RIP Abe Doe

Abe Doe wasn't afraid to tell me when he thought I was full of shit.

You may know lots of people like that, but in a client, it's relatively rare. Clients are often terrified and usually nervous about annoying their lawyers, and it can take years to get one to really open up. Not Abe.

I had the privilege of representing Abe when he was sued for an insulting tweet. From the start he wasn't afraid to make it clear what he thought of "libertytarians" (as he delighted in calling us) and in cheerfully bashing whatever I had written about recently. His openness about this was such that I was even comfortable giving back as good as I got, which I rarely do with clients. So, as Abe proceeded through the stressful and oppressive course of litigation, we traded barbs over our respective viewpoints. He was extraordinarily literate and inventive and nobody's pushover opponent in an argument. Beneath Abe's acerbic wit was a passion about issues and people, a dogged sense of right and wrong, and a contempt for bullies. We agreed about very little, but I grew to look forward to our exchanges and became quite fond of him. Combined with the fact that he was in the right and the case against him was contemptible thuggery, that made representing him a pleasure.

Abe passed away a couple of months ago. His passing was untimely. He is missed by many, including me. My thoughts and prayers are with his family. I won't be answering any questions about the impact of his death upon the case, and I'll let you judge the character of his pursuer for yourselves.

Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion

I have a question about that abortion decision out of the Ninth Circuit last week.

You can't see me so I'm not here.

I can see you fine. You're . . . are you hiding under your desk?

Just until mid-November.

Come out. You're embarrassing both of us.

I want to stay here. It's safe. I have snacks.

You're an adult and a law firm partner for God's sake.

It doesn't smell great under here to be perfectly honest.

Look, just explain the Ninth Circuit decision to me, will you? I hear that the court forced pro-life clinics to tell people how to get abortions. How is that constitutional?

Well, that's not exactly right.

So what's the case about? Who sued who?


The case is called National Institute of Family and Life Advocates and a whole bunch of others versus Kamela Harris, Attorney General and really awful Senatorial Candidate and other miscreants.

I don't believe that's what it's actually called.

It's close enough. Anyway, the case is about a 2015 California law called "the FACT Act." The law modified California's Health and Safety Code to require "licensed covered facilities" in California to provide patients with information about free family planning, prenatal care, and abortion programs. It required unlicensed clinics to state that they are unlicensed.

What's a "licensed covered facility"?

It's very broadly defined. It's any licensed clinic with a "primary purpose is providing family planning or pregnancy-related services" that does at least two of the following:

(1) The facility offers obstetric ultrasounds, obstetric
sonograms, or prenatal care to pregnant women.
(2) The facility provides, or offers counseling about,
contraception or contraceptive methods.
(3) The facility offers pregnancy testing or pregnancy diagnosis.
(4) The facility advertises or solicits patrons with offers to
provide prenatal sonography, pregnancy tests, or pregnancy options
(5) The facility offers abortion services.
(6) The facility has staff or volunteers who collect health
information from clients.

"Unlicensed clinics" includes unlicensed facilities that offer at least two of items (1), (3), (4), and (6) on that list.

So it could be just a pregnancy counseling clinic that advertises pregnancy counseling.

Correct. The California legislature explicitly targeted the law at "crisis pregnancy centers," which the Legislature claims "pose as full-service women's health clinics, but aim to discourage and prevent women from seeking abortions."

So how did the case get to court?

Three religious nonprofit organizations that operate pregnancy counseling clinics sued the state. They said that the law compelled them to give information that contradicted their beliefs — specifically, a roadmap to how to get an abortion with public funding — in violation of their First Amendment rights. They sought a preliminary injunction against enforcement of the law. The trial court denied their claim, and they appealed to the Ninth Circuit.

What did the Ninth Circuit do?

The Ninth Circuit agreed that they weren't entitled to an injunction because the law didn't violate their First Amendment rights.

But doesn't the law force religious clinics that only offer counseling to engage in compelled speech directing people to abortion services? How did the court get there?

Well, first the court had to decide that the issue was ripe — that the plaintiffs could sue to enjoin the law before California ever tried to enforce it. Federal courts can't just take up any issue and decide it; they're only empowered to decide issues when there is an actual present "case or controversy." Here, the Ninth Circuit found that because plaintiffs said they would not comply with the law, which would subject them to civil penalties under it. That was enough to elevate this above a mere hypothetical dispute.

