Chapter 10

1 “Freedom Is About Authority: Excerpts from Giuliani Speech on Crime,” New York Times, 20 Mar. 1994, https://www.nytimes.com/1994/03/20/nyregion/freedom-is-about-authority-excerpts-from-giuliani-speech-on-crime.html.

2 Lodge, Richard K. “Police Investigation Details the Night Eurie Stamps, Sr. Died.” Metro West Daily News, 1 May 2011, www.metrowestdailynews.com/x730839074/Police-investigation-details-the-night-Eurie-Stamps-Sr-died (describing the events); Haddadin, Jim. “Family of Framingham Man Killed by Police Receives $3.75 Million Settlement.” Patriot Ledger, 29 Sept. 2016, www.patriotledger.com/news/20160929/family-of-framingham-man-killed-by-police-receives-375-million-settlement; Haddadin, Jim. “Framingham Settles Lawsuit in Stamps Case.” Metro West Daily News, 4 Sept. 2016, www.metrowestdailynews.com/news/20160904/framingham-settles-lawsuit-in-stamps-case (describing the settlement and referencing the “unfortunate matter”); Balko, Radley. “Still Waiting for Justice after SWAT Team Member Kills Innocent Grandfather.” Washington Post, 6 Jan. 2015, www.washingtonpost.com/news/the-watch/wp/2015/01/06/still-waiting-for-justice-after-swat-team-member-kills-innocent-grandfather/?noredirect=on&utm_term=.d6ebbd5cdfd7 (opining on history of the case prior to its appeal and settlement and discussing the legal issues); Stamps v. Framingham, No. 15-1141 (1st Cir. 2016).

3 “War Comes Home: The Excessive Militarization of American Policing.” ACLU, June 2014, p. 19, www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf. See also Balko, Radley. The Rise of the Warrior Cop: The Militarization of America’s Police Forces, Reprint ed., PublicAffairs, 26 Aug. 2014.

4 Ibid., pp. 3, 11, 19, 22, www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf (citations omitted).

5 Ibid. p.16, Appendix B (“Agreement between the Defense Logistics Agency and the [Applying] State of ___” www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf.

6 Ibid., pp. 2–4, www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf.

7 Szymanski, Mike. “Apology for Involvement in Police Weapons Programs Not Enough for Protestors.” LA School Report, 25 Apr. 2016, laschoolreport.com/apology-for-involvement-in-police-weapons-program-not-enough-for-protesters/.

8 Fund, John. “The United States of SWAT?” National Review, 18 Apr. 2014, www.nationalreview.com/2014/04/united-states-swat-john-fund/ (Seagal); Mider, Zachary, and Zeke Faux. “Robert Mercer Got a New Badge. The Sheriff Got a New Dodge Ram.” 16 Apr. 2018, Bloomberg, www.bloomberg.com/news/articles/2018-04-16/robert-mercer-got-a-new-badge-the-sheriff-got-a-new-dodge-ram.

9 Fuhrmann, Christopher J. Policing the Roman Empire: Soldiers, Administration, and Public Order. Reprint ed., Oxford University Press, 11 Apr. 2014. Furhmann is something of a corrective to the prevailing view that Rome lacked police, but at most, Rome employed a motley array of provincial governors, detached legionaries, and mercenaries for ad hoc protection of Roman citizens (a minority of the population in most places). Ancient Egypt has been cited as sponsoring police, but these guardians fell into the ancient archetype of paramilitaries mainly concerned with protecting property and enforcing laws of personal importance to ruling families, e.g., tracking down tomb robbers. China, having a longer history of bureaucratic centralization, had the only pre-modern forces that could be plausibly be described as police. As early as the Eastern Zhou Dynasty (c. 770–255 BC), Chinese “prefects” had the power to make arrests, refer cases for judicial disposition, and even conduct basic detection.

10 “Police” proximately derives from the post-classical Latin politia, in the sense of civil administration, which was the word’s common use before the very late eighteenth century; Latin’s politia draws on Greek’s polis (or a corruption/borrowing thereof). “Police.” Oxford English Dictionary On-Line; see also “Police.” Online Etymology Dictionary.

11 Athens had a few magistrates with specific “beats,” but nothing we would recognize as a police force. Sparta stood as partial exception and employed the Krypteia, a sort of secret police, but their main duties were to keep helots—serfs who were not full citizens—in line.

12 E.g., Police and Criminal Evidence Act 1984, 1984 c 6098, Part III.24.4A (as updated in 2018) (providing that “a person other than a constable may arrest without a warrant” subject to certain limitations) (emphasis added), www.legislation.gov.uk/ukpga/1984/60/pdfs/ukpga_19840060_en.pdf; Cal. Penal Code § 837 (providing for arrests by “private person[s]” subject to certain conditions). Today, most private detentions occur either in the context of bounty hunting (under auxiliary authority, discussed elsewhere in this chapter) or via the “shopkeeper’s privilege,” which in some jurisdictions allows merchants to detain those suspected of shoplifting until police arrive. The perils of exercising these privileges is substantial, both in terms of physical danger and civil liabilities for injuries resulting from private detention.

13 Assize of Arms 1252 (Henry III); Statute of Winchester, 13 Edw. I, St. 1 (1285) (Edward, more germanely).

14 The myth gained currency (and was perhaps even invented) in the century after Edward I died, but it’s generally understood to have taken place near Edward’s reign. Of the thirteenth-century sheriffs, two sheriffs are still remembered: Reynold de Grey and John de Balliol, whose names will be familiar to British lawyers from Gray’s [sic] Inn and Balliol College, the former sited on de Grey’s land and the latter endowed by Balliol.

15 Glasgow claims it created the first police force, though that’s not quite true.

16 The London Police’s General Instructions embody what are known as “Peel’s Principles of Policing,” though Peel probably did not write the principles himself. The Principles are available at: Gov.UK. “Definition of Policing by Consent.” 10 Dec. 2012, www.gov.uk/government/publications/policing-by-consent/definition-of-policing-by-consent.

17 Gaunt, Richard A. Sir Robert Peel: The Life and Legacy. I.B. Tauris, 2010, pp. 67–69.

18 The Fourth Amendment is read to prohibit general warrants, requiring specific warrants tailored to the circumstances, supported by oath or affirmation, and issued only when “probable cause” exists. The Constitution, which predates modern police, does not address policing specifically, though the Third Amendment’s prohibition on quartering troops reflects the Framers’ distaste regarding internal occupations by militarized forces.

19 Wagner, Bryan. “Disarmed and Dangerous: The Strange Career of Bras-Coupé.” Representations, vol. 92, no.1, pp. 119–120, 2005.

20 The Declaration of Independence provides a useful list of grievances.

21 Reaves, Brian A. “Local Police Departments, 2013: Personnel, Policies, and Practices.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, 14 May 2015, table 1, www.bjs.gov/content/pub/pdf/lpd13ppp.pdf.

22 Gov.UK. “National Statistics: Police Workforce, England and Wales: 31 March 2015.” 16 July 2015, p. 9: Police Workforce, by Type of Police Worker, as of 31 March 2015, England and Wales (citing current and historical data), www.gov.uk/government/publications/police-workforce-england-and-wales-31-march-2015/police-workforce-england-and-wales-31-march-2015; National Audit Office, “Financial Sustainability of Police Forces in England and Wales.” 4 June 2015, p. 5 and fig 2: Central Versus Local Government Funding by Force Area in 2015–16, www.nao.org.uk/wp-content/uploads/2015/06/Financial-sustainability-of-police-forces.pdf#page=18.

23 Reaves, Brian A. “Federal Law Enforcement Officers, 2008.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, June 2012, pp. 1, 14–15, www.bjs.gov/content/pub/pdf/fleo08.pdf.

24 “National Policy Summit: Building Private Security/Public Policing Partnerships to Prevent and Respond to Terrorism and Public Disorder—Private Security/Public Policing—Vital Issues and Policy Recommendations.” International Association of Chiefs of Police, 2004, p. 2 (estimating 90,000 organizations employing up to 2 million “security officers and other practitioners”), www.theiacp.org/Portals/0/pdfs/Publications/ACFAB5D.pdf see also United States Department of Labor, Bureau of Labor Statistics. “Occupational Employment Statistics—May 2017 Occupation Profiles.” E.g., employment code 33-9032—Security Guards (noting 1.1 million private guards in this category).

25 E.g., Virginia Code § 19.2–13 (allowing for “SCOPS” private police with guns, powers of arrest, and in specialized cases, badges), CA Penal Code §§ 830.2, 830.32, 830.75 (UC campus police and private campus police); see also Jouvenal, Justin. “Private police carry guns and make arrests, and their ranks are swelling.” Washington Post, 28 Feb. 2015, www.washingtonpost.com/local/crime/private-police-carry-guns-and-make-arrests-and-their-ranks-are-swelling/2015/02/28/29f6e02e-8f79-11e4-a900-9960214d4cd7_story.html?utm_term=.e76d64ced8a6. Practices vary among the states: Virginia, North Carolina, and South Carolina, for example, allow various combinations of arrest powers, sirens, special badges, and so on, while states like California allow for private security but disallow other police-like behavior (save on some campuses), though many still allow certain private individuals to carry weapons openly and/or allow for citizen’s arrests.

26 Mider, Zachary, and Zeke Faux. “Robert Mercer Got a New Badge. The Sheriff Got a New Dodge Ram.” 16 Apr. 2018, Bloomberg, www.bloomberg.com/news/articles/2018-04-16/robert-mercer-got-a-new-badge-the-sheriff-got-a-new-dodge-ram.

27 Federal Bureau of Investigation. “Career Paths: Special Agents.” FBI Jobs, www.fbijobs.gov/career-paths/special-agents.

28 E.g., U. S. Department of Labor, Bureau of Labor Statistics. “How to Become a Police Officer or Detective.” Occupational Outlook Handbook, www.bls.gov/ooh/protective-service/police-and-detectives.htm#tab-4. The SFPD is fairly typical. City and County of San Francisco, Police Department. “Career Opportunities.” sanfranciscopolice.org/career-opportunities.

29 Reaves, Brian A. “Local Police Departments, 2013: Personnel, Policies, and Practices.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, 14 May 2015, table 7 and accompanying text, www.bjs.gov/content/pub/pdf/lpd13ppp.pdf.

30 From the late 1980s, the DCPD lowered standards across several variables. For an accurate, though partisan, summary of the consequences of DCPD’s hiring failures and general mismanagement, including its failure to raise education requirements from GED-level while other large departments were raising academic requirements, see Rowan, Jr., Carl T. “Who’s Policing D.C. Cops?” Washington Post, 8 Oct. 1995, www.washingtonpost.com/archive/opinions/1995/10/08/whos-policing-dc-cops/73b5deea-03e8-4928-a342-652e4ef1b247/?utm_term=.aa19996b5ca2; see also Labaton, Stephen. “U.S. Accuses 12 Capital Officers of Protecting a Cocaine Racket.” New York Times, 16 Dec. 1993, www.nytimes.com/1993/12/16/us/us-accuses-12-capital-officers-of-protecting-a-cocaine-racket.html.

31 Rydberg, Jason and William Terrill. “The Effect of Higher Education on Police Behavior.” Police Quarterly, vol. 13, no. 1, 3 Jan. 2010; Sage Journals, journals.sagepub.com/doi/10.1177/1098611109357325; Stickle, Ben. “A National Examination of the Effect of Education, Training and Pre-Employment Screening on Law Enforcement Use of Force.” Justice Policy Journal, vol. 13, no. 1, 2016, pp. 3, 12, www.cjcj.org/uploads/cjcj/documents/jpj_education_use_of_force.pdf (noting that education is an important variable, though pre-employment screening might be even more effective); Paoline III, Eugene A., and William Terrill. “Police Education, Experience, and the Use of Force.” Criminal Justice and Behavior, vol. 34, no. 2, pp. 179–196, 1 Feb. 2007; Sage Journals, journals.sagepub.com/doi/abs/10.1177/0093854806290239 (finding that college education reduces verbal force and 4-year college notably reduces physical force).

32 U.S. Census Bureau. “Educational Attainment in the United States: 2015: Population Characteristics: Current Population Reports.” Ryan, Camille L. and Kurt Bauman, Mar. 2016, p. 1 and Table 1, www.census.gov/content/dam/Census/library/publications/2016/demo/p20-578.pdf. Almost 60% have “some” college (ages 25+).

33 Reaves, Brian A. “Hiring and Retention of State and Local Law Enforcement Officers, 2008—Statistical Tables.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Oct. 2012, p. 14, www.bjs.gov/content/pub/pdf/hrslleo08st.pdf.

34 Final Report of the President’s Task Force on 21st Century Policing, May 2015. “Pillar 2. Policy & Oversight: Recommendation 2.15,” pp. 29–30, www.theiacp.org/Portals/0/taskforce_finalreport.pdf (noting lack of comprehensive national database).

35 CA.Gov’s Commission on Peace Officer Standards and Training. “Regular Basic Course Training Specifications: Regular Basic Course Minimum Hourly Requirements—Minimum Content and Hourly Requirements Regular Basic Course (RBC)—Standard Format.” 1 July 2018, post.ca.gov/regular-basic-course-training-specifications.

