parsons, SIBLEY’S HARVARD GRADUATES 190, 205 (Clifford K. Shipton ed., 1975). 96 See, e.g., Resolutions at the Home of T. Parsons (June 18, 1804) (on file with the William Sullivan Papers, Boston Athenaeum).

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 63 of elite lawyers like Gore, who hoped that Parsons’s genius could maintain “a stable judiciary in a time of democratic madness.”97 The justice himself had accepted the appointment only the previous June, assuring Governor Strong that careful attention to the law was the only security “for our social and civil rights, and it is a source of consolation, if our political rights should ever be abused.”98 There was no mystery as to the men whom Parsons believed were most likely to “abuse” those rights. For their part, Republicans returned the favor. Sullivan had long regarded Parsons as one of his bitterest partisan foes,99 and Ben Austin had attacked him as a charter member of the hated “Essex Junto,”100 and in addition to that, as a man of “unbounded vanity and ambition” whose talents were “over-rated.”101 Indeed, if Austin had a polar opposite, it was surely the new Chief Justice. Where Honestus excoriated the common law as an aristocratic leftover from the colonial past, the “Giant of the Law” revered it as a bulwark of reason against the leveling tide of anarchy. In short, Theophilus Parsons was the least likely man in Massachusetts to miss the political benefits of a manslaughter indictment in the Selfridge case. In my view, the only way to understand the clumsy and misleading nature of his grand jury charge—something otherwise mystifying in a man of Parsons’s learning—is to conclude just what Republicans concluded at the time: that it was calculated to steer the grand jury away from a murder indictment and towards a politically desirable indictment for manslaughter.

C. Parsons’s Charge: “The Most Palpable Absurdities and Glaring Contradictions”102 On November 25th, after a four month period in which Black Monday had been the talk of Boston, the grand jury finally convened in the Suffolk Courthouse to hear Chief Justice Parsons’s charge. It began simply enough, with a summary of the difference between murder and manslaughter at common law. Matters quickly took a curious

97 Richard E. Welch, Jr., The Parsons-Sedgwick Feud and the Reform of the Massachusetts Judiciary, 92 ESSEX INST. HIST. COLLECTIONS 171, 177 (1956). See also WILLIAM SULLIVAN, AN ORATION, PRONOUNCED JULY 4TH, 1803 14 (Boston, Gilbert & Dean 1803). 98 Letter from Theophilus Parsons to Caleb Strong, (June 5, 1806) (on file with the Theophilus Parsons Papers, Boston Public Library). 99 Letter from James Sullivan to William Tudor (May 11, 1804) (on file with the James Sullivan Papers, Massachusetts Historical Society). 100 Old South, No. LXXII, INDEP. CHRON., Nov. 8, 1802. 101 See To Theophilus Parsons, Esq., INDEP. CHRON., Oct. 28, 1802; and INDEP. CHRON., Nov. 8, 1802. Austin was attacking Parsons for his involvement in a case then pending in Boston’s federal district court involving a challenge to the constitutionality of the Judiciary Act of 1802. 102 NAT’L AEGIS, Dec. 3, 1806.

64 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 turn, however, with Parsons’s discussion of “manslaughter by provocation”:

Any assault made, not lightly, but with violence, or with circumstances of indignity, upon a man’s person, if it be resented immediately, and in the heat of blood, by killing the party with a deadly weapon, is a provocation, which will reduce the crime to manslaughter; unless the assault was sought for by the party killing, and induced by his own act, to afford him a pretense for wreaking his malice. To illustrate this exception, a case is stated of the falling out of A and B. A says he will not strike, but will give B a pot of ale to touch him; on which B strikes A, who thereupon kills B. This is murder in A…because A sought that provocation.103

The language is based on passages in the treatises, notably those of East, Blackstone and Hale, outlining the definition of manslaughter.104 It is easy to see how members of the grand jury might apply this language to Selfridge. He had been assaulted “with circumstances of indignity,” and he had resented the assault with a “deadly weapon.” Here were plausible grounds for a manslaughter indictment. Plausible, however, only if one read no further than the language quoted above. For both East and Blackstone had been quick to point out in their treatises that the rule would not apply to “any trivial provocation, which in point of law amounts to an assault.”105 If the force used by the defendant was out of proportion to the seriousness of the assault, then the appropriate charge was murder. A reasonable grand juror might well believe that a pistol shot to the chest went far beyond what was necessary to resist an assault with an 8-inch hickory cane, but Parsons chose to omit this exception entirely. Instead, Parsons chose to quote East’s “pot of ale” language; an exception to the rule that had no possible relation to anything Selfridge had done. The defendant had not suddenly dared Charles Austin to touch him. He may well have induced the assault by other actions prior to the afternoon of Black Monday, but nothing in the charge alerted the Grand

103 LLOYD & CAINES , supra note 47, at 6. 104 1 EAST, supra note 50, at 233; 4 BLACKSTONE, supra note 50, at 191; 1 HALE, supra note 54, at 456. 105 1 EAST, supra note 50, at 234; 4 BLACKSTONE, supra note 50, at 199–201.

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Jury that such a course of conduct could be enough to take the case out of the definition of manslaughter.106 Just after the pot of ale language, in fact, East cautions us that it is murder, not manslaughter, if the killing arose from an old grudge; a factor far more obviously applicable to Black Monday, which was conveniently and crucially omitted by Parsons.107 By leaving out two exceptions that directly bore on the facts of the case, and quoting an exception that had nothing at all to do with those facts, Parsons neatly preserved the force of the rule: that a killing done with a deadly weapon in the heat of blood to resist an assault was manslaughter. Having gone this far towards stacking the deck in Selfridge’s favor, Parsons then got to the heart of the matter:

A man may repel force by force, in defence of his person, against anyone who manifestly intends, or endeavors by violence, or surprise, feloniously to kill him. And he is not obliged to retreat…and if he kill him in so doing, it is justifiable self-defence…There must be an actual danger at the time. And (in the language of Chief Justice Hale,) it must plainly appear by the circumstances of the case, as the manner of assault, the weapon, etc., that his life was in imminent danger; otherwise, the killing of the assailant will not be justifiable homicide.108

In this paragraph, Parsons was relying on substantially similar language in East,109 who in turn was quoting from the treatise of Sir Michael Foster, who states that the killer is not obliged to retreat before striking the fatal blow if the victim had intended to commit a known felony upon him.110 But Foster made it clear that in speaking of justifiable self defense he was referring to what other authorities called justifiable homicide, which (as noted above) was available as an affirmative defense

106 The authorities agreed that pre-existing malice between the parties involved in the assault is enough to make the appropriate charge murder, not manslaughter. Hale, for example stated that if there were pre-existing malice, only a “casual” meeting between the killer and victim might reduce the charge to manslaughter. 1 HALE, supra note 54, at 478. 107 EAST, supra note 50, at 239. 108 Trial of Thomas Oliver Selfridge, supra note 47, at 7 (emphasis in original). 109 EAST, supra note 50, at 271. 110 Foster, supra note 50, at 273.

66 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 only if the defendant was free of all fault himself.111 Indeed, the whole purpose of fastening no duty to retreat on the killer in this situation was to serve the public peace by preventing a felony. The plea made no sense at all if the killer had done something to bring a deadly dispute on himself. This crucial requirement—carefully noted by East, the most recent of the treatise writers112-- appears nowhere in the charge. That a man of Parsons’s legal attainments could simply have forgotten this vital element of the definition of justifiable homicide is out of the question, especially given the fact that his teacher, Edmund Trowbridge, had included it in his charge to the jury in the Boston Massacre trials.113 By this point in the charge, the grand jury had heard that a man might resent an assault by killing the assailant with a deadly weapon, without first having to retreat, as long as the assailant was committing a known felony. Of course, Charles Austin was not committing a felony on Black Monday; his assault was intended to chastise, not kill.114 The notion that Selfridge had no duty to retreat that afternoon would therefore seem doubtful in the extreme. Parsons, however, was up to the challenge. The last major portion of charge reads as follows:

But, if the party killing had reasonable grounds for believing, that the person slain had a felonious design against him, and under that supposition kill him; although it should afterwards appear that there was no such design, it will not be murder; but it will be either manslaughter, or excusable homicide, according to the degree of caution used, and the probable grounds of such belief.115

As we have seen, this statement was accurate as far as it went. Foster, Hale and East all agreed that an accused’s guilt might be mitigated if he reasonably believed that the victim intended a felony. But leaving aside the doubtful relevance of this doctrine to Selfridge—who, in the context of Boston’s honor culture, could hardly doubt what Charles Austin really

111 Id. See also Lance K. Stell, Close Encounters of the Lethal Kind: The Use of Deadly Force in Self-Defense, 49 DUKE J.L& CONTEMP. PROBS. 113, 115 (1986) (justifiable self-defense not available if the kill was done out of a private quarrel). 112 EAST, supra note 50, at 277. 113 See The Trial of the British Soldiers (Boston: William Emmons, 1824), 123. 114 According to Nailor’s Case, cited in most of the authorities, a killing was not in lawful self- defense if the victim had only wanted to chastise, not kill, the defendant. See, e.g., EAST, supra note 50, at 276-77. 115 Trial of Thomas Oliver Selfridge, supra note 47, at 7 (emphasis in original).

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 67 intended to do116—the question of what the defendant could reasonably have believed was for the trial jury to decide, after they heard extensive evidence about the course of events leading up to Black Monday. Furthermore, Parsons muddies the issue considerably with his concluding phrase, to the effect that if Selfridge reasonably believed that he had to prevent a felony, even if he was wrong about that, this could reduce the crime to “manslaughter or excusable homicide.” As noted above, a killer might rest his case on excusable homicide even if he had been somehow at fault; but Parsons does not bother to tell the grand jury that a plea of excusable homicide was not available to a killer who had not tried to retreat.117 Why leave this crucial legal requirement out? And for that matter, since no one ever claimed that Selfridge had tried to retreat, why even bring up excusable homicide in the first place? The most likely explanation is that Parsons wished to suggest to the jury that it could legitimately bring no indictment at all—leaving manslaughter to appear as an acceptable compromise between a murder indictment and freeing Selfridge entirely. Parsons concluded by assuring the grand jury that all these principles had been “recognized by the wisest and most humane writers on the common law.”118 East, Hale, Foster and Blackstone may well have been wise and humane, but their principles were most imperfectly represented in the charge. The tenor of the charge throughout was to put Selfridge’s actions in the best legal light possible, even at the price of omitting crucial elements of the common law of homicide. Based upon what they had just been told, the grand jury might easily conclude that a man might at worst be guilty of manslaughter if he had used a deadly weapon to resent a non- felonious assault without first seeking safety, even if he might easily have done so, as long as he had a reasonable (if mistaken) suspicion that the assailant meant to kill him, and without any regard to the killer’s own possible responsibility for triggering the assault. This was not a cogent summary of the difference between murder and manslaughter. This was a parody of what the treatise writers had actually written, and was far more remarkable for what it left out than for what it included. Yet the charge was not simply a product of “remarkable laxity,” as Francis Wharton had concluded in his nineteenth century treatise on

116 Selfridge himself admitted after his trial that he knew Austin intended to administer a beating. Selfridge, supra note 36, at 36. 117 Thomas C. Amory noted this omission in his biography of James Sullivan. See AMORY, supra note 72, at 168. 118 Trial of Thomas Oliver Selfridge, supra note 47, at 7.

68 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 criminal law.119 Given the Giant of the Law’s learning and accomplishments, it is improbable that, having had nearly four months since Black Monday to prepare, he had concocted such a charge out of mere laxity. Rather, his position among Boston Federalists compels a much more likely conclusion. Understanding the considerable advantages both to Selfridge and to his party of a manslaughter indictment, he had bent over backwards to give the grand jury just enough legal cover for producing just that result. The grand jury was more than capable of taking the hint, especially since its foreman was Thomas Handysyd Perkins, a leading Federalist merchant and Parsons’s Pearl Street neighbor—and, incidentally, the man who had been administering federal bond sales in Boston before President Jefferson replaced him with Ben Austin. Indeed, a manslaughter indictment followed in due course, even though the usual pattern in Massachusetts would have been to indict for murder and leave the defendant’s lawyers to argue for manslaughter as a lesser included offense. It bears repeating that a manslaughter indictment meant that Sullivan would be limited in his ability to present evidence showing the degree to which Selfridge had been at fault in the whole business. That, in turn, would make it possible for the jury to acquit on the basis of justifiable homicide. Under that theory, Selfridge would not have had a duty to retreat as long as he reasonably believed himself in danger. As we have seen, an acquittal would be in the interests not just of the defendant, but of his party as well. It was by these largely political motivations that Stand Your Ground found its first elaboration in a major American case. In terms of the trial, which began three weeks after the indictment, things could hardly have gone better for Selfridge and the Federalists. A frustrated Sullivan was still angry that the grand jury had departed from usual practice and not returned a murder indictment;120 and sure enough, he found himself severely hamstrung in his efforts to introduce evidence about the defendant’s actions in the weeks before Black Monday, as Gore and Dexter repeatedly objected on the grounds that malice was no part of the crime of manslaughter. “We cannot,” Dexter insisted, “come here to defend what we are not charged with.”121 Justice Isaac Parker, presiding alone over his first major homicide trial and clearly not enjoying the experience (“it is my misfortune to sit alone,” he lamented at one point)122

119 FRANCIS WHARTON, A TREATISE ON CRIMINAL LAW, Book One, at 57 (Philadelphia: Kay & Brother, 1880). 120 Trial of Thomas Oliver Selfridge, supra note 47, at 27. 121 Id. at 17. 122 Id. at 30.

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 69 struggled with the question, but concluded that nothing should be admitted as evidence aside from matters occurring on the day of the killing or “shortly before.”123 That “shortly before” window was not enough to allow Sullivan to probe into the kind of evidence that would have established malice on Selfridge’s part, leaving him to whine uselessly that had there had been no precedent for a manslaughter indictment on these facts, and that the indictment prevented “a full examination of the unfortunate event” on State Street. This, of course, was probably Parsons’s objective all along. Following a spirited closing argument in which Dexter urged the jury to consider that as a gentleman, Selfridge could not under any circumstances submit to a beating no matter what the common law said, (“there are men in every civilized community, whose happiness and usefulness would be forever destroyed by a beating, which another member of the community would voluntarily receive for a five dollar bill”),124 the jury voted to acquit. With almost all of the evidence focused only on the events of the day of the killing—as was proper following the manslaughter indictment—the jury may have concluded that a man of Selfridge’s status could not reasonably have been expected to retreat in the face of an assault. Alternatively, while there was still no reason to believe that Charles Austin had any sort of felonious intent, there was evidence that Selfridge had a feeble physical constitution;125 perhaps, on that basis, the jury believed that the lawyer might have thought his life was in danger from a beating that would have left most men with nothing but cuts and bruises. In the absence of a jury questionnaire, it is impossible to know conclusively. Republicans duly criticized the aristocratic pretensions of Dexter’s argument,126 and alleged that only in Boston could Selfridge have been acquitted.127 But it was Parsons’s charge that had raised Stand Your Ground as a plausible route to acquittal in the first place, and it was the charge which sparked the most comment in the Republican press. Selfridge, the Chronicle alleged, would never have dared to open fire unless he knew he would receive the “judicial protection” represented by

123 Id. at 74. 124 Id. at 137. 125 While in prison, Selfridge had done his best to find potential witnesses who could testify to his physical debility. See Letter from Abraham Moore to Catherine Mellen (Oct. 11, 1806), Mellen Family Papers, Mass. Historical Society. 126 See, e.g., NATIONAL AEGIS, Jan. 21, 1807. 127 See Communication, INDEPENDENT CHRONICLE, March 16, 1807.

70 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 the charge,128 and it was that feature of the process, and not the verdict, that sent Bostonians building gallows on the Common a week after Selfridge went free. Even if they could not say it outright without risking a seditious libel prosecution,129 Republicans understood how much the politically- convenient verdict owed to the grand jury charge. Hence, it was Parsons’s image, rather than Parker’s, that swung in the January breeze.130 In fact, that winter saw sustained criticism of Parsons’s charge in the Republican press. Whatever Dexter might say about the calls of personal honor, Republicans insisted that Stand Your Ground endangered the peace of the community and threatened the very conditions of civilized life. When Attorney General Eric Holder claimed that Stand Your Ground laws promised to “sow dangerous conflict in our neighborhoods,”131 in 2013 he was unwittingly echoing a critique that Massachusetts Republicans had already made over two hundred years before—albeit against a very distinct historical background.

IV. STAND YOUR GROUND AS AN OFFENSE AGAINST “NEIGHBORLINESS” To understand why Republicans believed that they could strike a responsive popular chord in attacking Parsons’s articulation of "Stand Your Ground," it is useful to recall that in 1806, Bay Staters were only thirty years removed from the Revolution, an event that many of them recalled with pride. Both Federalists and Republicans made certain that the public remembered the role their candidates played in the struggle against the British.132 Boston Republicans were especially adept at aligning their own ideals with the revolutionary culture of their town, and it is especially in that light that we should understand how they depicted the charge in their electioneering polemics. They would pitch their arguments not to the

128 To the Electors of Massachusetts, INDEPENDENT CHRONICLE, March 5, 1807. 129 Parsons did, in fact, demand that the publisher of the National Aegis be prosecuted for libel merely for accusing the Chief Justice of lacking complete impartiality in the Selfridge case. Burr’s Acquittal, NATIONAL AEGIS, Sept. 16, 1807. It was no idle threat. Republican printer John Lillie, for example, had been sentenced to three months in jail for accusing then-Chief Justice Francis Dana of using a grand jury charge to foist “that execrable engine of tyrants, the common law of England” upon the people of Massachusetts. Commonwealth v. Lillie, Suffolk Co. Term, 1802. Mass. Judicial Archives. 130 Parker’s perplexity throughout the trial seems to have won him some sympathy from Republicans, who praised him for his “judgment and impartiality.” See NATIONAL AEGIS, Feb. 4, 1807. 131 See Matt Vasilogambros, Eric Holder is not a Fan of Stand Your Ground Laws, ATLANTIC, www.theatlantic.com/politics/archive/2013/07/eric-holder-is-not-a-fan-of-stand-your-ground- laws/438027/ 132 See Ronald Formisano, The Transformation of Political Culture: Massachusetts Political Parties, 1790s-1840s (New York: Oxford Univ. Press, 1983).

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 71 honor culture of the professional elite, but to older communitarian ideals that still meant something to the broader public. In The Freedoms We Have Lost,133 Barbara Clark Smith argues that the Revolution was in large measure a popular movement, fueled by resentment over British threats to an “ideal of neighboring,” describing a traditional community in which people had mutual obligations of fair dealing with one another. As “members in good standing on a particular social ground,” Smith argues, colonial people believed that they had a right to give or withhold consent from official actions, based upon whether those actions threatened popular expectations of a just political economy.134 On this account, while every citizen deserved a decent “competence” as far as living standards were concerned, it was unneighborly to use connections to British officialdom to amass luxuries. Hence, when Bostonians engaged in boycotts of British goods, chose homespun over fine imported silks, and pulled down the houses of local tax collectors in the 1760s, they were defending this “neighboring” ideal and acting out their determination that London’s policies were “anti- social,” and were fomenting divisions in what should be a peaceful and coherent community. As Daniel Cohen wrote, Boston crowds were striking in their social heterogeneity, as “cooperation and coordination among different social strata were facilitated both by deeply rooted Puritan traditions of corporate solidarity…”135 These expectations had not disappeared with the end of the Revolution; to the contrary, Republicans understood how potent they remained into the early nineteenth century. Both Sullivan and Austin defended the moral virtue of steady hard work in order to achieve a decent competence, as opposed to the arts of speculation and the lust for luxuries.136 Moreover, their party press was filled with constant assertions that Federalists—that “Old Tory faction”—were the only thing standing in

133 Barbara Clark Smith, The Freedoms We Have Lost (New York: New Press, 2010). 134 Id. at 19. Smith’s greater claim is that colonial elites did not so much lead the Revolution as join and collaborate with what was really a popular movement. 135 Daniel Cohen, Passing the Torch: Boston Firemen, ‘Tea Party Patriots’ and the Burning of the Charlestown Convent, 24 J. EARLY REPUBLIC 527, 535 (2004). Benjamin Carp, in his study of the Boston Tea Party, agreed that the town’s revolutionary agitators were able to attract people from “a loose coalition of overlapping groups” from “different social ranks.” BENJAMIN CARP, DEFIANCE OF THE PATRIOTS: THE BOSTON TEA PARTY AND THE MAKING OF AMERICA (New Haven, CT: Yale Univ. Press, 2010), 44. 136 See, e.g., Electioneering, INDEPENDENT CHRONICLE (May 5, 1806) (Sullivan attacks “imitative style of undignified opulence” of Boston Federalists); Old South, No. XXXIII, INDEPENDENT CHRONICLE (April 27, 1801) (Austin defends making money through “principles of honesty and economy” over the habits of “imperious lordlings who have acquired fortunes through the necromancy of speculation”).

72 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 the way of genuine social harmony. Federalism, stated the Pittsfield Sun, in a typical specimen, had “destroyed social order and happiness, alienated friends, divided families…and been the greatest scourge the people of this country have ever suffered.” However, all it would take would be Sullivan’s election to restore the people “to peace and unity among themselves.”137 As Austin wrote, “harmony, peace and moderation depend on the body of republican citizens.”138 Once the State House was genuinely in their hands, once the “arts and intrigues” of Federalists were frustrated, the naturally amicable relations between people would be restored.139 Casting off the British yoke had preserved this communitarian ideal in 1776; casting out Strong and his friends would preserve it in the new century. The harmony rhetoric of many a Republican editorial represents a direct thematic link to the cultural expectations that for Smith, helped produce the Revolution. And it gave Republicans a ready made frame of reference for using Parsons’s charge as a campaign issue. Thus, in responding to the charge, Republicans repeatedly depicted Stand Your Ground as a renewed threat to a cherished “ideal of neighboring;” a strategy fully in keeping with their constant attempts to identify Federalists with the “old Tories” of a generation before (after all Selfridge had opened fire on the site of the Boston Massacre). Where Dexter staked his closing argument on the honor culture which left Selfridge no choice but to stand his ground on Black Monday, Republicans cited an older and broader culture of mutual affection and respect, in which something more than reasonable suspicion ought to be required to avert a murder indictment. For Republicans, Stand Your Ground posed a distinct danger to that secure fellow-feeling that ought to prevail among the citizens of the town. The Chronicle, at least, was quick to draw this conclusion:

[The Charge] is a performance calculated to disturb, rather than promote the peace of society…As this principle now

137 PITTSFIELD SUN (March 3, 1806). See also INDEPENDENT CHRONICLE (Sept. 11, 1806); INDEPENDENT CHRONICLE (Feb. 17, 1806); SALEM REGISTER (March 15, 1806) (with Sullivan’s election, “our worst contentions will cease”). 138 BENJAMIN AUSTIN, CONSTITUTIONAL REPUBLICANISM IN OPPOSITION TO FALLACIOUS FEDERALISM 6 (Boston: Adams & Rhodes, 1803). 139 Such ideas were not unique to New England Republicans, of course. As Peter C. Onuf has reminded us, Jeffersonian politics as a whole were marked by an assumption that the mass of people were Republican at heart, so that “peace and harmony” were likely to follow once Federalists were driven from office. PETER C. ONUF, THE MIND OF THOMAS JEFFERSON 34-35 (Charlottesville, VA: Univ. of Va. Press, 2007).

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stands, every accidental dispute or affair may terminate in death. Suppose a quarrel commences over a bottle of wine, or a mug of flip—the parties threaten each other with a caning, wringing of the nose, etc. After leaving the tavern to return home, one of the parties finds the other coming after him in the same road. In this case, he may have ‘reasonable ground’ to believe, that some felonious design is intended against him, and immediately turns around and kills his supposed antagonist…In the name of humanity— in the name of COMMON SENSE—in the name of CHRISTIANITY—we call upon Judge Parsons to be more explicit, and not leave citizens in this dreadful state of insecurity of their lives…140

Indeed, if a man might kill under the circumstances of Black Monday, armed with a gun and nothing more than a reasonable supposition that he was the target of a felony, no one was safe; the Charge meant that “the security of life has now become an interesting question to every citizen in the Commonwealth of Massachusetts,”141 for the peace of society was now thrown into doubt.142 Even innocent sports might end in the death of a beloved son if a man might resent trifling assaults by opening fire with a concealed weapon.143 In short, the charge offended the ties that bound people together in a state of civilized society. If a killing might be justified so easily, the social contract was broken, and there was nothing left to do but “disperse and live like savages.”144 Accordingly, the Republican Spy proclaimed that Parsons had forgotten the simple truths “that the life of man, being the ‘breath of the almighty,’ is the immediate property of God, and conformable to the fiat of God himself, that ‘he who sheddeth man’s blood, by man shall his Blood be shed…this doctrine, it is presumed, will not be controverted in a Christian Country, as not being a correct law, conformable to the Laws of God, the serenity of society, and the safety of individuals.”145 No wonder that residents of Northampton, celebrating the anniversary of Jefferson’s inauguration, reserved the most ironic of their toasts for the

140 INDEP. CHRON. (Dec. 8, 1806). 141 INDEP. CHRON. (Dec. 1, 1806). 142 Extract of a Letter from a Friend in the Country, INDEPENDENT CHRONICLE (Dec. 11, 1806). 143 INDEP. CHRON. (Jan. 8, 1807). 144 REPUBLICAN SPY (Dec. 24, 1806). 145 Id.

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Chief Justice, raising their glasses to “Judge Parsons—‘And the Judgers will I Judge,’ saith the Lord.”146 Republicans adopted language like this because they knew that the expectations of social harmony that Smith places at the core of revolutionary sentiment retained considerable force in Massachusetts. But hostility towards Parsons’s summary of Stand Your Ground was not limited to official party polemics. The itinerant preacher John Fletcher expressed his own worries about what such a doctrine meant for the average citizen:

Shall a man be so criminal as to do all in his power to provoke mankind, so that he is afraid of walking the streets at noon-day, without a deadly weapon, looking for and expecting the fruit of his provocation from the hand of the injured; watching an opportunity to take his life? And then plead that he did it in defence of his own?. . . And shall the criminal heart, and the cowardly, and jealous mind have protection by the law, and not call it murder when he has killed a man in time of peace?147

Fletcher’s words afford us a glimpse of how many early nineteenth century New Englanders would have perceived that “neighborliness” which "Stand Your Ground threatened: as something ordained as a matter of scripture. “Ne’er presume thy laws to break, or vengeance ever try to take,” cautioned another traveling preacher, Jonathan Plummer, in his own commentary on Black Monday,148 while John Horace Nichols poetically asked “Shall dire discord & fell Revenge/Open the sluices of our Blood?/Shall Anarch’s lawless Minions Plunge/And Wanton in the Crimson’s Blood?”149 It was this link between the neighborly and the Godly community that the Chronicle no doubt had in mind when it related the following anecdote, supposedly overheard just after the indictment: A Federalist, hearing that a bill for manslaughter only was found against T.O. Selfridge, exclaimed, he is cleared, by God—No Sir, replied a boy, “he is not cleared by GOD, though he may be by MAN.”150

146 REPUBLICAN SPY (March 11, 1807). 147 John Fletcher, Observations on the Law, 15 (Boston: John Fletcher, 1807) (on file with the American Antiquarian Society). 148 Jonathan Plummer, Death of Mr. Charles Austin (Broadside 1807). 149 JOHN HORACE NICHOLS, FUNERAL DIRGE: LIBERTY AND SCIENCE MOURN A PROMISING AND FAVORITE SON (Broadside 1806). 150 INDEP. CHRON., Dec. 11, 1806.

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Once we recall the way offenses against popular justice during Samuel Adams’s day could once give rise to direct popular action, the meaning of the “effigy riot” falls easily into place. Just as patriot crowds in the years before 1775 deployed mock legal symbols to show their opposition to official actions that violated their sense of the proper, natural social order,151 Ben Austin’s followers ritually hanged Parsons to display their belief that the sentiments of the charge were inconsistent with the way people ought to behave towards one another. Certainly Republicans saw the riots as a renewed burst of the old spirit of the Sons of Liberty. “We rejoice at it,” shouted Worcester’s National Aegis, “we rejoice that the people have in their bosoms a spark of the old spirit that once kindled a whole nation to energy and vigor.”152 Republicans would continue to use Parsons’s “extraordinary” charge153 as an issue in the gubernatorial campaign right up until Election Day, pointing constantly to the social dangers of “justifying” a killing “effected by a person who had made every preparation to bring a trifling controversy to a fatal conclusion,” an act, they claimed to be more criminal than anything the British soldiers of 1770 had done.154 In February, Ben Austin submitted his own “memorial” to the state legislature calling for an immediate change in the law of homicide as stated by Parsons in the charge. Prominently featured on page one of the Chronicle, Austin’s proposal repeated the claim that Stand Your Ground endangered the bonds of neighborliness that ought to prevail between members of a community. After worrying that the charge threatened a return to the “savage propensities” that governed people in a “state of nature,” and after doubting that the charge could be squared with “principles of piety, religion and morality,” Austin posed a question: what evils would befall society if a man might kill out of a “supposition” that a felony was intended?