The rest of the case turned on what level of scrutiny the court selected.

What the hell does that mean?

When a court applies scrutiny, it's holding the government's justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it's defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law.

In the middle you've got intermediate scrutiny, which requires the government to show that the law promotes an important government interest and is substantially related to that interest. At the low end you've got the "rational basis" test, which almost any law can pass.

So by deciding the level of scrutiny you apply, you're usually deciding the case?


How do courts decide what level of scrutiny to apply in free speech challenges?

Courts usually do so categorically — they decide whether the speech falls within certain established categories that trigger strict or lower scrutiny. So, for instance, here the Ninth Circuit found that the law fell into the category of "professional speech,", it triggers only intermediate scrutiny.

To do that, the Ninth Circuit had to decide that the law was viewpoint-neutral. The law is already content-based — that is, it regulates speech based on its content by requiring speakers to say certain things. Content-based speech regulation often — usually — triggers strict scrutiny. But here the court said that while the law is content-based, it's viewpoint-neutral — that is, it does not discriminate based on one particular opinion or view, and applies to all clinics regardless of how they feel about abortion.

But it compels speech that supports abortion by forcing clinics to tell patients how to seek abortion services. Isn't that a viewpoint? And didn't you say that the legislature specifically passed the law to target anti-abortion clinic?

Well, yes. The "viewpoint neutral" argument seems odd here. Under the Ninth Circuit's logic you could compel any statement so long as you compelled it for everyone equally — both people who agreed with it and people who disagreed. I'm not sure that's right. By comparison, the Supreme Court in Wooley v. Maynard struck down a New Hampshire law requiring everyone to have "Live Free or Die" on their license plates, even though the law compelled everyone to do so whether they agreed with the sentiment or not. I think the better argument is that the compelled speech here is informational and about an area — medical services — generally regulated by the government.

That's the "professional speech" category?

Yes. It's not a new idea. Generally courts treat "professional speech" — especially by health care professionals — differently than other speech. The Eleventh Circuit let Florida prohibit its doctors from pestering patients about their guns on the grounds that it was a regulation of professional speech as opposed to expressive speech, and the Ninth Circuit used the theory to uphold another California law limiting so-called "conversion therapy" that purports to turn gay people straight. And way back in 1992, the Supreme Court suggested that "reasonable licensing and regulation" by states could require doctors to provide accurate information about abortion.

The Ninth Circuit concluded that here, as in other "professional speech" cases, intermediate scrutiny was appropriate, and found that the law passed that test because the state has an important government interest in women getting accurate and complete pregnancy information, and that the law was tailored to that end. Put another way, the court said that licensed clinics are not a "soapbox" — that they are vehicles for state-regulated services to patients, not for speech. The court also noted that requiring unlicensed clinics to say they are unlicensed would survive any level of scrutiny.

Crucial to the court's analysis is the fact that the compelled speech about public abortion services only applies to clinics that have sought and obtained state licensing as health clinics. You can run an unlicensed pregnancy counseling center and tell patients whatever you want about pregnancy and abortion; you just have to disclose that you're not licensed by the state.

Will this ruling survive if it goes to the Supreme Court?

Probably, although not certainly. A couple of other circuits have upheld similar laws on similar grounds, and the 1992 Casey decision (convoluted and divided as it is) seems to support the "professional speech" category. But in 2015, the Supreme Court issued a decision in Reed v. Town of Gilbert that could be summarized as "when we say content-based laws trigger strict scrutiny, we mean it." If the Supreme Court holds that line as aggressively as Reed suggests, it's possible they could reject the "professional speech" category.

But I don't think they will. It would (for better or worse) throw most professional regulation into utter chaos. Most regulation of most professionals involves, to some extent, requiring disclosures to clients.

So do you think this case is outrageous?

Outrageous? Well, no, because it only purports to regulate licensed clinics. If it tried to regulate unlicensed organizations that offered counseling, that would be outrageous and obviously unconstitutional. I would say, instead, that the law illustrates the inherent tension between free speech and government regulation of professions. Also, it illustrates how free speech analysis proceeds in a categorical fashion — how deciding what category we put speech in drives the outcome of our analysis, as it does in politics.

Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win

I know I say it all the time, but here it is again: the system is broken, and only the generous community service of lawyers prevents people from getting ground up in it.