36 Some European departments recruit high school graduates and compensate for lack of a BA by recruiting from police-oriented vocational schools or by requiring longer training programs.

37 E.g., Metropolitan Police. “How to Become a Police Constable.” www.metpolicecareers.co.uk/newconstable/becoming-a-pc.php; Dodd, Vikram. “New Police Officers Face Degree Requirement.” Guardian, 14 Dec. 2016, www.theguardian.com/uk-news/2016/dec/15/new-police-officers-face-degree-requirement; Greater Manchester Police. “Sample of Training Programme.” 19 Apr. 2017, www.gmp.police.uk/content/section.html?readform&s=6b8b2141790c8cb8802579fe0046f1ea.

38 COPS Office. The President’s Task Force on 21st Century Policing Implementation Guide: Moving from Recommendations to Action, 2015, pp. 1, 11, noblenational.org/wp-content/uploads/2017/02/President-Barack-Obama-Task-Force-on-21st-Century-Policing-Implementation-Guide.pdf.

39 Morin, Rich, et al. “Behind the Badge: Amid Protests and Calls for Reform, How Police View Their Jobs, Key Issues and Recent Fatal Encounters between Blacks and Police.” Pew Research Center, 11 Jan. 2017, p. 76, assets.pewresearch.org/wp-content/uploads/sites/3/2017/01/06171402/Police-Report_FINAL_web.pdf. Surveys of police revealed a slightly different view. Ibid. (noting that 8% of police view themselves as enforcers, 31% as protectors, and 62% as “both equally”; for the public, the figures were respectively 29% enforcers, 16% protectors, and 53% “both equally”).

40 Data on police time varies by organization and internal department. The fragmentation of American policing makes it especially hard to obtain data on police use of time, but the figures presented seem reasonably constant across time and geography. Webster, John A. “Police Task and Time Study.” Journal of Criminal Law and Criminology, vol. 61, issue 1, article 9, 1970, table 1 and accompanying text, scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5642&context=jclc (studying a mid-sized city and noting that violent crime accounted for 2.96% of time spent, property crimes 14.82% of time spent, with the rest devoted to other activities); see also Kappeler, Victor E. “So You Want to be a Crime Fighter? Not So Fast.” EKU Police Studies Online, 12 Feb. 2013, plsonline.eku.edu/insidelook/so-you-want-be-crime-fighter-not-so-fast (summarizing selected literature, with general range of classic crime-fighting activities usually under 25% of total time/incidents).

41 Kelling, George L., et al. “The Kansas City Preventive Patrol Experiment: A Summary Report.” Police Foundation, 1974, www.policefoundation.org/publication/the-kansas-city-preventive-patrol-experiment/. “Satisfaction” here refers to various metrics of same in the cited report.

42 Carr, Christine Marie. “The Kansas City Foot Patrol Project: An Evaluation of the Effectiveness of Foot Patrol in Violent Crime Micro-Places.” 2014, at Chapter 2, mospace.umsystem.edu/xmlui/bitstream/handle/10355/43482/CarrKanCitFoo.pdf?sequence=1&isAllowed=y. Carr summarizes the literature and notes benefits were limited, and though some subsets felt safer, crime remained stable.

43 “The Newark Foot Patrol Experiment.” Police Foundation, 1981, www.ncjrs.gov/App/Publications/abstract.aspx?ID=81779. For a contrary account, see Ratcliffe, Jerry H., et al. “The Philadelphia Foot Patrol Experiment: A Randomized Controlled Trial of Police Patrol Effectiveness in Violent Crime Hotspots.” Criminology, vol. 49, no. 3, 8 Aug. 2011. Wiley Online Library, onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2011.00240.x.

44 Carr, Christine Marie. Ibid.

45 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division. “Offenses Cleared.” Uniform Crime Report, Crime in The United States, 2016, ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/clearances.

46 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division. “Crime in the United States 2015.” Uniform Crime Report, Table 26—Percent of Offenses Cleared by Arrest or Exceptional Means by Geographic Region and Division, 2015, ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-26; author’s calculations. Figures for 2016 and other recent years, also from the UCR, are generally comparable.

47 Truman, Jennifer L., and Morgan, Rachel E. “Criminal Victimization, 2015.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, 22 Mar. 2018 (revised), at tables 1, 4, www.bjs.gov/content/pub/pdf/cv15.pdf. Census/BJS calculate unreported victimization by inference and survey; BJS figures are for “violent victimizations” and “property victimizations” and exclude homicide for methodological reasons. Sources conflict on the precise level of non-reporting and there are definitional differences between the NVCS and UCR, but the BJS figures are within the range of reasonable estimates and the best available.

48 Walker, Samuel and Charles M. Katz. The Police in America: An Introduction, 9th ed., 2018, p. 288.

49 Ibid., pp. 293–294.

50 Main, Frank. “Murder ‘Clearance’ Rate in Chicago Hit New Low in 2017.” Chicago Sun Times, 9 Feb. 2018, chicago.suntimes.com/chicago-news/murder-clearance-rate-in-chicago-hit-new-low-in-2017/. Compare to, e.g., U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division. “Offenses Cleared.” Uniform Crime Report: Crime in the United States, 2010, 2010, ucr.fbi.gov/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/clearances. The compared years are different, but Chicago’s murder resolution rate is shockingly low.

51 David, Jean-Denis. “Homicide in Canada, 2016.” Canadian Centre of Justice Statistics, 22 Nov. 2017, p. 5 (reported homicides) Juristat, www.statcan.gc.ca/pub/85-002-x/2017001/article/54879-eng.pdf; “Police Crime Statistics—Federal Republic of Germany, Report 2014.” Bundeskriminalamt, 2014 at pp. 5, 71, www.bka.de/SharedDocs/Downloads/EN/Publications/PoliceCrimeStatistics/2014/pks2014_englisch.pdf?__blob=publicationFile&v=1. Each country defines “clearance” and “solve” somewhat differently. For example, Germany considers a case “cleared up” when a suspect has been identified (generally as a prelude to arrest), though few doubt that German police, e.g., solve a higher percentages of murders than American police. See also Liem, Marieke, et al., “Homicide Clearance in Western Europe.” Eur. J. Crim., pp. 1–21, 2018 (noting 70–95+%).

52 Lopez, Christy E. “Disorderly (Mis)conduct: The Problem with ‘Contempt of Cop’ Arrests.” American Constitution Society for Law and Policy’s Issue Brief, 7 June 2010, web.archive.org/web/20110305022631/http://www.acslaw.org/pdf/C21/Issue%20Briefs/ACS%20Issue%20Brief%20-%20Lopez%20Contempt%20of%20Cop.pdf.

53 The United States Department of Justice Archives. “Undercover and Sensitive Operations Unit, Attorney General’s Guidelines on FBI Undercover Operations.” 8 Mar. 2017 (updated), part IV, H, www.justice.gov/archives/ag/undercover-and-sensitive-operations-unit-attorney-generals-guidelines-fbi-undercover-operations#participation.

54 U.S. Department of Justice, Federal Bureau of Investigation. “Federal Bureau Investigation Annual Otherwise Illegal Activity Report.” 31 Jan. 2012, www.documentcloud.org/documents/742049-fbi-oia-report.html (FBI’s FOIA response); Heath, Brad. “Exclusive: FBI Allowed Informants to commit 5,600 crimes.” USA TODAY, 4 Aug. 2013, www.usatoday.com/story/news/nation/2013/08/04/fbi-informant-crimes-report/2613305/; U.S. Department of Justice, Office of the Inspector General. “The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines.” Sept. 2005, pp. 90, 108, www.documentcloud.org/documents/1513075-fbi-compliance-with-use-of-informant-guidelines.html#p121.

55 Office of the Attorney General. “The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations.” fas.org/irp/agency/doj/fbi/fbiundercover.pdf.

56 E.g., Ca. Gov. Code §§ 3300 et seq. See also Hager, Eli. “Blue Shield: Did you know police have their own Bill of Rights?” Marshall Project, 27 Apr. 27, 2015, www.themarshallproject.org/2015/04/27/blue-shield#.Etqk3UTYF.

57 “Report of the Blue Ribbon Panel on Transparency, Accountability, and Fairness in Law Enforcement.” July 2016, p. 23, sfdistrictattorney.org/sites/default/files/Document/BRP_report.pdf.

58 U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division. “Crime in the United States 2016.” Uniform Crime Report, Table 21: Arrests by Race and Ethnicity, 2016, ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-21. The FBI’s data do not reflect all departments, but departments surveyed covered 257 million people, over three-quarters of the population; U.S. Census Bureau. “Quick Facts, United States.” 1 July 2017, www.census.gov/quickfacts/fact/table/US/PST045216 (black population in US generally).

59 Carlson, E. Ann. “Prisoners in 2016.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Bulletin, Jan. 2018 (Revised 7 Aug. 2018), table 9 (sentences of over one year), www.bjs.gov/content/pub/pdf/p16.pdf, author’s calculations; Prison Policy Initiative. “Blacks are Overrepresented in Maryland Prisons and Jails.” www.prisonpolicy.org/graphs/2010percent/MD_Blacks_2010.html (includes jails).

60 “Report of the Blue Ribbon Panel on Transparency, Accountability, and Fairness in Law Enforcement.” July 2016, pp. 28–30, sfdistrictattorney.org/sites/default/files/Document/BRP_report.pdf.

61 “Annual Stop-and-Frisk Numbers.” New York Civil Liberties Union, www.nyclu.org/en/stop-and-frisk-data; see also Bratton, William J. “Crime and Enforcement Activity in New York City (Jan 1–Dec 31, 2013).” New York City Police Department, p.15, www1.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/2013_year_end_enforcement_report.pdf. Minimum figures presented; possibly as many as 624,000.

62 Ibid.

63 Floyd v. City of N.Y., 959 F. Supp. 2d 540, 605, 660–663 (S.D.N.Y. 2013) and 8 Civ. 1034 SAS (2013). For a general review, see Conti, Allie. “New York City Cops Still Don’t Know Why They’re Stopping People on the Street.” Vice, 16 Feb. 2016, www.vice.com/en_us/article/jma9z3/new-york-city-cops-still-dont-know-why-theyre-stopping-people-on-the-street.

64 Programs like stop-and-frisk persist as “Terry stops,” though these are at least more tethered to Constitutional doctrine.

65 “Warren Buffett on Driving Violations, Baseball and Jamie Dimon.” New York Times Dealbook, 16 Oct. 2013, dealbook.nytimes.com/2013/10/16/warren-buffett-on-driving-violations-baseball-and-jamie-dimon/. Buffet, rather infelicitously, made the comment in the context of commenting on Jamie Dimon and J. P. Morgan’s regulatory fines.

66 Reaves, Brian A. “Local Police Departments, 2013: Personnel, Policies, and Practices.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, 14 May 2015, table 5 and accompanying text, www.bjs.gov/content/pub/pdf/lpd13ppp.pdf; U.S. Census Bureau. “Current Population Survey.” Note that Hispanics are treated both separately and as “white” by the Census; the two must be added together for general population data; BJS separates out the white/Hispanic sub-population. However, it appears that Hispanic officers have experienced stronger employment gains within departments.

67 U.S. Department of Justice, Civil Rights Division. “Investigation of the Baltimore City Police Department.” 10 Aug. 2016, www.justice.gov/opa/file/883366/download; “Police Department Race and Ethnicity Demographic Data.” Governing, Baltimore County Police Department, www.governing.com/gov-data/safety-justice/police-department-officer-demographics-minority-representation.html.

68 Morin, Rich and Renee Stepler. “The Racial Confidence Gap in Police Performance.” Pew Research Center, 29 Sept. 2016, www.pewsocialtrends.org/2016/09/29/the-racial-confidence-gap-in-police-performance/#blacks-are-less-confident-than-whites-in-their-local-police.

69 Durose, Matthew and Lynn Langton. “Requests for Police Assistance, 2011.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Special Report, Sept. 2013, Appendix Table 2, www.bjs.gov/content/pub/pdf/rpa11.pdf.

70 Doing so may take time, as especially aggressive hiring to achieve desired racial composition can violate civil rights laws. E.g., Ricci v. DeStefano, 557 U.S. 557 (2009).

71 Black/white. Governing’s “Diversity on the Force” provides additional context.

72 Silver, Nate. “Most Police Don’t Live in the Cities They Serve.” FiveThirtyEight, 20 Aug. 2014 (average data), fivethirtyeight.com/features/most-police-dont-live-in-the-cities-they-serve/; Ryan, Andrew. “Boston’s Residency Rule Routinely Flouted.” Boston Globe, 6 July 2014, www.bostonglobe.com/metro/2014/07/05/boston-residency-rule-for-city-workers-frequently-ignored-and-weakly-enforced/jBqf3ST8Pqkpsr5IDjSCZL/story.html.

73 Lopez, German. “Police Shootings and Brutality in the US: 9 Things You Should Know: There are huge racial disparities in how US Police use force.” (Card 2 of 11). Vox, 6 May 2017, www.vox.com/cards/police-brutality-shootings-us/us-police-racism.