151 Stephen Wilf has written in depth about the revolutionary crowds’ persistent uses of “legal vernacular,” such as gallows, effigies and trial narratives, as ways of articulating and defending notions of popular justice against contrary official acts. For Wilf, these symbols were ways for people to “imagine” the criminal law as a way to defend popular sovereignty when British policies increasingly threatened that ideal. STEVEN WILF, IMAGINED REPUBLIC: POPULAR POLITICS AND CRIMINAL JUSTICE IN REVOLUTIONARY AMERICA (2010). 152 NAT’L AEGIS, Jan. 21, 1807. 153 “The Charge is of an extraordinary kind—the bill for manslaughter only, in a case so circumstanced, is unparalleled in the history of the country.” INDEP. CHRON., March 5, 1807. 154 INDEP. CHRON., March 9, 1807; See also Elector, INDEP. CHRON., April 2, 1807. (referring to the “blood-stained street in Boston, where blooming innocence fell beneath a ruffian’s hand, and federalists sanctioned the crime”).

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May not every social circle be exposed to some fatal catastrophe, if the fears, apprehensions and jealousies of men, are thus to furnish a legal proof to lessen the crime of murder, to manslaughter or excusable homicide? If this doctrine is within the common law, your applicant with serious anxiety would enquire whether it is not repugnant to the rights and liberties contained in our Constitution?— Whether it is not opening the door to the most atrocious murders on the slightest pretext of passion and human infirmity?...Do we wish our children to be nourished in these principles which may leave the innocent prey to the ferocious and sanquinary? (if the principles of the Charge are law), will not violence be repulsed by violence?— Havoc produce Havoc…the spectre of civil discord (affirmed with the weapons of jealousy and Suspicion) will be seen stalking through our streets, scattering desolation, misery and crimes!155

In the absence of exit polling, it is impossible to say how important rhetoric like this was in securing Sullivan’s election as Massachusetts’ first Republican governor in April of 1807. But he was elected by a sizable majority of over 2000 votes. For the first time, Massachusetts would have a Republican governor and legislature, leading William Eustis to write that “we have every reason to look forward to peace and tranquility.”156 The Chronicle agreed, characteristically predicting that a Republican administration would mean, at long last, a restoration of natural “harmony” to Massachusetts, and hoping that no “suspicion” would in the coming year “lead a desperado to imbue his hands in the blood of a fellow citizen.”157 Eight months after Black Monday, then, Republicans continued to view the Selfridge case, and especially Stand Your Ground, through the lens of politics and persistent assumptions about a just and moral society.

V. CONCLUSION While the Stand Your Ground doctrine has common law roots, its entry into American law did not spring naturally from that tradition. Nor

155 The Memorial of Benjamin Austin, INDEP. CHRON., Feb. 23, 1807. The memorial was received by the legislature and tabled for consideration at a later date. 156 Letter from William Eustis to Henry Dearborn, (April 9, 1807). (Eustis Papers, Library of Congress). 157 FAST DAY—Anticipation, INDEP. CHRON., April 8, 1807.

2017] PARSON'S CHARGE: THE STRANGE ORIGINS OF STAND YOUR GROUND 77 did it owe much to what Justice Brandeis called the common law’s “beautiful capacity for growth,” in response to the needs of an evolving society. Rather, it appeared in imperfect form in a grand jury charge artfully worded so as to secure a manslaughter indictment in the case of Commonwealth v. Selfridge; far from reflecting the “felt needs of the time,” it ran counter to the human instincts of much of the community of early nineteenth century Massachusetts. Dexter’s closing argument had, in fact, specifically taken account of a deep difference of opinion: even if, in the “honor culture” of Boston’s elite, a gentleman—merely by virtue of that status—could not be expected to retreat, for most of the people on whom Austin and Sullivan depended for Republican votes—people who did not maintain counting houses and law offices on State Street—"Stand Your Ground’s" “unchristian tenets”158 seemed to violate the moral networks that tied the community together. In 1807, as in 1765, popular leaders were able to mobilize local crowds to protest official action that ran counter to the common understanding of natural justice. It is not hard to see the parallels between this early reception of Stand Your Ground and current controversies. Opponents of the doctrine continue to argue that it has stemmed more from politics—the agenda of the NRA—than from the rational evolution of criminal law. They continue to argue that Stand Your Ground is inconsistent with a racially just and moral social order.159 If Parsons’s charge threw into relief the difference between the communitarian neighborliness of traditional Boston and the elite honor culture of its gentlemanly caste, modern debates about Stand Your Ground denote a similar divide, between a largely rural “gun culture” and an urban population that is more likely to favor gun control laws.160 One group extols gun ownership as a way to prevent violence. Oklahoma representative Kevin Calvey spoke for this group when he claimed that Stand Your Ground laws will “give crooks second thoughts about carjacking and things like that. They’re going to get a face full of lead.”161 The other group believes that Stand Your Ground only worsens the problem of gun violence,162 leading to a “world where everyone feels

158 INDEP. CHRON., Dec. 11, 1806. 159 See, e.g., DEVON JOHNSON, AMY FARRELL AND PATRICIA WARREN, EDS., DEADLY JUSTICE: TRAYVON MARTIN, RACE AND THE CRIMINAL JUSTICE SYSTEM (2015). 160 See, e.g., MICHAEL WALDMAN, THE SECOND AMENDMENT: A BIOGRAPHY 173 (2014). 161 States Signing on to Disastrous Self-Defense Law, MIAMI DAILY HERALD, May 24, 2006., quoted in Daniel Sweeney, Standing Up to ‘Stand Your Ground’ Laws, 64 CLEVELAND STATE L. REV. 715, 733 (2016). 162 “The message to would-be killers is now clear,” proclaims the Coalition to Stop Gun Violence. Stand Your Ground means that killers “need not fear carrying your gun in public, or using it.” See “Stand Your Ground Laws”, www.csgv.org/issues/shoot-first-laws. The theory that Stand Your Ground

78 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 pressure to carry a gun.”163 In 2016, the gulf between the two groups is fully as wide as the one that separated Austin’s effigy-builders from Selfridge’s patrons in 1807. The story of the Selfridge case also highlights a difference in political cultures in Austin’s day and today. Over two hundred years ago, faced with a grand jury charge that they considered to be politically biased and deeply offensive, Massachusetts Republicans fought back by combining traditional electioneering with the revolutionary vocabulary of street protests, involving actions which crossed the line of legality (the men who erected those threatening gibbets on the Common had not bothered to apply for a permit first, nor would the Federalist Board of Selectmen have issued one if they had). Modern Americans are accustomed to different politics, in which the tactics of organizations like Black Lives Matter have little or nothing to do with partisan efforts to win elections and pass legislation. Americans who worry about the outsized influence of interest groups like the NRA may need to explore ways to bridge this gap, once more invigorating politics with the power of the crowd.164

may increase the number of homicides has found support in the work of Cheng Cheng and Mark Hoekstra, who found an 8% increase in the homicide rate in twenty states with Stand Your Ground laws. Cheng and Hoekstra, Does Strengthening Self-Defense Law Deter Crime or Escalate Violence, 48 J. OF HUM. RESOURCES 821 (2013). 163 Philip J. Cook, Why Stand Your Ground Laws are Dangerous, www.scholarsstrategynetwork.org/brief/why-stand-your-ground-laws-are-dangerous, (Aug. 2013). 164 Others, in fact, have suggested that the direct crowd actions of the early republic provide a model for injecting a new kind of democratic energy into twenty-first century politics. See, e.g., ROBERT W.T. MARTIN, GOVERNMENT BY DISSENT (2013). Tabitha Abu El-Haj, on the other hand, finds her model in the popular protests of the late nineteenth century. EL-HAJ, All Assemble: Order and Disorder in Law, Politics and Culture, 16 U. OF PENN. J. OF CONST. LAW 949 (2014).

The Word that Cannot be Spoken: Notes from the Jurisprudential Underground

STEPHEN FELDMAN

American Law Journals have banished a word: “postmodern.” In rendering this word taboo, legal scholars delegitimize a useful interpretive tool and, in failing to address useful criticism, undermine their own arguments. This article examines postmodernism in interpretive contexts, the endurance of postmodernist thought in all but name, and some reasons why postmodernism has become taboo.

ARTICLE CONTENTS

I. INTRODUCTION ...... 82 II. THE CLANDESTINE MANIFESTATION OF TABOOISM ...... 84 III. WHY THE TABOO? ...... 89 IV. CONCLUSION ...... 98

The Word that Cannot be Spoken: Notes from the Jurisprudential Underground

STEPHEN FELDMAN†

I. INTRODUCTION American law journals have banished a word. This word is neither offensive nor profane. Depending on context, the word previously signified an era, a cultural concept, or a philosophical theory. Regardless, it can no longer be spoken—or, more precisely, written. This word, this era, this concept, this theory, has become taboo. Its banishment presents a problem for me as the author of this essay. I wish to explain this thing, its importance and its fate, but I cannot say it. To write this essay, then, I need a placeholder. A number of options are possible. My first thought was to use Voldemort, the name of the archvillain in the Harry Potter fantasy series. Characters in these novels constantly refer to Voldemort as “You-Know-Who” or “He-Who-Must- Not-Be-Named.”1 Only the most powerful, like Professor Dumbledore, or the most courageous, like Harry, use Voldemort’s proper name. If I had opted for Voldemort, I would need to refer to Voldemortism, Voldemortity, and the like. These are mouthfuls, but the major drawback of Voldemort is that he is an evil antagonist. While many might disagree with me, I believe it would be misleading to suggest that my subject matter is evil or antagonistic. Eventually, I decided to use the term Taboo as my placeholder.2 Taboo spotlights the widespread current attitude toward this subject matter. The academic legal community largely forbids discussions and invocations of Tabooism. It has been driven underground or, perhaps, more precisely, below the line. If you are still uncertain about what Taboo stands for, then look below the footnote line. The notes to this essay openly use the forbidden word because, after all, who cares what scurries around below the line (well, maybe some law journal editors care).3 A simple Westlaw

† Visiting Scholar, Harvard Law School. Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. 1 J.K. ROWLING, HARRY POTTER AND THE GOBLET OF FIRE 141–42, 593, 595 (2000); J.K. ROWLING, HARRY POTTER AND THE SORCERER’S STONE 11 (1997). 2 See MARY DOUGLAS, PURITY AND DANGER 1966 (2003) (ebook) (studying taboo rituals). 3 The banished word is ‘postmodern’ (and its derivatives, such as postmodernism and postmodernity). For characterizations of postmodernism, see STEPHEN M. FELDMAN, AMERICAN LEGAL THOUGHT FROM PREMODERNISM TO POSTMODERNISM: AN INTELLECTUAL VOYAGE 37–45,

2017] THE WORD THAT CANNOT BE SPOKEN 83 search through the ‘Law Reviews & Journals’ database revealed that flagship journals now rarely publish articles with Taboo or its derivatives in the title. As a comparison, flagship journals published seventy-four such articles from 1992 to 2001, the heyday for open discussions of Tabooism. But from 2007 to 2016, the number dropped dramatically to only thirteen articles. In fact, from 2012 forward, only two such articles have been published.4 As an empirical matter, the prohibition on Tabooism has been extremely effective. When a writer today mentions Taboo or its derivatives (for example, Tabooism), the word typically connotes opprobrium. Taboo is anathema. We see this denunciatory labeling of Taboo in a variety of sources, not only in legal scholarship but also in popular media and Supreme Court opinions. In law journals, Douglas Laycock dismissed a Taboo “world in which no text or symbol has any core meaning and any text can mean anything.”5 Robert F. Cochran condemned Tabooism for slouching “toward nihilism.”6 Legal historian James Hackney referenced “some fanciful [Taboo] notion [in which] there are no scientific truths.”7 In a book review, James Q. Whitman criticized the author merely for relying too heavily on a Tabooist, Michel Foucault.8 In other media, conservative columnist Jonah Goldberg condemned President Obama as a Tabooist.9 Goldberg explained: “[Tabooism] was and is an enormous intellectual

137–87 (2000) [hereinafter AMERICAN LEGAL THOUGHT]; FREDRIC JAMESON, POSTMODERNISM, OR, THE CULTURAL LOGIC OF LATE CAPITALISM (1991); NANCEY MURPHY, ANGLO-AMERICAN POSTMODERNITY: PHILOSOPHICAL PERSPECTIVES ON SCIENCE, RELIGION, AND ETHICS (1997). 4 The numbers change, of course, if one accounts for secondary journals and for articles that discuss postmodernism without using it in the title. Also, the numbers change if one includes articles published with the word, deconstruction, and its derivatives in the title. Nevertheless, the point is the same: As an empirical matter, law reviews now rarely publish articles that focus on and overtly discuss postmodernism. 5 Douglas Laycock, Government-Sponsored Religious Displays: Transparent Rationalizations and Expedient Post-Modernism, 61 CASE W. RES. L. REV. 1211, 1248 (2011). 6 Michael Martinez & William Richardson, The Federalist Papers and Legal Interpretation, 45 S.D. L. REV. 307, 333 (2000). 7 James Hackney, The “End” Of: Science, Philosophy, and Legal Theory, 57 U. MIAMI L. REV. 629, 636 (2003); see Robert F. Cochran, Jr., Professionalism in the Postmodern Age: Its Death, Attempts at Resuscitation, and Alternate Sources of Virtue, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y 305, 310 (2000) (denouncing postmodernism as being nihilistic). 8 James Q. Whitman, The Free Market and the Prison, 125 HARV. L. REV. 1212, 1219–21, 1224– 25, 1229–30 (2012) (reviewing BERNARD E. HARCOURT, THE ILLUSION OF FREE MARKETS: PUNISHMENT AND THE MYTH OF NATURAL ORDER (2011)); see Brian Leiter, Books in Review, in ABA Divsion for Public Education Focus on Law Studies 14, 14 (Fall 1998) (condemning postmodernists for their “sophomoric jargon”). For a list of additional articles labeling postmodernism in denunciatory terms, see Reza Dibadj, Postmodernism, Representation, Law, 29 U. HAW. L. REV. 377, 377, 408 (2007). 9 Jonah Goldberg, Obama, the postmodernist, USA TODAY 11A (Mar. 23, 2011), available at http://usatoday30.usatoday.com/printedition/news/20080805/opledetuesdayx.art.htm.

84 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 hustle in which left-wing intellectuals take crowbars and pick axes to anything having to do with the civilizational Mount Rushmore of Dead White European Males.”10 According to Goldberg, “the deep dishonesty” of Tabooism threatens truth, rightness, and the American way of life.11 And it is not only conservatives who issue such denunciations. In the liberal magazine, American Prospect, Chris Mooney equated Tabooism with “fact-free discourse.”12 Meanwhile, in a dissent to the Supreme Court’s same-sex marriage decision, Obergefell v. Hodges, Justice Alito denigrated the majority’s interpretation of Due-Process liberty as having “a distinctively [Taboo] meaning.”13 Of course, the widespread denunciation and dismissal of Tabooism raises a crucial question: Why do so many writers condemn Tabooism? This essay answers this question. Part I explains how Tabooism is occasionally manifested in legal scholarship despite its banishment. Part II explores the reasons for the banishment. Part III, the conclusion, discusses why legal scholars should again openly discuss Tabooism.

II. THE CLANDESTINE MANIFESTATION OF TABOOISM Most critics equate Tabooism to no more than a “four-letter word.”14 When explicitly mentioned, it is immediately denounced as nonsense, unconstrained relativism, nihilism, and the like. Even so, many current scholars rely on Taboo insights and themes, often apparently without realizing they are doing so. To be fair, one reason for that lack of awareness arises from the nature of Tabooism itself: many of its primary themes are drawn from earlier intellectual movements. For instance, Tabooists break down disciplinary boundaries and emphasize interdisciplinary work.15 To be sure, academic disciplines can provide useful methods of research, but from the Taboo standpoint, that reason alone is insufficient to limit one’s scholarship to only one such method. Tabooism, though, is neither the first nor the only form of legal scholarship to emphasize interdisciplinary methods. The Legal Realists of the 1920s

10 Id. 11 Id. 12 Chris Mooney, Reality Bites, AMERICAN PROSPECT 2 (June 6, 2011); see Kevin Mattson, The Book of Liberal Virtues, AMERICAN PROSPECT (Jan. 16, 2006) (condemning conservatives as postmodern). 13 Obergefell v. Hodges, 135 S. Ct. 2584, 2640 (2015). 14 Dibadj, supra note 8, at 389. 15 See Stephen M. Feldman, The Transformation of an Academic Discipline: Law Professors in the Past and Future (or Toy Story Too), 54 J. LEGAL EDUC. 471, 491 (2004) (discussing the development of law as an academic discipline).

2017] THE WORD THAT CANNOT BE SPOKEN 85 and 1930s were renowned for their reliance on social-science methods.16 Regardless, nowadays, interdisciplinary scholarship is standard fare in law journals. The use of history, for instance, has exploded across legal scholarship.17 But history is not the only non-law discipline to grace pages of recent law journals. One can find articles relying on anything from Sartrean philosophy to the qualitative and quantitative methods of the social sciences, including economics, of course.18 On the one hand, this abundance of interdisciplinary scholarship cannot be attributed solely to Tabooism. On the other hand, the proliferation of such scholarship is commensurate with the Taboo paradigm.19 From a Taboo stance, disciplinary boundaries are contingent fences that constrain creative thinking and should be disregarded whenever fruitful.20 Interdisciplinarity is not the only Taboo insight or theme to appear in recent law journals.21 One can find discussions of the social construction of

16 AMERICAN LEGAL THOUGHT, supra note 3, at 108–15; see, e.g., William O. Douglas, Wage Earner Bankruptcies—State v. Federal Control, 42 YALE L.J. 591, 593 (1933) (explaining how to improve bankruptcy system). 17 Christopher Tomlins, Review Essay—The Consumption of History in the Legal Academy: Science and Synthesis, Perils and Prospects, 61 J. LEGAL EDUC. 139, 139––46 (2011); see Robert W. Gordon, The Arrival of Critical Historicism, 49 STAN. L. REV. 1023 (1997) (discussing the use of history for critical purposes); Paul Horwitz, The Religious Geography of Town of Greece v. Galloway, 2014 SUP. CT. REV. 243, 243 (2014) (arguing that constitutional lawyers “are obsessed with history”). See generally, Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411, 419 (2012) (using history to illuminate constitutional jurisprudence); Michele Goodwin & Erwin Chemerinsky, No Immunity: Race, Class, and Civil Liberties in Times of Health Crisis, 129 HARV. L. REV. 956, 965 (2016) (using history to show how health policies can be used to discriminate against racial minorities and the poor); Alison L. LaCroix, The Interbellum Constitution: Federalism in the Long Founding Moment, 67 STAN. L. REV. 397, 400 (2015) (using history to explain federalism and spending power); Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 STAN. L. REV. 479 (2015) (reexamining Supreme Court decisions from 1962). 18 RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (Penguin Books 2009) (2008) (drawing on behavioral science and economics); Craig Green, What Does Richard Posner Know About How Judges Think, 98 CAL. L. REV. 625 (2010) (using history); Richard A. Posner, Legal Scholarship Today, 115 HARV. L. REV. 1314, 1321–22 (2002) (discussing economic theory); David E. Pozen, Constitutional Bad Faith, 129 HARV. L. REV. 885, 895–896 (2016) (drawing on Sartrean philosophy); Kathryne M. Young & Joan Petersilia, Keeping Track: Surveillance, Control, and the Expansion of the Carceral State, 129 HARV. L. REV. 1318, 1359 (2016) (emphasizing the use of both qualitative and quantitative research). 19 AMERICAN LEGAL THOUGHT, supra note 3, at 166–68 (explaining interdisciplinarity as aspect of postmodern themes); Arthur F. McEvoy, A New Realism for Legal Studies, 2005 WIS. L. REV. 433, 442–48 (2005) (tying current interdisciplinary scholarship to postmodernism); see FRANÇOIS CUSSET, FRENCH THEORY 162–65 (Jeff Fort trans., 2008) (emphasizing the use of history to unmask illegitimate assumptions). 20 See STEVE FULLER, PHILOSOPHY, RHETORIC, AND THE END OF KNOWLEDGE: THE COMING OF SCIENCE AND TECHNOLOGY 33–37 (1993) (arguing against disciplinary boundaries). 21 Stephen M. Feldman, Playing with the Pieces: Postmodernism in the Lawyer’s Toolbox, 85 VA. L. REV. 151 (1999) (discussing absorption of postmodern themes into legal scholarship); Stephen M. Feldman, The Supreme Court in a Postmodern World: A Flying Elephant, 84 MINN. L. REV. 673

86 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 the self and identity.22 Likewise, one can find self-reflexive ruminations on the state of legal scholarship.23 Given that legal scholars so frequently rely on such themes and insights without acknowledging possible ties to Tabooism, one might wonder whether these scholars are truly unaware of the resonance with Tabooism. After all, the constant denigration of Tabooism spotlights a risk for any scholar who explicitly invokes Taboo themes or insights. Why risk being labeled a nihilist or condemned as babbling on about nonsense?24 Indeed, a scholar will sometimes go to great lengths to avoid using the word Taboo. In an article on constitutional interpretation, André LeDuc articulated a Wittgensteinian approach to interpretation and cited prominent Tabooists, such as Richard Rorty and Dennis Patterson.25 LeDuc avoided mentioning Tabooism in the text but dropped a footnote on the subject. He admitted that Tabooism is a label to be shunned for “presentational reasons” because it is, “in certain circles, fighting words.”26 Sometimes, authors’ efforts to avoid mentioning Tabooism border on the comical. Louis Michael Seidman’s book, Our Unsettled Constitution, is a stunning example.27 Seidman presented a “new theory of Constitutional Law,”28 though in truth, he provided a persuasive Taboo description of constitutional jurisprudence and adjudication.29 Seidman intriguingly

(2000) (discussing absorption of postmodern themes into Supreme Court opinions). 22 Michelle Adams, Radical Integration, 94 CAL. L. REV. 261 (2006) (emphasizing identity); Jessica A. Clarke, Identity and Form, 103 CAL. L. REV. 747 (2015) (discussing identity); Laura E. Gomez, Off-White in an Age of White Supremacy: Mexican Elites and the Rights of Indians and Blacks in Nineteenth-Century New Mexico, 25 CHICANO-LATINO L. REV. 9 (2005) (emphasizing the social construction of race); Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L.J. 345 (2007) (emphasizing that perceptions are socially and culturally constructed); see AMERICAN LEGAL THOUGHT, supra note 3, at 174–78 (discussing social construction of self or subject). 23 Lynn M. LoPucki, Disciplining Legal Scholarship, 90 TUL. L. REV. 1 (2015); Steven Keslowitz, The Transformative Nature of Blogs and Their Effects on Legal Scholarship, 2009 CARDOZO L. REV. de novo 252 (2009); Symposium: Law, Knowledge, and the Academy, 115 HARV. L. REV. 1278 (2001–2002) (a symposium of scholarship about legal scholarship); see AMERICAN LEGAL THOUGHT, supra note 3, at 176–81 (discussing self-reflexivity in legal scholarship). 24 E.g., Dennis W. Arrow, Pomobabble: Postmodern Newspeak and Constitutional "Meaning" for the Uninitiated, 96 MICH. L. REV. 461 (1997); see Stephen M. Feldman, An Arrow to the Heart: The Love and Death of Postmodern Legal Scholarship, 54 VAND. L. REV. 2351 (2001) (responding to Arrow). 25 André LeDuc, The Anti-Foundational Challenge to the Philosophical Premises of the Debate over Originalism, 119 PENN ST. L. REV. 131 (2014). 26 Id. at 152 n.91. In an article published in 2002, well-before postmodernism had de facto disappeared from the law reviews, the author discussed the state of legal scholarship yet mysteriously failed to even mention postmodern scholarship. Todd D. Rakoff, Introduction: Law, Knowledge, and the Academy, 115 HARV. L. REV. 1278 (2002). 27 LOUIS MICHAEL SEIDMAN, OUR UNSETTLED CONSTITUTION (2001). 28 Id. at 1. 29 If a theory is supposed to provide some guidance toward constitutional interpretation or

2017] THE WORD THAT CANNOT BE SPOKEN 87 called his approach an “unsettlement theory.”30 The crux of his argument was that constitutional adjudication never settles disputes. The losers can always reassure themselves that their preferred constitutional interpretation is reasonable and that the current judicial conclusion is unjust.31 The constitutional argument, in other words, is never closed. Seidman argued that this continuing openness to constitutional argument is crucial to maintenance of the political community: “In short, an unsettled constitution helps build a community founded on consent by enticing losers into a continuing conversation.”32 Seidman built his unsettlement theory on numerous interrelated Tabooist insights and themes. For example, Tabooists are antifoundational.33 At least some Tabooists believe in truth and knowledge but not in objective foundations.34 Seidman described his theory as “antifoundational,” emphasizing disagreement over “foundational claims.”35 Antifoundationalism leads deconstructive Tabooists to accentuate the indeterminacy of textual meaning. It should be stressed that these deconstructionists do not deny that texts have meaning; they argue that texts have many meanings.36 A text (any text) is indeterminate because it cannot be reduced to one objective truth. Seidman claimed that “constitutional rhetoric provides powerful support for virtually any outcome to any argument.”37 This indeterminacy of the Constitution is central to his theory: “A preordained outcome entails a settlement; it is the very indeterminacy of the outcome that makes the constitution unsettled.”38 In underscoring indeterminacy, Seidman even referred explicitly to

adjudication, Seidman was not writing traditional theory. Of course, the meaning of theory can be contested. Stephen M. Feldman, How to Be Critical, 76 CHI.-KENT L. REV. 893, 893–97 (2000) (contrasting traditional and critical theory); see Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773 (1987) (rejecting theory); Mark Tushnet, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 YALE L.J. 1037 (1980) (arguing that traditional legal process constitutional theory is impossible). 30 SEIDMAN, supra note 27, at 8. 31 Id. at 8. 32 Id. at 8–9. 33 See AMERICAN LEGAL THOUGHT, supra note 3, at 163–66. 34 See HANS-GEORG GADAMER, TRUTH AND METHOD 295, 309 (Garrett Barden and John Cumming eds., Sheed and Ward Ltd. trans., 1989) (arguing for truth without method). 35 SEIDMAN, supra note 27, at 211. 36 JACQUES DERRIDA, DECONSTRUCTION IN A NUTSHELL 27–28 (John D. Caputo ed., 1997) (discussing the iterability of a text); see Stephen M. Feldman, Made For Each Other: The Interdependence of Deconstruction and Philosophical Hermeneutics, 26 PHIL. & SOC. CRITICISM 51, 57–59 (2000) (discussing the overlap between Gadamerian hermeneutics and Derridean deconstruction and the deconstructive emphasis on multiple meanings). 37 SEIDMAN, supra note 27, at 10–11. 38 Id. at 9.

88 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 deconstruction, a concept sometimes associated with Tabooism.39 “[T]he core distinctions around which constitutional law is organized—the difference between freedom and coercion, public and private, feasance and nonfeasance—are easily deconstructed.”40 An important concept in Tabooist deconstruction is the Other.41 The Other refers not only to suppressed textual meanings but also to marginalized and oppressed individuals and groups. Because any text has multiple meanings, when one particular meaning is stressed—for instance, identified as the correct meaning—then other meanings are suppressed. Those suppressed meanings often represent the voices or perspectives of marginalized individuals and groups. The dominant viewpoints of the mainstream thereby overcome the views of peripheral societal groups.42 Seidman, thus, emphasized “otherness.”43 “[N]o political community will ever be universally inclusive,” Seidman explained.44 “[T]here will always be some people on the outside . . . .”45 Seidman’s implicit reliance on Taboo insights and themes went on and on. Like a good Tabooist, Seidman emphasized paradoxes,46 irony,47 community,48 and reflexivity.49 Given all this, the most amazing aspect of Our Unsettled Constitution was that Seidman never used the word Taboo

39 AMERICAN LEGAL THOUGHT, supra note 3, at 33–40, 165–66. 40 SEIDMAN, supra note 27, at 10; see id. at 76 (arguing that any “distinction . . . can be deconstructed”). Related to deconstruction, Seidman wrote approvingly of “flipping” categories. Id. at 73–76. 41 AMERICAN LEGAL THOUGHT, supra note 3, at 38–39, 165–66. 42 See id. 43 SEIDMAN, supra note 27, at 81 (“Paradoxically, the fact that the boundaries of community are unsettled helps to build community. Community must always be defined against the backdrop of otherness”). 44 Id. at 107. 45 Id. at 107–08. 46 Tabooists often identify and even revel in paradoxes. AMERICAN LEGAL THOUGHT, supra note 3, at 40, 169. For instance, if a text has multiple meanings, then some of those meanings will inevitably be in tension with others. See STEVEN CONNOR, POSTMODERNIST CULTURE 9–10, 18–19, 194 (2d ed. 1997) (1989) (discussing postmodern paradoxes). Seidman, too, emphasized paradox. “Unsettlement theory differs from its rivals by making the paradoxical claim that constitutional law can help build such a community by creating, rather than settling, political conflict.” SEIDMAN, supra note 27, at 8; see id. at 107 (“the legitimacy paradox means that we can never achieve a completely unsettled constitution”). 47 See AMERICAN LEGAL THOUGHT, supra note 3, at 43, 180–81 (discussing irony); SEIDMAN, supra note 27, at 216 (discussing the irony of his unsettlement theory). 48 See AMERICAN LEGAL THOUGHT, supra note 3, at 151–55 (discussing scientific communities, interpretive communities, and the Gadamerian notion of communal traditions); SEIDMAN, supra note 27, at 8–11 (emphasizing community). 49 AMERICAN LEGAL THOUGHT, supra note 3, at 42–43, 176–80 (discussing how postmodern practices are self-reflexive); SEIDMAN, supra note 27, at 211–16 (discussing how unsettlement theory is reflexive).

