Legal theory workshop participants, Thank you for inviting me to present in your workshop. The attached draft has many shortcomings, but the most offensive one is its length. If you want to cut down on the time it requires to read, then it is easiest to skim over Section III. In order to leave as much time for questions as possible, I plan to discuss in detail only the first offense (Failure to Appear, in Section III.A), and so you might also opt to read that portion. The most critical portions of the article are sections II and IV. I look forward to seeing you shortly. Erin Murphy THE CRIME FACTORY: PROCESS, PRETEXT, AND CRIMINAL JUSTICE Erin Murphy* * Assistant Professor, UC Berkeley School of Law. I am grateful to my wonderful colleagues Sandy Kadish, Jonathan Simon, Chuck Weisselberg, Frank Zimring, Rachel Moran, Lauren Edelman, and especially David Sklansky, all of whom have given generously both in terms of time and thoughtful feedback with regard to this project. This paper benefited tremendously from comments given by participants in the Berkeley Law faculty colloquium and the Berkeley Law junior faculty working group. I must also thank Todd Edelman, along with the participants in the Harvard Criminal Justice Roundtable, including Rachel Barkow, Paul Butler, Jeffrey Fagan, David Garland, Brandon Garrett, Bernard Harcourt, Joe Hoffman, Dan Kahan, Nancy King, Nicola Lacey, Maximo Langer, Tracey Meares, Alice Ristroph, Stephen Schulhofer, Chris Slobogin, Jordan Steiker, Carol Steiker, Marie Sylvestre and especially Dan Richman, whose comments helped me to develop the ideas in this paper. Truly exceptional research assistance was given by Micaela Davis, Claire Yan, and Regina Waugh. ABSTRACT What do Bill Clinton, Roger Clemens, Martha Stewart and L’il Kim have in common? How about adding Marion Jones, Barry Bonds, Kwame Kilpatrick, Frank Quattrone, Donald Siegelman, and Lewis Libby? The list of notable names could go on, each sharing a particular characteristic in common. All have been accused of a “process crime” -- an offense not against a particular person or property, but against the machinery of justice itself. Process crimes have a long and storied history in the American criminal justice system. Familiar variations of such offenses include perjury, obstruction of justice, and contempt; more recent iterations materialize as violations of court orders or failures to appear. Yet despite the laundry list of politicians, business icons, and sports and entertainment celebrities that have lately found themselves ensnarled in charges related to process crimes, legal scholarship on the topic remains scarce. Moreover, the extant discussion centers entirely on process crimes in federal courts and typically addresses issues related to prosecutions undertaken for pretextual reasons, like that of Al Capone. This Article is the first to take a comprehensive look at process crime prosecutions. This survey reveals two critical, but presently unacknowledged, facts about process crimes. First, it uncovers a vibrant yet essentially undocumented practice of process charging in state courts. Second, it depicts a more complicated picture of the purpose of process crime prosecutions. Specifically, in addition to prosecutions brought to remedy core violations of rights or to target otherwise elusive defendants with pretextual charges, process crimes often serve to punish defendants for nothing more than their obstinate or anti-authoritarian behaviors. This Article closes by probing the normative desirability of process charging in light of these observations, and by sounding a note of caution to encourage closer monitoring of such offenses in both a categorical and individual manner. CONTENTS INTRODUCTION.........................................................................................................1 I. THE “CORE” OF PROCESS CRIMES........................................................................3 II. THE “PRETEXTUAL” PROCESS CRIME. ................................................................6 A. Process as perfect pretext. ..........................................................................6 B. Pretext process crimes in state courts.........................................................10 III. PROCESS PROSECUTIONS IN ACTION: KEY OFFENSES.......................................13 A. Failure to Appear........................................................................................16 B. Lying to the authorities. ..............................................................................25 1. Federal archetype: 18 U.S.C. § 1001................................................25 2. State archetype: Failure to identify....................................................31 C. Obstruction of Justice..................................................................................34 1. Federal archetype: Chap 73 of Title 18. ............................................35 2. State archetypes: Obstruction and “dissuading a witness”................40 D. Contempt of Court Orders. .........................................................................46 E. Perjury.........................................................................................................51 IV. THE PROCESS PROSECUTION RECONSIDERED. ..................................................56 A. Process Charging Beyond Core and Pretext: The Obstinacy Offense. .....................................................................................................57 B. What makes process charging so popular, appealing, and prevalent? ......60 1. Increased commission of process crimes...........................................60 2. Increased detection of process crimes. ..............................................61 3. Increased rate of prosecution for process crimes. .............................61 4. Increased scope of liability for process crimes..................................63 C. Implications.................................................................................................65 1. Transparency. ....................................................................................66 2. Diminishing state legitimacy.............................................................69 3. Self-dealing........................................................................................70 CONCLUSION............................................................................................................75 THE CRIME FACTORY: PROCESS, PRETEXT, AND CRIMINAL JUSTICE INTRODUCTION I write … to call attention to the extraordinary authority Congress, perhaps unwittingly, has conferred upon prosecutors to manufacture crimes.1 What do Bill Clinton, Roger Clemens, Martha Stewart and L’il Kim have in common? How about adding Marion Jones, Barry Bonds, Tammy Thomas, Kwame Kilpatrick, Frank Quattrone, Donald Siegelman, and Lewis Libby? The list of notable names could go on, each sharing a particular characteristic in common. All have been accused of a “process crime” -- an offense not against a particular person or property, but against the machinery of justice itself. “Process crimes” have a long and storied history in the American criminal justice system. Familiar variations of such offenses include perjury, obstruction of justice, and contempt; more recent iterations materialize as violations of court orders or failures to appear.2 Yet despite the laundry list of politicians, business icons, and sports and entertainment celebrities that have lately found themselves ensnarled in charges related to “process crimes,” legal scholarship on the topic remains relatively scarce.3 What scholarly attention has been devoted to process crimes tends to fall into two separate but related camps. The first focuses particularly on the tightening scrutiny and emerging prosecutorial strategies now used to police the practices of large corporations, primarily in the wake of national scandals like Enron and WorldCom.4 The second and less popular area of 1 Brogan v. United States, 522 U.S. 398, 408 (1998) (Ginsburg, J., concurring). 2 Stuart P. Green, Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533, 1612 (1997) [hereinafter Mattress Tag] (enumerating list as including: “crimes such as perjury, false statements, obstruction of justice, bribery of public officials, prison escape, tax and customs duty evasion, illegal immigration, and draft dodging”). 3 See, e.g., Chris William Sanchirico, Evidence Tampering, 53 Duke L.J. 1215, 1218 (2004); Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. Rev. 583, 585 n.5 (2005) (noting tolerance for pretext prosecutions among courts and adding that “[t]he tolerance consists of a grudging silence; extended treatments of the issue are rare”); Harry Litman, Pretextual Prosecution, 92 GEO. L.J. 1135, 1182 (2004). 4 See, e.g., Chris William Sanchirico, Detection Avoidance, 81 N.Y.U. L. REV. 1331 (2006); Chris William Sanchirico, Evidence Tampering, 53 DUKE L.J. 1215 (2004); inquiry centers upon “pretextual prosecution,” and contemplates the legitimacy of using one form of criminal liability as a means of apprehending a defendant sought for another reason. Although any offense can serve as a “pretext” (the government may as well use assault charges to nab a tax evader as the reverse), as a practical matter for reasons explored later, process offenses are particularly well-disposed