74 E.g., Swaine, Jon and McCarthy, Ciara. “Killings by US police logged at twice the previous rate under new federal program.” Guardian, 15 Dec. 2016, www.theguardian.com/us-news/2016/dec/15/us-police-killings-department-of-justice-program.

75 Sociological Forum, vol. 30, no. 4, Dec. 2015 p. 1112; onlinelibrary.wiley.com/doi/epdf/10.1111/socf.12200 (using a combination of reasonable estimates, some prepared by media investigations, and assuming that killings in 2013 equaled those in 2011).

76 Ibid.

77 Markowitz, Eric. “Taser Takes Aim at Europe.” International Business Times, 14 Dec. 2015, www.ibtimes.com/taser-takes-aim-europe-2217825. About 33 in 50 American officers are equipped with Tasers, while the figure for Europe is 1 in 50. Some European nations have recently expanded Taser programs, while others maintain bans or restrict use to specialist squads.

78 United Nations, Human Rights, Office of the High Commissioner. “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx; (applying to government officials but excluding pain and suffering “arising” from or “incident” to a lawful arrest) United Nations Committee Against Torture Convention Against Torture, Periodic Report of the United States of America, 5 Aug. 2013, Question 25, Paragraphs 42, 49, 141 (referencing UN concerns) e.g., www.state.gov/documents/organization/213267.pdf.

79 U.S. Department of State, Diplomacy in Action. “One-Year Follow-up Response of the United States of America to Recommendations of the Committee Against Torture on Its Combined Third to Fifth Periodic Reports.” 27 Nov. 2015, Pars. 3, 27, 47, 52, www.state.gov/j/drl/rls/250342.htm.

80 The ACLU was not able to obtain the grand jury records, so we cannot know the full reasons for the ignoramus.

81 McEwen, Tom, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. National Data Collection on Police Use of Force, Apr. 1996, pp. 5, 8, www.bjs.gov/content/pub/pdf/ndcopuof.pdf (noting no universal definition); U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Bureau of Justice Statistics. Use of Force by Police—Overview of National and Local Data, 1999 p. 4, www.ncjrs.gov/pdffiles1/nij/176330-1.pdf; “NYPD Fails to Define ‘Excessive Force,’ New Report Says.” CBS News, 1 Oct. 2015, www.cbsnews.com/news/nypd-fails-to-give-officers-definition-of-excessive-force-report-says/ (noting absence of unifying definition of “excessive force”); see Chapter 2 and infra this chapter for discussions of qualified immunity.

82 Matthew J. Hickman, “Citizen Complaints about Police Use of Force.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, June 2006, p. 1, www.bjs.gov/content/pub/pdf/ccpuf.pdf. See also Garner, Joel. “Progress toward national estimates of police use of force.” National Institutes of Health, PLoS 13(2):e1092932, 2018. Note that “excessive” force might not always trigger a citizen-reported complaint.

83 Office of Justice Programs, National Institute of Justice. “NIJ Award Detail: Assessing the Validity and Reliability of National Data on Citizen Complaints about Police Use of Force.” www.nij.gov/funding/awards/pages/award-detail.aspx?award=2013-R2-CX-0035.

84 E.g., Pub. L. 103–322, title XXI, § 210402 (1994) (Data on Use of Excessive Force); 42 U.S.C. § 13701 et seq., § 14131 (Quality assurance and proficiency testing standards) et seq., § 14141 (Cause of Action) et seq.; Apuzzo, Matt, and Sarah Cohen. “Data on Use of Force by Police Across U.S. Proves Almost Useless.” New York Times, 11 Aug. 2015, www.nytimes.com/2015/08/12/us/data-on-use-of-force-by-police-across-us-proves-almost-useless.html; United States Department of Justice, Office of Public Affairs. “Justice Department Outlines Plan to Enable Nationwide Collection of Use of Force Data.” Justice News, 13 Oct. 2016, www.justice.gov/opa/pr/justice-department-outlines-plan-enable-nationwide-collection-use-force-data. DOJ characterized its project as filling a gap in statutory language and to collect data on various metrics include use of force, use of excessive force, etc.; whatever it was, DOJ gave up.

85 “Senate Confirmation Hearings: Day One.” Atlantic, 10 Jan. 2017, www.theatlantic.com/liveblogs/2017/01/senate-confirmation-hearings-day-one/512642/13445/.

86 Monroe v. Pape, 365 U.S. 167 (1961) (§ 1983 liability); Pierson v. Ray, 386 U.S. 547 (1967) (laying groundwork for qualified immunity, though that term entered use later).

87 See generally ibid.; Scheuer v. Rhodes, 416 U.S. 232, 237 (1974), abrogated by Harlow v. Fitzgerald, 457 U.S. 800 (1982).

88 Pierson v. Ray, 386 U.S. 547 (1967).

89 Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982) (emphasis added).

90 Ashcroft v. al-Kidd, 563 U.S. 731 (2011) at II.B (emphasis added) (citation omitted). Here’s what it said: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every reasonable official would have understood that what he is doing violates that right.”; see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) and infra note 91, regarding misuse of prior precedent by al-Kidd.

91 Compare ibid. to Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“… the contours of the right must be sufficiently clear that a reasonable official…”) (emphasis added). Because the Court now only looks to “objective reasonableness,” the “a” versus “every” is, to some extent, window-dressing by Scalia.

92 Signe, Dean. “No, One-Third of Millennials Don’t Actually Think Earth Is Flat.” Science Alert, 4 Apr. 2017, www.sciencealert.com/one-third-millennials-believe-flat-earth-conspiracy-statistics-yougov-debunk. Title of the article notwithstanding, the survey showed that ~15% of Americans harbored some suspicions of flatness/were unsure.

93 Kilsea v. Hughes, 584 US __ (2018) (Sotomayor, J., dissenting).

94 Elinson, Zusha, and Dan Frosch. “Cost of Police-Misconduct Cases Soars in Big U.S. Cities.” Wall Street Journal, 15 July 2015, www.wsj.com/articles/cost-of-police-misconduct-cases-soars-in-big-u-s-cities-1437013834.

95 Morin, Rich, et al. “Behind the Badge: Amid protests and calls for reform, how police view their jobs, key issues and recent fatal encounters between blacks and police.” Pew Research Center, 11 Jan. 2017 p. 65, (more dangerous) assets.pewresearch.org/wp-content/uploads/sites/3/2017/01/06171402/Police-Report_FINAL_web.pdf; “National Census of Fatal Occupational Injuries in 2016.” Bureau of Labor Statistics’ News Release, 19 Dec. 2017, www.bls.gov/news.release/pdf/cfoi.pdf; see also “Fact Sheet Police Officers August 2016.” Bureau of Labor Statistics’ Injuries, Illnesses, and Fatalities, 27 Apr. 2018 (Last Modified), www.bls.gov/iif/oshwc/cfoi/police-officers-2014.htm. The Pew report has some ambiguous phrasing, but an NPR interview by one of its authors confirmed the 93%-more-dangerous understanding.

96 “FBI Releases 2016 Statistics for Law Enforcement Officers Killed and Assaulted in the Line of Duty.” Federal Bureau of Investigation’s News, 16 Oct. 2017, www.fbi.gov/news/pressrel/press-releases/fbi-releases-2016-statistics-for-law-enforcement-officers-killed-and-assaulted-in-the-line-of-duty; “Fatal Force.” Washington Post, www.washingtonpost.com/graphics/national/police-shootings-2016/.

97 “FBI Releases 2016 Statistics for Law Enforcement Officers Killed and Assaulted in the Line of Duty.” Federal Bureau of Investigation’s News, 16 Oct. 2017, www.fbi.gov/news/pressrel/press-releases/fbi-releases-2016-statistics-for-law-enforcement-officers-killed-and-assaulted-in-the-line-of-duty. “No weapon” excludes hands, fists, and other “personal weapons” that do not appear to be lethal weapons in the colloquial sense.

98 U.S. Department of Justice, Bureau of Justice Statistics, Office of Justice Programs. “Police Use of Nonfatal Force, 2002–11.” Nov. 2015, www.bjs.gov/content/pub/pdf/punf0211_sum.pdf.

99 “Crime.” Gallup, news.gallup.com/poll/1603/crime.aspx. Enron’s difficulties and the rumors surrounding them became fully public two days before the poll, though financial crime was a subject of considerable media attention throughout that year.

100 “September 11 Terror Attacks Fast Facts.” CNN, 5 Aug. 2018, www.cnn.com/2013/07/27/us/september-11-anniversary-fast-facts/index.html; Smith, Erica L. and Alexia Cooper. “Homicide in the U.S. Known to Law Enforcement, 2011.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Dec. 2013, www.bjs.gov/content/pub/pdf/hus11.pdf.

101 “Crime.” Gallup, news.gallup.com/poll/1603/crime.aspx; author’s calculations (65% figure); “A Divided and Pessimistic Electorate.” Pew Research Center, 10 Nov. 2016, www.people-press.org/2016/11/10/a-divided-and-pessimistic-electorate/3-11/ (2008-2016 period).

102 A convenient summary through 2015 is available from the Brennan Center for Justice. Friedman, Matthew, et al. “Crime Trends: 1990–2016.” Brennan Center for Justice at New York University School of Law, 2016, p. 1, www.brennancenter.org/sites/default/files/publications/Crime%20Trends%201990-2016.pdf. Full data, including 2016 figures, are available from the FBI, collected at: “About Crime in the U.S. (CIUS).” Federal Bureau of Investigation: Uniform Crime Report, ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/cius-2016.

103 Banks, Duren, et al. National Sources of Law Enforcement Employment Data. NCJ 249681, revised 4 Oct. 2016, www.bjs.gov/content/pub/pdf/nsleed.pdf; author’s calculations (sworn officers, 1992–2012).

104 Friedman, Matthew, et al. “Crime in 2016: A Preliminary Analysis.” Brennan Center for Justice at New York University School of Law, 2016, p. 1 and Table 1, www.brennancenter.org/sites/default/files/publications/Crime_2016_Preliminary_Analysis.pdf. Estimates suggested overall crime rates declined slightly in 2017; Grawert, Ames C. and James Cullen. “Crime in 2017: A Preliminary Analysis.” Brennan Center for Justice at New York University School of Law, 2017, p. 1, https://www.brennancenter.org/sites/default/files/publications/Crime%20in%202017%20A%20Preliminary%20Analysis.pdf. The FBI’s Uniform Crime Reports provide the most recent official data, which (as of press time) generally confirm the Brennan Center’s headline totals; if anything, Brennan may have slightly overstated the crime rise.

105 It’s difficult to pinpoint when the economy truly recovered from the Great Recession. GDP achieved positive YoY growth by 2010 (ending the recession as a technocratic matter), but middle-class incomes did not fully recover until almost a decade later.

106 Civil Rights Division. Investigation of the Ferguson Police Department. U.S. Department of Justice, 4 Mar. 2015, p. 2, www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.

107 Martinez, Michael, et al., “Policing for Profit: How Ferguson’s Fines Violated Rights of African-Americans.” CNN, 6 Mar. 2015, www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/index.html.

108 Goldstein, Rebecca, et al. “Exploitative Revenues, Law Enforcement, and the Quality of Government Service.” Urban Affairs Review, Aug. 2018, p. 1, www.law.nyu.edu/sites/default/files/upload_documents/YOU_policing.pdf.

109 Ibid.; McCoy, Terrance. “Ferguson Shows How a Police Force Can Turn into a Plundering ‘Collection Agency.’” Washington Post, 5 Mar. 2015, www.washingtonpost.com/news/morning-mix/wp/2015/03/05/ferguson-shows-how-a-police-force-can-turn-into-a-plundering-collection-agency/?utm_term=.171c82f62327.

110 Whaley, Sean. “Drop in Traffic Tickets Has Supreme Court Near Broke, Chief Justice Says.” Las Vegas Review Journal, 22 Mar. 2015, www.reviewjournal.com/local/local-nevada/drop-in-traffic-tickets-has-supreme-court-near-broke-chief-justice-says/.

111 Office of the Inspector General. Audit of the Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2017. U.S. Department of Justice, Dec. 2017, oig.justice.gov/reports/2017/a1805.pdf#page=1; Asset Forfeiture Program. 10-Yr Summary of Financial Report Data. U.S. Department of Justice, 2017, www.justice.gov/afp/file/10-yr_summary_of_reporting.pdf/download (fund inflows for fiscal 2012 and 2014) (“Treasury Summary”); Carpenter II, Dick M., et al. Policing for Profit: The Abuse of Civil Asset Forfeiture. Institute for Justice, Nov. 2015, 2nd Ed., pp. 5, 10, ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf. Total asset data for AFF/SADF of $8.3 billion are from the Fund’s 2017 Annual Report, presented in gross terms. The Funds have paid out, of course, but even the net account balances at DOJ and Treasury increased by 485% from FY 2001–2014. From FY 2007–2016, victims received just under 40% of the fund’s deposits; in 2016, the figure was 10%. Treasury Summary, p. 4.

112 For a good survey, see Stillman, Sarah. “Taken.” New Yorker, 12 and 19 Aug. 2013, www.newyorker.com/magazine/2013/08/12/taken?reload=true. Toward the end of the Obama Administration, Washington made noises about reforming forfeiture practices, efforts promptly abandoned in 2017.