A few months ago I got a private request from a young woman sued for defamation. This was the core of the case: she made a sexual harassment complaint against another student after a brief relationship, and her school investigated it as required by Title IX and found in her favor. Days later, the fellow student sued her — not her university, but her — for defamation based on her participation in the school's investigation.

Most grad students can't afford modern litigation. I put out an immediate mini-Popehat Signal seeking pro bono help for her. Harmeet K. Dhillon and Krista L. Baughman of the Dhillon Law Group swiftly answered the call. The defendant stuck out her thumb hoping for a ride on the back of a turnip truck and wound up in a Porsche. Harmeet and Krista filed an anti-SLAPP motion, which they recently won, as they describe here.

In addition to being very significant for the defendant, it's a win that's very important for anti-SLAPP litigants in cases involving college administrative proceedings. California has an absolute privilege for statements made in the course of "official proceedings" — if you sue someone for slandering you during their testimony at a trial, for instance, the defendant can easily win an anti-SLAPP motion based on that privilege. This prevents a vast amount of harassing and retaliatory litigation. But until Harmeet and Krista successfully litigated this, no California court had expressly extended the "official proceeding" privilege to Title IX proceedings mandated by federal law. Now, thanks to their work, students can report conduct to school authorities without worrying that they will be drawn into frivolous but ruinous defamation litigation.

Many people are concerned that schools are conducting Title IX proceedings without adequate due process protections for the accused. This is a very legitimate complaint. But that wasn't the issue here. Here the plaintiff wasn't suing the school (with its money and lawyers) for disciplining him without due process. Rather, he was suing the individual complainant for defamation merely for reporting his behavior, forcing her to defend herself without the school in court. This was the absolutely right result, and consistent with other laws making reports of misconduct privileged from defamation suit. Absent this rule, whenever one college student accused another of some misconduct, the accused could retaliate with an expensive, stressful, all-encompassing lawsuit.

The case took a lot of work and some creative lawyering on a novel issue. Harmeet K. Dhillon and Krista L. Baughman did it for free. There's no guarantee they'll collect any fees even though they won the anti-SLAPP. But they did it because it was the right thing to do and because people like this defendant depend on people like them for justice, and they did an exceptionally good job at it. Please join me in applauding and thanking them.

Hillary Clinton, the Sixth Amendment, and Legal Ethics

For some time, Hillary Clinton's critics have been citing her defense of a 1975 rape case to attack her, and her defenders have been absolving her of any blame. Kathy Shelton — the victim1 in the case — has openly condemned Clinton and asserted that Clinton gratuitously attacked her, and others have criticized Clinton's description of the case from a recorded interview in the 1980s. The criticisms are (mostly) wrong and the defenses are (mostly) right.

A judge appointed Clinton to defend Tom Taylor, a man charged with rape of a minor in Arkansas. Many Clinton defenders emphasize that she was appointed by a judge and was not hired by Taylor and did not volunteer to defend him. It is regrettable that Clinton's defenders emphasize this, because it doesn't matter. Clinton's response ought not be "I was appointed and I didn't want the case"; it ought to be "you're goddamned right I defended my client." We're either committed to the Sixth Amendment's right to counsel or we're not. Criminal defendants, whatever they've been accused of doing, are individuals targeted by the vast, implacable machinery of the state. They are entitled to a vigorous defense. The purpose of that defense is to challenge the government and its evidence and act as a bulwark against the defendant being convicted simply because they've been accused. The right is not conditioned on whether or not we think they "actually did it" and not dependent on them being sympathetic or decent or deserving. Rather, the right is rooted in liberty (the recognition that the relationship between the accusing state and accused individual is inherently unbalanced and the individual requires an advocate to have any chance at all of fair treatment), skepticism and humility (the recognition that the state — and the mob — can easily be wrong, and that popular sentiment is a poor measure of whether someone is factually innocent), and a sort of grace. If you think that it's marginally acceptable to defend such people as long as you're not doing so voluntarily, you don't really support the Sixth Amendment right to counsel. You'd have lots of company on the Right and the Left, but you would not be supporting the United States Constitution.

(Incidentally, at the time Clinton was 27 years old and had quite limited criminal defense experience. She had taught criminal law and procedure, which is absolutely not the same as practicing it. She had never tried a criminal case. Yet she was appointed to represent a man on a very grave charge of child rape. That's the reality of indigent defense in America.)