2017] THE WORD THAT CANNOT BE SPOKEN 89 to explain or identify his approach.50 For Seidman, Tabooism was, quite simply, taboo. He never mentioned Taboo in the text. He did not discuss any of the leading Tabooists, either those from outside the law, such as Foucault and Jacques Derrida, or those from inside the law, such as Stanley Fish and Pierre Schlag.51 Seidman mentioned Jack Balkin and even cited his early article on deconstruction,52 but Balkin is not a thoroughgoing Tabooist.53 He is currently more renowned as a constitutional scholar.54 To be sure, Seidman might have been strategically clever. Seidman did everything that an avowed Tabooist might do, but he avoided the controversial label. Why risk condemnation as a Tabooist?55 Yet, to use an apt cliche, if it quacks like a duck, then . . . . Some observers were not fooled. In an article surveying theories of constitutional authority and interpretation, Adam M. Samaha expressly categorized Seidman’s approach as Tabooist.56

III. WHY THE TABOO? The widespread, albeit clandestine, reliance on Taboo themes and insights suggests that Tabooism does not deserve its banishment. It is not nihilistic, nonsensical, or downright evil (like Voldemort). This realization brings us to a crucial question: Why do so many writers condemn Tabooism? Traditional legal scholars critical of Tabooism rarely engage with it on the merits. Nevertheless, some critics in other disciplines have argued that

50 The word ‘postmodern’ is not in the index. SEIDMAN, supra note 27, at 253–60. 51 JACQUES DERRIDA, OF GRAMMATOLOGY (Gayatri Chakravorty Spivak trans., John Hopkins University Press 3d ed. 1997) (1967); MICHEL FOUCAULT, DISCIPLINE AND PUNISH (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977); STANLEY FISH, THE TROUBLE WITH PRINCIPLE (1999); PIERRE SCHLAG, THE ENCHANTMENT OF REASON (1998). 52 SEIDMAN, supra note 27, at 22, 252 n.5; see Jack M. Balkin, Deconstructive Practice and Legal Theory, 96 YALE L.J. 743 (1987) (explaining deconstruction). 53 See Stephen M. Feldman, The Politics of Postmodern Jurisprudence, 95 MICH. L. REV. 166, 193–201 (1996) (criticizing Balkin’s conception of deconstruction in relation to justice). 54 JACK M. BALKIN, LIVING ORIGINALISM (2011); JACK M. BALKIN, CONSTITUTIONAL REDEMPTION (2011). 55 In recent years, a handful of scholars have expressly discussed postmodernism or invoked postmodern theorists. E.g., JULIE E. COHEN, CONFIGURING THE NETWORKED SELF 29–30, 70–73, 119– 20 (2012) (invoking postmodernism); Laura A. Cisneros, Paging Dr. Derrida: A Deconstructionist Approach to Understanding the Affordable Care Act Litigation, 54 SANTA CLARA L. REV. 19 (2014) (relying on Derridean deconstruction); B. Jesse Hill, Resistance to Constitutional Theory: The Supreme Court, Constitutional Change, and the “Pragmatic Moment,” 91 TEX. L. REV. 1815 (2013) (relying on postmodern literary theory); Justin Woolhandler, Toward A Foucauldian Legal Method, 76 U. PITT. L. REV. 131 (2014) (relying on a Foucauldian approach). 56 Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 COLUM. L. REV. 606, 668–69 (2008).

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Tabooism is legitimately dismissed because it is analytically indefensible.57 For example, the legal philosopher Ronald Dworkin argued that a proposition is true if and only if it is objectively true.58 The proposition must correspond with “some external, objective, timeless, mind- independent world.”59 Thus, according to Dworkin, when Tabooists assert that objective truth does not exist, then Tabooism is caught in a logical conundrum. Tabooists must tacitly assume the objective truth of their own assertions, or “they could only present their views as subjective displays in which we need take nothing but a biographical interest.”60 From Dworkin’s standpoint, no coherent thinker could possibly claim that his or her philosophical or jurisprudential position is a mere subjective declaration relevant only to the author. Modernist critics, such as Dworkin, often present conclusions as either-or binary oppositions: Either we have objective knowledge, or we have free-floating subjectivity and unconstrained relativism. No other possibility exists. Tabooists reject precisely this type of binary reasoning.61 Yet, modernist critics repeatedly cast Tabooism itself into such an either-or opposition. Consequently, when Dworkin points out that Tabooists reject objectivity, then he sees only one other possibility, free-floating subjectivity. Dworkin’s argument, in other words, reduces to a mere reaffirmation of his own modernist viewpoint—a position that Tabooists would never accept.62 To clarify, most Tabooists repudiate the concept of objective truth, but many do not reject the concept of truth. Consider Thomas Kuhn and his groundbreaking book, The Structure of Scientific Revolutions.63 Many critics mistakenly read Kuhn and his Tabooist argument as concluding that scientific truth does not exist and that science is therefore impossible,64 but Kuhn himself did not intend such a conclusion.65 To the contrary, as a “devoted celebrant of the scientific venture,” he intended to explain how

57 See, e.g., JOHN M. ELLIS, AGAINST DECONSTRUCTION (1989) (literary theorist arguing that Derrida is logically imprecise). 58 Ronald Dworkin, Objectivity and Truth: You’d Better Believe It, 25 PHIL. & PUB. AFF. 87 (1996). 59 Id. at 87. 60 Id. at 88. 61 Dennis Patterson, Postmodernism/Feminism/Law, 77 CORNELL L. REV. 254, 262–79 (1992). 62 “Each group uses its own paradigm to argue in that paradigm’s defense.” THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 94 (2d ed. 1970). 63 Id. 64 E.g., ISRAEL SCHEFFLER, SCIENCE AND SUBJECTIVITY (1967). 65 RICHARD J. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS 52–54 (1983); PETER NOVICK, THAT NOBLE DREAM: THE “OBJECTIVITY QUESTION” AND THE AMERICAN HISTORICAL PROFESSION 532–35 (1988).

2017] THE WORD THAT CANNOT BE SPOKEN 91 science was possible even though the traditional conception of objectivity was unacceptable.66 Dworkin’s criticism of Tabooism is representative of those who have engaged it on the merits.67 The critics shoehorn Taboo themes into modernist boxes, and naturally, Tabooism ends up looking like a misshapen monstrosity. Of course, most legal scholars do not directly confront Tabooism on the merits. Instead, they flippantly denounce it as irrational , nihilistic, or the like. Consequently, we return to the question: Why do so many writers summarily condemn Tabooism? The primary answer is power, which is precisely what the powerful do not want to discuss.68 Power, specifically how it operates in and through society and culture, is one of the most important Taboo themes;69 Shoving Tabooism underground is itself an act of power. Tabooism threatens central mainstream concepts many people cherish: the independent and self-reliant subject who is a sovereign center of control; the grounding of truth and knowledge on objective foundations; the fairness of our society in allocating rewards based on merit.70 By banishing Tabooism, its opponents protect and bolster these concepts. Ironically, then, Tabooism, which studies power, is itself the victim of power.. Its opponents have successfully cast Tabooism into the role of the Other, to be marginalized and ignored. When its opponents denounce Tabooism as dishonest,

66 NOVICK, supra note 65, at 532. Elsewhere, I have referred to those postmodernists who totally reject truth as antimodernists, while those who accept truth (but not objectivity) as metamodernists. Stephen M. Feldman, The Problem of Critique: Triangulating Habermas, Derrida, and Gadamer Within Metamodernism, 4 CONTEMP. POL. THEORY 296, 299–304 (2005); see STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY 256–57 (1991) (distinguishing extreme from reconstructive postmodernism). 67 John Searle made a similar type of either-or argument against postmodernism by opposing metaphysical realism against antirealism. He depicted postmodernism as antirealism, which he found unacceptable. JOHN R. SEARLE, MIND, LANGUAGE AND SOCIETY: PHILOSOPHY IN THE REAL WORLD 1– 38 (1998). 68 To be sure, some postmodernists can be difficult to read because of poor jargon-filled writing. E.g., JUDITH BUTLER, GENDER TROUBLE (1990); JACQUES DERRIDA, THE DOUBLE SESSION (1972), reprinted in A DERRIDA READER 171 (Peggy Kamuf ed., 1991). Sometimes the difficulty arises, however, because the postmodernist is attempting to disrupt readers’ modernist expectations and prejudices. The postmodernist, in other words, is trying to break the modernist mold and therefore tries to avoid becoming entangled in modernist terminology. 69 BUTLER, supra note 68, at vii–ix, 1–2; MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 81– 102 (Robert Hurley trans., 1978); FOUCAULT supra note 51, at 26–31; Michel Foucault, WHY STUDY POWER: THE QUESTION OF THE SUBJECT, Afterword to HUBERT L. DREYFUS & PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND HERMENEUTICS 208, 212 (2d ed. 1983); see AMERICAN LEGAL THOUGHT, supra note 3, at 40–41, 169–74 (discussing power as postmodern theme). 70 In attacking postmodernism, Thomas L. Pangle wrote: “I mean to sound an alarm at what I see to be the civic irresponsibility, the spiritual deadliness, and the philosophic dogmatism of this increasingly dominant trend of thinking.” THOMAS L. PANGLE, THE ENNOBLING OF DEMOCRACY: THE CHALLENGE OF THE POSTMODERN AGE 5 (1992).

92 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 nihilistic, and so forth, then the opponents reinforce their own position. They are righteous champions for principles, objectivity, and goodness. Consider originalism as a mode of constitutional interpretation. Originalists claim that if judges (and other interpreters) follow the proper (originalist) method, then the judges will discern the single objective meaning of the constitutional text.71 Followers of so-called old originalism maintain that constitutional interpretation must focus on the text and framers’ intentions.72 Followers of new originalism maintain that constitutional interpreters should discern the original public meaning of the text.73 Either way, originalists claim that their methods purify interpretation by filtering out political bias.74 Judges who refuse to follow originalist methods are condemned as rogues, arbitrarily imposing their own political preferences.75 Originalism, in short, purports to be an escape from political power.76 Tabooism undermines originalism in at least two ways. First, the originalist claim that there exists a single, discoverable, fixed textual meaning is false. Tabooist deconstruction emphasizes that any text is iterable77 Exactly because the text can be read and reread in different contexts, its meaning changes. Regardless of the author’s intent, textual meaning is never fixed or static.78 Rather than being exhausted by a single

71 Randy E. Barnett, Interpretation and Construction, 34 HARV. J.L. & PUB. POL’Y 65, 66 (2011); Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599, 611 (2004); see Lawrence B. Solum, We Are All Originalists Now, in CONSTITUTIONAL ORIGINALISM: A DEBATE 1, 4 (2011) (referring to this originalist point as “the fixation thesis”). 72 RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971); Walter Benn Michaels, A Defense of Old Originalism. 31 W. NEW ENG. L. REV. 21 (2009). 73 ANTONIN SCALIA, A MATTER OF INTERPRETATION 38 (1997); ROBERT BORK, THE TEMPTING OF AMERICA 6, 143–44 (1990). 74 Stephen G. Calabresi & Livia Fine, Two Cheers for Professor Balkin’s Originalism, 103 NW. UNIV. L. REV. 663, 701 (2009); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541, 551–52 (1994); see Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 GEO. L.J. 1113, 1114 (2003) (originalism is “working itself pure”). 75 J.M. Balkin, Ideology as Constraint, 43 STAN. L. REV. 1133, 1141 (1991). 76 See James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523 (2011) (celebrating advances in and a growing consensus around originalist research). 77 DERRIDA, supra note 36, at 27–28; JACQUES DERRIDA, SIGNATURE EVENT CONTEXT (1972), reprinted in A DERRIDA READER 80, 99–107 (Peggy Kamuf ed., 1991) (discussing iterability). “[T]he intended meaning of an utterance is revealed as forever incapable of being stabilized in the moment of communication, such that repeatable signs (in the act of rereading or rewriting) may activate new meanings by their iterative capacity.” RAOUL MOATI, DERRIDA/SEARLE: DECONSTRUCTION AND ORDINARY LANGUAGE 38 (Timothy Attanucci & Maureen Chun trans., 2014). 78 “The legibility of the text overflows and liberates itself from its original intended meaning. In other words, the text continues to be readable independently of the localized meaning that it assumes in a determined context of communication.” MOATI, supra note 77, at 34.

2017] THE WORD THAT CANNOT BE SPOKEN 93 reading, “truth keeps happening.”79 Thus, when Supreme Court justices disagree about the meaning of the Constitution, their disagreement arises from the iterability and surfeit of meaning in the text. In most instances, the justices sincerely interpret the text from their respective horizons. When Justices Alito and Ginsburg disagree, neither one is lying or being disingenuous.80 Second, the originalist claim to purge power (and politics) from constitutional adjudication is a dangerous fantasy. The Tabooist emphases on power and the Other underscore that originalism celebrates a society—the society of the framing and ratification—of subordinated women, racial and religious minorities, and the poor.81 It was a society that enslaved one-fifth of its population and denied voting rights to the vast majority of its people.82 Yet, originalism tells us to look solely to that society for principles of equality and liberty. Unsurprisingly, such an approach to constitutional interpretation propagates while ostensibly justifying inequality and the subordination of the same peripheral groups.83 Whereas originalism is an interpretive theory significant within constitutional jurisprudence, neoliberalism is a broad theory encompassing the economic marketplace, democratic government, and society in general.84 When neoliberalism first emerged before World War II, it accepted some government intervention in the market. During the Cold War, however, the neoliberal defense of the economic marketplace intensified with “apocalyptic” zeal.85 Milton Friedman led the way in celebrating the invisible hand of capitalism. “The market, with each individual going his own way, with no central authority setting social priorities, avoiding duplication, and coordinating activities, looks like

79 JOEL WEINSHEIMER, GADAMER’S HERMENEUTICS: A READING OF TRUTH AND METHOD 9 (1985). 80 Stephen M. Feldman, Do Supreme Court Nominees Lie? The Politics of Adjudication, 18 S. CAL. INTERDISC. L.J. 17 (2008). 81 See STEPHEN M. FELDMAN, FREE EXPRESSION AND DEMOCRACY IN AMERICA: A HISTORY 23- 26 (2008) (discussing subordination of different groups during the framing era). 82 See RICHARD BEEMAN, PLAIN, HONEST MEN 310–11 (2009) (discussing slavery at the time of the constitutional convention); JOHN HOPE FRANKLIN & ALFRED A. MOSS, FROM SLAVERY TO FREEDOM: A HISTORY OF AFRICAN AMERICANS 68–104 (7th ed. 1994) (discussing African Americans, slavery, and the early years of nationhood); ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 1–60 (2000) (detailing limits on suffrage). 83 See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW (2012 ed.) (emphasizing the mass incarceration of African Americans). 84 DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM (2005); DANIEL STEDMAN JONES, MASTERS OF THE UNIVERSE: HAYEK, FRIEDMAN, AND THE BIRTH OF NEOLIBERAL POLITICS (2012); e.g., FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM (1944). 85 JONES, supra note 84, at 120; see id. at 141 (linking neoliberalism and libertarianism); e.g., MILTON FRIEDMAN, CAPITALISM AND FREEDOM (1962).

94 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 chaos to the naked eye,” he wrote.86 “Yet through [Adam] Smith’s eyes we see that it is a finely ordered and delicately tuned system . . . which enables the dispersed knowledge and skill of millions of people to be coordinated for a common purpose.”87 As the twentieth-century wore on, Friedman and other neoliberals not only extolled the wonders of the marketplace but also began to attack democratic government. Friedman described an “invisible hand in politics [that] is as potent a force for harm as the invisible hand in economics is for good.”88 Even if government actors have the best of intentions, he argued, they inevitably pursue harmful goals. Elected government officials “become the front-men for special interests they would never knowingly serve.”89 Government attempts to rationally plan for progress necessarily end in disaster.90 In short, neoliberals are market fundamentalists.91 They insist that the best society is one that leaves the maximum degree of decision making to the individual in the marketplace and the minimum to politics and government.92 The marketplace is rational and efficient. Because of hard work and merit, each individual earns his or her successes—and failures. Democracy, meanwhile, is necessarily corrupt and inefficient. According to Arthur Brooks, president of the American Enterprise Institute, “[t]he best government philosophy is one that starts every day with the question, ‘What can we do today to get out of Americans’ way?’”93 Tabooism threatens neoliberal ideology in at least three ways. First, neoliberalism is built on homo economicus—the economic self of neoclassical economics.94 Homo economicus seeks to maximize the

86 Milton Friedman, Adam Smith’s Relevance for 1976, in SELECTED PAPERS NO. 50, at 15–16 (1976). 87 Id. at 16. 88 Id. at 18. 89 Id. 90 “Human reason can neither predict nor deliberately shape its own future.” FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 94 (2011 definitive ed.). “Progress by its very nature cannot be planned.” Id. at 95. 91 FRED BLOCK & MARGARET R. SOMERS, THE POWER OF MARKET FUNDAMENTALISM 3 (2014) (explaining market fundamentalism). 92 FRIEDMAN, supra note 85, at 24. 93 Arthur Brooks, Why the Stimulus Failed, NATIONAL REVIEW (Sept. 25, 2012, 4:00 AM) (http://www.nationalreview.com/article/328432/why-stimulus-failed-arthur-c-brooks). 94 “The neoclassical economists’ Homo Economicus has several characteristics, the most important of which are (1) maximizing (optimizing) behavior; (2) the cognitive ability to exercise rational choice; and (3) individualistic behavior and independent tastes and preferences.” Chris Doucouliagos, A Note on the Evolution of Homo Economicus, 28 J. ECON. ISSUES, No. 3 (1994); see Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471 (1998) (discussing and criticizing concept of homo economicus); See also Tanina Rostain, Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement, 34 LAW & SOC’Y REV. 973 (2000).

2017] THE WORD THAT CANNOT BE SPOKEN 95 satisfaction of its own preexisting interests, and thus it prefers the private sphere, the economic marketplace.95 As a rational self-maximizer, homo economicus contemplates its community and government only if doing so might work to its own advantage.96 For instance, homo economicus might seek to remove government obstacles, such as environmental regulations, which threaten profits.97 And when possible, homo economicus would manipulate the government to create laws or policies that might increase its rents (or profits), even if doing so harms others.98 Reason for homo economicus is instrumental. The economic self rationally assesses the various means of satisfying its interests and chooses the most efficient— the means that achieves the individual’s greatest benefit at the lowest cost.99 Tabooism, however, undermines this economic conception of the self. Neoliberalism insists that homo economicus is the natural and preexisting self—whether we like it or not, we are economic selves100—but Tabooism emphasizes the social construction of the self or subject. When we are born, we are thrust into a sociocultural context.101 We interact with parents and other caregivers, friends, strangers, and with various kinds of media, such as television, computers, and books. From this multitude of interactions, we learn patently and latently our values, interests, and expectations.102 Feminists refer to this socially constructed self as a “relational self.”103 On this view, even the most independent, self-reliant, and emotionally self-contained among us are nevertheless social beings who are connected to and dependent on a great many others for material and emotional support, for the development of our capacities, for the sources of meaning

95 See ROBERT BELLAH ET AL., HABITS OF THE HEART 75, 154 (1985) (describing how, for many individuals, desires appear to bubble up from within). 96 Neoliberalism characterizes “the individual as rational, calculating and self-regulating, [as] fully responsible for life options whatever the structural constraints.” Maria Pallotta-Chiarolli & Bob Pease, Recognition, Resistance and Reconstruction, in The Politics of Recognition and Social Justice 1, 11 (2014). 97 Cf., Richard Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. LEGAL STUDIES 399 (1973) (arguing that legal procedures should be tailored to increase efficiency). 98 DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 15 n.10, 34 (1991) (defining rent-seeking). 99 See JEFFRIE MURPHY & JULES COLEMAN, THE PHILOSOPHY OF LAW 212–18 (discussing different conceptions of economic efficiency). 100 Economists supposedly ground homo economicus on the description of “everyday conduct.” Edward J. O'Boyle, Requiem for Homo Economicus, 10 J. MKTS. & MORALITY 321, 333 (2007). As such, “no single concept [is] more significant to the economic way of thinking than homo economicus.” Id.; see id. at 324 (stating that, in economics, homo economicus is “never-changing”). 101 Jack Martin & Jeff Sugarman, Between the Modern and the Postmodern: The Possibility of Self and Progressive Understanding in Psychology, 55 AMERICAN PSYCHOLOGIST 397, 400–01 (2000). 102 JENNIFER NEDELSKY, LAW’S RELATIONS 19 (2011). 103 Id. at 45.

96 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 in our lives, and for our very identities.104 From the Taboo perspective, then, we are not fated to be homo economicus. We care for and are cared for by others. We are not automatons rationally calculating how to best achieve our own self- interest.105 The significance of the socially constructed or relational self leads to the second Taboo critique of neoliberalism (which overlaps with the second critique of originalism). Namely, there is no escape from power.106 There is nothing prior to or outside of the sociocultural forces that shape us, no escape from the relationships that make us who we are. Those forces, those relationships, are integral to our existence.107 According to neoliberalism, we are most free in the laissez-faire economic marketplace; the removal of government engenders individual autonomy. But the Taboo emphasis on the persistence of sociocultural, or relational power, reveals the sophistry of this foundational neoliberal assumption. In our world of multinational corporations (MNCs) and the Internet, powerful economic entities are anxious to shape (or socially construct) us for their benefit— that is, for their economic profit. They are happy to tell us, over and over again, that we are born to consume, that we rationally maximize our satisfaction in the marketplace.108 The absence of government only enables these corporate actors to manipulate us more readily. For instance, when we access websites such as Google and Amazon, we typically and tacitly relinquish data about our personalities, habits, and preferences.109 Corporations gather, process, and analyze this data in multiple ways, all to their economic profit.110 They can sell this data or use it to channel Internet users toward the purchase of additional products and services. Through all these market manipulations, the users are told and usually believe that they

104 MARILYN FRIEDMAN, AUTONOMY, GENDER, POLITICS 94 (2003). 105 Homo economicus, contrary to feminist theory, “has neither a childhood nor a context. He grows out of the ground like a mushroom.” KATRINE MARÇAL, WHO COOKED ADAM SMITH’S DINNER? A STORY ABOUT WOMEN AND ECONOMICS 61 (Saskia Vogel trans., 2016). 106 AMY ALLEN, THE POLITICS OF OUR SELVES 177 (2008) (“there is no outside to power”); Judith Butler, Contingent Foundations, in SEYLA BENHABIB ET AL., FEMINIST CONTENTIONS 35, 39 (1995) [hereinafter Butler, Contingent] (emphasizing that the recognition of power is the precondition for social critique). 107 Amy Allen, Foucault, Feminism, and the Self: The Politics of Personal Transformation, in FEMINISM AND THE FINAL FOUCAULT 235, 236, 240, 243 (Dianna Taylor & Karen Vintges eds., 2004). 108 In our neoliberal world, “many in the professional middle class in Western societies have adapted their subjectivities to individualistic norms that separate the individual from the social. Modern subjectivities in neoliberal market economies are constituted primarily through roles as workers and consumers.” PALLOTTA-CHIAROLLI & PEASE, supra note 96, at 2. 109 BRUCE SCHNEIER, DATA AND GOLIATH 6–7, 39 (2015). 110 FRANK PASQUALE, THE BLACK BOX SOCIETY 5, 19 (2015); TIM WU, THE MASTER SWITCH 205–06 (2011 ed.).

2017] THE WORD THAT CANNOT BE SPOKEN 97

(we) are free.111 But the Taboo perspective, emphasizing the constant presence of power, underscores that we are being bought and sold for profit.112 The Internet is not a power-free zone. In the end, the neoliberal promise of (marketplace) freedom is a dangerous myth that induces us to acquiesce to corporate control and domination.113 This emphasis on power interrelates with a third Taboo critique of neoliberalism. Neoliberal ideology maintains that, in a laissez-faire marketplace, economic success and failure is based on hard work and merit. Each individual gets his or her just rewards. Rationality and efficiency govern, so power and politics are removed from the economic equation. But just as Tabooism underscores that there is no escape from power, it also maintains that there is always an Other. American society harbors many economic losers: the unemployed, the underpaid, and the unpaid.114 Neoliberalism marginalizes the economically dispossessed by insisting that they deserve their fate. After all, we all operate pursuant to the same impersonal marketplace forces, neoliberals declare. But Tabooism reveals that this neoliberal declaration is mere rhetoric (or ideology) attempting to legitimate the inequities of our society. For instance, economists and the marketplace itself tend to systematically disregard or undervalue housework, caregiving, and other work traditionally performed by women.115 Or, to take a different type of example, a child born to an indigent single parent is unlikely to have similar educational and professional opportunities as a child born into a wealthy two-parent family.116 No individual deserves to inherit wealth and opportunity any more or less than any other individual, but neoliberalism tells us that politics and power do not determine economic winners and losers. Neoliberalism teaches that some deserve to be poor (to be the Other), but Tabooism will not accept this rationalization for gross inequality and despair.117 Tabooism emphasizes that sociocultural power inevitably creates the Other.

111 SCHNEIER, supra note 109, at 60–72; see WU, supra note 110, at 300–04 (emphasizing concentrated power in private sphere). 112 “If something is free [on the Internet], you’re not the customer; you’re the product.” SCHNEIER, supra note 109, at 62. 113 See ZYGMUNT BAUMAN & REIN RAUD, PRACTICES OF SELFHOOD 110–15 (2015) (emphasizing corporate efforts to shape our preferences and desires). 114 See THOMAS PIKETTY, CAPITAL IN THE TWENTY-FIRST CENTURY (Arthur Goldhammer trans., 2014) (discussing inequality); JOSEPH E. STIGLITZ, THE PRICE OF INEQUALITY (2013 ed.) (same). 115 MARÇAL, supra note 105, at 16–17, 30, 59. 116 See BAUMAN & RAUD, supra note 113, at 98–99 (emphasizing how wealth and inequality affect power or control). 117 Id. at 64 (criticizing neoliberal ideology).

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IV. CONCLUSION By dismissing Tabooism out of hand, originalists, neoliberals, and others avoid confronting it on the merits.118 They denounce it as nonsense, irrationality, or the like, and by doing so, they bolster their own claims to being pronouncers of objective truths and unimpeachable principles and values. But such claims to objectivity and irreproachability are problematic. When people are too self-righteous, when they are convinced that only they know the truth, then no room remains for negotiation and compromise. As Oliver Wendell Holmes, Jr., wrote, “when men differ in taste as to the kind of world they want the only thing left to do is to go to work killing.”119 In the United States today, we have not yet reached a stage where Democrats and Republicans are openly killing each other— though we certainly have enough mass shootings—but Democrats and Republicans have polarized to a degree that our democracy is paralyzed.120 Declarations of escape from power and politics, typical of originalism and neoliberalism, do not help gridlock. Such declarations inevitably and ostensibly legitimate the imposition of clandestine power and leave us dwelling on distractions.121 For example, is climate change a hoax designed

118 Like other opponents of postmodernism, originalists are apt to mischaracterize and denigrate it rather than discussing its merits. For instance, in his historical defense of originalism, Johnathan O’Neill mentions or alludes to postmodernism and hermeneutics at least three times. JOHNATHAN O’NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY 8, 137, 194 (2005). He wrote: “More radical critics of this type sometimes claimed that constitutionalism and the rule of law were impossible.” Id. at 8. Interestingly, O’Neill cited my book in support of this proposition. Id. at 219 n.24 (citing AMERICAN LEGAL THOUGHT, supra note 3); see O’NEILL, supra, at 253 n.13, 268–69 n.12 (citing Voyage for similar proposition). While I appreciate the citation, my book did not suggest that postmodern constitutional scholars argue for such a viewpoint (O’Neill does not cite to a specific page number in my book). In fact, those scholars that come closest to questioning the possibility of the rule of law in constitutional jurisprudence are political scientists devoted to the attitudinal model, a quantitative approach. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993). From their perspective, Supreme Court decision making is based solely on political attitudes. Martin Shapiro, Judges As Liars, 17 HARV. J. L. & PUB. POL’Y 155, 156 (1994). I do not agree with this outlook. Stephen M. Feldman, Fighting the Tofu: Law and Politics in Scholarship and Adjudication, 14 CARDOZO PUB. L., POL’Y & ETHICS J. 91, 114–30 (2015) (explaining that legal interpretation and therefore Supreme Court decision making is always a dynamic combination of law and politics). 119 Letter from Holmes to Laski (Dec. 3, 1917), in I HOLMES-LASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI, 1916-1925, 115, 115–16 (Mark DeWolfe Howe ed.) (1953). 120 See NOLAN MCCARTY ET AL., POLARIZED AMERICA (2008) (discussing polarization); Drew Desilver, Congress Ends Least-Productive Year in Recent History, PEW RESEARCH CENTER (Dec. 23, 2013), http://www.pewresearch.org/fact-tank/2013/12/23/congress-ends-least-productive-year-in- recent-history/# (discussing failure of Congress to act); Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 YALE L.J. 804 (2014) (discussing government dysfunction). I do not mean to suggest that Democrats and Republicans are equally responsible for gridlock. 121 BUTLER, supra note 68, at 39 (emphasizing that recourse to philosophical positions supposedly

2017] THE WORD THAT CANNOT BE SPOKEN 99 to legitimate harmful government regulation? Should constitutional interpretation focus on the framers’ intentions or the original public meaning of the document? Should we eliminate the Internal Revenue Service and other government agencies? Tabooism can move us beyond these absurdities. The Taboo era (think of digital technology, MNCs, and globalization) ushers in new questions.122 We are ill-served if we act as if we still lived in 1789. Tabooism can give us a language that would facilitate dialogue; that would encourage us to focus on pressing issues related to power, inequality, freedom, democracy, and globalization. For instance, when the self is socially constructed, how do individuals retain a degree of autonomy?123 How does such autonomy relate to specific constitutional rights, such as free-expression?124 When digital technology substantially enhances people’s lives, how do we retain privacy despite corporate control of the Internet?125 How can we harmonize the recognition of diverse ethnic, racial, religious, and gender identities with respect for each individual qua individual?126 These are serious questions deserving of extensive debate. Discussion, though, cannot even get off the ground when any issues that smack of Tabooism are treated as taboo.