113 “Confidence in Institutions.” Gallup, news.gallup.com/poll/1597/confidence-institutions.aspx.

114 The conviction was secured mainly by prosecutorial misconduct, however.

Chapter 11

1 Tehan v. Shott, 382 U.S. 406, 416 (1966).

2 Baudrillard, Jean. Amérique. Hachette, 2014, Apple e-book, p. 25. Baudrillard’s mistake was pointed out when the first edition of Amérique came out in 1986, notably by Robert Hughes. The geographical error has not been corrected in nearly thirty years.

3 Ibid., pp. 28–42.

4 Durmay, Benedetta Faedi. “Women and Poisons in 17th Century France.” Chicago-Kent Law Review, vol. 87, issue 2, Apr. 2012, p. 359 (citations omitted), scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?referer=www.google.com/&httpsredir=1&article=3837&context=cklawreview.

5 Merryman, John H. and Rogelio Pérez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 3rd ed., Stanford University Press, 2007, p. 119.

6 Halstead, T.J. “An Overview of the Impeachment Process.” Congressional Research Service, updated ed., 20 Apr. 2005, at CRS-4–6, www.senate.gov/reference/resources/pdf/98-806.pdf. Impeachments are governed by Senate rules. In some aspects, they mirror practices in normal courts: the accused may be represented by counsel in and the presiding officer (the Chief Justice, in the case of a presidential impeachment) may rule on procedural motions and the admission of evidence, though these rules are not well developed and not, as a practical matter, binding or subject to meaningful judicial review.

7 Fed. R. Evid. 402 (relevant evidence presumptively admissible absent statutes, case law, etc. to the contrary).

8 Fed. R. Evid. 401 (emphasis added). State rules of evidence are broadly similar.

9 E.g., Fed R. Civ P. 26(b).

10 E.g., Heien v. North Carolina, 574 U.S. __ (2014) (allowing search even where suspicion based on mistake of law); Hill v. California, 401 U.S. 797 (1971) (allowing searches based on reasonable mistake of fact).

11 E.g., Fed. R. Evid. 102 (stating that the rules of evidence should be “construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay… to the end of ascertaining the truth and securing a just determination”).

12 Yates v. United States, 135 S. Ct. 1074 (2015).

13 E.g., Mearian, Lucas. “By 2020 There Will Be 5,200 GB of Data for Every Person on Earth.” Computer World, 11 Dec. 2012, www.computerworld.com/article/2493701/data-center/by-2020—there-will-be-5-200-gb-of-data-for-every-person-on-earth.html.

14 Brady v. Maryland, 373 U.S. 83 (1963).

15 Bhattacharjee, Yudhijit. “Why We Lie: The Science Behind Our Deceptive Ways.” National Geographic, June 2016, www.nationalgeographic.com/magazine/2017/06/lying-hoax-false-fibs-science/. There’s huge scientific literature on this, for the simple reason that most people lie.

16 For an older (though still accurate) summary, see “Perjury: The Forgotten Offence.” Journal of Criminal Law and Criminology, vol. 65, no. 3, Sept. 1974, www.jstor.org/stable/pdf/1142605.pdf?refreqid=excelsior%3A73da5e276d8c24911a2cadba6df5db08.

17 Schmitt, Richard M. “Lying in the Courtroom: ‘It Happens All the Time.’” Wall Street Journal, 9 Oct. 1998, www.wsj.com/articles/SB907891358251126000.

18 18 U.S.C. § 1621 (federal perjury statute requiring willfulness); see also United States v. Dunnigan, 507 U.S. 87, 94 (1993) (listing exculpatory circumstances and listing Court precedent on same).

19 Motivans, Mark. “Federal Justice Statistics Tables.” Bureau of Justice Statistics, 26 Jan. 2012 (revised), table 1.1, 2.2, www.bjs.gov/content/pub/pdf/fjs09st.pdf. Prosecutors declined to charge in over half the perjury/intimidation/contempt cases underway in the sampled period. Percentages are for Marshals arrrests.

20 Fed. R. Evid. 601. State laws differ.

21 E.g., Hourihan, Kathleen L., et al. “A Cross-Race Effect in Metamemory: Predictions of Face Recognition are More Accurate for Members of Our Own Race.” Journal of Applied Research Memory Cognition. 2012, pp.158–162, DOI: | 10.1016/j.jarmac.2012.06.004, scinapse.io/papers/2013569428.

22 “Eyewitness Misidentification.” Innocence Project, www.innocenceproject.org/causes/eyewitness-misidentification/. For a survey of known issues with eyewitness identification, see National Research Council, et.al. “Identifying the Culprit: Assessing Eyewitness Identification.” National Academies P, 2014, www.innocenceproject.org/wp-content/uploads/2016/02/NAS-Report-ID.pdf.

23 Arkowitz, Hal, and Scott O. Lilienfeld. “Why Science Tells Us Not to Rely on Eyewitness Accounts.” Scientific American, 1 Jan. 2010, www.scientificamerican.com/article/do-the-eyes-have-it/#. Loftus and Pickrell did the pioneering work; subsequent studies by Hyman et al. (1996) confirmed the finding, and Wade et al. (2002) and other researchers noted that between 20% and 50% would stand by false memories.

24 Perry v. New Hampshire, 565 U.S. 228 (2012) at Part I.A.

25 Fed. R. Evid. 801–807 (governing hearsay and its exceptions).

26 Fed. R. Evid. 803(2).

27 Payne, Stacey, et al. “The effects of experimentally induced stress on false recognition.” Memory. Vol. 10, no. 1 (2001) pp. 1–6; see also Payne, Stacey, et al., “The impact of stress on neutral and emotional aspects of episodic memory.” Memory. Vol. 14, no. 1 (2006), pp. 1–16 (surveying existing literature and noting differences in impact of stress on recall for different aspects of the same event). The pioneering book in the area is by Elizabeth Loftus, originally printed in 1979: Loftus, Elizabeth. Eyewitness Testimony. 2nd ed. Harvard University Press, (1996). If I recall my Evidence class correctly—and it was not a stressful class—the old judicial theory was that excited people didn’t have time to think of a lie. As an evidentiary theory, that’s questionable and also misses the point.

28 Fed. R. Evid. 803(16). The document must also be authenticated, but this isn’t really a robust protection.

29 Fed. R. Evid. 804(b)(2).

30 Fed. R. Evid. 807(a).

31 Committee on Identifying the Needs of the Forensic Sciences Community. Strengthening Forensic Science in The United States: A Path Forward. National Research Council, Aug. 2009, pp. 14–28, 38–39, 42–44, 183–84, 197, 224, www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (hereinafter “NC Study”); Ellis, Emma Grey. “The War Over Forensic Science Started Long Before Jeff Sessions.” Wired, 14 Apr. 2017, www.wired.com/2017/04/war-forensic-science-started-well-jeff-sessions/.

32 The usual way to solve the Monty Hall Problem—which is an imprecise variant of the game show—is to use Bayes’s theorem. The Angry Statistician blog provides two ways of solving the problem. angrystatistician.blogspot.com/2012/06/infamous-monty-hall.html.

33 People v. Collins, 68 Cal.2d 319 (1968). The California Supreme Court overturned the case.

34 Green, Peter. “Letter from the President to the Lord Chancellor regarding the use of statistical evidence in court cases.” Royal Statistical Society, 23 Jan. 2002, www.rss.org.uk/Images/PDF/influencing-change/rss-use-statistical-evidence-court-cases-2002.pdf.

35 Author’s calculations; Moss, Mitchell L., and Carlton Qing. “The Dynamic Population of Manhattan.” New York University Press, Mar. 2012, p. 1, wagner.nyu.edu/files/rudincenter/dynamic_pop_manhattan.pdf.

36 “Frequently Asked Questions on CODIS and NDIS.” Federal Bureau of Investigation, (accessed May 2018), www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet. The snippets are short tandem repeats, which do not code for protein generation, referred to by FBI as the “loci.”

37 Coble, Michael D. and John M. Butler. “DNA Mixture Interpretation: State of the Art.” National Institute of Standards And Technology, 8 Jan. 2015, pp. 30, 38, strbase.nist.gov//pub_pres/ASCLD-LAB-Jan2015-CobleButler.pdf#page=30&zoom=auto,-211,522; Worth, Katie. “The Surprisingly Imperfect Science of DNA Testing.” Frontline, 24 June 2015, www.pbs.org/wgbh/frontline/article/the-surprisingly-imperfect-science-of-dna-testing-2/. Other studies have come to similar conclusions; see NC Study.

38 “Quality Assurance Audit for Forensic DNA and Convicted Offender DNA Databasing Laboratories.” FBI, 12–13 Dec. 2002 (audit dates) (Houston), www.scientific.org/archive/Audit%20Document—Houston.pdf; ASCLD / Lab Limited Scope Interim Inspection Report. Commonwealth Virginia Division of Forensic Science, Central Criminal Laboratory, 9 Apr. 2005 (Virginia), www.scientific.org/archive/VirginiaProblems/ASCLDLAB-AuditReport.pdf; Dao, James. “Lab’s Errors Force Review of 150 DNA Cases.” New York Times, 7 May 2005, www.nytimes.com/2005/05/07/us/labs-errors-force-review-of-150-dna-cases.html.

39 Office of the Inspector General. The FBI DNA Laboratory: A Review of Protocols and Practice Vulnerabilities. U.S. Department of Justice, May 2004, Executive Summary and p. 55, oig.justice.gov/special/0405/final.pdf.

40 The first admission of fingerprints as evidence in American courts appears to have been in the events leading up to People v. Jennings (1911), case-law.vlex.com/vid/96-n-1077-ill-613164642.

41 For a good description of fingerprints in court, see United States v. Mitchell, No. 02-2859 (3rd Cir. 2004), Part II.B. Non-federal standards vary.

42 Ulery, Bradford T., et al. “Repeatability and reproducibility of decisions by latent fingerprint examiners.” PLoS ONE 7(3): e32800, 2012, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3299696/. In the second round, technicians eliminated their false positives but repeated false negatives.

43 Thompson, William, et al. “Latent Fingerprint Examination.” American Association for the Advancement of Science, Sept. 2017, p. 9, doi: 10.1126/srhrl.aag2874, mcmprodaaas.s3.amazonaws.com/s3fs-public/reports/Latent%20Fingerprint%20Report%20FINAL%209_14.pdf?i9xGS_EyMHnIPLG6INIUyZb66L5cLdlb. The fingerprint debate has been proceeding inconclusively for over twenty years.

44 “Strengthening Forensic Science in the United States.” Senate Hearing 111–554, 9 Sept. 2009 (statement of Jeff Sessions), www.gpo.gov/fdsys/pkg/CHRG-111shrg54720/html/CHRG-111shrg54720.htm.

45 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (describing standard as “sufficiently established to have gained general acceptance in the particular field in which it belongs”).

46 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 and n.9 (1993).

47 Ibid.

48 Fed. R. Evid. 403, 702–703.

49 Fed. R. Evid. 403 (emphasis added).

50 C. Park, et al. “Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trial.” West Group, § 12.01, 540–541 & n.6 1998; see also e.g., United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (“This Court reviews a district court’s evidentiary rulings for a clear abuse of discretion.”) (citation omitted) (emphasis added).

51 United States v. Holloway, 971 F.2d 675, 679 (11th Cir. 1992) (stating that the 11th Circuit has an “established rule” about the inadmissibility of experts-on-witnesses).

52 E.g., Fed. R. Civ. Pro. 407–408. The inadmissibility of settlement offers and remedial measures is not unlimited, however.

53 Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961).

54 Silverthorne Lumber v. United States, 251 U.S. 385 (1920); Wong Sun v. United States, 371 U.S. 471 (1963). “Fruit of the poisonous tree” was coined after Silverthorne, but the principle applied in the original case.

55 E.g., Herring v. United States, 555 U.S. 135 at p. 9 (2009) (finding mistakenly issued warrant does not trigger exclusion).

56 Ibid. The Court has used the term “good faith” rather oddly in this context; it’s not exactly “good faith” in the normal legal or vernacular sense, as the Court admits.

57 Shiffman, John and Kristina Cook. “Exclusive: U.S. Directs Agents to Cover up Program Used to Investigate Americans.” Thomson Reuters, 5 Aug. 2013, www.reuters.com/article/us-dea-sod/exclusive-u-s-directs-agents-to-cover-up-program-used-to-investigate-americans-idUSBRE97409R20130805.

58 U.S. Constitution, amdt. VI.

59 Ohio v. Roberts, 448 U.S. 56, 66 (1980).

60 The Court’s first attempt to resolve the Roberts problem was in Crawford v. Washington, 541 U.S. 36 (2004), Part III.A. In Crawford, testimony was disallowed. In Davis v. Washington, the Court formulated the solemnity/legal ceremony exception, which is the main focus of the main text’s discussion. Davis v. Washington, 547 U.S. 813 (2006).

61 “Witness” Webster’s Dictionary—1828: Online edition. http://webstersdictionary1828.com/Dictionary/witness.

62 This strain of thought reached its acme in Michigan v. Bryant, 131 S. Ct. 1143 (2012).

63 Davis v. Washington, 547 U.S. 813, 821 (2006) (holding that testimonial hearsay requires confrontation, but “nontestimonial” hearsay does not).