Once appointed to the case, Clinton had a professional and ethical obligation to represent her client vigorously. That obligation made it appropriate — in fact, mandatory — to challenge the government's failure to preserve evidence (a portion of the victim's underwear) so that the defense could test it. That challenge probably induced the government to offer the defendant a plea to the lesser charge of unlawfully fondling a child under 14. It is not a "technicality" to hold the government to its obligation to preserve evidence so that the defense may test it. That is particularly true given the government's long-time fondness for junk science and rampant carelessness and even falsification of tests. Again, if you think it's wrong to challenge the government's failure to preserve evidence, you don't really support the right to a defense.

Clinton critics have also pointed out that she filed an affidavit in support of a motion seeking a psychiatric test of the victim in which she asserted that unnamed persons told her the victim was "emotionally unstable," displayed "stubbornness," and had made false accusations before. We don't know whether those allegations are true (the victim denies them) and we don't know whether Clinton told the truth that someone told her those things. If she didn't tell the truth, or if she put them in an affidavit in a way that concealed that she had no basis to believe that her source had a reason to believe they were true, then that was unethical and contemptible. The content and tone of the attack on the victim's credibility was characteristic of rape defenses in the 1970s (it survives to a much lesser extent today), which you may or may not find grotesque. However, it's a defense attorney's job to probe the credibility of government witnesses, and that includes seeking discovery to which the defense is entitled, including psychiatric examinations. It's not clear to me whether Arkansas law in 1975 required a defendant to support a factual basis for requiring a psychiatric exam — if it was, then in my opinion Clinton's claims premised on vague anonymous hearsay did not supply a factual basis. I suspect that most jurisdictions would now require a substantially more specific and attributed basis to subject an accuser to a psychiatric test, to the extent they allow the defense to demand such a test at all. You can make a perfectly colorable argument that a defendant ought not be able to force a psychiatric exam of an accuser. However, you can't make a plausible argument that a defense lawyer shouldn't ethically seek such an exam when the law permits it. Unless she lied — and I have no way of knowing whether she did — this step was part of Clinton's vigorous defense.

Tom Taylor pleaded guilty to fondling a child under 14. That is evidence that he did it — and may have done more — but is not, in reality, absolute proof. Defendants confess falsely, and defendants plead guilty to things they did not do to avoid the risk of a long sentence. The fact that a defendant was found guilty — or admitted guilt — does not make a vigorous criminal defense retroactively blameworthy. You're with me on that, or you're not — you agree that someone accused by the state should be defended, or you don't.

That leaves us with the recorded interview with Clinton from the 1980s. In my opinion, that interview displayed an ethical lapse, one regrettably common among lawyers presented with an opportunity to promote themselves to interviewers. Clinton said this:

Of course he claimed he didn’t [commit the offense]. All this stuff. He took a lie detector test. I had him take a polygraph, which he passed, which forever destroyed my faith in polygraphs. [laughs]

That's completely inappropriate. Clinton just suggested that she believed her client did what he was accused of, and a fair inference is that her belief may be premised in part on her confidential communications with him. That's a violation of her ethical obligations of loyalty and confidentiality, and it's not goddamn funny. It's completely inappropriate. It's easing her ethical duty to the former client in order to get a laugh line in an interview. The fact that it's common for attorneys to put their egos ahead of their obligations to the client doesn't make it right.

People also attack Clinton for laughing about the case during the interview. They find the tone of her description of her defense to be callous and disrespectful to the victim. This is a matter of opinion. It's true that defense lawyers, in relating war stories, may do so in a tone that seems indifferent to the suffering of victims. I think that's human nature. I've heard it from prosecutors and ER doctors and and surgeons and funeral directors and soldiers and other people tasked with handling grim matters. I believe it's more a defense mechanism than a sign of true callousness to humanity. You'd go quite mad if you constantly talked about such jobs with the tone they deserve. I can understand, though, that if a lawyer discusses an ugly case with an interviewer (as opposed to telling war stories with colleagues), reasonable people may find a light tone unsettling. I find Clinton's tone to be callous in the interview, but I recognize that's probably strongly colored by the fact I really don't like her.

I'm a criminal defense lawyer. I've represented people by appointment and voluntarily, and I've represented people accused of all sorts of things. I've made vigorous use of my client's constitutional and procedural rights to attack the government's case, even in cases were most observers believed it was clear that my clients "did it." That's my job. You're free not to like it, and free to attack me for it. But I'm going to call you totalitarian and un-American if you do.

FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts

I've written about some pretty outrageous cases of university censorship, like Bergen Community College's idiotic crusade against Game of Thrones t-shirts or University of Wisconsin-Stout's imbecilic response to Firefly references. The Foundation for Individual Rights In Education — FIRE, the boogeyman of Alternet writers and the professionally offended — has played a major role in vindicating rights in many of those cases.

But I've never seen a FIRE case that outraged me more.

Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers. And they've threatened to use it.

After seeking counseling following a sexual assault, NMU student Katerina Klawes received one of these emails in March 2015, informing her that it was “important that [she] refrain from discussing these issues with other students.” An administrator clarified to Klawes in a subsequent email that she “cannot discuss with other students suicidal or self-destructive thoughts or actions.”

Words are inadequate to convey how wrong-headed, reckless, and cruel this is. FIRE's letter explains why it's a First Amendment travesty. But more compellingly than that, it's a human travesty, a sick elevation of student management over survival. As I've talked about before, reaching out to someone — anyone — can be the difference between life and death for someone suffering from severe depression. Threatening a student with discipline if they utter a cry for help to peers — who may be the only ones with whom the student feels a connection — could fatally suppress that crucial plea for help.

I'm more of a consumer of mental health expertise than a provider, so to express what a terrible idea this is I reached out to a high school classmate, Dr. Mendel Feldsher, a frighteningly well-qualified psychiatrist and clinical professor of psychiatry. Part of Mendel's work since 2002 (along with forensic and expert work) has been counselling college students at the Claremont Colleges. Here's how he put it:

A policy which prohibits college students from communicating their suicidal or self-harming thoughts with their peers promotes isolation and disconnectedness which increases the risk for suicide. The simple act of disclosing ones suicidal thinking to a friend can itself be quite therapeutic and can interrupt the crescendo of depressive cognitions which can lead a student to act on suicidal thinking. Communication with a friend is frequently the pivotal first step toward seeking help, and many students may be more willing to initially share their feelings with a friend than with a school official or therapist. Threatening disciplinary action for student to student communication regarding suicidal thinking sends the clear message, “You are an unacceptable burden to others” which is a harmful message, particularly to a student who is depressed and suicidal. The increasing prevalence of anxiety, depression, and suicidality in college students calls for increasing access to mental health services, not adding to stigma with a policy which promotes increased shame for the depressed and suicidal student. I have treated many depressed and suicidal students who would not have come to my attention but for their decision to reach out to a peer who urged them to seek treatment. I have never treated a student whose primary issue was the trauma they suffered as a result of a peer’s self-disclosure regarding their self-harm or suicidal thoughts.

This is a shockingly bad, inhumane policy. Let's hope FIRE's letter inspires NMU to renounce it quickly, clearly, and unequivocally. Even if they do, I am appalled that college administrators thought that this was a sensible or acceptable policy, and I question their suitability to work with students.

Jesse Singal has a post about this as well.

California: No, You Can't Show That Civil War Painting At A State Fair. It Has a Confederate Flag In It.

You may have seen something about this already: a California state legislator's mother was offended when she saw novelty Confederate money bearing the Confederate flag in the gift shop at the State Capitol. Naturally her son proposed a new law, now in effect, banning the State of California from displaying or selling the Confederate Flag or items bearing its image.

This raises some questions right off the bat. Why is the gift shop in the State Capitol of California selling novelty Confederate money? Why do legislators think that personal annoyances are grounds for legislation?

But the worst was yet to come: California officials, including both Department of Agriculture bureaucrats and counsel from the Attorney General's Office, decided that the law means that an artist could not show his civil war painting at the Big Fresno Fair, which allows hundreds of artists to display their work at its cultural fine arts pavilion. Why? Because the Civil War painting — like many such paintings — included an image of the Confederate flag, and so allowing an artist to display it with all the other work at the state fair would mean the state was displaying it in violation of the law.

No, really.

The artist has sued, and I wrote a column for the Los Angeles Daily Journal explaining why he should win, which you can read here (it's an authorized reprint; the web article is behind a paywall).