“beyond the play of power” constitutes “the most insidious ruse of power”). 122 See STEVEN BEST & DOUGLAS KELLNER, THE POSTMODERN ADVENTURE 1-11 (2001) (emphasizing that scientific, technological, and economic changes have ushered in postmodernism); id. at 205-48 (linking postmodernism to global corporate power). 123 Unquestionably, the problem of autonomy is a key issue within the paradigm of postmodernism. BAUMAN & RAUD, supra note 113, at vii–viii; Todd May, Foucault’s Conception of Freedom, in MICHEL FOUCAULT: KEY CONCEPTS 71 (Dianna Taylor ed., 2011). Nevertheless, in recent years, feminists have focused on the interconnection between the relational self and autonomy. PERSONAL AUTONOMY AND SOCIAL OPPRESSION: PHILOSOPHICAL PERSPECTIVES (Marina A.L. Oshana ed., 2015); AUTONOMY, OPPRESSION, AND GENDER (Andrea Veltman & Mark Piper eds., 2014); RELATIONAL AUTONOMY (Catriona Mackenzie & Natalie Stoljar eds., 2000). 124 NEDELSKY, supra note 102, at 231–71 (reconceiving constitutional rights from a relational perspective); Susan J. Brison, Relational Autonomy and Freedom of Expression, in RELATIONAL AUTONOMY 280 (Catriona Mackenzie & Natalie Stoljar eds., 2000) (considering the implications of relational autonomy for free expression). 125 COHEN, supra note 55, at 107–52 (discussing privacy in digital age). 126 Here are additional questions. When near one-hundred percent of the American population are marketplace consumers, why does voting hover around fifty percent? Drew Desilver, U.S. Voter Turnout Trails Most Developed Countries, PEW RESEARCH CENTER (May 6, 2015), http://www.pewresearch.org/fact-tank/2016/08/02/u-s-voter-turnout-trails-most-developed-countries/. In fact, those who do not adequately participate as consumers—for instance, thieves and indigents—are often denigrated as the outcasts of society, yet those who do not vote are considered justifiably alienated from Washington. Why is that?

NOTE

Getting DPA Review and Rejection Right

ELIZABETH DANIELS

When can a judge reject a Deferred Prosecution Agreement? Until recently, district court judges approved the agreements automatically. But in United States v. Fokker Services B.V. a federal judge rejected a DPA for the first time. On appeal, the D.C. Circuit reversed, however it declined to provide lower courts with forward-looking guidance; leaving open significant and underappreciated questions regarding the separation of powers doctrine. I argue that the D.C. Circuit’s silence is contrary to separation of powers principles, as it encourages automatic approval of DPAs, and I propose a framework for resolving this question. I contend that a district court judge may reject a DPA if it is unlawful, violative of rights, or is otherwise so inconsistent with precedent as to raise quasi-constitutional questions. In reviewing a DPA pursuant to its supervisory power, a court must: (1) consider whether those conditions are implicated within the four corners of the agreement; (2) compare the terms of the agreement to the terms in the relevant body of DPA precedent; and (3) evaluate the choice to use the DPA as a mechanism of disposition. In order to preserve the balance between the branches, a court must evaluate a DPA using an abuse of discretion standard. This framework for judicial review of DPAs comports with separation of powers principles but also addresses some powerful criticisms of the DPA. The required degree of deference ensures respect for separation of powers by prohibiting a judge to substitute his will for that of the executive, while ensuring that prosecutors do not go unchecked. The proposed legal standard also combats the “too big to fail” criticism that posits the bigger the bank the bigger the break by conditioning DPA approval on consistency across conduct.

101

NOTE CONTENTS

I. INTRODUCTION ...... 103 A. Deferring Prosecution: The Mechanics and Judicial Approval Under the Speedy Trial Act...... 104 B. Evolution of the Corporate DPA ...... 105 C. The Tide Begins to Turn ...... 107 II. UNITED STATES V. FOKKER SERVICES B.V. AND THE COURT’S POWER TO REJECT A DPA ...... 108 A. The District Court’s Articulation of a Legal Standard under the Supervisory Power...... 108 B. Reversal and Refusal to Clarify a Standard ...... 111 C. The District Court Standard Offends the Separation of Powers...... 114 III. A PROPOSED LEGAL STANDARD FOR JUDICIAL REVIEW OF A DPA ...... 116 A. Applying the Proposed Legal Standard to Economic Sanction Cases ...... 117 B. Applying the Proposed Legal Standard and Standard of Deference to United States v. Fokker Services B.V...... 118 IV. EVALUATING THE PROPOSED LEGAL STANDARD IN LIGHT OF CURRENT CRITICISMS OF THE DPA ...... 121 A. Too Big to Jail ...... 122 B. The Extrajudicial Nature of DPAs Leaves Offenders Vulnerable to Violations of Due Process ...... 123 1. The Wisdom of Reform ...... 125 V. CONCLUSION ...... 126

NOTE

Getting DPA Review and Rejection Right

ELIZABETH DANIELS†

I. INTRODUCTION The Deferred Prosecution Agreement (“DPA”) created an alternative to pursuing a criminal conviction by trial or guilty plea. It was originally used in drug cases to place the focus on rehabilitation and prevent the collateral consequences triggered by a criminal record.1 Over time, prosecutors began using the DPA in the white-collar crime arena to resolve cases involving corporate entities. The DPA has since become the default for enforcement action against corporate offenders.2 Unlike its cousins, the Non-Prosecution Agreement (“NPA”) and the Guilty Plea,3 the DPA exists in a twilight zone of judicial oversight. Other than the Speedy Trial Act, there are no textual hooks for judicial review of the terms or use of a DPA.4 District courts historically acted as rubber stamps. But as DPAs became more prolific, district court judges started to question their role in the twilight zone.5 Through this process, grounds for judicial oversight of previously unquestioned executive action began to take shape. Recently, however, those grounds have become more uncertain since the D.C. Circuit was presented with the opportunity to mold an applicable legal standard and declined to do so.

† J.D. Candidate, Harvard Law School; B.A., Art History, University of Virginia, 2011. 1 See Benjamin M. Greenblum, What Happens to a Prosecution Deferred? Judicial Oversight of Corporate Deferred Prosecution Agreements, 105 COLUM. L. REV. 1863, 1863 (2005). 2 Greenblum, supra note 1, at 1875. 3 A NPA does not involve filing criminal charges and is unreviewable. United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 165 (D.D.C. 2015) (“The Government, of course, has the clear authority not to prosecute a case. Indeed, this Court would have no role here if the Government had chosen not to charge Fokker Services with any criminal conduct—even if such a decision was the result of a non-prosecution agreement.”)[hereinafter Fokker I]; A guilty plea is reviewed by the court. See Court E. Golumbic & Albert D. Lichy, The “Too Big to Jail” Effect and the Impact on the Justice Department’s Corporate Charging Policy, 65 HASTINGS L.J. 1293, 1300 (2014) (“When a defendant enters into a plea bargain, the trial court assumes a substantive gatekeeper role under Rule 11 of the Federal Rules of Criminal Procedure. The court must examine guilty pleas for voluntariness, factual basis, fairness, abuse of discretion, or infringement on the judge’s sentencing power. If the plea bargain does not satisfy the requirements of Rule 11, the court cannot accept the defendant’s admission of guilt. It is also the case that the court need not accept a plea bargain if it believes that the bargain is too lenient, or otherwise not in the public interest.” (internal quotations omitted)). 4 See United States v. Saena Tech Corp., 140 F. Supp. 3d 11, 13 (D.D.C. 2015). 5 See United States v. HSBC Bank USA, No. 12–CR–763, 2013 WL 3306161 (E.D.N.Y. July 1, 2013); Fokker I, supra note 3, at 164–165; Saena Tech Corp., 140 F. Supp. 3d at 13.

104 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1

This paper analyzes the nascent legal standard for judicial oversight of DPAs that was artfully sidestepped by the court of appeals. It proposes a legal standard for approving or rejecting a DPA that comports with the appellate court’s decision and separation of powers principles, and evaluates the proposed standard’s ability to address current criticisms of the DPA. The introduction begins with a brief discussion of the mechanics of a DPA, the use of DPAs in the corporate context, and recent cases displaying changing attitudes in the district courts towards that use.

A. Deferring Prosecution: The Mechanics and Judicial Approval Under the Speedy Trial Act. In a deferred prosecution, a prosecutor brings charges against an individual or corporation by indictment or information, but agrees to drop those charges at a later date if the individual or corporation performs certain obligations specified by that agreement. The DPA halts the prosecution of a case for the intervening period between charging and dismissal in order to provide the defendant with an opportunity to comply with the terms of the agreement.6 If the defendant is unable to do so and breaches the agreement, the government may resume its prosecution. In order to enter into a DPA, the government must file the agreement with the court as well as a Motion to Exclude Time so as not to run afoul of the Speedy Trial Act’s seventy-day rule—requiring a trial to commence within seventy days of an indictment or criminal information. 18 USC § 3161(h)(2) allows time to be excluded under the statute if “prosecution is deferred by the attorney for the Government pursuant to a written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct,” (emphasis added).7 The court must grant this approval to complete the process and finalize the agreement. The language of § 3161(h)(2) is “silent as to the standard the court should employ when evaluating whether to grant ‘approval’” to a DPA,8 but a senate report on the Speedy Trial Act from the time of its enactment includes guidance that is generally accepted as the rule.9 According to the report, § 3161(h)(2) was “designed to encourage the current trend among United States attorneys to allow for deferral of prosecution on the

6 18 U.S.C. § 3161 (2012). 7 Id. 8 HSBC, 2013 WL 3306161, at *3. 9 Brief for Appellee/Appellant at 6–7, United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160 (D.D.C. 2015) (No. 15-3017) [hereinafter Fokker Brief]; United States v. Fokker Servs. B.V., 818 F.3d 733, 744-45 (D.C. Cir. 2016) [hereinafter Fokker II]

2017] GETTING DPA REVIEW AND REJECTION RIGHT 105 condition of good behavior,” and court approval should be conditioned upon a true purpose of diversion.10 Therefore, a court must approve a Motion to Exclude Time under the Speedy Trial Act if the “agreement is truly about diversion and not simply a vehicle for fending off a looming trial date.”11

B. Evolution of the Corporate DPA The DPA was initially used as a tool for handling juvenile drug offenders “without branding them as criminals.”12 But the DPA’s ability to achieve criminal resolution without collateral consequences made it extremely useful and highly desirable in the corporate context. The case of Arthur Andersen highlights the DPA’s utility, if not necessity, in this area. In 2001, Arthur Andersen, Enron’s accounting firm, came under fire after the Enron scandal erupted. Andersen began destroying documents related to the Enron engagement, which lead to an indictment charging the firm with obstruction of justice.13 The firm collapsed as a result of the indictment alone, even before the jury handed down a guilty verdict.14 The firm shut its doors due to client exodus and the impending loss of its license to audit public companies. 28,000 people lost their jobs.15 Worse yet, the Supreme Court overturned the conviction in 2005.16 In the wake of Andersen, collateral consequences were not only a fear but a reality grave enough to prevent prosecutors from pursuing criminal cases against corporate defendants. DPAs provided the solution. In 2003, the Department of Justice (“DOJ”) issued a memorandum generally referred to as the “Thompson Memo.”17 The Thompson Memo laid out

10 Fokker Brief, supra note 9, at 6–7 (quoting S. Rep. No. 93-1021 at 36 (1974)); see also Saena Tech Corp., 140 F. Supp. 3d at 23, 25 (discussing the legislative history of the Speedy Trial Act and Congress’s specific intention to involve the court in deferred prosecutions); Fokker II, 818 F.3d at 744- 45. 11 Fokker Brief, supra note 9, at 44; see also Saena Tech Corp., 140 F. Supp. 3d at 29 (“The Court’s approval authority is located within a sentence stating that the agreement must be ‘for the purpose of allowing the defendant to demonstrate his good conduct.’…[C]ourt review must be tied to determining whether the agreement satisfies this purpose.”). 12 Greenblum, supra note 1, at 1866 (internal quotation omitted). 13 See Golumbic & Lichy, supra note 3, at 1306–07. 14 Id. at 1307. 15 See Greenblum, supra note 1, at 1888. 16 Id. 17 Memorandum from Larry D. Thompson, Deputy Attorney Gen., U.S. Dep’t of Justice, to Heads of Dep’t Components, Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003) (available at http://www.usdoj.gov/dag/cftf/corporate_ guidelines.htm).

106 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 factors for consideration before prosecuting a corporation and “explicitly opened the door to the use of deferred prosecution agreements.”18 DPAs have been of particular value to prosecutors pursuing economic sanctions cases. Economic and trade sanctions are administered and enforced by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury in the interest of national security.19 Sanctions regimes have historically been in place against a number of countries including North Korea, Iran, Sudan, and Cuba.20 Sanctions can prevent countries from accessing the U.S. financial system by prohibiting processing or initiating payments to or on behalf of sanctioned entities in U.S. dollars.21 They can also halt trade with sanctioned parties by prohibiting the exportation of “goods, technology, or services from the United States or any U.S. person” to a sanctioned entity.22 Those who violate these prohibitions may be prosecuted under the International Emergency Economic Powers Act (“IEEPA”) and the Trading with the Enemy Act (“TWEA”).23 Corporations and financial institutions caught in prosecutors’ crosshairs for violations of OFAC sanctions face colossal collateral consequences that all but prohibit indictment. 24 DPAs allow prosecutors to work around these collateral consequences. As a result, they quickly became the favored tool for resolution in sanctions cases.25 From 2009–

18 Greenblum, supra note 1, at 1875 (quoting Alan Vinegrad, Deferred Prosecution of Corporations, 230 N.Y.L.J. 72 (Oct. 9, 2003)). 19 Sanctions are “based on US foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States.” Terrorism and Financial Intelligence, Office of Foreign Assets Control, https://www.treasury.gov/ about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx. 20 Sanctions Programs and Country Information, Office of Foreign Assets Control, https://www.treasury.gov/resourcecenter/sanctions/Programs/Pages/Programs.aspx. 21 OFFICE OF FOREIGN ASSETS CONTROL, WHAT YOU NEED TO KNOW ABOUT U.S. ECONOMIC SANCTIONS: AN OVERVIEW OF O.F.A.C. REGULATIONS INVOLVING SANCTIONS AGAINST IRAN (2012) [hereinafter REGULATIONS INVOLVING SANCTIONS AGAINST IRAN]. 22 Fokker I, 79 F. Supp. 3d 160,162 (D.D.C. 2015); see also REGULATIONS INVOLVING SANCTIONS AGAINST IRAN, supra note 21. 23 Press Release, Dep’t of Justice, BNP Paribas Sentenced for Conspiring to Violate the International Emergency Economic Powers Act and the Trading with the Enemy Act (May 1, 2015). 24 The most obvious collateral consequence is massive job loss. Corporations may fold due to reputational damage and client exodus or they may literally be put out of business by a regulator’s decision to revoke a charter as a result of indictment. See, e.g., Golumbic & Lichy, supra note 3, at 1338 n. 289; Greenblum, supra note 1, at 1875. 25 See Brandon L. Garrett, Structural Reform Prosecution, 93 VA. L. REV. 853, 855 (2007).

2017] GETTING DPA REVIEW AND REJECTION RIGHT 107

2012, the government entered into six DPAs with banks for violations of U.S. sanctions, totaling over $2.4 billion in forfeiture.26

C. The Tide Begins to Turn Up until 2012, a district court judge never questioned whether a DPA before the court warranted approval.27 Courts approved DPAs automatically.28 But three cases changed that: United States v. HSBC Bank USA, United States v. Fokker Services B.V., and United States v. Saena Tech Corporation.29 In United States v. HSBC Bank USA, Judge Gleeson, United States District Court Judge for the Eastern District of New York, published a memorandum with his ruling approving the HSBC DPA.30 Judge Gleeson began by stating that courts may only reject DPAs under the Speedy Trial Act if the parties are “collud[ing] to circumvent the speedy trial clock.”31 But his opinion made clear that judicial review does not stop there. Judge Gleeson made an important distinction, noting: “the exclusion of delay during the deferral of prosecution is not synonymous with approving the deferral of prosecution itself.”32 Rejecting the assumption that courts have no power to “consider the latter question,” Judge Gleeson asserted that the court “has authority to approve or reject [a] DPA pursuant to its supervisory power.”33 The court’s supervisory power “permits federal courts to supervise ‘the administration of criminal justice.’”34 Judges Gleeson, Leon, and Sullivan all state that these powers would permit the court to reject a DPA in “circumstances in which a deferred prosecution agreement, or the

26 Press Release, N.Y. Cnty Dist. Attorney’s Office, District Attorney Vance Announces $375 Million Settlement with HSBC Bank (Dec. 11, 2012). The government has since entered into agreements with Commerzbank and Credit Agricole. See Press Release, Dep’t of Justice, Commerzbank AG Admits to Sanctions and Bank Secrecy Violations, Agrees to Forfeit $563 Million and Pay $79 Million Fine (Mar. 12, 2015); Press Release, Dep’t of Justice, Crédit Agricole Corporate and Investment Bank Admits to Sanctions Violations, Agrees to Forfeit $312 Million (Oct. 20, 2015). 27 Garrett, supra note 25, at 922 (“Every judge approving a deferred prosecution agreement has done so without any published rulings or modifications to the agreement.”). 28 See United States v. Saena Tech Corp., 140 F. Supp. 3d 11, 24 (D.D.C. 2015). 29 United States v. HSBC Bank USA, No. 12–CR–763, 2013 WL 3306161 at *4 (E.D.N.Y. July 1, 2013); Fokker I, 79 F. Supp. 3d 160, 165 (D.D.C. 2015); Saena Tech, 140 F. Supp. 3d 11, 46. 30 HSBC, 2013 WL 3306161. 31 Id. at *3. 32 Id. 33 Id. at *3–4; see also Golumbic & Lichy, supra note 3, at 1325–26 (“Prior to this time, the uniformly-held view had been that only the Speedy Trial Act governed a district court’s review of a DPA.”). 34 United States v. HSBC, 2013 WL 3306161, at *4 (quoting United States v. Payner, 447 U.S. 727, 735 n.7 (1980) (quoting McNabb v. United States, 318 U.S. 332, 340 (1943))).

108 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 implementation of such an agreement, so transgresses the bounds of lawfulness or propriety as to warrant judicial intervention to protect the integrity of the court.”35 Judge Leon attempted to define that boundary in United States v. Fokker Services, the first and only case where a district court judge rejected a DPA pursuant to the supervisory power. On appeal, the D.C. Circuit reversed relying on the language of the Speedy Trial Act while ignoring the supervisory power. The result ensures uncertainty and inaction among district judges who continue to face questions of whether certain exercises of prosecutorial discretion should be lent “judicial imprimatur”36 without a guiding legal standard. No other Circuit has confronted the issue.37 This article will propose a legal standard and standard of deference38 for judicial review of DPAs. It will begin by analyzing the district court’s ruling in Fokker Services and the D.C. Circuit’s opinion vacating that order. It will then offer a critique of the supervisory power-based approach in the district court decision before proposing a legal standard and standard of deference that account for the problems therein. Finally, the paper will evaluate the proposed legal standard more generally by considering its utility in addressing current criticisms of the DPA.

II. UNITED STATES V. FOKKER SERVICES B.V. AND THE COURT’S POWER TO REJECT A DPA

A. The District Court’s Articulation of a Legal Standard under the Supervisory Power. In United States v. Fokker Services B.V., Judge Richard Leon, United States District Court Judge for the District of Columbia, rejected a DPA between the U.S. government and Fokker Services B.V. ("Fokker Service s”) pursuant to the court’s supervisory power. The court held the agreement was so “grossly disproportionate” to the defendant’s conduct

35 Id. at *6; Fokker I, supra note 3, at 165 (“One of the purposes of the Court’s supervisory powers, of course, is to protect the integrity of the judicial process.”); Saena Tech Corp., 140 F. Supp. 3d at 19 (“[T]he Court can envision an especially unfair or lenient agreement as transgressing these bounds and therefore justifying rejection, independent of a court’s review under the Speedy Trial Act.”). 36 Fokker I, supra note 3, at 165. 37 Saena Tech Corp., 140 F. Supp. 3d at 29. 38 This paper discusses the legal standard as well as something I term the standard of deference. It is equivalent to the concept of standard of review, but here it indicates the degree of deference the district court must show the executive branch, rather than the degree of deference an appellate court must give to the trial court or factfinder.

2017] GETTING DPA REVIEW AND REJECTION RIGHT 109 that ruling otherwise would compromise the “integrity” of the judicial proceeding.39 Fokker Services is a Dutch aerospace services company that provides logistical support, technical services, component repair, and aircraft maintenance to owners and operators of aircraft.40 On June 5, 2014, the United States filed a criminal information charging Fokker Services with “one count of Conspiracy to Unlawfully Export U.S.-Origin Goods and Services to Iran, Sudan, and Burma,” in violation of IEEPA.41 From 2005– 2010, Fokker Services engaged in a scheme to “evade U.S. sanctions,” initiating 1,153 shipments of aircraft parts “with a U.S. nexus to customers in Iran, Sudan, or Burma.”42 Fokker Services knew these shipments were illegal and deliberately violated U.S. sanctions and export laws by withholding or providing false aircraft tail numbers to U.S. companies, lying about the country of origin or destination of parts, and deleting reference to Iran on documents sent to U.S. companies.43 Fokker Services’ gross revenue from the scheme totaled approximately $21 million.44 The DOJ opened an investigation into Fokker Services in June 2010 after the company self-reported possible violations of OFAC sanctions.45 After Fokker Services conducted its own internal investigation and cooperated with the U.S. authorities in their investigation, the parties entered into a DPA. Fokker Services admitted wrongdoing and agreed to forfeit $10.5 million and implement compliance programs. In return, the government agreed to dismiss the case after eighteen months if Fokker Services complied with all terms in the agreement.46 It is this agreement, and an attendant motion to exclude time under the Speedy Trial Act that Judge Leon considered and rejected. Refusing to act as a “rubber stamp” in Fokker Services, Judge Leon inquired upon what grounds a court should grant or withhold its approval of a DPA. Both parties before the court argued that the court’s role was simply to approve the settlement unless: “(a) the defendant did not enter into the agreement willingly and knowingly, or (b) the agreement was

39 Fokker I, supra note 3, at 165–67. 40 Id. at 161. 41 Id.; Press Release, Dep’t of Justice, Fokker Services B.V. Agrees to Forfeit $10.5 Million for Illegal Transactions with Iranian, Sudanese, and Burmese Entities-Company will Pay Additional $10.5 Million in Parallel Civil Settlement (June 5, 2014). 42 Id. 43 Id. 44 Fokker I, supra note 3, at 163; Press Release, Dep’t of Justice, supra note 41. 45 Press Release, Dep’t of Justice, supra note 41. 46 Fokker I, supra note 3, at 164.

110 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 designed solely to circumvent Speedy Trial Act limits.”47 The parties argued correctly that a court may reject a DPA for running afoul of the Speedy Trial Act, but Judge Leon flatly rejected the parties’ assertion that it is the only ground upon which a court can withhold approval. Instead, Judge Leon agreed with Judge Gleeson that courts have the power not only to question whether time should be excluded under the Speedy Trial Act but also whether the court should approve the deferral of prosecution pursuant to the supervisory power.48 The supervisory power “permits federal courts to supervise the administration of criminal justice among the parties before the bar,”49 and protect “the integrity of the judicial process.”50 This power includes the duty “not to lend a judicial imprimatur to any aspect of a criminal proceeding that smacks of lawlessness or impropriety.”51 From these principles, Judge Leon distilled a legal standard: a court considering a DPA must determine whether “the integrity of judicial proceedings would be compromised by giving the Court’s stamp of approval to either overly- lenient prosecutorial action, or overly-zealous prosecutorial conduct.”52 With this new test in hand, Judge Leon examined the Fokker Services agreement in its totality and concluded that the DPA was overly lenient because the defendant’s conduct was grossly disproportionate to the settlement.53 The judge considered the following facts highly relevant in his assessment of the defendant’s conduct: (1) Fokker Services engaged in willful criminal conduct over a five-year period, (2) the conduct was “orchestrated at the highest levels of the company,” (3) the scheme brought in $21 million in revenue, and (4) the conduct was a deliberate violation of laws aimed at protecting U.S. national security.54 The judge then analyzed the agreement to determine how adequately the terms addressed the described conduct. Here, the judge considered the fact that the government did not require the company to pay “a penny more than the $21 million”

47 Id. (internal citation omitted); see also HSBC, 2013 WL 3306161, at *3 (“18 U.S.C. § 3161(h)(2) appears to instruct courts to consider whether a deferred prosecution agreement is truly about diversion and not simply a vehicle for fending off a looming trial date.”); S. Rep. No. 93-1021, at 37 (1974). 48 HSBC, 2013 WL 3306161, at *3–4. 49 Payner, 447 U.S. 727 at 735 n.7. 50 Fokker I, supra note 3, at 165 (citing Payner, 447 U.S. at 735–36 n.8). 51 Id. (quoting HSBC, 2013 WL 3306161, at *6). 52 Id. at 166; Judge Gleeson utilized a more general inquiry in HSBC, considering whether there was any impropriety or lawlessness in the agreement that “implicates the integrity of the Court.” HSBC, 2013 WL 3306161, at *7. 53 Fokker I, supra note 3, at 167. 54 Id. at 166.