64 Ibid., Parts I–II.

65 Fisher, George. “The Crawford Debacle.” Michigan Law Review First Impressions, vol. 113, no. 17, pp. 22–24 (2014).

66 Williams v. Illinois, 567 U.S. 50, Part IV (2012) (Kagan, J., dissenting).

67 Prosecutors often demand a waiver of FRE 410 as a condition for beginning negotiations. And FRE 410 itself is not absolute.

68 Fed. R. Evid. 412 (sex crimes); Fed. R. Evid. 607–609, Article VI generally (witnesses and impeachment). Under the Old Chief doctrine, defendants can try to stipulate their way around this. Old Chief v. United States, 519 U.S. 172 (1997).

69 E.g., Trammel v. United States, 445 U.S. 40 (1980).

70 E.g., Fed. R. Evid. 501–502 (recognizing attorney-client, but providing no other privilege unless specified by statute, Constitution, or state law when applicable).

Chapter 12

1 Titus Livius. The History of Rome. Preface. This is the usual translation.

2 Mele, Christopher. “Pushing That Crosswalk Button May Make You Feel Better, but…” New York Times, 27 Oct. 2016, https://www.nytimes.com/2016/10/28/us/placebo-buttons-elevators-crosswalks.html.

3 De Beaumont, Gustave, and Alexis De Tocqueville. On the Penitentiary System in the United States: And its Application in France. Francis Lieber, transl. Carey, Lea & Blanchard (1833), p. 47.

4 King, L.W, translator. “The Code of Hammurabi.” Yale Law School’s Avalon Project, § 196 (establishing the basic penalty), avalon.law.yale.edu/ancient/hamframe.asp. Most of the Code attaches crimes directly to penalties.

5 Ibid. E.g. §§ 195, 200–205. The Code’s penalties are all over the map, but this is the general dynamic.

6 E.g., “Twelve Tables.” Yale Law School’s Avalon Project, Table VIII, § 3, avalon.law.yale.edu/ancient/twelve_tables.asp. Romans often specified prices in terms of certain kinds of property, like livestock, which we might consider inflation-adjusted animal currency. Germanic and British tribes also used monetary penalties for some non-property wrongs.

7 This interpretation, while disputed, is in keeping with Jesus’s passive posture toward secular law (“render unto Caesar,” and so on). St. Augustine viewed it as a theological sally against heresy (either Jewish or Manichean). E.g., Augustine of Hippo. “Contra Faustum, Book XIX.” New Advent, pars. 3, 19, 25, www.newadvent.org/fathers/140619.htm.

8 Qisas is the Koranic concept of retributive justice. Qur’an 2:178, The Noble Qur’an, quran.com/2/178-188 (suggesting forgiveness but noting that recidivism will receive a “painful” penalty); Qur’an 5:45, The Noble Qur’an, quran.com/5/45 (forsaking eye for an eye can serve as expiation for sins); Nair, Drishya. “Saudi Arabia: Man who Paralysed Friend to Have Spinal Cord Severed.” International Business Times, 1 July 2014, www.ibtimes.co.uk/saudi-arabia-punishments-stab-paralise-spinal-cord-452683 (discussing physical penalties applied in twenty-first century).

9 There are a number of historical inaccuracies in Foucault’s work, especially his conflation of accounts written by officials and reformers with the actual facts, but Foucault’s general premise is valid.

10 Translations sometimes call ancient jails “prison,” though they were not. Rome’s infamous Mamertine Prison, built into a sewer, was merely a waystation—famously, for St. Paul, before his crucifixion. The Latin word for such institutions is career which, I regret to report, does not supply the root for “career” in its vocational sense.

11 Zeng, Zhen. “Jail Inmates in 2016.” NCJ 251210, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, Feb. 2018, pp. 1–2 and Table 4, www.bjs.gov/content/pub/pdf/ji16.pdf.

12 Ibid., Table 6.

13 Ibid., Table 3.

14 Kovaleski, Serge F. “Justice Delayed: 10 Years in Jail, but Still Awaiting Trial.” New York Times, 19 Sept. 2017, www.nytimes.com/2017/09/19/us/alabama-kharon-davis-speedy.html.

15 Zeng, Zhen. Ibid., table 5. A minimum of 14 and up to 27 states (plus the federal system) run over capacity, and crowding is worse in larger prisons systems and middle-sized jails, so adjusted by population, prisons are the more overcrowded system. Carson, E. Ann. “Prisoners in 2016.” U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, Jan. 2018, Table 16, www.bjs.gov/content/pub/pdf/p16.pdf.

16 U.S. Census Bureau. “Real Median Personal Income in the United States [MEPAINUSA672N].” FRED, Federal Reserve Bank of St. Louis, 13 Aug. 2018, fred.stlouisfed.org/series/MEPAINUSA672N; Henrichson, Christian, et al. The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration. Vera Institute of Justice, May 2015, p. 28, storage.googleapis.com/vera-web-assets/downloads/Publications/the-price-of-jails-measuring-the-taxpayer-cost-of-local-incarceration/legacy_downloads/price-of-jails.pdf, and Vera data available at www.vera.org/publications/the-price-of-jails-measuring-the-taxpayer-cost-of-local-incarceration; author’s calculations based on total costs divided by average daily population. The minimum official price is $96,690; $210,000 reflects the all-in. Figures for median income are national; against the New York MSA income, the figure is 3.2x. New York’s own calculations (for 2012) ran to $168,000. Salas, Nasha. “NYC’s Jail Population: Who’s There and Why?” New York City Independent Budget Office. 2013. http://www.ibo.nyc.ny.us/iboreports/printnycbtn20.pdf (average cost per inmate, fiscal 2012, based on data from New York City’s Department of Corrections).

17 Carson, E. Ann. “Prisoners in 2016.” NCJ 25119, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin, Jan. 2018, table 1, www.bjs.gov/content/pub/pdf/p16.pdf; transferees are based on author’s calculation based on BJS jail statistics supra.

18 Wagner, Peter and Alison Walsh. “States of Incarceration: The Global Context 2016.” Prison Policy Initiative, 16 June 2016, www.prisonpolicy.org/global/2016.html; Walmsley, Roy. “World Prison Population List.” Institute for Criminal Policy Research, 2016, 11th ed. www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition_0.pdf.

19 Ibid.

20 E.g., Bronson, Jennifer. “Justice Expenditure and Employment Extracts, 2013—Final,” Bureau of Justice Statistics, 29 June 2018, data tables 1, 10, and associated files, www.bjs.gov/index.cfm?ty=pbdetail&iid=6308; Kearney, Melissa S., et al. Ten Economic Facts about Crime and Incarceration in the United States. Hamilton Project—Brookings Institution, May 2014, www.hamiltonproject.org/assets/legacy/files/downloads_and_links/v8_THP_10CrimeFacts.pdf (2010 figures).

21 U.S. Bureau of Economic Analysis. “Gross Domestic Product (GDP).” FRED, Federal Reserve Bank of St. Louis, 27 July 2018, fred.stlouisfed.org/series/GDP; “HUD’s Proposed 2019 Budget.” U.S. Department of Housing and Urban Development: Secretary Ben Carson, www.hud.gov/budget.

22 Knowles, Julian B. The Abolition of the Death Penalty in the United Kingdom: How It Happened and Why It Still Matters. Death Penalty Project, 9 Nov. 2015, pp. 9–10, www.deathpenaltyproject.org/2015/11/09/the-abolition-of-the-death-penalty-in-the-united-kingdom-how-it-happened-and-why-it-still-matters/. Monetary comparisons this old are fraught, but in the mid-eighteenth century, a decent housekeeper earned about 15 pounds per year, and at 240 pence per pound (British coinage was non-decimal), 12 pence would be slightly more than a day’s wages. “Five Ways to Compute the Relative Value of a UK Pound Amount 1270 to Present.” MeasuringWorth.Com,www.measuringworth.com/calculators/ukcompare/relativevalue.php (offering various methods of conversion).

23 Transportation Acts of 1717, 1784, 1785. The loss of America prompted the technical refreshment of Scottish transportation, but it was little used—by 1785, Britain was gaining more distant options.

24 Death Penalty Information Center. Executions by Year—Number of Executions Since 1976: 1481. Last updated 14 Aug. 2018, deathpenaltyinfo.org/executions-year.

25 Espy, M. Watt, et al. Executions in the United States, 1608-2002: The ESPY File (ICPSR 8451), version 5, Ann Arbor, MI: Inter-university Consortium for Political and Social Research, 2016, doi.org/10.3886/ICPSR08451.v5.

26 Ibid. For a useful visual, see Wilson, Chris. “Every Execution in U.S. History in a Single Chart.” Time, updated 25 Apr. 2017, time.com/82375/every-execution-in-u-s-history-in-a-single-chart/.

27 Fiscal Year 2017 ICE Enforcement and Removal Operations Report. U.S. Immigration and Customs Enforcement, p.13, www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf (includes apprehensions at border). Internal exile is still practiced, mainly as vindictive intrastate policy affecting mental patients (only some of whom are criminal); California sued Nevada over the latter’s habit of busing its problems into the Golden State. Nevada has also paid contractors in other states to take its convicts. Sabatini, Joshua. “SF Reaches $400K Settlement Proposal in Nevada Patient-Dumping Case.” San Francisco Examiner, 5 Oct. 2015, www.sfexaminer.com/sf-reaches-400k-settlement-proposal-in-nevada-patient-dumping-case/ and Hubert, Cynthia, et al. “Nevada Buses Hundreds of Mentally Ill Patients to Cities Around Country.” Sacramento Bee, 14 Apr. 2013, www.sacbee.com/news/investigations/nevada-patient-busing/article2577189.html; Botkin, Ben. “Nevada Officials OK $9.2M Deal to Ship Inmates to Arizona.” Las Vegas’ Review-Journal, 10 Oct. 2017, www.reviewjournal.com/crime/nevada-officials-ok-9-2m-deal-to-ship-inmates-to-arizona/.

28 Bragg, Rick. “Chain Gangs to Return to Roads of Alabama.” New York Times, 1995, www.nytimes.com/1995/03/26/us/chain-gangs-to-return-to-roads-of-alabama.html; “Arizona’s ‘concentration camp’: why was Tent City kept open for 24 years?” Guardian, 21 Aug. 2017, www.theguardian.com/cities/2017/aug/21/arizona-phoenix-concentration-camp-tent-city-jail-joe-arpaio-immigration.

29 In practice, the sentencing reforms of the 1980s functionally eliminated rehabilitation as an official goal, though it remains a nominal justification for prison. Compare S. R. No. 98–225, pp. 75–77 (listing the purposes of sentencing, including correctional rehabilitation) and 18 U.S.C. § 3533(a)(2)(D) (noting sentencing should reflect need for “correctional treatment”) with 18 U.S.C. § 2582(a) (noting that prison is “not an appropriate means of promotion correction and rehabilitation”).

30 Kroll, John. “Judge Pianka’s sentence for landlord’s code violations: You must live in your own lousy building.” Cleveland Plain Dealer News, 19 Dec. 2008, blog.cleveland.com/metro/2008/12/judge_piankas_sentence_for_lan.html.

31 CA Penal Code § 215 (basic carjacking); § 186.22 (gang membership enhancement, if crime at direction of gang); § 12022.53 (gun enhancements, ranging from 10 to life).

32 Harlow, Caroline Wolf. Education and Correctional Populations. NCJ 195670, U.S. Department of Justice, Office of Justice Programs, Jan. 2003, p. 1 and table 1 (education), bjs.gov/content/pub/pdf/ecp.pdf; Bronson, Jennifer, and Marcus Berzofsky. Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011–12. NCJ250612, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2017, pp. 1–7, www.bjs.gov/content/pub/pdf/imhprpji1112.pdf; Bronson, Jennifer and Marcus Berzofsky. Drug Use, Dependence, and Abuse Among State Prisoners and Jail Inmates, 2007–2009. NCJ 250546, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, June 2017, pp.1–14 (drug use), www.bjs.gov/content/pub/pdf/dudaspji0709.pdf. Data are from different years because the BJS does not conduct continuous censuses on all issues. Many trends appear to be stable, though educational poverty rose sharply in the 1990s. The Census American Community Survey, while arriving at slightly different figures, basically accords with the BJS numbers.

33 Three Strikes was brought into both legislative and propositional being by CA Penal Code § 667 (b)-(i) (1994 legislative version); § 1170.12 (effecting Proposition 184) revised by Proposition 36 (2012) (to require third strike to be a serious/violent felony) and abrogated in limited circumstances by various constitutional challenges. Judges did have discretion to overlook a third felony where it fell outside the “spirit” of the law, but no defendant could rely on this and judges weren’t overly keen in the event. Since prior felonies could elevate minor crimes into third felonies, the law was harsh, punitive, and nearly certain: i.e., a good experiment.