In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

What It's Like For The Client Subjected To A Bogus And Retaliatory Investigation

By day, Bob Blaskiewicz is a college professor. By night, he's a skeptical blogger, using the critical thinking skills he teaches to interrogate public quackery. He's a long-term critic of Stanislaw Burzynski, a Houston researcher famous and infamous for experimental cancer "treatments." He helps run a blog critical of Burzynski's claims. (Long-time readers of Popehat might remember that a supporter of Burzynski named Marc Stephens attempted, to the best of his modest ability, to threaten me at length with criminal investigations and legal proceedings, which generated what for better or worse became the blog's catchphrase.)

Blaskiewicz is fighting the good fight for science and skepticism over woo and those who prey upon the desperate. That has consequences. In his case, it generated a bogus and malicious report to the FBI about him. Bob describes what it was like in a post (not to mention what it was like to have to put up with me). The result was obvious and (after the fact) appropriate — the FBI determined that the "threat" was obviously not one, but speech protected by the First Amendment. It's still regrettable that bad faith retaliatory reports to law enforcement can upend people's lives. It was a privilege to help out Bob, who has a lot of insight into the client experience:

[I was learning that a big part of a defense attorney’s job is keeping their clients from hurting themselves by acting out of panic.]

Read his post, it's worth it.

Huge First Amendment Win In Federal Criminal Threats Case

[Note: frequent readers know I very rarely talk about my own current cases here, let alone my firm's cases. This blog is not affiliated with my law firm. I moderate it and write my own posts; nobody at my firm has input or approval and the firm doesn't sponsor, pay for, or otherwise support the blog. When I write here, I'm speaking for me, not for the firm where I work. Today I'm writing about one of my firm's cases because it's so central to this blog's subject.]

Today my law partner Caleb Mason scored a huge and important First Amendment win in his pro bono defense of a federal criminal threats case. You can read about it here, at my firm blog. CNN already covered the case here. In short: after a hard-fought trial a federal jury returned four not guilty verdicts and hung 8-4 for acquittal on 16 other counts in a prosecution involving our client Peter Wexler's political blog, which was rife with the sort of political hyperbole that's been common throughout American history and is now particularly common on the internet. The United States claimed that Mr. Wexler's blog posts were true threats against an FBI assistant director even though an FBI agent had already concluded that his prior almost identical posts were protected speech.

Caleb will now be asking the Court to dismiss the counts on which the jury hung. Until that's over, I won't be blogging the case in detail. But I promise it will be worth the wait. Issues to watch for: Mike Masnick of TechDirt as a kick-ass expert witness on internet culture, the post-Elonis standard for intent in criminal threats cases, whether the FBI understands memes, how many agents it takes to search a trailer home (30), and whether something called a "fat man gadget" is, in fact, a true threat.

In addition to being a kickass trial lawyer, Caleb is a very entertaining writer. People who like Popehat would like his Fourth Amendment analysis of Jay-Z's 99 Problems and the stuff he writes on our firm blog. I'm quite proud to be his partner today. He handled this pro bono, and together with attorney Marri Derby and the Federal Public Defender's office, did an excellent job. Peter Wexler — a man with no record, who volunteered at the library to teach adults to read — spent nearly a year in jail without bail because of his blog posts. As I often say here, your freedom of speech relies on lawyers like Caleb standing up.

About Trump's Mandatory-Minimums For Returning-Aliens Proposal

Last night Donald Trump said this:

On my first day in office, I am going to ask Congress to pass "Kate's Law" — named for Kate Steinle — to ensure that criminal aliens convicted of illegal entry face strong mandatory minimum sentences.

This is stupid political theater; let me tell you why. I'll begin by emphasizing that it's not, by any stretch of the imagination, a stupidity that's unique to Trump. He's just the most recent example.

I'll leave aside, for the moment, that naming laws after crime victims generally leads to bad lawmaking. Let's instead focus on the fatuity that slapping a mandatory minimum sentence on a particular crime will do anything other than signal our moral outrage about it.

Reentering2 the United States after you've been deported3 is a federal crime. The maximum sentence depends on whether you've committed crimes before deportation, and can be up to 20 years if you've been convicted of an "aggravated felony."4. The United States Sentencing Guidelines — which are used to generate a recommended sentence for the sentencing judge — calculate the sentence based on factors including the number and nature of past convictions and commonly yield ranges anywhere from a year to six years. I prosecuted these cases when I was an Assistant United States Attorney and defended them when I worked on the indigent defense panel. It's also a crime to enter the United States as an illegal alien in the first place, though that used to be prosecuted rarely. After their sentences, these defendants are transferred into immigration custody and deported.