2017] GETTING DPA REVIEW AND REJECTION RIGHT 111 earned in the illegal scheme, nor did the government charge a single individual in connection with the scheme. And instead of appointing an independent monitor to track Fokker Service’s conduct for the eighteen- month deferral period, the government allowed the company to self-report its compliance with the agreement.55 Judge Leon found these terms ineffectual in light of the defendant’s conduct. He explained:

[i]n my judgment, it would undermine the public's confidence in the administration of justice and promote disrespect for the law for it to see a defendant prosecuted so anemically for engaging in such egregious conduct for such a sustained period of time and for the benefit of one of our country's worst enemies.56

B. Reversal and Refusal to Clarify a Standard Both parties appealed the district court order to the Court of Appeals for the D.C. Circuit. The D.C. Circuit vacated and remanded the case, holding that the Speedy Trial Act “confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government should bring different charges or should charge different defendants.”57 The opinion is laced with separation of powers principles that circumscribe judicial power but devoid of those embedded in the supervisory power that allow the judiciary to protect itself in the balance between the branches. The circuit court framed the issue as a question of the district court’s authority to withhold its approval of a DPA under the Speedy Trial Act. The opinion begins by stating that the Speedy Trial Act’s consideration for “approval of the court” must be understood “against the background of settled constitutional understandings under which authority over criminal charging decisions resides fundamentally with the Executive,” therefore “there is no ground for reading that provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions.”58 The Act’s grant of power is limited to authorizing a judicial determination that exclusion is sought not to “evade speedy trial

55 Id. 56 Id. at 167. 57 Fokker II, supra note 9, at 738. 58 Id. at 741.

112 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 time limits,” but to serve “the bona fide purpose of confirming a defendant’s good conduct and compliance with law.”59 The court stressed that Executive responsibility over criminal charging decisions is bundled up with the core Executive duty to ensure that the laws are faithfully executed.60 In this area, “judicial authority is … at its most limited.”61 The judiciary’s lack of competence to evaluate exercises of prosecutorial discretion62 and the risk of “systemic costs”63 from judicial interference, including “chill[ing] law enforcement” activity, mandate a presumption that prosecutors “have properly discharged their official duties” absent “clear evidence to the contrary.”64 Therefore, the “approval” requirement in the Speedy Trial Act does not “empower the district court to disapprove the DPA based on the court’s view that the prosecution had been too lenient.”65 To bolster the point, the opinion analogizes filing a motion to exclude time under the Speedy Trial Act to dismissing charges against a criminal defendant under Rule 48(a) of the Federal Rules of Civil Procedure. The language of the federal rule is similar to that of the Speedy Trial Act; Rule 48(a) “requires a prosecutor to obtain ‘leave of court’” before he may dismiss the charges.66 The court notes that notwithstanding this language, the decision to dismiss charges is “squarely within the ken of prosecutorial discretion.”67 The “leave of court” requirement is meant only to protect a defendant “against prosecutorial harassment”—nothing more.68 The circuit court further points to the court’s role in accepting civil consent decrees. The Tunney Act “calls for a district court to enter a proposed antitrust consent decree if ‘in the public interest,’”69 a standard the court had the occasion to address in United States v. Microsoft Corp. There, the court held that “the public interest standard did not empower the district judge to reject the remedies sought in the consent decree merely because he believed other remedies were preferable.”70 The “public

59 Id. at 745. 60 Id. at 741 (quoting Cmty. For Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986)). 61 Id. at 741 (quoting Pierce, 786 F.2d at 1201). 62 Id. at 741. 63 Fokker II, supra note 9, at 741 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). 64 Id. at 741 (quoting United States v. Armstrong, 517 U.S. 456, 465 (1996). 65 Id. at 741. 66 Id. at 742. 67 Id. 68 Id. (quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977). 69 Fokker II, supra note 9, at 742 (quoting 15 U.S.C. § 16 (2012)). 70 Id. at 742–43 (quoting United States v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C. Cir. 1995) (internal quotation marks omitted)).

2017] GETTING DPA REVIEW AND REJECTION RIGHT 113 interest” language simply acknowledges that a district court can refuse to accept a proposed consent decree “that, on its face and even after government explanation, appears to make a mockery of judicial power.”71 The court stated that neither the “leave of court” language in Rule 48(a) nor the “public interest” language in the Tunney Act authorized an expansion of judicial power into the realm of charging decisions—a core Executive power.72 The functionally equivalent “approval of the court” language in the Speedy Trial Act, then, could not be read to confer “broader authority…to scrutinize prosecutorial charging choices.”73 Thus the district court “significantly overstepped its authority” in rejecting a DPA “based on a belief that the prosecution had been unduly lenient.”74 The D.C. Circuit undoubtedly reached the right result but ducked the real issue. Judge Leon’s Memorandum Opinion did not hold that the Speedy Trial Act empowers courts to deny exclusion of time because a DPA is too lenient. Rather, he posited that the supervisory power obliged him to reject a DPA when necessary to preserve the integrity of the court. The circuit court did not reject the notion that a district judge is empowered to counter executive action when faced with a threat to judicial integrity.75 However, it refused to answer the question: when is a district court authorized to draw that line? By leaving the issue unresolved, the upshot is an opinion that encourages automatic approval of DPAs and greater imbalance in our system of separated powers. The following section looks critically at the legal standard articulated and applied by the district court in Fokker Services. The inquiry serves to establish the boundaries of a workable legal standard for judicial review of a DPA under the supervisory power. Part II proposes a standard that remedies the harms identified in the district court’s approach while tracking the D.C. Circuit’s description of permissible judicial review of prosecutorial discretion. It explores how the standard would be applied in practice and specifically to the Fokker Services DPA. Part III considers how the proposed standard responds to current criticisms of the DPA.

71 Microsoft, 56 F.3d at 1462. 72 Fokker II, supra note 9, at 743. 73 Id. 74 Id. at 747. 75Id. at 742–43 (“To be sure, a district judge is not obliged to accept a proposed decree that on its face and even after government explanation, appears to make a mockery of judicial power.” (internal quotations omitted)). Judge Srinivasan also acknowledged that a district court may even review charging decisions where necessary to guard against “prosecutorial harassment.” Id. at 742–43.

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C. The District Court Standard Offends the Separation of Powers. Judicial review of prosecutorial discretion is a fault line in the separation of powers framework. It is the judiciary’s duty to “supervise ‘the administration of criminal justice,’”76 and the executive’s responsibility to “decide whether or not to prosecute”77 and “how aggressively to prosecute.”78 But it is also the court’s responsibility to ensure that “the waters of justice are not polluted.”79 The judiciary generally does not concern itself with “law enforcement practices except in so far as courts themselves become instruments of law enforcement.”80 When the executive branch chooses to use a DPA, it implicates the court in a pending criminal case.81 A DPA thus places the executive and judicial branches in a precarious balance, where the judiciary, tasked with protecting its integrity, is in danger of intruding on a core function of the executive. In Fokker Services, Judge Leon articulated a test that looks for overly lenient or overly zealous prosecutorial conduct.82 A test that considers whether a DPA is overly lenient or overly zealous is not in itself a violation of separation of powers principles. Because lawlessness and impropriety are the touchstones for exercising the supervisory power,83 a court can properly consider factors such as leniency or zealousness under the impropriety prong. The court may ask whether the prosecutor’s decision is in line with precedent and, if it is not, whether is so far beyond the bounds of precedent that it threatens the integrity of the court. But a test that can reasonably be interpreted as a subjective one teeters on the edge of an unconstitutional intrusion into the executive branch by inviting the court to substitute its judgment for that of the executive.84

76 United States v. Payner, 447 U.S. 727, 735 n.7 (1980). 77 United States v. HSBC, No. 12–CR–763, 2013 WL 3306161, at *7 (E.D.N.Y. July 1, 2013) (citing United States v. Bonnet-Grullon, 212 F.3d 692, 701 (2d Cir. 2000)). 78 HSBC, 2013 WL 3306161 at *8 (quoting John Gleeson, Sentence Bargaining Under the Guidelines, 8 Fed. Sent’g Rep. 314, 315 (1996)). 79 Mesarosh v. United States, 352 U.S. 1, 14 (1956). 80 McNabb v. United States, 318 U.S. 332, 347 (1943). 81 HSBC, 2013 WL 3306161 at *5. 82 Fokker I, supra note 3, at 166, rev’d Fokker II, supra note 9. 83 HSBC, 2013 WL 3306161 at *6. 84 Decisions of when to prosecute, who to prosecute, how aggressively to prosecute, and what charges to bring are left entirely to the executive. See Fokker Brief, supra note 9, at 25–26; United States v. Saena Tech Corp., 2015 WL 6406266 at *14 (D.D.C. 2015) (“[T]he courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”). Judicial second guessing of these decisions “intrudes too far into the executive function.” In re Vasquez-Ramirez, 443 F.3d 692, 698 (9th Cir. 2006).

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Judge Leon’s application of the test violates separation of powers principles in two steps. First, instead of eliminating the one possible interpretation of the standard laden with separation of powers concerns, he selected that interpretation. Second, the Judge engaged in the inquiry as he would a legal question under de novo review—asking how he would have handled the case—instead of approaching the question considering only whether the prosecutor abused his discretion. Looking only within the four corners of the agreement, Judge Leon determined that the government’s handling of the case was overly lenient. The Judge expressed outrage over the fact that no individuals were prosecuted as a result of the scheme, that no independent monitor would report on the company’s compliance, that the forfeiture did not exceed gross revenue, and that the five-year conspiracy operated to benefit Iran in a “post-9/11 world.”85 The judge proceeded to outline the approach he would have taken: “[s]urely one would expect, at minimum, a fine that exceeded the amount of revenue generated, a probationary period longer than 18 months, and a monitor trusted by the Court to verify for it and the Government both that this rogue company truly is on the path to complete compliance.”86 Not once did the judge ask how other economic sanctions cases involving a benefit to Iran and resolved by DPA have been handled in a “post-9/11 world.” Nor did the Judge look to whether the expectations he expounded upon are at all in line with DOJ practice. Notwithstanding, Judge Leon declared that the “agreement does not constitute an appropriate exercise of prosecutorial discretion.”87 Such a ruling goes beyond asserting a muscular role for the courts. It disrupts the equilibrium between the branches created and ensured by the separation of powers framework. This equilibrium is of vital importance particularly in the realm of criminal law, because a key safeguard of liberty is the principle “that no one can be convicted of a crime without the concurrence of all three branches.”88 When a judge seizes control of the power to prosecute, “the number of branches involved in the criminal process shrinks to two.”89

85 Fokker I, supra note 3, at 167. 86 Id. 87 Id. 88 Fokker Brief, supra note 9, at 28, (quoting In re United States, 345 F.3d 450, 454 (7th Cir. 2003)). 89 Id.

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III. A PROPOSED LEGAL STANDARD FOR JUDICIAL REVIEW OF A DPA A legal standard that accounts for separation of powers concerns is as follows: the court may reject an agreement if it is unlawful, violative of rights, or otherwise so inconsistent with precedent that it raises questions of similar consequence to equal protection questions. The court’s authority to question a DPA stems from its supervisory power90 and is limited by the constitutional principle of separation of powers.91 The supervisory power is broadly defined as the court’s authority to supervise “the administration of criminal justice.”92 It extends to providing substantive remedies for violations of a criminal defendant’s rights,93 “deter[ring] illegal conduct,”94 and protecting “the integrity of the judicial process.”95 In United States v. Gatto, the court explained that “[j]udicial integrity is rarely threatened significantly when executive action does not violate the Constitution, a federal statute, or procedural rule.”96 Thus, the court’s authority to reject an agreement encompasses instances of (1) unlawfulness, (2) violations of recognized rights, and (3) threats to the integrity of the court equivalent to a violation of the constitution.97 If the court were to act without one of these conditions being present, it would be “invading the executive sphere rather than protecting itself from invasion.”98 The first and second conditions are self-defining and roughly equal to the conditions identified in Gatto. The Gatto conditions—violations of the constitution, federal statues, or rules of procedure—are useful yardsticks but not a complete definition of a threat to judicial integrity.99 In order to

90 United States v. HSBC, 2013 WL 3306161 at *3 (E.D.N.Y. 2013). The Speedy Trial Act is a separate and narrower source of authority for judicial review of a DPA or motion to exclude time. The Act’s grant of authority is limited and straightforward: its permission extends only to ensuring that a DPA is entered into for the legitimate purpose of diversion, and not for the illegitimate purpose of fending off a fast approaching trial date. United States v. Saena Tech Corp., 2015 WL 6406266 at *16 (D.D.C. 2015). 91 United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir. 1985). 92 HSBC, 2013 WL 3306161 at *4 (quoting United States v. Payner, 447 U.S. 727, 735 n.7 (1980)). 93 HSBC, 2013 WL 3306161 at *4 (citing McNabb v. United States, 318 U.S. 332, 345 (1943)). 94 Fokker Brief, supra note 9, at 47. 95 Fokker I, supra note 3, at 165 (quoting Payner, 447 U.S. at 735-36 n.8), rev’d, Fokker II, supra note 9. 96 Gatto, 763 F.2d at 1046. 97 See id. 98 Id. 99 In Gatto, the opinion uses language that leaves open the possibility of including conditions other than those enumerated under the judicial integrity prong. Gatto, 763 F.2d at 1046 (“Judicial integrity is rarely threatened significantly when executive action does not violate the Constitution, a federal statute, or a procedural rule.” (emphasis added)). This statement begs two questions: 1) must the threat to judicial integrity be significant in order for the court to protect itself pursuant to its supervisory

2017] GETTING DPA REVIEW AND REJECTION RIGHT 117 give the third condition meaning it must be more broadly defined: a threat to judicial integrity is executive action similar in consequence to a constitutional violation. For example, where an agreement treats an individual defendant so divergently from another, similarly situated defendants without reason, such discriminatory treatment falls under the third condition and allows courts to provide relief.100 Thus the test requires a judge scrutinizing a DPA to examine the agreement within the broader context of other DPAs involving similarly situated defendants and to look for instances where the DPA falls so far outside this body of precedent as to raise questions of a similar consequence to equal protection questions. A definition of a threat to judicial integrity that incorporates precedent builds in the “principle that a reviewing court should not disturb an enforcement decision where it ‘would have no meaningful standard against which to judge the agency’s exercise of discretion.’”101 The court can apply this test to question the executive’s decision to impose certain terms in a DPA and to question the executive’s decision to use a DPA to resolve a case. At the same time, the proposed test respects and reflects the D.C. Circuit’s admonition that courts must refrain from interfering with prosecutorial decisions absent “clear evidence” that prosecutors acted improperly in “discharg[ing] their official duties.”102

A. Applying the Proposed Legal Standard to Economic Sanction Cases The test is readily applicable to economic sanction cases because of the current state of criminal prosecution, relying heavily upon resolution by DPA. DPAs are important tools of prosecution and have an established use in this area. Since 2009, the DOJ, in partnership with the Manhattan District Attorney’s Office, has been actively investigating and resolving economic sanctions cases, almost exclusively by DPA.103 These cases

power, and 2) in the rare circumstance where there is a significant threat to judicial integrity due to executive action that does not rise to the level of violation of the constitution, federal statute or procedural rule, how can the court react without upsetting the separation of powers? 100 This interpretation is consistent the D.C. Circuit’s statement that courts are not barred from interfering with charging decisions when necessary “to protect a defendant against prosecutorial harassment.” Fokker II, supra note 9, at 742. 101 Fokker Brief, supra note 9, at 39 (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). 102 Fokker II, supra note 9, at 741. 103 Six banks have entered into DPAs for illegal conduct in violation of economic sanctions: Lloyds TSB Bank and Credit Suisse AG both entered into DPAs in 2009, Barclays entered into a DPA in 2010, and ING, Standard Chartered, and HSBC entered into DPAs in 2012. See, e.g., Press Release, Dep’t. of Justice, BNP Paribas Bank Pleads Guilty, Pays $8.83 Billion in Penalties for Illegal Transactions (June 30, 2014).

118 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 create a line of precedent that shows how the executive branch handles and punishes certain conduct. Additionally, the DPA is no longer the only game in town. Diversity in the method chosen for resolving economic sanctions cases allows us to examine how the legal standard works in practice, testing both the terms and use of the DPA. The 2014 guilty plea from BNP Paribas makes clear that collateral consequences can be avoided and cases can be resolved outside of a DPA. Against this new backdrop, prosecutors’ use of DPAs must be understood in a more nuanced manner. The DPA is not a device of mere convenience but, due to the large body of precedent that has built up in this area, has evolved into an expression of a certain level of culpability. Guilty pleas, DPAs, and NPAs fall on a spectrum.; the prosecutor’s choice of which device to use is a discretionary decision that will involve consideration of multiple factors—one of which is the defendant’s culpability compared with prior, similarly situated defendants. Judges have the capacity to analyze both the use and the content of a DPA using precedent as a meaningful standard against which to measure the prosecutor’s exercise of discretion. Judges perform a similar task when evaluating guilty pleas or making sentencing decisions. But unlike those areas where judicial authority stems from statute, in the realm of DPAs, the judicial authority stems from the supervisory power limited by the separation of powers framework. This narrower grant of authority requires greater deference to the executive branch before upsetting an enforcement decision. Courts should apply a standard of deference equivalent to the abuse of discretion standard of review when considering whether a decision lies so far outside precedent as to upset judicial integrity if let stand. Here, the court should ask if there is no factor present that could lead a reasonable prosecutor to resolve a case in the manner chosen. The weight given to any such factor may not be reviewed de novo; the court must respect the weight assigned to factors by the executive branch. Applying this degree of deference will preserve both the court’s ability to protect itself, and the executive branch from intrusion.

B. Applying the Proposed Legal Standard and Standard of Deference to United States v. Fokker Services B.V. If the proposed legal standard were applied to the Fokker Services DPA on remand, then the court must approve the agreement unless it is unlawful, a violation of recognized rights, or an egregious departure from precedent similar in consequence to a constitutional violation. There are no allegations that the agreement is unlawful or otherwise violative of recognized rights. Nor is there a constitutional issue within the four corners of the agreement. Thus the court can only reject the DPA if the content of the agreement or the use of a DPA as the mechanism for prosecution is so

2017] GETTING DPA REVIEW AND REJECTION RIGHT 119 misaligned with precedent that it raises quasi-constitutional questions. The court must apply the proper standard of deference, looking only for abuse of discretion, when making this determination. The court may not reject the Fokker Services DPA for its content because the terms of the agreement are perfectly in line with the terms of other DPAs resolving economic sanction cases. The requirements of the Fokker Services DPA are as follows: (1) forfeiture equal to the gross revenue from illegal conduct; (2) cooperation with the U.S. government; (3) new compliance programs; and (4) demonstration of good conduct and compliance with U.S. sanctions and export laws over an eighteen-month period.104 Regarding forfeiture, the DOJ was well within its right to impose a penalty equal to the amount of illegal proceeds. The prosecutor did not abuse his discretion considering DOJ policy and practice.105 All banks that have entered into DPAs for violations of economic sanctions have paid in forfeiture amounts roughly equal to or less than the amount involved in the violative conduct. It is rare for a bank to pay more.106 Standard Chartered “moved more than $200 million through the U.S. financial system primarily on behalf of Iranian and Sudanese clients” and paid $227 million in forfeiture.107 ING Bank paid $619 million for moving “billions of dollars through the U.S. financial system on behalf of Cuban and Iranian clients in violation of U.S. sanctions.”108 And HSBC paid a $375 million penalty for moving “hundreds of millions of dollars through the U.S. financial system on behalf of Iranian, Burmese, Sudanese, Libyan, and other clients in violation of U.S. sanctions.”109

104 Fokker I, supra note 3. 105 See Garrett, supra note 25, at 881 (“[T]he DOJ does not chiefly seek punitive fines in its settlements and emphasizes instead restitution to compensate victims.”). 106 See Press Release, Manhattan DA, DA Vance Announces $342 Million Settlement With Commerzbank (Mar. 12, 2015) (“Included in the $342 million criminal settlement amount is an unprecedented fine of approximately $80 million specifically addressing Commerzbank’s conduct with respect to its involvement in handling payments on behalf of IRISL after it was designated as an SDN by OFAC pursuant to the NPWMD program on September 10, 2008. Because Commerzbank processed approximately $40 million in illegal payments on behalf of IRISL after its designation as an SDN, Commerzbank has agreed to forfeiture and a criminal fine in the amount of three times the value of those transactions – approximately $120 million in total.”). 107 Press Release, Manhattan DA, Standard Chartered Bank Reaches $327 Million Settlement For Illegal Transactions (Dec. 10, 2012); see also Deferred Prosecution Agreement at 2, United States v. Standard Chartered Bank, No. 12–CR–262 (D.D.C. Dec. 10, 2012). 108 Press Release, Manhattan DA, District Attorney Vance Announces $619 Million Settlement with ING Bank (June 12, 2012); see also Information at 22, United States v. ING Bank, N.V., NO. 12- CR-136, 2012 WL 12302810, *4 (D.D.C. June 12, 2012). 109 Press Release, Manhattan DA, District Attorney Vance Announces $375 Million Settlement with HSBC Bank (Dec. 11, 2012); See also Statement of Facts at 21, United States v. HSBC Bank USA, No. 12–CR–763, 2013 WL 3306161 (E.D.N.Y. Dec. 11, 2012.

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With respect to the second, third, and fourth requirements, all DPAs in this area require continued cooperation, heightened compliance mechanisms, and law-abiding conduct measured over a set period of time—typically two years.110 Some require independent monitors while others do not.111 DPAs that do require an independent monitor place the burden on the defendant firm to pay for it.112 In Fokker Services, the decision to allow self-reporting over a monitor could reasonably be motivated by a concern for the financial health of the firm and would not constitute leniency rising to the level of abuse of prosecutorial discretion. Applying the standard of deference, the court must find the decision to defer prosecution for eighteen months rather than the typical twenty-four months to be not so great a difference as to constitute an abuse of discretion. The choice to resolve the case via DPA is also perfectly in line with precedent and may not be rejected by the court pursuant to its supervisory power. Economic sanctions cases are typically resolved by DPA. The most notable departure from this practice is the BNP Paribas case. BNP Paribas pled guilty to violating economic sanctions in June 2014 and paid $8.9 billion in criminal penalties. Both the guilty plea and size of the forfeiture were unprecedented in this area, but then, so too was the conduct involved. The volume of payments BNP processed for sanctioned entities surpassed that in all other cases and was a key factor in prosecutors’ decision to take a DPA off the table. Another important factor was the character of e-mail evidence. Sanctions cases typically utilize e-mail evidence, the character of which can vary widely and point to different levels of culpability. For example, the OFAC settlement with Standard Chartered quotes e-mails that are dull yet concerning, “[s]ome [legal and compliance] teams are entirely unfamiliar with sanctions.”113 In HSBC, some e-mails pointed to intent: “we have found a solution to processing your payments…the key is to

110 See, e.g., Deferred Prosecution Agreement at 3, United States v. Standard Chartered Bank, No. 12 Cr. 262 (D.D.C. Dec. 10, 2012). But see Deferred Prosecution Agreement, at 3 United States v. HSBC Bank USA, No. 12–CR–763, 2012 WL 6120512 (E.D.N.Y. Dec. 11, 2012) (deferring prosecution for five years). 111 See Deferred Prosecution Agreement at 3, United States v. Standard Chartered Bank, No. 12– CR–262 (D.D.C. Dec. 10, 2012) (deferring prosecution contingent under the condition that the bank “voluntarily self-report its conduct”); Deferred Prosecution Agreement at 7, United States v. HSBC Bank USA, No. 12–CR–763, 2012 WL 6120512 (E.D.N.Y. Dec. 11, 2012) (requiring as a condition of the deferral that the bank “retain an independent compliance monitor”). 112 Deferred Prosecution Agreement at 15, United States v. HSBC Bank USA, No. 12–CR–763, 2012 WL 6120512 (E.D.N.Y. Dec. 11, 2012) (requiring as a condition of the deferral that the bank “retain an independent compliance monitor” (emphasis added)). 113 Settlement Agreement between Office of Foreign Assets Control and Standard Chartered Bank at 4, MUL–607200 (Dec. 10, 2012).

2017] GETTING DPA REVIEW AND REJECTION RIGHT 121 populate field 52…outgoing payment instruction from HSBC will not quote [Iranian bank] as sender – just HSBC London…This then negates the need to quote ‘do not mention our name in New York.’”114 And in BNP the e-mails were downright salacious, “[t]he dirty little secret isn’t so secret anymore, oui?”115 In Fokker Services, prosecutors were well within their discretion to choose to resolve the case by DPA considering a variety of facts, the amount at issue being one of them. The $21 million involved in that case pales in comparison to the $8.9 billion in BNP Paribas. Even if e-mail and other evidence pointed to an extremely high level of culpability, prosecutors would be within their right to choose to use the DPA, weighing amount at issue more heavily than any other factor.116 As discussed earlier, the task of weighing different factors is uniquely the role of the prosecutor and it would offend separation of powers for courts to second guess the weight assigned to any one factor. Thus, applying the appropriate legal standard and degree of deference, the court may not reject the DPA in Fokker Services; doing so would intrude on the executive branch and erode the separation of powers.

IV. EVALUATING THE PROPOSED LEGAL STANDARD IN LIGHT OF CURRENT CRITICISMS OF THE DPA The proposed legal standard—whether an agreement is unlawful or a departure from precedent significant enough to constitute an abuse of discretion—articulates a clear role for the courts in reviewing DPAs. But the legal standard and its attendant standard of deference set a very high threshold for rejecting executive action in the interest of separation of powers. Is the threshold so high as to render the courts toothless? Or is the proposed standard capable of addressing some of the criticisms leveled at DPAs for lack of oversight? This section will evaluate how meaningful the standard is in practice by analyzing how well it addresses two main criticisms of the corporate DPA.

114 Statement of Facts at 22, United States v. HSBC Bank USA, No. 12–CR–763, 2012 WL 6120512 (E.D.N.Y. Dec. 11, 2012). 115 Ben Protess & Jessica Silver-Greenberg, BNP Admits Guilt and Agrees to Pay $8.9 Billion Fine to U.S., N.Y. TIMES, July 1, 2014, at B1. 116 The Factual Statement attached to the Information includes reference to email evidence. The emails clearly show intent to evade sanctions: “we apply the ‘what they don’t know, won’t hurt them,’ principle which means we don’t provide more information to suppliers than they need.” Factual Statement at 12, United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160 (D.D.C. June 5, 2015).

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A. Too Big to Jail Perhaps the most prominent criticism leveled at DPAs following the financial crisis is that the tool is used to perpetuate a “too big to jail” policy that shields corporations and financial institutions engaged in wrongdoing from the consequences. The criticism has two strands. The first focuses on the inequity between individual offenders for low level crimes, and large financial institutions for global crimes of epic proportion. The individual will likely be forced to plead guilty or endure a trial, while the financial institution gets to negotiate a sweetheart deal with the government.117 The second strand is concerned with a class of banks or corporations that have achieved an untouchable status due to their size. Senator Warren explains, “big banks are getting a terrific break, and little banks are just getting smashed.”118 Those advancing this strand of criticism, as well as some within the DOJ, believe the fears of collateral consequences and another Arthur Andersen are overblown.119 The proposed legal standard offers no remedy for the first strand of the “too big to jail” criticism because it requires courts to consider only similar, prior cases when analyzing precedent. Courts are not equipped to compare cases involving totally different sets of considerations and factors that have been weighed by the DOJ.120 But the standard is capable of addressing the second strand of this criticism. The test’s focus on precedence means that, by its own doing, the DOJ has effectively undone any special class of untouchable banks. Recent settlements are proof that the skies do not fall and the world as we know it does not end when institutions like BNP Paribas, Citicorp, JPMorgan, Barclays, RBS, and

117 Golumbic & Lichy, supra note 3, at 1324 (“[W]hen we hear that none of the Wall Street culprits have gone to trial, it contributes to this feeling out here that if you have money, you can get off. If you rob a convenience store, you are going to go to jail. If you rob the Nation, you just get richer, and you pay a fine.” (quoting Who is Too Big to Fail: Are Large Financial Institutions Immune From Federal Prosecution? Hearing Before the Subcomm. On Oversight and Investigations of the H. Comm. On Fin. Servs., 113th Cong. 9 (2013) (statement of Congressman Emanuel Cleaver)). 118 Golumbic & Lichy, supra note 3, at 1321–1322 (quoting Mollie Reilly, Elizabeth Warren Takes on Eric Holder’s ‘Too Big to Jail’ Statement, HUFFINGTON POST (Mar. 7, 2013), http://www.huffingtonpost.com/2013/03/06/elizabeth-warren-eric-holder_n_2823618.html). 119 U.S. Attorney for the Southern District of New York, Preet Bharara has voiced his opinion that “after Arthur Andersen, the pendulum has swung too far and needs to swing back a bit,” and “the sky does not fall” when major financial institutions are held to account. Preet Bharara, U.S. Attorney, Prepared Remarks at the SIFMA’s Compliance and Legal Society Annual Seminar (Mar. 31, 2014) available at https://www.justice.gov/usao-sdny/speech/sifma-s-compliance-and-legal-society-annual- seminar-prepared-remarks-us-attorney. 120 See United States v. Saena Tech Corp., 140 F.Supp.3d 11, 28 (D.D.C. 2015) (stating the judicial branch is “ill-suited to review prosecutorial decisions—given the complex factors involved”).

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UBS plead guilty.121 Where future cases involve conduct that matches or surpasses that of prior offenders who pled guilty, courts will have the tools and the power to reject any settlement agreement that is out of line with precedent and overly lenient. The legal standard also addresses the opposite side of the same coin: it protects smaller players from overly harsh agreements. A court may reject an agreement for abuse of discretion where a small offender’s conduct matches that of prior, larger offenders but receives a harsher settlement than its larger counterpart.122

B. The Extrajudicial Nature of DPAs Leaves Offenders Vulnerable to Violations of Due Process The second criticism leveled at DOJ use of the DPA is that the tool is favored precisely because it is “extra-judicial” in nature123 and allows “prosecutors to wield unchecked power over vulnerable corporate offenders.”124 The DPA disrupts the classical adversarial relationship and creates a dynamic where “the DOJ can use its leverage to force a company to do what the DOJ wants with little resistance.”125 Greenblum argues due process concerns can be even higher in the corporate context than the juvenile offender context due to the “death penalty” possibility stemming from “adverse publicity and the collateral consequences of a conviction.”126 These consequences create “unique pressure” for corporate offenders to settle “at virtually any price.”127 At bottom, the fear is that prosecutors exert their unbelievable leverage to exact unreasonable terms from corporate offenders who have no choice but to accept.