34 E.g., Parker, Robert Nash. “Why California’s ‘Three Strikes’ Fails as Crime and Economic Policy, and What to Do.” California Journal of Politics and Policy, vol. 5, no. 2, July 2012, cloudfront.escholarship.org/dist/prd/content/qt1n48f1rj/qt1n48f1rj.pdf?t=nhxihu; Males, Mike. Striking Out: California’s ‘Three Strikes and You’re Out’ Law Has Not Reduced Violent Crime. A 2011 Update. Center on Juvenile and Criminal Justice, Apr. 2011, www.cjcj.org/uploads/cjcj/documents/Striking_Out_Californias_Three_Strikes_And_Youre_Out_Law_Has_Not_Reduced_Violent_Crime.pdf; Zimring, Franklin E., et al., Punishment and Democracy: Three Strikes and You’re Out in California. Part II, Oxford University Press, 2003. Most studies focus on the impact (if any) three strikes initiatives had on felonies/violent crimes.

35 There are many variables at work, including the greater safety of cars and growing traffic, but researchers have disentangled most of the variables and the conclusion holds: speed-cameras work. Allsop, Richard. The Effectiveness of Speed Cameras: A Review of Evidence. RAC Foundation, Nov. 2010, § 2.2., www.racfoundation.org/wp-content/uploads/2017/11/efficacy_of_speed_cameras_allsop_181110.pdf; Tang, Cheng Keat. “Do Speed Cameras Save Lives.” Special Economics Research Centre, London School of Economics, SERC Discussion Paper 221, Sept. 2017, www.spatialeconomics.ac.uk/textonly/SERC/publications/download/sercdp0221.pdf.

36 S. Rep. 91-613, p. 2 (1969) (discussing, inter alia, the Boggs Act).

37 Among the bipartisan fiascoes were the 1984 Sentencing Reform Act (which required “truth in sentencing,” requiring offenders to serve at least 85% of their mandated term and created the Sentencing Commission to guide judges); the 1986 Anti-Drug Abuse Act (mandatory drug minimums and the 100:1 crack/cocaine disparity); the 1988 Anti-Drug Abuse Act (same song, but louder); and the 1994 Violent Crime Control and Law Enforcement Act (expanding criminal penalties but allowing judges discretion to lighten sentences for some minor drug crimes); and the Anti-Terrorism and Death Penalty Act of 1996 (more of the same, and helped link crime to immigration violations). The states followed suit. In 2010, government lightened up drug sentences, some retroactively, but from 2017 to mid-2018 Congress and Attorney General Sessions have shown no appetite for continuing the Obama-era experiment.

38 Federal Drug Sentencing Laws Bring High Cost, Low Return: Penalty Increases Enacted in 1980s and 1990s Have Not Reduced Drug Use or Recidivism. Pew Charitable Trust, 27 Aug. 2015, fig. 1 and pp. 4–5, www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/08/federal-drug-sentencing-laws-bring-high-cost-low-return.

39 Ibid., fig. 2.

40 Federal Bureau of Prisons. “Offenses.” 28 July 2018 (updated), www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.

41 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. “Drugs and Crime Facts: Drug Law Violations.” 14 Aug. 2018 (rev.), www.bjs.gov/content/dcf/enforce.cfm.

42 E.g., U.S. House of Representatives. “Historical Summary of Conduct Cases in the House of Representatives: Committee on Standards of Official Conduct, 1798–2004.” ethics.house.gov/sites/ethics.house.gov/files/Historical_Chart_Final_Version%20in%20Word_0.pdf; see infra note 43.

43 “Rep. Trey Radel’s (R-Fla.) Charging Documents and Plea Agreement.” Washington Post, 20 Nov. 2013, apps.washingtonpost.com/g/page/politics/rep-trey-radels-r-fla-charging-documents-and-plea-agreement/605/; Debenedetti, Gabriel. “Florida Congressman Radel Gets Probation on Cocaine Charge.” Reuters, 20 Nov. 2013, www.reuters.com/article/us-usa-congress-radel/florida-congressman-radel-gets-probation-on-cocaine-charge-idUSBRE9AJ0T720131120. Probation is not unusual for a straight, first-time charge, but many of D.C.’s black defendants do not seem to receive such leniency.

44 Williams v. New York, 337 U.S. 241, 247 (1949) (considering New York’s discretionary regime). Discretion can work to increase or decrease the sentence.

45 Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).

46 U.S.S.G. § 6A1.3(a); Fed. R. Evid. 1101(d)(3); Fed. R. Crim. Pro. 32.

47 E.g., Florida R. Crim. Pro. 3.390(a); see also Bellin, Jeremy. “Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction.” Boston University Law Review, vol. 90, no. 2, n.41 and accompanying text, 2010. A few states like Virginia do allow juries to determine some sentences, but these are in the minority.

48 United States v. Booker, 543 U.S. 220 (2005). Booker was a messy, multi-front war of ideology and personal history. The formal stakes were the Sixth Amendment right to a jury trial, but lurking within which were important questions about law and order and the administrative state. Justices whose personal political convictions might militate for a particular outcome in Booker had to be careful not to give ammunition to their opponents when the war resumed on other Constitutional fronts—but that’s what you get when Congress blurs powers for dubious reasons. Another compounding factor: Justice Breyer was a member of the Sentencing Commission during the critical years of 1985–1989, and was not uninvolved in the debacles that unfolded. Breyer’s brother, as it happens, is a federal judge tasked with applying Booker in his own court and also served as a Sentencing Commission member from 2013 to 2016 and as Vice Chair until 2021; one can only imagine their Thanksgiving table talk. “Stephen Breyer.” Cornell University Law School’s Legal Information Institute, Supreme Court, www.law.cornell.edu/supct/justices/breyer.bio.html (noting Justice Breyer’s position on the USSC); U.S. Sentencing Commission. “About the Commissioners: Acting Chair: Judge Charles R. Breyer” www.ussc.gov/commissioners (noting Charles Breyer’s position on the USSC).

49 Krieg, Gregory. “Kushner vs. Christie: The Nasty Trump Transition Fight that Goes Back a Decade.” CNN, 17 Nov. 2016, www.cnn.com/2016/11/16/politics/trump-transition-jared-kushner-chris-christie/index.html; Mangan, Dan. “Rudy Giuliani Says Trump Son-In-Law Jared Kushner is ‘Disposable,’ Warns against Investigating Ivanka.” CNBC, 3 May 2018, www.cnbc.com/2018/05/03/rudy-giuliani-said-trumps-son-in-law-jared-kushner-is-disposable.html. The two bills that failed were the Sentencing Reform and Corrections Act proposals of 2015 and 2017; in February 2018, a reboot emerged out of committee, over Sessions’s objections.

50 U.S. Attorney General. Memorandum for All Federal Prosecutors: Department Charging and Sentencing Policy. U.S. Department of Justice, 10 May 2017, www.justice.gov/opa/press-release/file/965896/download. Other than the drug reversal, Sessions’s memo ostensibly parrots the traditional guidance for U.S. Attorneys, but his drift was unmistakable.

51 Schwartzapfel, Beth. “Life Without Parole: Inside the Secretive World of Parole Boards, Where Your Freedom May Depend on Politics and Whim.” The Marshall Project, 10 July 2015, https://www.themarshallproject.org/2015/07/10/life-without-parole.

52 O.C.G.A. § 42-9-53.

53 Schwartzapfel, Beth. Ibid.

54 Release rates dropped from 42% to 26%, an almost 40% relative decline. Schwartzapfel, Beth. Ibid.

55 S. Rep. 98–225, p. 38 (1983); 18 U.S.C. § 3582(a).

56 Davis, Lois M., et al. Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs that Provide Education to Incarcerated Adults. U.S. Department of Justice, Bureau of Justice Assistance and Rand Corporation, 2013, www.bja.gov/Publications/RAND_Correctional-Education-Meta-Analysis.pdf.

57 E.g., ibid., p. 4.

58 For definitions of capacity, see U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. “Terms & Definitions: Corrections.” www.bjs.gov/index.cfm?ty=tdtp&tid=1. Calculations are based on BJS data and author’s calculations; where states did not report, estimates assumed prisons operated at 100% capacity. Carson, E. Ann. “Prisoners in 2016.” NCJ 251149, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics’ Bulletin. Jan. 2018, table 16 and associated CSV file, www.bjs.gov/content/pub/pdf/p16.pdf. Some states do not report prison capacity statistics to BJS and those that do have considerable interpretive leeway to expand “design capacity” (set out in the original prison plan) to a higher “operational capacity” (due to extra guards, conversion of non-housing spaces into bed spaces, etc.), and population statistics often exclude prisoners with shorter sentences or in transit.

59 Estelle v. Gamble, 429 U.S. 97, 104–105 (1976).

60 Justice Center, Council of State Governments. The Second Chance Act. U.S. Department of Justice, Bureau of Justice Assistance, Jan. 2016, csgjusticecenter.org/wp-content/uploads/2014/08/SCA_Fact_Sheet.pdf; Office of Management and Budget. Budget of the U.S. Government: A New Foundation for American Greatness: Fiscal Year 2018. U.S. Government Printing Office, 2018, www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/budget.pdf; “ACLU Comment on Trump Budget.” American Civil Liberties Union, 23 May 2017, www.aclu.org/news/aclu-comment-trump-budget.

61 As to prisons overall, the evidence is somewhat mixed, though on balance, crimogenic effect seems indicated. While firm empirical evidence is not yet available, the anecdotal evidence suggests the existence of at least some crimogenic effect, depending on circumstance. E.g., Pritikin, Martin H. “Is Prison Increasing Crime?” Wisconsin L. Rev., volume 2008, no. 6, at Part III (speculating a rough 7% crime increase due to prisons versus hypothesized carceral-alternative forms of punishment); Touré. “A Former Inmate Talks About How Prisons Manufacture Criminals.” Vice. 8 Sep. 2015 (interviewing former criminal who has become a New School professor and whose answer to “is prison crimogenic” was a flat “yes”).

62 Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626.

63 Brown v. Plata, 563 U.S. 493 (2011) at Part 1; see also Executive Department State of California. A Proclamation by the Governor of the State of California. www.cdcr.ca.gov/News/docs/3JP-docs-01-07-13/Terminating-Prison-Overcrowding-Emergency-Proclamation-10-4-06.pdf (describing conditions in 2000s, but revoking state of emergency); Warren, Jenifer. “State Prison Crowding Emergency Declared: Schwarzenegger’s Move Could Allow Forcible Transfers of Inmates to Out-of-State Lockups.” Los Angeles Times, 5 Oct. 2006, articles.latimes.com/2006/oct/05/local/me-prison5.

64 “Governor Uses Executive Authority to Relieve Prison Overcrowding, Proclaims Emergency to Allow Inmate Transfer.” CDCR News, 4 Oct. 2006, /news.cdcr.ca.gov/news-releases/2006/10/04/governor-uses-executive-authority-to-relieve-prison-overcrowding-proclaims-emergency-to-allow-inmate-transfer/; “Judge Blocks Prisoner Transfers Out of California.” Reuters, 20 Feb. 2007, www.reuters.com/article/us-california-prisons-idUSN2021238220070220.

65 Brown v. Plata, 563 U.S. 493 (2011); Barnes, Robert. “High court upholds orders that may releases thousands of Calif. Inmates.” Washington Post, 23 May 2011, www.washingtonpost.com/politics/supreme-court-upholds-order-that-may-release-thousands-of-california-inmates/2011/05/23/AFY2ou9G_story.html?utm_term=.43f8ad728b75.

66 Worland, Justin. “What Happened When California Released 30,000 Prisoners.” Time, Oct. 8, 2015, time.com/4065359/california-prison-release-department-of-justice/.

67 U.S. Department of Justice, Civil Rights Division. “Special Litigation Section Case Summaries.” www.justice.gov/crt/special-litigation-section-case-summaries#gdoc-summ.

68 E.g., Geiger, Abigail. “U.S. Private Prison Population Has Declined in Recent Years.” Fact Tank, Pew Research Center, 11 Apr. 2017, www.pewresearch.org/fact-tank/2017/04/11/u-s-private-prison-population-has-declined-in-recent-years/. Private prisons peaked in Obama’s final term and then began a modest decline. They’re poised to resurge under Trump. Surveys, and thus data for private prisons, are usually incomplete; figures represent minimums.

69 Office of the Inspector General. Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons. U.S. Department of Justice, Aug. 2016, p. ii, oig.justice.gov/reports/2016/e1606.pdf.

70 Zapotosky, Matt. “Justice Department Will Again Use Private Prison.” Washington Post, 23 Feb. 2017, www.washingtonpost.com/world/national-security/justice-department-will-again-use-private-prisons/2017/02/23/da395d02-fa0e-11e6-be05-1a3817ac21a5_story.html?utm_term=.58b455e1ffd5.

71 Brittain, Amy and Drew Harwell. “Private-Prison Giant, Resurgent in Trump Era, Gathers at President’s Resort.” Washington Post, 25 Oct. 2017, www.washingtonpost.com/politics/with-business-booming-under-trump-private-prison-giant-gathers-at-presidents-resort/2017/10/25/b281d32c-adee-11e7-a908-a3470754bbb9_story.html?utm_term=.a5a554bcffc8; Gill, Lauren. “Trump Administration Giving Boost to Private Prison Campaign Donors, Leaked Memo Shows.” Newsweek, 30 Jan. 2018, www.newsweek.com/trump-private-prison-campaign-donors-leaked-memo-795681; Watkins, Eli and Sophie Tatum, “Private Prison Industry Sees Boon Under Trump Administration,” CNN, 18 Aug. 2017, www.cnn.com/2017/08/18/politics/private-prison-department-of-justice/index.html.