Trump's rhetoric suggests that we can reduce crime and protect citizens by lengthening the sentences of aliens who return after deportation. This is bunk.

First of all, only a small number of aliens who return after deportation are prosecuted. That's because of resource limitations, not lack of political will or indulgence. There are far fewer federal prosecutors than state prosecutors, and far fewer federal judges than state judges. As a consequence there are a limited number of federal prosecutions. For instance, in Fiscal 2010 there were just under 70,000 federal criminal cases filed nationwide. That's for all types of federal crimes. Immigration prosecutions already take the lion's share of those. That Fiscal 2010 year, almost 30,000 of those cases were immigration-related. Many of those were illegally returning aliens, but others including alien smuggling, immigration fraud, and related issues. Compare that to 115 civil rights prosecutions, 581 official corruption prosecutions, 300 organized crime prosecutions, and 6,437 white collar crime prosecutions for fiscal 2010.

Second, immigration prosecutions have already been skyrocketing, not declining. Federal prosecutions for illegal reentry – and now for even illegal initial entry — have surged dramatically during the Obama administration. That means they take up an even greater percentage of federal prosecutions and federal prosecutorial and judicial resources.

Third, this surge in prosecutions is made possible by plea-bargaining offering shorter sentences. Illegal reentry cases are some of the simplest federal cases to prosecute: you've just got to establish the defendant's alien status, prior deportations, being found in the United States after deportation, and (these days) prior criminal record.5 For the most part prosecutors prove those things up with agents and documents from the agency now called Immigration and Customs Enforcement ("ICE"). However, there are a limited number of ICE case agents to put cases together for prosecutors, a limited of number of ICE records custodians to testify, a limited number of federal prosecutors, and a very limited number of federal judges. So jurisdictions with a high rate of illegal entries and reentries have created fast-track programs that reward very quick pleas (within a few weeks of arrest, before indictment) with reduced sentences. Those fast-track programs drive a gigantic percentage of the federal criminal docket in places like San Diego.

Even with fast-track programs in place, and even with immigration crimes taking up a very large percentage of federal criminal efforts, only a small percentage of illegally returning deportees are prosecuted criminally. A tiny percentage of first-time illegal entries face prosecution. There are no resources to do more. U.S. Attorney Offices generally create internal guidelines to determine which cases they'll prosecute. For instance, when I was a federal prosecutor in the 1990s, the Los Angeles office only prosecuted cases involving aliens with prior aggravated felonies or lots of prior deportations. Those days, the office — one of the biggest in the country — indicted about 1,200 – 1,500 cases a year total. That number is lower now. It cannot make a statistically significant impact on immigration crime.

If you add mandatory minimums to the mix, that system collapses. Defendants lose the incentive to plead guilty promptly. If they're going to face a five or ten year mandatory minimum sentence, why plead out quickly? ICE lacks the resources to marshal lots of federal cases to trial as case agents. Federal prosecutors lack the resources to prepare for trial, and try, many more immigration cases. Federal judges lack the time and courtrooms to try the cases. (There are about 2,800 federal district judges nationwide, and remember that they handle both civil and criminal cases.) Unless accompanied by a substantial increase in resources devoted to ICE, the Justice Department, and the federal judiciary, increasing time spent on immigration prosecutions means reducing time available for administrative deportations and investigations, all other criminal prosecutions, and all federal justice, civil or criminal. That's before they are convicted: the federal prison system is already overcrowded and it costs about $30,000 per inmate per year. (Convicted aliens cost at the high end of the scale because they are generally held in higher security facilities.) Prosecuting returning aliens goes up, prosecuting corrupt politicians, white collar crime (especially complex white collar crime), gun crimes, organized crime, complicated drug conspiracies, political corruption, and abusive cops goes down. Your wait for trial in federal civil cases goes way up.

I've never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you'd like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.

Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn't be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn't increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.

Mandatory minimums could work differently if accompanied by a general policy shift. If Congress passed mandatory minimums and the Department of Justice said "we're going to focus our resources on prosecuting returning aliens with past violent crimes like rape and robbery and assault and stop prosecuting aliens with past drug or property crimes," we'd be having a different discussion. But that's not going to happen, is it?

Trump's mandatory minimum proposal is crowd-pleasing bunk. It's commonplace bunk, offered by politicians of all stripes, but it's bunk all the same.