121 See Press Release, Dep’t. of Justice, BNP Paribas Bank Pleads Guilty, Pays $8.83 Billion in Penalties for Illegal Transactions (June 30, 2014); Press Release, Dep’t. of Justice, Five Major Banks Agree to Parent-Level Guilty Pleas (May 20, 2015); Preet Bharara, U.S. Attorney, Prepared Remarks at the SIFMA’s Compliance and Legal Society Annual Seminar (Mar. 31, 2014) available at https://www.justice.gov/usao-sdny/speech/sifma-s-compliance-and-legal-society-annual-seminar- prepared-remarks-us-attorney. 122 Cf. Wilson Meeks, Corporate and White-Collar Crime Enforcement: Should Regulation and Rehabilitation Spell an End to Corporate Criminal Liability? 40 COLUM. J.L. & SOC. PROBS. 77, 109 (2006) (“The disparate treatment of similarly situated offenders presents another potential problem. As mentioned above, the DOJ considers potential collateral damage to innocents when deciding which corporations get DPAs. This incentive, however, may be curtailed when “killing” the corporation will not generate much collateral damage at all. Thus, the system might treat similarly situated offenders differently. That is, corporate offenders with the same culpability level would be treated differently because some are too big to fail, while others are too small to save.”). 123 Id. at 106. 124 Greenblum, supra note 1, at 1895. 125 Meeks, supra note 122, at 106–07. 126 Greenblum, supra note 1, at 1895. 127 Id.

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Corporate offenders are not quite as vulnerable as Meeks and Greenblum convey. Corporate offenders have two key pieces of leverage to use in negotiations with the government over the terms and form of a settlement agreement: cooperation and access to evidence. First, cooperation enables corporate investigations and prosecutions to take place as the funds and manpower driving the investigations are largely provided by the offender itself. Corporate entities typically conduct their own internal investigation by hiring an outside accounting or auditing firm at a huge expense to comb through a mind numbing quantity of records. The corporate entity also retains a law firm to package this data into presentations given to the government in an effort to show cooperation. The government conducts its own investigation as well but without the cooperation of the institutional offender, it is unclear whether the government would have the resources to mount these kinds of cases. Second, and relatedly, through cooperation the government can gain access to records it needs to prove its case. In cases involving international institutions, that evidence may be located anywhere in the world. If that evidence is located in a foreign jurisdiction, the government has two options: obtain it through the cooperation of the institution or through a Mutual Legal Assistance Treaty (“MLAT”).128 The latter, which can be thought of as an international court order, depends upon two preconditions: the foreign government must agree to work with the U.S. government on the matter, and the conduct at issue must also be criminal in the foreign jurisdiction. If the offender chooses not to cooperate, and the relevant records are held in a country with different criminal laws and/or privacy laws, the DOJ has no case. However, because the government requires and weighs cooperation heavily when deciding on settlement terms to propose,129 refusing to cooperate is the nuclear option. The above discussion hopefully sharpens the criticism: neither party wants to find out what happens when one pushes the other too far in DPA negotiations, but only one of those parties is facing the possibility of a death knell. This is the imbalance that gives prosecutors leverage to dictate the terms of a DPA while free from judicial oversight. The proposed legal standard does provide for judicial review of the terms, but its design does not guarantee protection for the vulnerable corporate defendant. The strength and weakness in the standard is its reliance on precedent. The

128 This is a simplified explanation of the government’s options. Even if the institution cooperates and agrees to provide records, it must do so in compliance with the relevant laws, including privacy laws, of the jurisdiction in which the records are held. 129 DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL: PRINCIPLES OF FEDERAL PROSECUTION OF BUSINESS ORGANIZATIONS, 9-28.000 (2015).

2017] GETTING DPA REVIEW AND REJECTION RIGHT 125 standard instructs courts to review DPAs for terms consist with precedent; any agreement with unduly onerous terms inconsistent with precedent shall not receive the approval of the court. But if the DOJ consistently imposes onerous terms on all corporate offenders, the court would have no power under this test to provide relief. The judiciary is powerless to rectify this deficiency. As Part I argued, any attempt to subjectivize the test would amount to the court substituting its view for that of the prosecutor. Such a result would upset the equilibrium between the branches.

1. The Wisdom of Reform Only Congress can remedy the weakness in the standard and the judiciary’s inability to provide relief for consistently onerous DPA terms. One proposal for reform suggests Congress enact the Accountability in Deferred Prosecution Act (“ADPA”) requiring courts to “consider, and render findings of fact with respect to whether the terms of the DPA are fair and reasonable in relation to the acknowledged corporate misconduct.”130 This standard is nearly identical to the one Judge Leon applied in Fokker Services. Does it matter that the court is being given permission to engage in this review by Congress? Or, does this level of scrutiny offend the separation of powers regardless of the source from which the standard issues? This paper proposes that an attempt to remedy the weakness in the proposed legal standard would result in more harm than good. Placing the ultimate discretion in the judiciary rather than the executive is contrary to two of the foundational principles of our government of separated powers: leadership that is responsive to the electorate and effective decision- making. Prosecutors, as part of the executive branch, are accountable in an attenuated yet real way to the electorate. At-will removal of the Attorney General ensures that the president has complete control over the “tone at the top” of the DOJ. Line prosecutors are expected to comply with this tone and overall policies of the Department. If they do not, or if the public disagrees with the DOJ policies, the president will likely feel pressure from an electorate angered by a string of bad precedent created by line assistants. Such pressure and accountability can lead to change inside the DOJ. The same is not true of the judiciary. The judiciary was designed to be isolated from political pressure and popular opinion.131 Judges have protections such as life tenure and salary

130 Golumbic & Lichy, supra note 3, at 1343. 131 See THE FEDERALIST Nos. 78, 79 (Alexander Hamilton).

126 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 assurances.132 There is no redress short of impeachment for a judge haphazardly or inappropriately substituting his view for the prosecutor’s view. It is also not clear whether judicial abuse of power in this area would be an impeachable offense, if given direct permission by Congress to engage in subjective analysis. From an effective decision-making perspective, the subjective determination is better left to the executive branch rather than the judiciary. While the classic decision-making argument for housing certain powers in the executive branch espouses the benefits of the unitary executive, here the benefit actually derives from the hierarchical structure of the DOJ, ensuring oversight. There are a number of people within the Department that are briefed on a proposed settlement before the line assistant is given the go ahead. Additionally, the DOJ has institutional knowledge about how similar cases have been handled in the past. The court does not possess these benefits. Oversight of judicial decisions only occurs after the fact on appeal, at which point, the harm from a bad decision may be irreversible.133 The weakness in the legal standard is only implicated if abusive prosecutors create a bad body of precedent over time. Oversight and accountability combine to lessen the chance that such a situation will arise. The alternative, placing the subjective determination in the hands of judges, would produce greater inconsistency across cases due to the lack of oversight and institutional knowledge. But more importantly, doing so would reduce the “number of branches involved in the criminal process” to two.134 Thus the executive branch is best suited to make the final subjective determination concerning disposition of corporate criminal cases by DPA.

V. CONCLUSION The judiciary can effectively review prosecutors’ exercise of discretion by applying the proposed legal standard and standard of deference. The proposed test acts as a backstop to abuse while preserving and respecting the separation of powers.

132 Hamilton, supra note 131. 133 See, e.g., Golumbic & Lichy, supra note 3, at 1306–07 (discussing the consequences of the Arthur Andersen indictment). 134 Fokker Brief, supra note 9, (quoting In re United States, 345 F.3d 450, 454 (7th Cir. 2003)).

NOTE

Once was Enough: Extending the Double Jeopardy Clause to Prohibit the Reprosecution of Defendants Who Were Wrongfully Convicted Because of Official Misconduct

JACLYN KURIN

In the Netflix series “Making a Murderer,” the show profiles a man who may have been wrongfully convicted based on evidence fabricated by the sheriff’s department. This Comment argues that the Double Jeopardy should be extended to prohibit retrial of defendants who were wrongfully convicted because of official misconduct by the police or prosecutors.

128

NOTE CONTENTS I. INTRODUCTION ...... 131 II. FACTUAL BACKGROUND ...... 137 A. Statistics on Wrongful Convictions ...... 137 B. Likelihood of Relief for Wrongfully Convicted Prisoners Through Current Procedures ...... 138 1. Direct Appeal ...... 139 2. Executive Pardon or Clemency ...... 139 3. Habeas Corpus Actions ...... 139 4. State Collateral Attack or Petition for Post-Conviction Review ...... 140 5. Federal Habeas Corpus Action ...... 141 6. Petition for DNA Testing & Post Conviction Proof of Actual Innocence ...... 141 III. LEGAL BACKGROUND ...... 142 A. The Double Jeopardy Clause ...... 142 B. United States Supreme Court Precedent on the Double Jeopardy Clause ...... 143 C. Prevailing Justifications for why Double Jeopardy Does Not Bar Reprosecution ...... 145 1. A Double Jeopardy Exception for Wrongfully Convicted Defendants is Inconsistent with the Founding Fathers’ Intent ...... 146 2. An Exception Would Cause Uncertainty About When to Apply Double Jeopardy Bar for Wrongfully Convicted Defendants ...... 147 3. An Exception Undermines Prosecutorial Authority ...... 148 4. An Exception Unconstitutionally Abridges a State’s Police Power to Order its Criminal Justice System and Determine Sentencing Procedures ...... 148 5. Defendant Not Technically Convicted: “Wipe the Slate Clean” ...... 150 6. Prohibiting Retrial of a Wrongfully Convicted Defendant Because Technicalities Unreasonably Risk Public Safety ...... 152 IV. DISCUSSION ...... 152 A. A Double Jeopardy Exception for Wrongfully Convicted Defendants is More Consistent with the Attachment Principle ...... 153 B. Limited Exception Does Not Upset Current System or Cause Uncertainty about Finality of Decision...... 156 1. Exception Applies When Court Finds Government Convicted Defendant by Police or Prosecutorial Misconduct, Violating Defendant’s Fifth Amendment Due Process Rights ...... 156 2. Exception Would Still Allow for Retrial of Defendant Following Mistral or Appeal...... 158 C. Wrongful Conviction Exception Does Not Undermine Prosecutorial Authority ...... 158 D. A Wrongful Conviction Exception Does Not Unconstitutionally Abridge State Powers ...... 160 E. Facts Do Not Support Policy Justifying Legal Fiction That Purports Wrongfully Convicted Defendants Who Have Been Imprisoned Have Not Been Convicted of Crimes ...... 161

F. A Double Jeopardy Bar for Wrongfully Convicted Defendants Does Not Pose a Risk to Public Safety ...... 162 1. Bars on Criminal Prosecutions Because of Constitutional Defects Is Not an Aberration ...... 162 2. Denying a Double Jeopardy Exception is More Burdensome on the Public...... 164 V. CONCLUSION ...... 165

NOTE

Once was Enough: Extending the Double Jeopardy Clause to Prohibit the Reprosecution of Defendants Who Were Wrongfully Convicted Because of Official Misconduct

JACLYN KURIN†

I. INTRODUCTION Louis Taylor spent forty-two years in prison for a crime he did not commit.1 On April 2, 2013, however, Taylor pleaded no contest so that he would not die in prison.2 While assisting in Taylor’s release, Barry Scheck, Co-Director of the Innocence Project, said, “Mr. Taylor has served more than four decades in prison for a crime that arson scientists now believe never even happened, and forcing [sic] him to accept this plea . . . .”3 On December 19, 1970, Louis Taylor, a 16-year-old African American, walked to the Pioneer Hotel in downtown Tucson, Arizona where several Christmas parties were underway.4 Shortly after he arrived, a fire erupted in the hotel.5 As the flames spread, Taylor assisted emergency workers and helped guests escape the blaze.6 Despite Taylor’s heroic efforts during the conflagration, police later decided Taylor's presence at the hotel was suspect and took him to the precinct where they interrogated him throughout the night.7 The Innocence Project report states, “Although Taylor always maintained his innocence, he was arrested for the crime before there was even a report that the fire was arson.”8

† J.D. Candidate, Antonin Scalia Law School at George Mason University. 1 Innocence Project Deeply Troubled by Plea of Wrongly Convicted Arizona Man, INNOCENCE PROJECT (Apr. 2, 2013, 12:00 AM), http://www.innocenceproject.org/innocence-project-deeply- troubled-by-plea-of-wrongly-convicted-arizona-man/. [hereinafter Innocence Project Deeply Troubled by Plea]. 2 Id.; Richard Ruelas, Man Imprisoned for Fatal Tucson Hotel Fire to be Freed After 42 Years, ARIZ. REPUBLIC (Mar. 29, 2013, 10:38 PM), http://archive.azcentral.com/news/arizona/articles/ 20130329tucson-man-imprisoned-hotel-fire-to-be-freed-42-years.html. 3 Innocence Project Deeply Troubled by Plea, supra note 1. 4 See State v. Taylor, 537 P.2d 938, 941-43 (Ariz. 1975) (en banc). 5 See id. 6 See id. 7 See id. at 943–44. 8 Innocence Project Deeply Troubled by Plea, supra note 1; see Ruelas, supra note 2.

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Soon after, an all-white jury convicted Taylor and sentenced him to life in prison.9 The prosecution’s star witness was Cyrillis W. Holmes, a fire prevention officer, who investigated the fire at the Pioneer Hotel.10 In 2013, Taylor's lawyers “conducted a sworn deposition with original fire investigator, Holmes, who claimed that he was able to determine that the fire was set by an 18-year-old black person as soon as he completed a quick walk-through of the debris.”11 In the deposition, Holmes said:

Blacks at that point, their background was the use of fire for beneficial purposes. In other words, they were used to clearing lands and doing cleanup work and things like that and fire was a tool. So it was just a tool for them. In other words, you're comfortable with it. And if they get mad at somebody, the first thing they do is use something they're comfortable with. Fire was one of them.12

Around that time, “Taylor's defense team also learned that the prosecutors never informed Taylor that six samples of debris from the fire were subjected to scientific testing that found that no accelerant had been used.”13 His lawyers “also learned that the prosecution had improper communication with the judge prior to the trial.”14 In the years since Taylor’s conviction, arson science and investigative methodologies have greatly improved. Both the Tucson Fire Department and panel of renowned fire experts, who reevaluated the evidence, now “agree that there was no scientific basis whatsoever for concluding that the fire was caused by arson” as Holmes’s “original findings were based on outdated arson science.”15 Despite this, Holmes stood by his original findings, which were sufficient for the Prima County Attorney’s Office.16 Prosecutors maintained the evidence was sufficient to secure Taylor’s conviction once again.17 Instead of going through the expense of retrying Taylor, prosecutors offered Taylor the option to agree to an Alford plea,

9 Ruelas, supra note 2. 10 Innocence Project Deeply Troubled by Plea, supra note 1. 11 Id.; see Ruelas, supra note 2. 12 Innocence Project Deeply Troubled by Plea, supra note 1. 13 Id. 14 Id. 15 Innocence Project Deeply Troubled by Plea, supra note 1; see Ruelas, supra note 2. 16 Innocence Project Deeply Troubled by Plea, supra note 1; see Ruelas, supra note 2. 17 Innocence Project Deeply Troubled by Plea, supra note 1.

2017] ONCE WAS ENOUGH 133 similar to a no contest plea.18 Under this plea, Taylor would maintain his innocence while pleading to time served and immediately be released. Thus, Taylor, who had been wrongfully imprisoned for more than thirty years, reluctantly accepted the plea so that he would not die in prison.19 Louis Taylor is not the only wrongfully convicted defendant who has been forced to accept a plea after being subjected to repeated reprosecution, despite abundant official misconduct. Another example is Edward Lee Elmore, who narrowly avoided a death row execution after spending thirty years wrongfully imprisoned for his wife’s murder.20 For decades, case prosecutors concealed the fact that DNA evidence implicated a Caucasian man in the murder, not Elmore, who is African American. Habeas corpus proceedings revealed that prosecutors and police were aware of possible exculpatory evidence. This knowledge did not prevent officials from disclosing the evidence. Instead, prosecutors and police claimed the evidence had been lost.21 Proceedings also revealed that police fabricated evidence with the intent to convict Elmore.22 The court's response to the official misconduct was retrial.23 In total, the state convicted Elmore of his wife’s murder three times.24 Appellate courts overturned each conviction, allowing the state to have another opportunity to convict Elmore.25 Even though the Fourth Circuit vacated Elmore’s conviction, prosecutors refused to dismiss the case. Instead, prosecutors offered Elmore an Alford plea which he accepted.26 The story of Kerry Max Cook represents the lengths to which prosecutors will go to seek and retain their conviction records.27 In 1978, Cook was twenty-one years old when he was convicted of rape and murder.28 Cook spent the next twenty-two years in prison, more than half

18 Compare No Contest, BLACK'S LAW DICTIONARY (10th ed. 2014) (“[a] criminal defendant's plea that, while not admitting guilt, the defendant will not dispute the charge.”) with Alford Plea, BLACK'S LAW DICTIONARY (10th ed. 2014) (“[a] guilty plea that a defendant enters as part of a plea bargain without admitting guilt.”). 19 See Ruelas, supra note 2. 20 RAYMOND BONNER, ANATOMY OF INJUSTICE: A MURDER CASE GONE WRONG (2012) [hereinafter ANATOMY OF INJUSTICE]; see Raymond Bonner, When Innocence Isn’t Enough, N.Y. TIMES, Mar. 2, 2012. 21 ANATOMY OF INJUSTICE, supra note 20. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. 27 FRONTLINE, The Plea: Kerry Max Cook (June 17, 2004), http://www.pbs.org/wgbh/pages/frontline/shows/plea/four/cook.html [hereinafter The Plea: Kerry Max Cook]. 28 Id.

134 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 of which was spent on death row.29 The state retried Cook twice due to pervasive prosecutorial misconduct that occurred in the initial trial.30 The Texas Criminal Court of Appeals confirmed that police and prosecutors had manipulated witnesses, fabricated evidence, and presented perjured testimony. Even the District Attorney, David Dobbs, who prosecuted Cook in the retrials, confirmed that the government committed official misconduct during the investigation and Cook’s first trial.31 Despite the misconduct and weak evidence, Dobbs maintained that Cook should not walk free. Afraid to lose the trial and refusing to dismiss the case, Dobbs offered Cook an Alford plea.32 Cook was reluctant to accept the deal but eventually relented, stating that he did not want to "give any more time.”33 Two months after Cook accepted the plea, DNA analysis revealed that Cook was not the perpetrator.34 Startlingly, Dobbs already knew that Cook's DNA did not match.35 Dobbs had the DNA analysis performed shortly before the fourth trial against Cook, but did not disclose the evidence to the defense, claiming that the evidence was not exculpatory. 36 Deciding to ignore the official misconduct laying in the wake of the Cook prosecution, Dobbs instead focused on obtaining a plea agreement, boasting that "[t]he important thing for us was to insure that [Cook] got a conviction for murder that would follow him for the rest of his life."37 Sadly, Taylor’s, Elmore’s, and Cook’s situations are not unique.38 Studies by the National Academy of Science, the Innocence Project, and the National Registry of Exonerations demonstrate that hundreds of defendants wrongfully convicted based on official (police and/or prosecutorial) misconduct39 accepted pleas because prosecutors threatened to reprosecute them.40

29 Id. 30 Id. 31 Id. 32 Id. 33 The Plea: Kerry Max Cook, supra note 27. 34 Id. 35 Id. 36 Id. 37 Id. 38 See Additional Innocence Information, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/additional-innocence-information (last visited Dec. 14, 2015); Raymond Bonner, When Innocence Isn’t Enough, N.Y. TIMES, Mar. 4, 2012, at SR8; see also Sydney Schneider, When Innocent Defendants Falsely Confess Analyzing the Ramifications of Entering Alford Pleas in the Context of the Burgeoning Movement, 103 J. CRIM. L. & CRIMINOLOGY 279, 283 (2013). 39 See infra Part II. 40 There are several but somewhat similar definitions of what constitutes official misconduct. For this Comment, the term “official misconduct” means egregious behaviors that satisfies the legal standards for prosecutorial misconduct and for police misconduct. See Darden v. Wainwright, 477 U.S. 168, 181 (1986); United States v. Young, 17 F.3d 1201, 1203-04 (9th Cir. 1994); Nickerson v. Roe,

2017] ONCE WAS ENOUGH 135

The National Registry of Exonerations reports that homicide cases include a high rate of official misconduct resulting in wrongful convictions.41 According to the May 2015 report, more than 425 defendants were wrongfully convicted for homicide due to official misconduct.42 Nevertheless, many of these individuals, and other wrongfully convicted defendants, had to endure retrial to secure their release.43 Given the scale and severity of this problem, even a naïve or novice understanding of the Double Jeopardy Clause may lead one to question why there is retrial or the need to plead no contest. The Fifth Amendment of the United States Constitution provides, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”44 One could make the argument that this amendment bars retrial.45 However, prosecutors in these cases would be quick to correct this apparent misunderstanding. Cases dating back to the 1800s hold that when one obtains a new trial after appealing his conviction, he waives protection against reprosecution.46 These cases hold that the success of appeal wipes

260 F. Supp. 2d 875, 911 (N.D. Cal. 2003). Additionally, I appropriate the descriptions exoneration experts use:

Official misconduct . . . [is] not a type of evidence that might mislead a court and convict an innocent person, but a broad category of behaviors that affect the evidence that’s available in court, and the context in which that evidence is seen. The range of misconduct is very large. It includes flagrantly abusive investigative practices that produce the types of false evidence we have discussed: committing or procuring perjury; torture; threats or other highly coercive interrogations; threatening or lying to eyewitnesses; forensic fraud. At the far end, it includes framing innocent suspects for crimes that never occurred. The most common serious form of official misconduct is concealing exculpatory evidence from the defendant and the court.

SAMUEL R. GROSS & MICHAEL SHAFFER, THE NAT’L REGISTRY OF EXONERATIONS, EXONERATIONS IN THE UNITED STATES, 1989 – 2012, 65-66 (2012). See also Keith A. Findley, Defining Innocence, 74 ALB. L. REV. 1157 (2011); Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10-14, 1999; THE NAT’L REGISTRY OF EXONERATIONS, EXONERATIONS IN 2014 10 (2015) [hereinafter EXONERATIONS IN 2014]; KATHLEEN M. REILLY & MAURICE POSSLEY, VERITAS INITIATIVE, PREVENTABLE ERROR: A REPORT ON PROSECUTORIAL MISCONDUCT IN CALIFORNIA 1997-2009 (2010) (concealing exculpatory evidence from the defendant and the court is a common and “most serious form of official misconduct”). 41THE NAT’L REGISTRY OF EXONERATIONS, THE FIRST 1,600 EXONERATIONS 7 (2015) [hereinafter THE FIRST 1,600 EXONERATIONS]. 42 Id. at 11. 43 THE FIRST 1,600 EXONERATIONS, supra note 41. 44 U.S. Const. amend. V. 45 Id. 46 See United States v. Ball, 163 U.S. 662 (1896).

136 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 the defendant's slate clean so it is as if the initial conviction never happened, and as such there is no double jeopardy problem.47 Additionally, job and political considerations affect many prosecutors’ decisions to proceed with post-conviction cases.48 In many State's Attorney’s Offices, retention and promotion decisions are based on the prosecutor’s case win/loss ratio. The ratio does not account for accurate convictions, but mere quantity.49 Thus, for prosecutors to confirm a defendant was wrongfully convicted, they potentially jeopardize their track records, raise doubts about their fitness to serve, and risk looking weak to constituents that consistently prefer an official with a tough-on-crime attitude.50 Accordingly, prosecutors whose careers depend on their conviction records ignore the Louis Taylors and use double jeopardy precedent to their advantage.51 This Comment argues to overturn the precedent that the Double Jeopardy Clause does not bar the reprosecution of a defendant wrongfully convicted because of official misconduct. Part I discusses the prevalence of wrongful convictions and the means to secure relief through current procedures. Part II reviews the legal background of the Double Jeopardy Clause by presenting relevant precedent on interpreting the Double Jeopardy Clause and identifying the justifications for why the Clause does not prohibit retrying wrongfully convicted defendants. Part III argues for extending the Double Jeopardy Clause to prohibit retrying a defendant

47 See North Carolina v. Pearce, 395 U.S. 711, 721 (1969). 48 Brittnay Lea-Andra Morgan, Wrongful Convictions: Reasons, Remedies, and Case Studies (May 2014) (unpublished M.S. thesis, Appalachian State University) (on file with UNC Libraries, University of North Carolina Greensboro) (internal citations omitted). Many of the problems that result from prosecutorial misconduct have been suggested to stem from the institutional culture of the job itself. [P]rosecutors may feel motivated to coerce plea bargains or even withhold evidence in order to meet the demands of their career. For instance, it is well known that prosecutors have long been subject to increasing caseloads and the pressures of the poorly funded and resourced criminal justice system. As such, they must find ways to take short cuts and quickly dispose of cases before they make it to trial. This increased pressure can be challenging, as it could drive prosecutors to cut corners and impede justice. Additionally, the pressure to meet a specific standard and hold a specific reputation can lead prosecutors to do anything in their power to increase their conviction rate indicates that a prosecutor today who tries to give defendants the benefit of the doubt or tries to be fair is regarded as a failure. These internal pressures are likely to be reinforced daily, due to the fact that prosecutors are not likely to face any repercussions from these actions. Prosecutors may also feel as if they can get away with these types of misconduct, which include witness tampering, suggestive or inappropriate closing arguments, and failure to turn over exculpatory evidence. Prosecutors have long been able to experience an enormous degree of immunity from prosecution and/or civil lawsuits, even when these improper actions are exposed. DANIEL S. MEDWED, PROSECUTION COMPLEX: AMERICA’S RACE TO CONVICT AND ITS IMPACT ON THE INNOCENT 263 (2d ed. 2013). 49 MEDWED, supra note 48, at 267. 50 Id. at 268. 51 See Pearce, 395 U.S. at 721; Ruelas, supra note 2.

2017] ONCE WAS ENOUGH 137 wrongfully convicted by official misconduct. This section will counter anticipated opponents’ objections by arguing that: (1) extending double jeopardy protection to wrongfully convicted defendants is more consistent with the Double Jeopardy Clause’s Attachment Principle; (2) a limited exception is unlikely to give rise to uncertainty about a decision’s criminal finality because the bar only would apply upon a finding that the government wrongfully convicted a defendant through official misconduct; (3) a retrial bar for wrongful convictions fosters the judicial exercise of prosecutorial powers; (4) Supreme Court interpretations extending the scope of rights protected under the Federal Constitution do not unconstitutionally abridge state powers; (5) case precedent equating a wrongful conviction to a mistrial technicality does not comport with the drastic differences in the defendant’s procedural posture and duration of imprisonment; and (6) prohibiting retrial of wrongfully convicted defendants promotes public safety by encouraging accurate convictions. Finally, this Comment concludes with questions about the scope of the proposed limited extension of the Double Jeopardy Clause that will need to be addressed if ever applied by the courts or through legislation.

II. FACTUAL BACKGROUND

A. Statistics on Wrongful Convictions According to the National Registry of Exonerations May 2015 report, 1,600 defendants serving sentences for violent or non-violent crimes have been exonerated.52 However, those exonerations do not capture the entire picture of all wrongfully convicted defendants.53 The National Registry of Exonerations defines exoneration as:

A person convicted of a crime and (1) declared to be factually innocent by a government agency that has the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official who has the authority to take that action.54

52 THE FIRST 1,600 EXONERATIONS, supra note 41; EXONERATIONS IN 2014, supra note 40. 53 THE FIRST 1,600 EXONERATIONS, supra note 41; EXONERATIONS IN 2014, supra note 40. 54 THE NAT’L REGISTRY OF EXONERATIONS, GLOSSARY (2015), https://www.law.umich.edu/special/exoneration/Pages/glossary.aspx (official actions that qualify are governor granted pardons; or a court or prosecutor acquitting or dismissing the defendant of all charges he was convicted of at trial. These official actions, whether it be a pardon, acquittal, or dismissal “must be the result of evidence of innocence” that was either not available at trial when the defendant was convicted; or in the instance the defendant pled guilty, neither the defendant, the defense attorney, or

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Similarly, the Nation Academy of Science’s 2014 study concluded that at least 4.1% of defendants sentenced to death in the United States are likely innocent – a percentage that the study’s authors acknowledge is likely a “conservative estimate.”55 The study is the “first rigorous estimate of the rate of conviction of innocent criminal defendants in any context and disturbingly reveals that, “the number of innocent people sentenced to death is more than twice the number of inmates actually exonerated and freed by legal action."56 The study found that since 1973, 138 prisoners who had been sentenced to death were later exonerated. Though, as lead author of the study Samuel R. Gross laments, many other innocent capital defendants are overlooked and not exonerated. Gross says that “[t]he great majority of innocent people who are sentenced to death are never identified and freed. The purpose of our study is to account for the innocent defendants who are not exonerated."57 The study shows that most sentences of death row prisoners are reduced after appeals to life in prison.58 While this saves prisoners' lives, the reduction in sentencing makes these cases much lower in priority and lawyers, courts, and governors turn their focus on capital cases that carry the risk of executing innocent people.59 Consequently, while an innocent defendant might be exonerated if he were to remain on death row, he avoids execution and is likely to die in prison once the sentence is reduced to life.60

B. Likelihood of Relief for Wrongfully Convicted Prisoners Through Current Procedures There are several procedures through which a wrongfully convicted defendant can seek post-conviction relief by: (1) a direct appeal; (2)

the court knew of the evidence at that time). See also GROSS & SHAFFER, supra note 40, at 7. “‘Exoneration,’ . . . is a legal concept. It means that a defendant who was convicted of a crime was later relieved of all legal consequences of that conviction through a decision by a prosecutor, a governor or a court, after new evidence of his or her innocence was discovered. 55 Samuel R. Gross, Barbara O’Brien, Chen Hu & Edward H. Kennedy, Rate of False Conviction of Criminal Defendants Who Are Sentences to Death, 111 PNAS 7230 (2014). 56 Id. 57 Nancy Petro, National Academy of Sciences Study: Over Four Percent of People Sentenced to Death Are Likely Innocent, THE WRONGFUL CONVICTIONS BLOG (Apr. 28, 2014), http://wrongfulconvictionsblog.org/2014/04/28/national-academy-of-sciences-study-over-four-percent- of-people-sentenced-to-death-are-likely-innocent/. 58 See Gross, O’Brien, Hu & Kennedy, supra note 55. 59 Id. 60 Id.