72 Zapotosky, Matt. “The Justice Department Closed This Troubled Private Prison. Immigration Authorities Are Reopening it.” Washington Post, 27 Oct. 2016, www.washingtonpost.com/world/national-security/the-justice-department-closed-this-troubled-private-prison-immigration-authorities-are-reopening-it/2016/10/27/6e52855e-9b87-11e6-a0ed-ab0774c1eaa5_story.html?utm_term=.ce7d2090ea00.

73 Sessions, Jeffrey. Memorandum for the Acting Director Bureau of Prisons. U.S. Department of Justice. 21 Feb. 2017, www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf.

74 Kaeble, Danielle, and Mary Cowhig. Correctional Populations in the United States, 2016. NCJ 251211, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Apr. 2018, table 1, www.bjs.gov/content/pub/pdf/cpus16.pdf (estimates as of Dec. 31, 2016).

75 “Meek Mill Says He ‘Would Be in Prison’ Without High-Profile Support.” CBS, 8 May 2018, www.cbsnews.com/news/meek-mill-interview-criminal-justice-reform/. Mills had a series of minor prior delinquencies, many of which were dismissed.

76 Author’s calculations; Kaeble, Danielle, and Thomas Bonczar. Probation and Parole in the United States, 2015. NCJ 250230, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, revised 2 Feb. 2017, p. 1, www.bjs.gov/content/pub/pdf/ppus15.pdf. Figures are for adults.

77 Human Rights Watch has done a series of reports on the subject, e.g., “Set Up to Fail: The Impact of Offender-Funded Private Probation on the Poor.” Human Rights Watch, 20 Feb. 2018, www.hrw.org/report/2018/02/20/set-fail/impact-offender-funded-private-probation-poor; “Profiting from Probation: America’s ‘Offender-Funded’ Probation Industry.” Human Rights Watch, 5 Feb. 2014, www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-funded-probation-industry.

78 Bearden v. Georgia, 461 U.S. 660 (1983) (holding that indigent violators may not be incarcerated without a hearing demonstrating that the violator “willfully” failed to pay); see also American Bar Association. Resolution 111-B: Proposed Resolution and Report. Aug. 2018, p. 3, www.americanbar.org/news/reporter_resources/annual-meeting-2016/house-of-delegates-resolutions/111b.html.

79 Shapiro, Joseph. “As Court Fees Rise, the Poor Are Paying the Price.” NPR, 19 May 2014, www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor.

80 RCW § 12.12.030 modified by Washington Laws of 2018, § 269; Shapiro, Joseph. Ibid.

81 The Constitution doesn’t directly speak to the presumption of innocence, but it was a long-standing feature of common law and is strongly implied by the Bill of Rights, facts the Supreme Court confirmed in 1895. Coffin v. United States, 156 U.S. 432 (1895). Meanwhile, the Eighth Amendment’s prohibition on “excessive bail” confirms the expectation that bail will be available.

82 E.g., Supreme Court of California, County of Los Angeles. “Bail Schedule for Interactions and Misdemeanors.” 2018, www.lacourt.org/division/criminal/pdf/misd.pdf (L.A. misdemeanor bail schedules); Supreme Court of California, County of Los Angeles. “Felony Bail Schedule.” 2018, www.lacourt.org/division/criminal/pdf/felony.pdf (L.A. felony bail schedules). Other jurisdictions set bail higher and lower, but these ranges are not wildly atypical.

83 Krupnick, Matt. “Bail Roulette: How the Same Minor Crime Can Cost $250 or $10,000.” Guardian, 20 Sept. 2017, www.theguardian.com/us-news/2017/sep/20/bail-disparities-across-the-us-reflect-inequality-it-is-the-poor-people-who-suffer.

84 Hood, Chauhan, P. et al. Trends in Custody: New York City: Department of Correction, 2000-2015. John Jay College. 5 Apr. 2017, fig. 27 and accompanying text, misdemeanorjustice.org/wp-content/uploads/2017/04/TrendsInCustody_FullReport.pdf; Federal Reserve Bank of St. Louis, Economic Research. “Consumer Price Indexes (CPI and PCE)” https://fred.stlouisfed.org/categories/9; author’s calculations.

85 E.g., Elkins, Kathleen. “Here’s How Much Americans at Every Age Have in Their Savings Account.” CNBC, 3 Oct. 2016 (savings accounts), www.cnbc.com/2016/10/03/how-much-americans-at-every-age-have-in-their-savings-accounts.html. See also “The Precarious State of Family Balance Sheets,” Pew Charitable Trusts, 29 Jan. 2015, pp. 1, 10–11, www.pewtrusts.org/-/media/assets/2015/01/fsm_balance_sheet_report.pdf (noting that about half of families lack liquid resources sufficient to manage about a month of normal expenses).

86 Phillips, Mary T. A Decade of Bail Research in New York City. New York City Criminal Justice Agency, Inc., Aug. 2012, Part VIII, www.prisonpolicy.org/scans/DecadeBailResearch12.pdf. The median time was 5 days, due to some long pre-disposition detentions; most defendants are not detained. The bail situations for felonies is much more stringent and arraignment times longer.

87 Siddique, Haroon. “Duane ‘Dog the Bounty Hunter’ Chapman Barred from UK: US TV Presenter’s Celebrity Big Brother Appearance in Doubt after He Is Denied Visa Over 1976 Murder Conviction.” Guardian, 12 Aug. 2012, www.theguardian.com/world/2012/aug/12/duane-dog-bounty-hunter-uk; “Bounty Hunter Duane ‘Dog’ Chapman Arrested.” Associated Press, 21 Sept. 2006, TODAY, www.today.com/popculture/bounty-hunter-duane-dog-chapman-arrested-2D80555484. Due to state law quirks, Dog’s legal conviction for first-degree murder arose from his factual status as an accessory.

88 Cohen, Thomas H. and Kyckelhahn, Tracey. Felony Defendants in Large Urban Counties, 2006. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 26 May 2010, p.1 and Table 11. www.bjs.gov/index.cfm?ty=pbdetail&iid=2193.

89 Dobbie, Will, et al. “The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges.” NBER Working Paper No. 22511, August 2016, www.nber.org/papers/w22511.pdf.

90 Different cases feature variations on these basic types—e.g., in contract law, there’s restitution (forfeiting gains/making whole) and quantum meruit (a quasi-contractual remedy to give a plaintiff fair compensation for services rendered). But the basic taxonomy is the same.

91 For punitives, the exact standard of proof varies by jurisdiction. Only Colorado requires proof beyond a reasonable doubt; thirty states require “clear and convincing evidence” (a looser standard) while the remainder use the “preponderance of the evidence standard” (the lowest standard, requiring only that it be more likely than not that a defendant is liable). Note that while some empirical research suggests that jurors do not seem to make heavy distinctions between the standards of proof for punitives, judges, litigants, and the law most certainly do. Woody, William Douglas, and Greene, Edie. “Jurors’ Use of Standards of Proof in Decisions about Punitive Damages.” Wiley Online Library, DOI: 10.1002/bsl.2027, www.uccs.edu/Documents/egreene/WoodyGreene%20Standards%20of%20proof%20punitive%20damages.pdf.

92 Statutes of Westminster (II), Gloucester, and Merton; for subsequent developments, see Wilkes v. Wood (1763) 98 Eng. Rep. 489, 489; (1763) Lofft 1 (Lord Pratt CJ).

93 Scholars have questioned the degree to which “insults” were really non-compensable save through punitive damages, but this is a question of degree: punitives were awarded for insults where compensation would be impossible or inadequate.

94 The critics were misguided about securities, but not necessarily things like tobacco and asbestos litigation.

95 Winter v. NRDC, 555 U.S. 7, Part III.A (2008) (citations omitted). Depending on the commentator, Winter either clarified or raised the bar on the “irreparable harm” requirement, from the “possibility” of harm to the “likely” harm. Pretty clearly, harm is always possible, and courts had always required more than mere possibility, and something closer to a “pretty likely” standard.

96 Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F. Supp. 879, 833 (D.D.C. 1971) (requiring $1 security). See also, e.g., Fed. R. Civ. Pro. 65 (security). See also, e.g., N.C. R. Civ. Pro. 65; 231 Pa. Code Rule 1531.

97 Winter v. NRDC, 555 U.S. 7 (2008) (Ginsburg, J., dissenting).

98 The quasi-judicial bodies in agencies also have versions of these powers.

99 Brown v. Board of Education II, 349 U.S. 294, 301 (1955). “All deliberate speed” was almost certainly ambiguous by intention.

100 Eisenhower, Dwight. “The President’s News Conference.” 19 May 1954. The American Presidency Project, www.presidency.ucsb.edu/ws/index.php?pid=9892.

101 Fines could be satisfied out of the Judgment Fund, which exists to pay routine judgments and settlements against the executive. Until 1996, the Fund was administered by GAO, a highly independent and integrity-minded department, which opined that the Fund could not be used to pay penalties (including most contempt fines). Since then, Treasury has run the Fund. Treasury has not issued similar guidance, and is a much more politicized entity than GAO; the possibility of shenanigans is thus much greater.

102 Much would depend on how courts interpret 5 U.S.C. § 702, which waives immunity for relief other than “money damages.” Fines are “money,” but they aren’t exactly “money damages,” because they aren’t compensatory, but coercive/penal.

103 Krock, Arthur. “In the Nation: The Tangled Dollar Steamship Case.” New York Times, 22 May 1951, timesmachine.nytimes.com/timesmachine/1951/05/22/89441278.html?action=click&contentCollection=Archives&module=ArticleEndCTA&region=ArchiveBody&pgtype=article&pageNumber=30.

104 Land v. Dollar, 341 U.S. 737, 749-750 (1951) (Jackson, J., withholding assent).

105 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

106 Rothman, Lily. “The Primary Election that Put New Hampshire on the Political Map.” Time, 9 Feb. 2016, time.com/4204347/new-hampshire-primary-history/; “Obituary: Vinson Excelled in Federal Posts,” New York Times, 9 Sept.1953, archive.nytimes.com/www.nytimes.com/learning/general/onthisday/bday/0122.html.

107 For a good treatment of judicial contempt showdowns, see Parrillo, Nicholas R. “The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power” Harvard Law Review, vol. 131, no. 3, pp. 685–794, Jan 2018, harvardlawreview.org/wp-content/uploads/2018/01/685-794_Online-1.pdf.

Chapter 13

1 Richard Nixon, Interview by David Frost 1977. Clip available at www.youtube.com/watch?v=HiHN3IJ_j8A. For a transcript, see Street Law, Inc., and The Supreme Court Historical Society. “Nixon’s Views on Presidential Power: Excerpts from a 1977 Interview with David Frost.” Landmark Cases, landmarkcases.org/en/Page/722/Nixons_Views_on_Presidential_Power_Excerpts_from_a_1977_Interview_with_David_Frost. Nixon was speaking about more than just the Watergate break-in during Frost’s interview.

2 Shear, Michael D., et al. “Trump, in Interview, Moderates Views but Defies Conventions.” New York Times, 20 Jan. 2018, www.nytimes.com/2016/11/22/us/politics/donald-trump-visit.html.

3 House Rule XII, clause 7(c). For an example form, see rules.house.gov/sites/republicans.rules.house.gov/files/115/PDF/Constitutional%20Authority%20Statement%20Form.pdf. The Authority Statement may refer to any part of the Constitution granting Congress its powers, but that’s usually Article I. There’s no required level of specificity, but members often do point out the relevant clause. Versions of this have been used by several Congresses.

4 Declaration of Independence.

5 Like all breakaway movements, the legal status of Catalan independence is subjective. But the apparatus of election interference, paramilitary deployment, political arrests, sedition charges, and so on does not encourage.

6 Civil Contingencies Act 2004, Chapter 36, part 2, §§20, 23(5). The CCA’s predecessors, the Emergency Powers Acts (of various years, mostly germinated as a result of the World Wars and Irish troubles), were hardly more reassuring, but their timing indicates a need that greater than that which occasioned the CCA.

7 Publius (James Madison). The Federalist Papers—No. 10. 1787. Congress.gov, www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-10.

8 Yoo, John. “On Presidential Power.” WritersReps.Com, 2008, www.writersreps.com/feature.aspx?FeatureID=152. See also Yoo, John. “Presidential Greatness and Constitutional Power.” Frank G. Raichle Lecture Series on Law in American Society 305 (2007) (providing a more nuanced articulation). Yoo’s longer pieces contradict his short-form pieces on some points.

9 Yoo, John. “Executive Power Run Amok.” New York Times, 20 Jan. 2018, www.nytimes.com/2017/02/06/opinion/executive-power-run-amok.html.

10 Sullivan, Andy. “Even Torture Memo Author John Yoo Thinks Rectal Feeding Was Illegal.” Huffington Post, 14 Dec. 2014, www.huffingtonpost.com/2014/12/14/john-yoo-torture-report_n_6323360.html.