2017] ONCE WAS ENOUGH 139 clemency; (3) state habeas corpus action; (4) federal habeas corpus action; (5) a petition of actual innocence based on DNA testing; and (6) a petition of actual innocence based on non-DNA testing.61 All these post-conviction procedures have restrictions limiting the type of constitutional claims and/or evidence the presiding body may review, and the types of relief granted.62

1. Direct Appeal The direct appeal is the first appeal filed after the defendant is convicted of a crime.63 This appeal is limited to issues raised at trial and addresses the way the trial was conducted.64 The trial judge must have the opportunity to decide upon the issue, and the appeal must be based on the existing court record.65

2. Executive Pardon or Clemency Executive pardon or clemency occurs when the governor of a state forgives the offense and releases the prisoner.66 Most states have a "board," which after hearing the claim and any supporting evidence makes a recommendation to the governor.67 Some governors will grant relief based on actual innocence.

3. Habeas Corpus Actions A habeas corpus action is a civil lawsuit filed against the state for unconstitutional imprisonment.68 A federal habeas corpus petition is similar to a state collateral attack and is used to challenge a violation of due process or other constitutional right.69 Governed by 28 U.S.C.§ 2254- 2255, federal habeas corpus petitions are filed in federal district court in the jurisdiction where the defendant is imprisoned.70

61 BRIAN R. MEANS, POSTCONVICTION REMEDIES § 1 (2013); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 STAN. J. C.R. & C.L. 55 (2014). 62 Hartung, supra note 61. 63 Keith A. Findley, Innocence Protection in the Appellate Process, 93 MARQ. L. REV. 591, 605 (2009). 64 Id. 65 Id. 66 MEANS, supra note 61. 67 Id. at § 1:3. 68 See Hartung, supra note 61, at 63. 69 Id. at 63-65. 70 Id.

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The 1996 Anti-Terrorism and Effective Death Penalty (“AEDPA”) severely curtailed habeas rights for state prisoners.71 It limits the number of habeas corpus petitions to one and requires prisoners to file them one year from the date the conviction becomes final.72 That deadline is tolled while collateral attacks are pending in state courts.73 In addition to the limited relief the petitioner may obtain, there are a number of procedural bars that can prevent a petitioner from filing a claim. For example, the petitioner must not have known of the basis for a claim at an earlier stage or must have raised the claim in all prior courts.74 Additionally, the claim must have been based on the same underlying facts and arguments; otherwise the claim is procedurally defaulted or waived.75 There are two ways to get around procedural default or waiver in a post- conviction court: proof of ineffective assistance of counsel or proof of new evidence of actual innocence. Courts may also set aside default or waiver “in the interests of justice,” though they rarely do. 76

4. State Collateral Attack or Petition for Post-Conviction Review Collateral attacks, also called a petition for post-conviction review, are used to raise constitutional claims, including those based on evidence outside of the existing court record.77 As with direct appeals, the remedy sought is a new trial.78 A prisoner may file a state habeas corpus action, also known as a petition for post-conviction review, with the trial court in which he was convicted.79 In this action, the prisoner seeks a new trial claiming that his conviction is the product of substantial prejudice arising from a deprivation of his guaranteed constitutional rights. In the petition, the prisoner would need to assert specific constitutional violations.80

71 See EXEC. OFFICE FOR U.S. ATTORNEYS, U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ ANNUAL STATISTICAL REPORT 41 (2010). 72 See, e.g., Jake Sussman, Unlimited Innocence: Recognizing an "Actual Innocence" Exception to AEDPA 's Statute of Limitations, 27 N.Y.U. REV. L. & SOC. CHANGE 343, 366 (2001). 73 See Kenneth Williams, The Antiterrorism and Effective Death Penalty Act: What's Wrong With It and How to Fix It, 33 CONN. L. REV. 919, 929-31 (2001). 74 See id. 75 See id. 76 See Lyn Entzeroth, Struggling for Federal Judicial Review of Successive Claims of Innocence: A Study of How Federal Courts Wrestled with the AEDPA to Provide Individuals Convicted of Non-Existent Crimes with Habeas Corpus Review, 60 U. MIAMI L. REV. 75, 83 (2005). 77 See id. at 83-84. 78 See id. at 83. 79 See id. at 85. 80 See id. at 84.

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5. Federal Habeas Corpus Action A prisoner may file a federal habeas corpus action at the same time as his state action.81 The federal habeas corpus suit is similar to the state post- conviction review, but claims that the district court should grant the petitioner a new trial, as the state court would have determined had the state court applied the correct constitutional standards for the claims the petitioner raised. 82

6. Petition for DNA Testing & Post Conviction Proof of Actual Innocence A prisoner may also file a petition for DNA testing and a petition for post-conviction proof of actual innocence based on the results of DNA testing. A petition for DNA testing involves seeking and obtaining access to biological evidence from crime, and testing that evidence for identity of true perpetrator.83 All states have statutes allowing post-conviction proof of innocence based on DNA testing. Some states also allow post-conviction claims of innocence based on non-DNA evidence. Common shortcomings of these statutes are strict filing deadlines and not providing the petitioner with access to DNA databanks for comparison of test results.84 Additionally, all procedures have restrictions limiting claims to evidence that is newly discovered.85 Newly discovered evidence is evidence that was not available before conviction or at an earlier stage in post-conviction proceedings.86 To satisfy the “new evidence” requirement, the petitioner must demonstrate that: (1) the biological evidence was not known or available before his conviction; or (2) that the biological evidence was not previously subjected to testing because the procedure was not available.87 For example, the Virginia Code requires that a petition for a writ of actual innocence based on previously unknown or untested biological evidence.88

81 See Steven A. Krieger, Why Our Justice System Convicts Innocent People and the Challenges Faced by Innocence Projects Trying to Exonerate Them, 14 NEW CRIM. L. REV. 333 (2011); Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 ARIZ. L. REV. 655, 681 (2005) [hereinafter Up the River Without a Procedure]. 82 See JOHN ROMAN, KELLY WALSH, PAMELA LACHMAN & JENNIFER YAHNER, URBAN INST. JUSTICE POLICY CTR., POST-CONVICTION DNA TESTING AND WRONGFUL CONVICTION (2012). 83 See Morgan, supra note 48. 84 See id. 85 ROMAN ET AL., supra note 82. 86 Up the River Without a Procedure, supra note 81, at 681. 87 Id. 88 VA. CODE ANN. § 19.2-327.3 (2004).

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Similarly, under the Washington D.C. statute, a petition for DNA testing requires that the “[e]vidence is in testable condition and could not have been subjected to testing earlier. . . . Petitioner must . . . [s]et forth the reason that the requested testing was not previously obtained and [e]xplain how the DNA evidence would help establish actual innocence.”89 Additionally, these statutes generally require the petitioner establish that the biological sample is testable and probative. Under these statutes even if the petitioner successfully demonstrates that the biological sample did not come from him/ her, this evidence does not provide that the petitioner be released.90

III. LEGAL BACKGROUND Part A of this section addresses doctrinal and factual underpinnings that courts and prosecutors likely rely on for opposing a double jeopardy exception that would bar retrial of a wrongfully convicted defendant. Part B explains the likely justifications opponents would raise to such an exception for wrongly convicted defendants.

A. The Double Jeopardy Clause The Fifth Amendment’s Double Jeopardy Clause guarantees that no person shall be subject “for the same offense to be put twice in jeopardy of life or limb.”91 Double jeopardy protections apply to both the federal and state governments.92 Specifically, double jeopardy prohibits the same sovereign government from reprosecuting a defendant who had already been convicted or acquitted for that same offense at trial.93 Similarly, the Double Jeopardy Clause protects against the government exacting multiple or successive prosecutions for the same offense.94 However, it is the attachment principle that triggers double jeopardy protections. Generally, jeopardy attaches when a defendant faces a determination of guilt.95 However, as explained below, Supreme Court

89 D.C. CODE § 22-4133 (2001). 90 VA. CODE ANN. § 19.2-327.3 (2004). 91 U.S. CONST. amend. V. 92 Double Jeopardy Clause restricts state power through the Incorporation Doctrine of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1968). 93 It is the general understanding that under the Double Jeopardy Clause, once a defendant is placed in jeopardy for an offense and jeopardy terminates with respect to that offense, the state may not try or punish the defendant a second time for the same offense. See Blueford v. Arkansas, 132 S. Ct. 2044 (2012). 94 Hudson v. Louisiana, 450 U.S. 40, 42 (1981). 95 Crist v. Bretz, 437 U.S. 28, 35 (1978). "Although it has thus long been established that jeopardy may attach in a criminal trial that ends inconclusively, the precise point at which jeopardy does attach

2017] ONCE WAS ENOUGH 143 precedent has weakened the attachment principle and has interpreted double jeopardy to be waived, permitting a defendant’s retrial for the same offense.96

B. United States Supreme Court Precedent on the Double Jeopardy Clause In Ball v. United States, the Supreme Court created an exception to the double jeopardy bar, allowing for reprosecution of a defendant who has successfully appealed his conviction, unless the reversal is based on insufficiency of evidence.97 The prominent theories for permitting retrial after appealing reversal is: (1) that by appealing his conviction, the defendant waives his double jeopardy protection; or (2) the original trial, the appeal, and the subsequent retrial are part of the same prosecution for the same offense, and thus double jeopardy continues through this process until the trial is finalized.98 In United States v. Tateo, Justice Harlan espoused the “most reasonable” justification for the continued jeopardy exception, stressing that the exception was necessary for administrative purposes and for maintaining the integrity of the criminal justice system and faith that civilians, judicial officials, and defendants place in the proceedings.99 For example, judges would be more lax in policing

in a jury trial might have been open to argument before this Court's decision in Downum v. United States. … There the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken. The Court thus necessarily pinpointed the stage in a jury trial when jeopardy attaches, and the Downum case has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn." 96 See, e.g., United States v. DiFrancesco, 449 U.S. 117, 131 (1980). (“Finally, if the first trial has ended in a conviction, the double jeopardy guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. … It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. … [T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.”) See also Blueford v. Arkansas, 132 S. Ct. 2044, 2051 (2012). 97 Unless the defendant’s appeal challenges that evidence to convict was insufficient then a successful finding in defendant’s favor will not bar retrial. Burks v. U.S., 437 U.S. 1 (1978). "[W]hen a defendant's conviction has been overturned due to a failure of proof at trial … the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." 98 Paul C. Giannelli, Double Jeopardy:“Twice in Jeopardy,” 20 CASE W. RESERVE U. 5 (1998). 99 United States v. Tateo, 377 U.S. 463, 466 (1964).

144 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 procedural improprieties, allowing those making prejudicial remarks to stand in fear that by declaring a mistrial a defendant would escape prosecution.100 In this respect, Justice Harlan’s thoughts echo the reasoning for permitting retrial in the event of a mistrial.101 Specifically, Justice Harlan stated:

While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pre-trial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest.102

Yet at the time, the Ball principle failed to address whether the Double Jeopardy Clause applies if the prosecution engages in misconduct that results in mistrial. Similar to the permissibility of retrial following appellate reversal, many courts have found that in the case of mistrials the Double Jeopardy Clause does not bar reprosecution of the defendant where the procedural circumstances present a manifest necessity for a new trial.103 A mistrial occurs when a trial judge adjourns a case without a decision on the merits and grants a new trial jury because there is a serious procedural error or misconduct that would result in an unfair trial.104 Nonetheless, it is well

100 Id. 101 See Illinois v. Sommerville, 410 U.S. 458 (1973). 102 Tateo, 377 U.S. at 463. 103 Sommerville, 410 U.S. at 458. 104 See, e.g., Williamson v. United States, 512 U.S. 594 (1994).

2017] ONCE WAS ENOUGH 145 established that the constitutional guarantee against double jeopardy does not preclude retrial of a defendant who has consented to mistrial.105 Having recognized that a prosecutor who is performing poorly at trial may wish to exploit a defendant’s double jeopardy waiver, courts have carved out an exception to prohibit retrial even if the defendant’s counsel has moved for a mistrial.106 Under the original standard, retrial is barred if the prosecutor’s conduct was in bad faith or done to harass the defendant.107 Less than a decade later, in Oregon v. Kennedy, the Court lowered the standard to bar retrial to situations “where the governmental conduct in question” was “intended to ‘goad’ the defendant into moving for a mistrial.”108 Although there is no checklist for what constitutes "goading" the defendant, court cases have given examples of indicia of the egregious practice. For example, one court found that a prosecutor did not overreach by failing to disclose exculpatory evidence.109 However, another court concluded that a prosecutor's knowing presentation of false evidence prejudiced the defendant’s right to a fair trial.110

C. Prevailing Justifications for why Double Jeopardy Does Not Bar Reprosecution This section reviews the likely arguments opponents would raise for a double jeopardy bar that would prohibit the reprosecution of wrongly convicted defendants. These arguments covered in this section include that such exception would: (1) be inconsistent with the Founding Fathers’ intent for the Double Jeopardy doctrine, (2) lead to uncertainty surrounding when to apply the Double Jeopardy bar, (3) undermine prosecutorial authority, (4) unconstitutionally abridge a state’s powers to order its criminal justice system and sentencing procedures, (5) be unnecessary because the defendant is not technically convicted, and (6) present an unreasonable risk to public safety.

105 United States v. Dinitz, 424 U.S. 600, 611 (1976). 106 Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982). 107 Dinitz, 424 U.S. at 610; United States v. Jorn, 400 U.S. 470, 485 (1971). 108 Kennedy, 456 U.S. at 676. 109 People v. Khuong, 818 N.Y.S.2d 674, 679 (N.Y. App. Div. 2006). 110 United States v. Kessler, 530 F.2d 1246, 1257 (5th Cir. 1976).

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1. A Double Jeopardy Exception for Wrongfully Convicted Defendants is Inconsistent with the Founding Fathers’ Intent Prosecutors might object to extending the Double Jeopardy Clause to prohibit the retrial of wrongfully convicted defendants on the grounds that it would be inconsistent with the Founding Fathers’ intent and legislative enactments regarding double jeopardy principles. Prosecutors would likely contend that at its core, the Founding Fathers intended that the Double Jeopardy Clause protect against repeated convictions for the same act, not to protect against egregious misconduct.111 This is demonstrated by Congress's rejection of James Madison’s version of the Double Jeopardy Clause. Madison’s version stated, “[n]o person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence . . . .” 112 The House rejected Madison’s version, believing that courts would interpret a prohibition against a second trial after the defendant successfully appealed his case.113 The Court in Green v. United States quoted:

Debate on this provision in the Committee of the Whole evidenced a concern that the language should express what the members understood to be the established common- law principle. There was fear that as proposed by Madison, it might be taken to prohibit a second trial even when sought by a defendant who had been convicted. Representative Benson of New York objected to the provision because he presumed it was meant to express the established principle “that no man's life should be more than once put in jeopardy for the same offence; yet it was well known, that they were entitled to more than one trial.114

Similarly, prosecutors may claim that Green v. United States reaffirms courts’ understanding that the Double Jeopardy Clause does not come into effect until the defendant’s conviction is finalized.115 Specifically, in Green, the United States Supreme Court stated that:

111 See Pearce, 395 U.S. at 721. 112 Id. (quoting 1 Annals of Cong. 434). 113 Green v. United States, 355 U.S. 184, 187-88 (1957). 114 Id. (quoting 1 Annals of Cong. 753). 115 See id. at 188.

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[C]ourts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense. Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had waived his plea of former jeopardy by asking that the conviction be set aside. Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final.116

And, like the Court noted, prosecutors would stress that “whatever the rationalization” the Court has “held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set side on appeal,”117 and that same rule should apply to a defendant who, by filing a habeas petition, has asked for relief of a new trial.

2. An Exception Would Cause Uncertainty About When to Apply Double Jeopardy Bar for Wrongfully Convicted Defendants Prosecutors may be reluctant to endorse a Double Jeopardy Clause bar because there would be uncertainty at which stage of the litigation it would go into effect. Moreover, there would be conflict in determining how to implement it in a manner that reconciles with the prevailing theoretical underpinning holding that jeopardy continues until the trial is finalized.118 As seen in the case of wrongfully convicted defendants, there are many levels of litigation.119 A defendant may have a direct appeal, a petition for actual innocence based on newly discovered evidence or DNA testing, both state and federal habeas corpus petitions, and possibly a new trial.120 Certainly, a prosecutor who questions the credibility of the newly discovered evidence and is adamant about the defendant’s guilt, or uncertain as to when the trial has been finalized would be hesitant for the bar to apply too soon.121 Thus opponents may argue that the finality concerns in extending the Double Jeopardy bar make the rule unworkable.

116 Id. 117 Id. at 189. 118 See Tateo, 377 U.S. at 474. 119 Id. 120 Id. 121 MEDWED, supra note 48.

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3. An Exception Undermines Prosecutorial Authority Any double jeopardy limitation would pose a bar on a prosecutor’s wide discretion in the manner in which to try his case and perform his prosecutorial duties. Under the principle of prosecutorial discretion, a prosecuting attorney has great latitude in performing his duties.122 So wide, in fact, that his discretion cannot be interfered with by the courts unless he is exceeding his jurisdiction.123 Additionally, it is normally understood that a prosecutor must exercise discretion in good faith and with respect to the dictates of professional responsibility rules and other office policies.124 Thus, as long as neither the law nor the prosecutor’s office policies provide otherwise, prosecutors likely would argue that a Double Jeopardy bar would be an unauthorized restraint on their prosecutorial authority.

4. An Exception Unconstitutionally Abridges a State’s Police Power to Order its Criminal Justice System and Determine Sentencing Procedures The guarantee against Double Jeopardy serves principally as a restraint on courts and prosecutors.125 However, opponents of applying the Double Jeopardy Clause to wrongfully convicted defendants likely would view the extension problematic because the limitation, which would prevent the state from reprosecuting a person who allegedly violated state laws, curtails the state’s exercise of its police power.126 States are endowed with broad police powers.127 Police power has historically been a traditional state function and falls within the state’s primary responsibility.128 Police power includes the ability of a state to control its criminal justice system.129 Critical to this control is the state’s ability to determine which offenses are punishable and the sentences for violating those offenses.130

122 United States v. Armstrong, 517 U.S. 456, 464 (1996). See also Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 125 BOST. U. L. REV. 183, 184 (2014). 123 Wayte v. United States, 470 U.S. 598, 607 (1985). 124 Berger v. United States, 295 U.S. 78, 88 (1935); United States v. Bartelho, 129 F.3d 663, 670- 71 (1st Cir. 1997); See also Medwed, supra note 48. 125 Ohio v. Johnson, 467 U.S. 493, 503 (1984). 126 See E.N.Y. Sav. Bank v. Hahn, 326 U.S. 230, 232-33 (1945); Queenside Hills Realty Co. Inc. v. Saxl, 328 U.S. 80, 84 (1946). 127 U.S. CONST. amend X; Saxl, 328 U.S. at 83. 128 United States v. Morrison, 529 U.S. 598, 639 (2000). 129 See Perry v. Southern Express Co., 81 So. 619 (Ala. 1919); State v. Hobson, 83 A.2d 846, 854 (1951). 130 Waller v. Florida, 397 U.S. 387, 393-95 (1970); Hahn, 326 U.S. at 230.

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Federal courts show extreme deference to these traditional and primary state functions, and therefore are reluctant to strike down a state’s criminal justice practice unless it abridges the Federal Constitution or a Federal Act that clearly states the federal law will preempt state powers.131 Moreover, because society is constantly evolving and the state is best equipped to assess the state’s needs, the state's police power cannot be restricted to narrow limits, and instead must be able to develop in the public interest, to meet such conditions.132 Additionally, the Supreme Court upheld the exercise of state power regarding criminal prosecution and sentencing, including those involving the Double Jeopardy Clause.133 As the Court noted in Abbate v. United States, states do not violate the Double Jeopardy Clause for prosecuting a person for the same act he is facing federal criminal charges:

Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently, this court has decided, in the case of Fox v. State of Ohio, . . . that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practi[c]ed on its citizens; and, in the case of the United States v. Marigold, . . . that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States.134

As was there pointed out, if the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal

131 Bond v. United States, 134 S. Ct. 2077, 2089 (2014). 132 Saxl, 328 U.S. at 80. 133 See, e.g., Abbate v. United States, 359 U.S. 187, 191-92 (1959). 134 Id. (quoting Moore v. People of State of Illinois, 55 U.S. 13, 14 (1852)).

150 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 prosecutions based on the same acts, federal law enforcement must necessarily be hindered. For example, the petitioners in this case insist that their Illinois convictions resulting in three months’ prison sentences should bar this federal prosecution which could result in a sentence of up to five years. Such a disparity will very often arise when, as in this case, the defendants’ acts impinge more seriously on a federal interest than on a state interest. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes. Thus, unless the federal authorities could somehow insure that there would be no state prosecutions for particular acts that also constitute federal offenses, the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions. Needless to say, it would be highly impractical for the federal authorities to attempt to keep informed of all state prosecutions which might bear on federal offenses.135

5. Defendant Not Technically Convicted: “Wipe the Slate Clean” The constitutional guarantee against Double Jeopardy does not preclude retrial of a defendant who has consented to mistrial or filed a direct appeal.136 In North Carolina v. Pearce, the United States Supreme Court articulated the premise from Ball, explaining in part why the court allows for the repeated prosecution and reconvictions of defendants. Justice Stewart explains that:

[T]he rationale . . . rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate has been wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized . . . . But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean.137

135 Abbate, 359 U.S. at 195. 136 Burks, 437 U.S. at 16; Dinitz, 424 U.S. at 610; Tateo, 377 U.S. at 465. 137 Pearce, 395 U.S. at 721.

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As Justice Stewart explained, because the defendant has either moved for a mistrial or appealed the trial court’s ruling, procedure is all set anew, and whatever history or prejudice may have come before is gone with the new trial as if the slate has been wiped clean. Thus, it is appropriate to treat a wrongfully convicted defendant in the same manner. Similarly, the habeas corpus petition can be equated to a direct appeal for finding of judicial error. 138 The petitioning acts as a Double Jeopardy waiver and the relief granted is a new trial.139 Thus, because of the clean slate setting, the court, as previously discussed, will bar retrial only in a strict set of circumstances. As the Court noted in Oregon v. Kennedy, the “intent” test for prosecutorial overreaching is “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.”140 Under this standard, courts have rarely found prosecutorial overreaching sufficient to prohibit retrying the defendant when the defendant has moved for a mistrial. In the following instances, courts have found that the state’s improper conduct did not constitute overreaching such as when: (1) a prosecutor failed to disclose to the defense exculpatory evidence in a murder trial;141 (2) a prosecutor intentionally altered transcript so as to impeach the defendant when he testified;142 (3) police officers told a juror to find the defendant guilty;143 or (4) sheriff deputies took sequestered jurors on an unauthorized visit to the crime scene and conversed with them about the ongoing case.144 Opponents of a Double Jeopardy extension likely would argue that the above instances of improper prosecutorial conduct are similar in kind to the official misconduct findings by a court reviewing a habeas corpus petition. As such, because the conduct at these mistrials was insufficient to bar retrial, a wrongfully convicted defendant should not escape reprosecution.145

138 Id. 139 Id. at 717-19. 140 Kennedy, 456 U.S. at 676. 141 Sheldon Shapiro, Annotation, Double Jeopardy as Bar to Retrial After Grant of Defendant's Motion for Retrial, 98 A.L.R. 3d 997, 1037 (1980). 142 United States v. Lopez-Avila, 678 F.3d 955, 964 (9th Cir. 2012). 143 People v. Townsend, 456 N.E.2d 938, 939 (Ill. 1983). 144 State v. Clements, 334 S.E.2d 600, 604 (W.Va. 1985), cert. denied 474 U.S. 857 (1985). 145 See Dinitz, 424 U.S. at 610.

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6. Prohibiting Retrial of a Wrongfully Convicted Defendant Because Technicalities Unreasonably Risk Public Safety Opponents of a Double Jeopardy bar may be reluctant to extend a retrial prohibition, claiming that to do so would present an unreasonable risk to the public. The habeas corpus proceeding is not a retrial of the defendant’s guilt.146 It is a civil proceeding that only determines whether the defendant’s conviction was obtained by violating his constitutional rights.147 Even if the court finds there has been a violation, in the prosecutor’s mind, the defendant was still convicted of crime. And unless the court bars retrial due to insufficient evidence, the prosecutor should be able to retry the case, just as he would if there were a mistrial.148 As in the instances where there is a mistrial, prosecutors retry cases because to not do so would guarantee the defendant's liberty, giving the defendant the opportunity to victimize more people.149 Similarly, a wrongful conviction finding is not a declaration of the defendant’s innocence, but rather a determination that a constitutional violation tainted the ultimate conviction.150 These constitutional violations range from failing to disclose a plea arrangement with the defendant’s co-conspirator in exchange for testimony to the government assisting witnesses to appear more credible to juries by coaching witnesses’ testimonies.151 Opponents of a Double Jeopardy extension may argue that allowing a mere technicality to bar retrial is unreasonable because such a technicality is insufficient to put the public at risk of the defendant committing future crimes, which was District Attorney Dobb’s argument in the Kerry Max case.152

IV. DISCUSSION In this section, I will counter the prosecutors’ justifications for opposing a Double Jeopardy bar by arguing that: (1) extending Double Jeopardy protection to wrongfully convicted defendants is more consistent with the Double Jeopardy Clause’s Attachment Principle; (2) a limited exception is unlikely to give rise to uncertainty about a decision’s finality

146 Herrera v. Collins, 506 U.S. 390, 390 (1993). 147 See Hartung, supra note 61, at 64. 148 See Williamson, 512 U.S. at 594. 149 Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L. QUARTERLY 713, 737 (1999). 150 See Collins, 506 U.S. at 399; Medwed, supra note 122, at 183. 151 See Giglio v. United States, 405 U.S. 149, 150 (1972); Napue v. Illinois, 360 U.S. 264, 272 (1959); United States v. Dyess, 478 F.3d 224, 236 (4th Cir. 2007); See Roe, 260 F. Supp.2d at 917. 152 FRONTLINE, supra note 27.

2017] ONCE WAS ENOUGH 153 because the bar only applies upon a court finding that the government wrongfully convicted a defendant through police or prosecutorial misconduct in violation of that defendant’s Fifth Amendment rights; (3) a retrial bar for wrongful convictions fosters the judicious exercise of prosecutorial powers; (4) Supreme Court interpretations extending the scope of rights protected under the Federal Constitution, which apply to a state under the Incorporation Doctrine do not unconstitutionally abridge state powers, (5) case law precedent equating a wrongful conviction to a mistrial technicality does not comport with the drastic differences in the defendant’s procedural posture and duration of imprisonment he has served, and (6) prohibiting retrial of wrongfully convicted defendants promotes public safety by encouraging accurate arrests and convictions, and avoiding the possibility that the actual perpetrator may commit more crimes because the government has wrongfully attributed culpability to an innocent person.

A. A Double Jeopardy Exception for Wrongfully Convicted Defendants is More Consistent with the Attachment Principle In the case of criminal prosecutions, the government generally has greater power and assets at its disposal than a typical defendant.153 Double jeopardy seeks to protect citizens who have already been convicted from the threat of government harassment by subjecting the defendant to multiple proceedings and trials for the same act by the same sovereign.154 A court finding in favor of a defendant’s habeas corpus petition because the government engaged in misconduct to convict the defendant is akin to instances in which a court bars a defendant’s retrial because of prosecutorial overreaching.155 The standard for finding official misconduct is exceedingly high.156 Circuits differ on the precise wording of what constitutes police and prosecutorial misconduct that would sufficiently deprive a defendant of his or her Fifth Amendment due process rights and warrant a new trial.157 Nevertheless, courts generally find that the police engage in misconduct when investigators acted in “bad faith” when failing to pursue an alternative suspect, line of investigation, or exculpatory evidence that

153 United States v. Young, 470 U.S. 1, 8 (1985). 154 See Pearce, 395 U.S. at 721. 155 State v. Loza, 641 N.E.2d 1082, 1097 (1984), cert. denied, 514 U.S. 1120 (1995). 156 City of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). 157 Compare Dyess, 478 F.3d at 235, with Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009).

154 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 could have helped proved innocence.158 Bad faith can constitute police knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.159 Courts similarly have found prosecutorial misconduct occurs when the prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.160 As demonstrated, both these standards require that the official misconduct be prejudicial.161 In the context of post-conviction litigation, not all investigative failures are treated equally. Police oversight or negligence from tunnel vision is insufficient to constitute deprivation of a defendant’s due process rights for obtaining post-conviction relief.162 A petitioner can seek redress for due process violation based on police misconduct if the petitioner establishes that the police acted in bad faith. Prime examples of bad faith conduct are the police knowingly fabricating evidence or suppressing evidence they know has possible exculpatory value. A court likely would find that the police acted in bad faith if the police have fabricated or manipulated evidence to favor of the police’s theory.163 An example of fabricated evidence occurs when the police coach a witness’s statement to comport with crime scene details so that at trial the fact finder will find the statement credible, and thus give greater weight to the witness’s testimony.164 Oregon v. Kennedy made clear that courts are to refrain from finding that a defendant has waived his Double Jeopardy rights if the government

158 See Dyess, 478 F.3d at 233 (“[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”); Lewis, 523 U.S. at 847; Epperly, 588 F.3d at 1183-84, (“Conduct intended to injure will generally rise to the conscience-shocking level, but negligent conduct falls ‘beneath the threshold of constitutional due process.” However, “[a]n officer’s negligent failure to investigate inconsistencies or other leads is insufficient to establish conscience- shocking misconduct.”) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998))). 159 Ariz. v. Youngblood, 488 U.S. 51, 58 (1988) (stating that Police failure to preserve potentially useful evidence is insufficient to constitute denial of due process absent the defendant showing police acted in bad faith. However, Police actions that demonstrate an intent to injure the defendant constitute outrageous misconduct or bad faith and is sufficient grounds for finding the resulting conviction should be set aside because the state obtained the verdict by violating the defendant’s due process rights. Id. Police coaching a witness’s statements about crime scene details to make the witness’s testimony more reliable rises to the level of outrageous misconduct because the acts were intentional and not merely negligent. See Roe, 260 F. Supp. 2d at 911. 160 See Wainwright, 477 U.S. at 181. 161 “To prove reversible error, the defendant must show (1) ‘that the prosecutor’s remarks or conduct were improper’ and (2) ‘that such remarks or conduct prejudicially affected his substantial rights so as to deprive him of a fair trial.’” United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010) (quoting United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)). 162 See, e.g., Wainwright, 477 U.S. at 181 (1986). 163 Nickerson v. Roe, 260 F. Supp. 2d 875, 917 (2003). 164 Id. at 911-13.

2017] ONCE WAS ENOUGH 155 has intentionally goaded the defendant into motioning for a mistrial.165 In the instances of a wrongful conviction, the government has not engaged in official misconduct to obtain a new trial.166 However, in both the Oregon v. Kennedy setting of mistrial due to prosecutorial overreaching and after the wrongful conviction finding, the court has determined that the prosecutor engaged in misconduct for the ultimate purpose of convicting the defendant.167 In fact, courts have elaborated on prosecutorial misconduct that can bar retrial. For example, in Appling v. State, retrial was prohibited on the basis of Double Jeopardy where the defendant established that the state intended to goad him into moving for a mistrial so that the state would avoid a reversal, or obtain a more favorable chance of a guilty verdict.168 As such, the official misconduct had goaded the defendant into seeking relief of a new trial. In the mistrial setting, the prosecutor overreaches so the defendant will move for a new trial in which the prosecutor believes he will be more successful at convicting the defendant.169 The prosecutor’s improper conduct is especially duplicitous because if the defendant does not consent to a mistrial, then the defendant suffers extreme prejudice because the jury will likely consider the overly prejudicial information in rendering its verdict even if the court instructs the jury to disregard the evidence.170 As such, the government has goaded the defendant into consenting to a mistrial because the defendant sought to avoid the possibility of the jury convicting him based on the prosecutor’s prejudicial improper conduct.171 The prosecutor similarly has goaded the defendant to waive the reprosecution bar through filing a habeas corpus petition in the instance where the government convicted the defendant based on official misconduct.172 In such cases, the defendant would not be seeking a new trial but for the police and prosecution engaging in the prejudicial conduct that resulted in the defendant’s initial conviction.173

165 See Kennedy, 456 U.S. at 673. 166 Id. at 689. 167 See Dinitz, 424 U.S. at 611; Jorn, 400 U.S. at 485; Kennedy, 456 U.S. at 676. E.g., MEDWED, supra note 48. 168 Appling v. State, 700 S.E.2d 626, 627 (Ga. 2010). 169 Giannelli, supra note 98, at 1-7. 170 Id. 171 Id. at 1-2. 172 See Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982). 173 See id.

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A court granting habeas relief is distinguishable from an appellate court reviewing a judicial error on direct appeal.174 For a direct appeal, the appellate court’s concern is whether the trial court’s procedural ruling was appropriate.175 However, for a habeas corpus petition alleging the defendant’s conviction was based on official misconduct, the reviewing court must determine whether the government engaged in such conduct to the extent it prejudiced the resulting verdict against the defendant.176 The fact that a habeas corpus petition requires the court to make these findings provides ample support that the circumstances of egregious government misconduct are precisely those that the Double Jeopardy doctrine seeks to prohibit regarding retrial.177 Moreover, the fact that the government uses the threat of retrying the wrongfully convicted defendant in an effort to compel the defendant to accept an Alford plea (which allows the government to save face and the prosecutor’s conviction record to remain intact) is the kind of government harassment sought to be prevented.178

B. Limited Exception Does Not Upset Current System or Cause Uncertainty about Finality of Decision

1. Exception Applies When Court Finds Government Convicted Defendant by Police or Prosecutorial Misconduct, Violating Defendant’s Fifth Amendment Due Process Rights This exception would apply when a court reviewing a habeas corpus petition finds that the government convicted the defendant based on official misconduct in violation of the defendant’s Fifth Amendment rights to Due Process. Because the statutes for filing state and federal habeas corpus petitions have extensive exhaustion requirements,179 which includes that there will be a final decision in the defendant’s matter, it is not the

174 Daniel S. Medwed, Prosecution Complex: America's Race to Convict and Its Impact on the Innocent 125-26 (2012). 175 Id. at 125 176 See, e.g., Hash v. Johnson, 845 F. Supp. 2d 711, 751-52 (W.D. Va. 2012). 177 See, e.g., id. 178 See Lee v. United States, 432 U.S. 23, 32-33 (1977) (“Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy Clause generally would not stand in the way of reprosecution. Only if the underlying error was motivated by bad faith or undertaken to harass or prejudice, … would there be any barrier to retrial.”); Medwed, supra note 174, at 66-67, 130-31, 161; Sydney Schneider, Comment, When Innocent Defendants Falsely Confess: Analyzing the Ramifications of Entering Alford Pleas in the Context of the Burgeoning Innocence Movement, 103 J. Crim. L. & Criminology 277, 301 (2013). 179 Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts 7-12 (2007).

2017] ONCE WAS ENOUGH 157 case that extending the Double Jeopardy doctrine to cover wrongfully convicted defendants would upset the existing procedural processes or give rise to uncertainty about when the extension would apply.180 In these cases, the defendant has already served some portion of the court-imposed sentence.181 The National Center of State Courts reports that a wrongfully convicted defendant has served six years before filing a habeas corpus petition.182 Additionally, according to The National Registry of Exonerations, the average wrongfully convicted defendant served two to five years in prison before a court granted his petition for new trial.183

180 See Schlup v. Delo, 513 U.S. 298, 324-26 (1995); Herrera v. Collins, 506 U.S. 390, 398-402, 416-17 (1993). 181 Paul C. Giannelli, Double Jeopardy: “Twice in Jeopardy,” 20 CASE W. RESERVE U. 1, 4 (1998). 182 NANCY J. KING ET AL., NCSC, EXECUTIVE SUMMARY: HABEAS LITIGATION IN U.S. DISTRICT COURTS 4 (2007) (Non-capital cases. Prior to AEDPA, the average time from state judgment to federal filing was about 5 years. After AEDPA, the average time had lengthened to 6.3 years. Capital cases. For capital cases filed in 2000, 2001, and 2002, the petitioner's state criminal judgment had been entered on average 7.4 years earlier, with a median interval of 6.5 years. Comparative figures before AEDPA are not available.) 183Hans Sherrer, AEDPA has Reduced Federal Habeas Relief for State Prisoners, 39 Justice Denied 17 (2008); Nancy J. King et al., NCSC, Executive Summary: Habeas Litigation in U.S. District Courts 7 (2007). From the time of filing to disposition, noncapital cases take about a month longer on average to process after the AEDPA – 7 months compared with 6 months previously. Capital cases take almost twice as long to process after the AEDPA as before – 29 months compared with 15 months previously. None of the 13 federal districts studied, on average, complete capital cases within the 450-day time limit imposed by the AEDPA for states qualifying for fast track status. Sherrer, supra. Of the capital cases filed in 2000, 2001, and 2002, 1 in 4 was still pending in late November 2006, and had been pending for an average of 5.3 yrs. In 5 of the 13 districts, more than half of the cases remained pending. Only 8% of the noncapital cases started in 2003 and 2004 had failed to reach reached disposition by November 2006.” Time in federal court. The average time from start to finish for non-capital cases was 9.5 months. The median disposition time of 7.1 months is more than a month longer than the median time of 6 months prior to AEDPA. King et al., supra note 182. In general, the time to exoneration is longer for more serious crimes. The median time from conviction ranges from four years for nonviolent crimes to 13.3 years for sexual assaults and 12.9 years for homicides (Table 4, left column). The likely explanation is that there is much less incentive to work to exonerate a defendant once he has been released, and those convicted of lesser crimes are released sooner than those convicted of major violent crimes. DNA exonerations also take longer than non-DNA exonerations; the median time from conviction is 14.9 years compared to 7.8 years. This is true for homicide cases, where the median time is 15 years with DNA and 11.9 years without; for sexual assault cases, where the comparable numbers are 14.6 years and 7.1 years; and for child sex abuse exonerations, where the median times are 17 years with DNA and 5.9 without DNA. Samuel R. Gross & Michael Shaffer, Report by the National Registry of Exonerations, Exonerations in the United States, 1989 – 2012, at 24-25 (2012).

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2. Exception Would Still Allow for Retrial of Defendant Following Mistral or Appeal Because this exception would only apply after a habeas corpus petition court has determined that official misconduct caused defendant’s conviction, the government could still retry a defendant under the current standards allowing reprosecution in the instances of a mistrial or direct appeal.184 As such, this exception would continue to honor the balance of recognizing the defendant’s right to a completed trial with the public’s interest in fair trials designed to end in just verdicts.

C. Wrongful Conviction Exception Does Not Undermine Prosecutorial Authority Prosecutorial authority is not so absolute that prosecutors can refrain from complying with constitutional and statutory prohibitions, professional and ethical standards of conduct, or office policies.185 Additionally, broad prosecutorial discretion does not permit prosecutors to engage in misconduct even if it is done for the purpose of executing prosecutorial duties.186 Furthermore, the Supreme Court has limited prosecutorial authority specifically as it relates to the Double Jeopardy Clause.187 For example, double jeopardy prevents prosecutors from retrying a defendant where prosecutorial overreaching caused a mistrial.188 Similarly, if a jury has acquitted the defendant for a crime, the Double Jeopardy Clause prevents a prosecutor of the dame sovereign government from retrying the defendant for the same act under a lesser-included offense.189 Thus, extending the Double Jeopardy Clause to cover defendants who were wrongfully convicted based on official misconduct is neither novel nor an aberration of currently imposed limitations on prosecutorial authority.190 Certainly, prosecutors are within their authority to offer a variety of plea deals and alternative sentencing options to a defendant accused of, or convicted of, committing a crime in exchange for that defendant providing beneficial information to the prosecutor, such as allocuting to a crime or agreeing to serve as a government witness by testifying against another

184 See Giannelli, supra note 98, at 4. 185 Id. 186 Id. 187 Id. at 4-5. 188 Id. 189 Id. at 5. 190 Giannelli, supra note 98, at 1,6.

2017] ONCE WAS ENOUGH 159 person or co-defendant.191 Nonetheless, it is particularly deplorable for a prosecutor to threaten reprosecution and the possibility of conviction in the instance where a court has already found that the prosecution deprived the defendant of his constitutional rights.192 As previously noted, the Double Jeopardy Clause seeks to prevent government harassment.193 In the cases previously highlighted, such as Taylor, Elmore, and Cook, the government used the threat of a new trial to force the wrongfully convicted defendant to acquiesce to an Alford plea.194 Those cases illustrate the severity of the prosecutorial misconduct needed to result in a court finding that the government had wrongfully convicted the defendant.195 As shown, the defendants reluctantly agreed to an Alford plea because: (1) they could not be assured of the integrity of the retrial proceedings from a prosecutor’s office that previously engaged in official misconduct to convict them for the same crime decades before, (2) they did not believe they would be able to survive in prison while awaiting retrial, or (3) that they could not psychologically endure another trial with the possibility of conviction after having suffered already extensive sentences and litany of judicial proceedings just to obtain the wrongful conviction finding.196 Especially in these instances of severely egregious official misconduct it appears fanciful, or at best, difficult for the government to argue that barring reprosecution of defendants who were wrongfully convicted based on sufficiently prejudicial official misconduct would severely curtail or harm the prosecutor’s office from executing its duties.197 This argument is hollow because, as previously discussed, broad prosecutorial discretion does not authorize the government to secure a defendant’s conviction based on official misconduct, which is essentially the finding in these habeas corpus petition cases.198 Admittedly, as the exclusionary rule does not universally prevent officers from conducting unreasonable searches,199 this limited exception would not prevent all forms of prosecutorial harassment identified as the ills the Double Jeopardy Clause seeks to prevent. Nonetheless, this exception would certainly be more consistent with the Clause’s intent

191 Ball, 163 U.S. 662. 192 Kennedy, 456 U.S. at 676. 193 Johnson, 467 U.S. at 499. 194 See Innocence Project Deeply Troubled by Plea, supra note 2. 195 Giannelli, supra note 98. 196 See id.; Schneider, supra note 37. 197 Medwed, supra note 48, at 183-84. 198 See Young, 470 U.S. at 7. 199 See Mapp v. Ohio, 367 U.S. 643, 645 (1961); supra Part III.

160 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 rather than the current prosecutorial practice of using Alford pleas, which only further harass a wrongfully convicted defendant who was initially imprisoned because of the government’s intentional and substantial disregard to abide by prosecutorial conduct standards permitted under the Constitution.200

D. A Wrongful Conviction Exception Does Not Unconstitutionally Abridge State Powers States are endowed with broad police powers.201 However, the Supreme Court repeatedly has held that a state’s power is not unlimited to the extent it would enable the state to supersede individual rights guaranteed by the Bill of Rights to the Federal Constitution.202 This is because the Incorporation Doctrine provides that a number of individual rights also apply to the states to restrict state government action.203 These incorporated individual rights include those that relate to a state’s criminal justice and sentencing practices.204 For example, the Supreme Court has interpreted that the Fifth Amendment requires the government to inform a person of his Miranda rights before questioning him in manner that would elicit an incriminating response while he is in a custodial setting.205 Absent certain well-recognized exceptions, state courts must prohibit a prosecutor from using a defendant’s confession in the prosecution’s case in chief when the government obtained it in violation of the defendant’s Miranda rights.206 Similarly, the Supreme Court has rejected state sentencing practices that undermine individual constitutional protections despite that the Court’s ruling necessarily curtails a state’s police power. For example, the Eighth Amendment prohibits cruel and unusual punishment.207 Over the years, the Supreme Court has extended the reach of the Eighth Amendment to prohibit a state from executing juveniles and the mentally disabled.208

200 See Hahn, 326 U.S. at 232-33; Queenside Hills Reality Co. Inc. v. Saxl, 328 U.S. 80 (1946). 201 See U.S. CONST. amend. X; See Queenside, 328 U.S. 80. 202 See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) (state courts must apply the exclusionary rule to suppress inculpating evidence the government seized by violating the defendant’s Fourth Amendment rights); Atkins v. Virginia, 536 U.S. 304 (2002) (state cannot execute a mentally disabled offender); Roper v. Simmons, 543 U.S. 551 (2005) (state cannot execute a juvenile offender); Graham v. Florida, 560 U.S. 48 (2010) (state cannot sentence a non-homicidal offender to a life sentence without the possibility of parole). 203 Giannelli, supra note 98, at 1. 204 U.S. CONST. amend. X; Queenside, 328 U.S. 80. 205 Miranda v. Arizona, 384 U.S. 436 (1966). 206 See, e.g., id.; New York v. Quarles, 467 U.S. 649 (1984). 207 U.S. CONST. amend. VIII. 208 Atkins, 536 U.S. at 304.

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Additionally, the Supreme Court recently held in Graham v. Florida, that the prohibition on cruel and unusual punishment bars states from sentencing juveniles, convicted of non-homicidal offenses, from serving life sentences without the possibility of parole.209 The Supreme Court found that the extended coverage did not unconstitutionally abridge the state’s police power.210 Thus, as illustrated, extending the Fifth Amendment’s Double Jeopardy Clause to cover wrongfully convicted defendants would not be unconstitutional, if Courts have interpreted the Federal Constitution to restrict state police powers regarding criminal justice and sentencing practices.211

E. Facts Do Not Support Policy Justifying Legal Fiction That Purports Wrongfully Convicted Defendants Who Have Been Imprisoned Have Not Been Convicted of Crimes The number of years a wrongfully convicted defendant has been imprisoned is irrelevant to the legal applicability of Double Jeopardy. Instead, courts equate the procedural posture of a wrongfully convicted defendant as similar to a defendant who has consented to a mistrial or directly appealed his verdict based on legal error.212 Thus, filing a habeas corpus petition is legally indistinguishable from a defendant moving for a mistrial or filing a direct appeal. In both instances, the defendant is deemed to have waived the Double Jeopardy bar.213 Even as seen in the case of a mistrial, if the state committed prejudicial improprieties, the new trial effectively “wipes the slate clean,” and thereby removes any remaining prejudice to the defendant while still satisfying the public’s interest for just judgments.214 This justification embraces the notion that a new trial remedies all Due Process violations of a prior procedural error, as if they never occurred.215 However, because most of these offenses carry a statute of limitation, retrials following mistrials and reversal based on appeals occur relatively shortly with these rulings.216 However, it is difficult to extend this rationale to warrant the retrial of wrongfully convicted defendants who have been imprisoned for a decade or more as opposed to the de minimus length of confinement defendants

209 Graham, 560 U.S. at 48. 210 See id.; Atkins, 536 U.S. at 304. 211 See Graham, 560 U.S. at 48; Atkins, 536 U.S. at 304; Giannelli, supra note 98. 212 Giannelli, supra note 98, at 9. 213 Id. 214 Id. 215 Id. at 9-10. 216 Id. at 10.

162 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 serve when the government retries them because of mistral or appeal.217 As previously discussed, the statute of limitations for mistrials and direct appeals ensures that the defendant has a new trial shortly following the initial erroneous proceeding.218 In these instances, the defendant’s relatively brief confinement while awaiting a new trial makes the justification plausible. The defendant has not yet been convicted in the case of a mistrial or that the slate has been wiped clean, in the case of a new trial based on an appellate court’s finding.219 But this technical temperament does not carry the same weight for a wrongfully convicted defendant who, depending on the offense, serves an average of six to fifteen years before granted a new trial.220 Most habeas petitions processing time can be very lengthy, and several years may pass before a petition is heard. Unsurprisingly, on average wrongfully convicted defendants spend about thirteen years in prison before exoneration.221 This is distinguishable from the de minimus confinement mistrial and appellate reversal defendants face, and thus makes them a less than perfect comparison to the wrongfully convicted defendant, who on average spends more than six years in prison from the time he is sentenced, to the time that he has exhausted all administrative requirements so that he can file a habeas corpus petition.222

F. A Double Jeopardy Bar for Wrongfully Convicted Defendants Does Not Pose a Risk to Public Safety

1. Bars on Criminal Prosecutions Because of Constitutional Defects Is Not an Aberration Opponents of a Double Jeopardy extension argue that preventing retrial will pose a risk to public safety.223 Specifically, opponents claim that the defendant might be the actual perpetrator, and without a retrial to determine if the defendant is culpable, he will go free, which would endanger the community given the possibility that the defendant might commit future crimes. Essentially, the opponents contend that a judicial

217 Id. 218 Giannelli, supra note 98, at 11. 219 See Pearce, 395 U.S. at 721. 220 GROSS, supra note 40, at 24-25; KING ET AL., supra note 182. 221 See GROSS. supra note 40, at 26. 222 See id. 223 MEDWED, supra note 48.

2017] ONCE WAS ENOUGH 163 rule prohibiting reprosecution is not worth adopting due to the potential safety risk.224 However, opponents seem to ignore that the judicial process already routinely uses the exclusionary rule that when applied, disposes of incriminating evidence against the defendant and often results in the prosecutor dropping the charges and thus enabling the defendant to remain free.225 Unlike with a wrongfully convicted defendant where through the habeas proceeding evidence comes forth that strong implicates that the defendant did not commit the crimes he was convicted of, a defendant moving the court to suppress evidence under the exclusionary rule rarely lacks culpability. In fact, it is quite the opposite.226 Often it is the case that the defendant using the exclusionary rule is the actual perpetrator of a crime and is using that rule to suppress incriminating evidence the government seized from an illegal search or to suppress an involuntary confession.227 Take, for instance, a case where officers enter a person’s home without a warrant or exigent circumstances and seize child pornography from the home that a prosecutor will seek to introduce as incriminating evidence at the defendant’s trial.228 Or, for example, imagine that a person arrested for kidnapping and raping a child confesses to the crime because officers created a coercive atmosphere and did not warn him of the right to remain silent or have an attorney.229 In both cases, the defendants committed the crimes they were accused of yet the courts excluded the incriminating evidence because the government obtained that evidence in violation of those defendants’ constitutional rights.230 In neither case was the actual perpetrators’ potential risk to the community, or harm to minors able to outweigh the constitutional violations they suffered.231 Thus, it seems disingenuous for opponents to a Double Jeopardy extension to say that the prohibition should be denied because it would pose a risk to public safety when our criminal justice system and communities are not unaccustomed to releasing potentially dangerous persons from the application of the exclusionary rule.

224 See id. 225 See Mapp, 367 U.S. at 655. 226 Compare Hash v. Johnson, 845 F. Supp. 2d 711 (2012), with Mapp, 367 U.S. at 655. 227 See e.g., Miranda v. Arizona, 384 U.S. 436, 444 (1966); Mapp, 367 U.S. at 656. 228 See Mapp, 367 U.S. at 645. 229 See Miranda, 384 U.S. 440. 230 See id.; Mapp, 367 U.S. at 660. 231 Giannelli, supra note 98.

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2. Denying a Double Jeopardy Exception is More Burdensome on the Public. In many wrongful convictions, the defendant was not the perpetrator of the crime.232 Nevertheless, even if there is evidence of the defendant’s innocence, time and time again prosecutors have dismissed that evidence and rather maintained that defendant is guilty no matter whether the theory of the crime is fanciful or that the inculpating evidence is shaky (as with the case of eyewitness identification) or lacks scientific merit (as with the scores of forensic disciplines that have been debunked over the years).233 However, the public danger from prosecutors maintaining the belief in the defendant’s guilt despite these fictions is that while the wrongfully convicted defendant is being confined or retried, the actual perpetrator of those offenses is able to continue to commit subsequent crimes.234 Aside from danger of enabling the actual perpetrator to continue committing crimes at the expense of the public, the community also suffers a financial burden when prosecutors insist on retrying a wrongfully convicted defendant or from the lengthy negotiations in trying to convince the defendant to accept an Alford plea.235 The average cost of retrial for a homicide case is two hundred thousand dollars to three hundred thousand dollars.236 According to the Exoneration Registry, prosecutors who chose to retry defendants whose convictions were vacated are ultimately unsuccessful.237 In these cases, defendants presented evidence of actual innocence which prosecutors were already aware of. The result was a resounding failure for prosecutors as they lost more than two hundred cases on retrial.238

232 See DNA Exonerations Nationwide, INNOCENCE PROJECT (Oct. 26, 2015, 12:18 PM), http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/dna-exonerations- nationwide; See also Lea-Andra Morgan, supra note 48. Although it is thought that many of the exonerations that have been given in the past few decades have been based on the increase in the use of DNA evidence, it should be noted that fewer than 20 percent of violent crimes involve biological evidence. Id.at 2 (citations omitted). The Death Penalty Information Center lists 116 persons sentenced to death between 1973 and 2004 who were later exonerated. As there were 7,529 individuals sentenced to death during this time period, this is indicative of a 1.55 percent exoneration rate in capital cases during this time. 233 See Medwed, supra note 122, at 183-84; MEDWED, supra note 48. 234 See DNA Exonerations Nationwide, supra note 232. (The true suspects and/or perpetrators have been identified in 163 of the DNA exoneration cases. Those actual perpetrators went on to be convicted of 144 additional crimes, including seventy seven sexual assaults, thirty four murders, and thirty three other violent crimes while the innocent sat behind bars for their earlier offenses.) 235 See Schneider, supra note 37. 236 See Russell Gold, Counties Struggle with High Cost of Prosecuting Death-Penalty Cases, WSJ (Jan. 9, 2002 12:01 AM), http://www.wsj.com/articles/SB1010527927506582520. 237 See THE FIRST 1,600 EXONERATIONS, supra note 40. 238 See id.

2017] ONCE WAS ENOUGH 165

At the same time, a report from the International Association of Chiefs of Police states that programs that train police on making rightful arrests have been shown to deter wrongful convictions, enhance the community’s trust with the police and thus improve public safety overall.239 Reformatting already existing police training programs and cultivating best practices poses little cost as compared to the expense of reprosecuting a defendant.240 Communities implementing these programs have also experienced a decrease in wrongful convictions because of the additional training and resources extended to law enforcement.241 Thus, in the end, devoting money and resources for fruitless cases at the expense of the community’s tax-payer dollars is less beneficial than spending that money on police training and other programs that are proven to be better at improving public safety.

V. CONCLUSION Convicting an innocent person means that the guilty perpetrator is not brought to justice and therefore threatens the public’s safety. The actual offender is free to victimize and harm others, while the wrong person is prosecuted, convicted, sentenced and harmed. Wrongful convictions significantly harm an innocent defendant when forced to face the dangers of imprisonment. Wrongfully convicted defendants experience life-threatening and psychological traumas while in prison. They are attacked by other prisoners, scalded with hot water, stabbed, and sexually assaulted. Many are left feeling depressed, hopeless, paranoid, and suffer from post-traumatic stress disorder. Wrongful convictions undermine the public’s trust in the criminal justice system. A burden is placed on the integrity, reputation, and effectiveness of the criminal justice system and all of those who represent the system. Prohibiting the retrial of a defendant whom the government wrongfully convicted by engaging in official misconduct is both more consistent with the purpose of the Double Jeopardy Clause, which seeks to prevent government harassment, and also better aligns with the realities of a wrongfully convicted defendant. These realities of serving decades-long confinement and the judicial determination that the government engage in sufficiently prejudicial misconduct to the extent that it deprived the defendant of his Fifth Amendment right of due process demonstrates that

239 INTERNATIONAL ASS’N OF CHIEFS OF POLICE, NATIONAL SUMMIT ON WRONGFUL CONVICTIONS: BUILDING A SYSTEMIC APPROACH TO PREVENT WRONGFUL CONVICTIONS (2013). 240 Id. 241 See id.; THE NATIONAL REGISTRY OF EXONERATIONS, EXONERATIONS IN 2014 (2015).

166 CONNECTICUT PUBLIC INTEREST LAW JOURNAL [Vol. 16.1 for the state to threaten a wrongfully convicted defendant with reprosecution goes against the core of the Double Jeopardy Clause, which is to prevent harassing citizens so that they plead guilty despite their innocence. As Justice Blackmun noted, the Double Jeopardy Clause promotes “minimization of harassing exposure to the harrowing experience of a criminal trial.”242 Thus, the reprosecution prohibition “prevents the possibility of prosecutorial overreaching . . . and minimizes the possibility that an innocent defendant may be convicted.”243 Realistically, wrongfully convicted defendants may not get relief through the courts, but through legislation. Just as Congress passed the Omnibus Crimes Act to raise the warrant requirement, legislatures can pass laws prohibiting the reprosecution of defendants who were wrongfully convicted in the manner described above. As such, this Comment can serve as the basis for why such remedial legislation is necessary.

242 Bretz, 437 U.S. at 38. 243 Id.