11 Report of the Senate Select Committee on Intelligence: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program. U.S. Senate, S.R. 113–228, pp. 12–13, 9 Dec. 2014, www.intelligence.senate.gov/sites/default/files/documents/CRPT-113srpt288.pdf; see also “Statement by the President: Report of the Senate Select Committee on Intelligence.” Whitehouse.gov, 9 Dec. 2014, obamawhitehouse.archives.gov/the-press-office/2014/12/09/statement-president-report-senate-select-committee-intelligence (President Obama’s gloss in the same vein at pp. 12–13 of the unified PDF).

12 At least after 300 BC, when it was made clear that the right of provocatio under lex Valeria continued during dictatorship. This is where Schmitt’s distinction between commissarial and sovereign dictatorship becomes important.

13 Verfassung des Deutschen Reiches, art. 48 (usually called the Weimarer Verfassung, and hereinafter, “Weimar Constitution”). Coupled with Article 25, the president could also engineer a legislative dissolution.

14 The event is referred to as the Preußenschlag.

15 Compare Basic Law, arts. 68, 80–81, 91 (requiring presidents to work with legislators to invoke emergency powers and limiting their exercise) with Weimar Constitution art. 48 (providing near-unilateral presidential power). The new Basic Law had to be ratified by the Allies and has never been ratified in a normal sense (details social contract theorists strive to overlook) and was, in turn, imposed on East Germany during unification (another matter politely swept under the rug, with Habermas supplying the vocal exception), and its civil liberties do not extend unequivocally (Nazis are functionally banned, a democratic limitation more than compensated for in pragmatic terms). But this was a reasonable price for undoing the legacy of Article 48. Occupation Statute (Besatzungsstatut) arts. 4–5, repealed by the Treaties of Paris 1954 (Allied approval); Basic Law, art. 21(2) (parties). Any party that threatens Germany’s democratic order may be banned by Germany’s senior jurists, but in 2016, German courts held that the threat had to be concrete and refused to disband the NDP. Scholars quibble if the Basic Law is technically a “constitution,” but this is an academic detail. It may be plausibly argued that consent to the Basic Law occurred during reunification, because the Basic Law was a condition of the deal, though as Habermas notes, it’s not like the GDR had much choice.

16 U.S. Statutes At Large, vol. 12, ch. LXIII, § 3 (1861).

17 Habeas Corpus Suspension Act of 1863 (providing an indemnity against Lincoln’s prior actions and authorizing suspension under Congress’s authority).

18 Lincoln, Abraham. Memorandum on Possibility of Not Being Reelected. 23 Aug. 1864. Library of Congress, The Abraham Lincoln Papers, memory.loc.gov/cgi-bin/ampage?collId=mal&fileName=mal1/354/3549600/malpage.db&recNum=0 (noting that the chances of reelection were “exceedingly bad”). Lincoln, rather oddly, sealed up the memo and had the Cabinet sign it.

19 Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Opp. Att’y Gen. 484 (1940). The memo was by, of all people, Robert Jackson.

20 UN Security Council Resolution 84 (1950); see also Authority to Use Military Force in Libya, 35 Op. O.L.C. 12 (2011), www.justice.gov/olc/opiniondocs/authority-military-use-in-libya.pdf.

21 Some have questioned whether the Act is itself valid or useful. The Act cannot supersede the Constitution’s declare-or-don’t provisions about war, so some scholars have tried to rescue the act as merely providing a definition of “war.” If so, the Act is Constitutional, but mostly useless. I leave out questions involving UN treaties, self-defense, and war (though I emphatically do not agree that international treaties can “amend” the Constitution).

22 E.g., Obama, Barack, and Speaker of the House of U.S. Representatives. Letter from the President—War Powers Resolution Regarding Iraq. 8 Sept. 2014, obamawhitehouse.archives.gov/the-press-office/2014/09/08/letter-president-war-powers-resolution-regarding-iraq.

23 U.S. Constitution, art. II, § 3.

24 Garvey, Todd. Presidential Signing Statements: Constitutional and Institutional Implications. RL33667, Congressional Research Service, 4 Jan. 2012, p. 1, fas.org/sgp/crs/natsec/RL33667.pdf (hereinafter “Garvey Study”).

25 Garvey Study, p. 2 (citations omitted).

26 Ibid.

27 Ibid. at Summary. The Truman figure derives from UCSB’s American Presidency Project.

28 Ibid.

29 Ibid. passim; see also Da Costa v. Nixon, 55 F.R.D. 145 (E.D.N.Y 1972) (stating that no executive statement denying efficacy of legislation could be valid).

30 “Obama 2008: Bush Used Signing Statements to ‘Accumulate More Power,’” Real Clear Politics,18 Apr. 2011, www.realclearpolitics.com/video/2011/04/18/obama_2008_bush_used_signing_statements_to_accumulate_more_power.html; Meckler, Laura. “Obama Shifts View of Executive Power.” Wall Street Journal, 30 Mar. 2012, www.wsj.com/articles/SB10001424052702303812904577292273665694712. While Obama used signing statements with comparatively less frequency, a few statements did have substantial implications.

31 Woolley, John T. “Presidential Signing Statements: Frequently Asked Questions.” The American Presidency Project, www.presidency.ucsb.edu/signingstatements.php?year=2017&Submit=DISPLAY; author’s calculations.

32 The ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine. American Bar Association, Aug. 2006, p. 5, www.americanbar.org/content/dam/aba/publishing/abanews/1273179616signstatereport.authcheckdam.pdf. The ABA’s opinion is mostly confined to statements that suggest that legislation is unconstitutional, might not be enforced, etc. See also supra note 29.

33 U.S.C. § 530D (2002).

34 Bush, George W. “Statement on Signing the 21st Century Department of Justice Appropriations Authorization Act.” 2 Nov. 2002. The American Presidency Project, www.presidency.ucsb.edu/ws/index.php?pid=73177.

35 Ibid.

36 Clinton v. City of New York, 524 U.S. 417 (1998). The legal grounds for attacking signing statements would be different, but the structural constitutional objections would overlap. See also supra note 29.

37 The executive can always piggyback onto the inevitable third-party lawsuits that spring up after any major piece of legislation. And there have been cases—one even entitled United States v. United States—where the executive sues itself, though most of these cases involved a normal agency litigating against an “independent” agency.

38 Alito, Jr., Samuel. Using Presidential Signing Statement to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of Enacting Law. Department of Justice, Office of the Deputy Assistant General, Office of Legal Counsel, 5 Feb. 1986 (emphasis added), www.archives.gov/files/news/samuel-alito/accession-060-89-269/Acc060-89-269-box6-SG-LSWG-AlitotoLSWG-Feb1986.pdf.

39 Presidents usually cite Article II on this point.

40 Gallup, Inc. “Presidential Job Approval Center.” news.gallup.com/interactives/185273/presidential-job-approval-center.aspx.

41 University of California—Davis Center for the Study of Human Rights in the Americas. “List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba, January 2002–May 2006.” Prisoners Transferred into Guantanamo (DoD Documents), 2018, humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/prisoner-testimonies/prisoners-transferred-into-guantanamo-dod-documents (noting 759 prisoners detained from 2001 to 2006; more arrived after the study period). The American was Yasser Hamdi.

42 Brief of Senators Graham and Kyl as Amicus Curiae in Support of Respondents (Hamdan v. Rumsfeld). June 2006, www.scotusblog.com/archives/Graham%20Brief.pdf; Hamdan v. Rumsfeld, 548 U.S. 557, n.10 and generally (2006).

43 Pub. L. 109-148 § 1004(a).

44 Bush, George W. “Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006.” 30 Dec. 2005. The American Presidency Project, www.presidency.ucsb.edu/ws/index.php?pid=65259. The title notwithstanding, the appropriations act contained the Detainee Treatment Act.

45 Pub. L. 109-364, repealed in relevant part by Pub. L. 110-181.

46 U.S.C. § 252. The president must determine that a rebellion or “obstruction” exists before invoking this provision.

47 Silva, Daniella. “Border Patrol Agent Detains Woman for Speaking Spanish at Montana Gas Station.” NBC News, 21 May 2018, www.nbcnews.com/news/latino/border-patrol-agent-detains-women-speaking-spanish-montana-gas-station-n876096. See also supra Chapter 10 on racial disparities in policing.

48 Library of Congress. Executive Power—Magna Carta: Muse and Mentor. www.loc.gov/exhibits/magna-carta-muse-and-mentor/executive-power.html.

49 Garvey, Todd. “Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments.” Congressional Research Service. 15 Dec. 2014, p. 25, https://fas.org/sgp/crs/secrecy/R42670.pdf (citation omitted).

50 “Starr Subpoenas Clinton to Appear Before Grand Jury.” CNN, 25 July, 1998, www.cnn.com/ALLPOLITICS/1998/07/25/clinton.subpoena/; for an extremely useful chronology of the Clinton-Lewinsky saga, see “A Chronology: Key Moments in the Clinton-Lewinsky Saga.” CNN, 1998, www.cnn.com/ALLPOLITICS/1998/resources/lewinsky/timeline/. The agents claimed a derivative “protective privilege.”

51 The Bush II and Obama Administrations also invoked executive privilege, but mainly to frustrate Congress and in cases where the stakes were lower or procedural quirks dissolved the crisis by themselves.

52 See generally Garvey, Todd. Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments. R42670, Congressional Research Service, p. 1, fas.org/sgp/crs/secrecy/R42670.pdf.

53 Garvey, Todd. Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments. R42670, Congressional Research Service, p. 21, fas.org/sgp/crs/secrecy/R42670.pdf.

54 Judicial Watch Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004).

55 Eisenhower, Dwight. “Proclamation 3221—Law Day, 1958.” 3 Feb. 1958. The American Presidency Project, www.presidency.ucsb.edu/ws/index.php?pid=107097.

56 U.S.C. § 113. For a chronology see “What Is Law Day? A Primer.” Before the Bar, American Bar Association, 1 May 2017, abaforlawstudents.com/2017/05/01/law-day-primer/.

Conclusion

1 “Justice Louis D. Brandeis.” Louis D. Brandeis Fund for Social Justice, Brandeis University, https://www.brandeis.edu/legacyfund/bio.html.

2 Compare The Evolving Landscape of Crime and Incarceration. Greenberg Quinlan Rosner Research, 19 Apr. 2018, p. 3, storage.googleapis.com/vera-web-assets/inline-downloads/iob-poll-results-summary.pdf (focusing on criminal justice system) and 43% Say U.S. Justice System Unfair to Most Americans. Rasmussen Reports, 26 Mar. 2014, www.rasmussenreports.com/public_content/archive/mood_of_america_archive/supreme_court_ratings/43_say_u_s_justice_system_unfair_to_most_americans (justice system generally, with bare plurality disagreeing that it is “fair” to most Americans and a majority disagreeing that it is fair to the poor) with M/A/R/C Research. Perceptions of the U.S. Justice System. American Bar Association, 1999, www.americanbar.org/content/dam/aba/publishing/abanews/1269460858_20_1_1_7_upload_file.authcheckdam.pdf.

3 “New Nationwide Poll: Most Voters Distrust U.S. Legal System.” Common Good. 26 June 2012, https://www.prnewswire.com/news-releases/new-nationwide-poll-most-voters-distrust-us-legal-system-160429725.html. The Common Good is non-partisan (enough that the Atlantic did a brief entry on this poll), but CG’s founder has long agitated against the legal system and some of the survey’s questions were a touch leading. Nevertheless, the poll largely accords with findings in other survey work (albeit slightly differently worded). E.g., supra note 2 and “The State of State Courts: 2017.” https://www.ncsc.org/~/media/Files/PDF/Topics/Public%20Trust%20and%20Confidence/State-of-the-State-Courts-2017-slides.ashx.

4 See Ginsburg, Tom, et al. “The Lifespan of Written Constitutions.” University of Chicago Law School. 15 Oct. 2009, https://www.law.uchicago.edu/news/lifespan-written-constitutions (mean and Western Europe). See also Elkins, Zachary, Tom Ginsburg, and James Melton The Endurance of National Constitutions. Cambridge University Press, 2009, pp. 126–29 (noting median survival period of nineteen years). We can, and the cited authors do, debate the meaning of “constitution,” but if anything, their calculations err toward generosity. EU treaties radically changed constitutional norms in member states. Even Britain (whose unwritten constitution falls outside the survey’s stated parameters), despite having an ancient constitution, experienced profound change after 1900—not only in its relationship to the EU, but as whole chunks of empire were added, subtracted, or had their relationship with the British sovereign radically modified (as happened with Australia, Canada, New Zealand, and Ireland—the last a previously integral part of the UK, and, to a lesser extent, Scotland).

5 For scholars with a Guinness Book mentality, San Marino’s Statutes of 1600 might qualify as the oldest written constitution in the world, but at 24 square miles, with no currency of its own, and more cars than people, San Marino falls into the category of irrelevant oddities. The Vatican’s present constitution arguably dates no further back than the Lateran Treaties and is anyway under revision by Pope Francis.

6 “Cook Co. Public Defender Says the Dept. Cannot Afford More Cuts.” CBS Chicago, 26 Oct. 2017, chicago.cbslocal.com/2017/10/26/cook-co-budget-cuts/; see also Campanelli, Amy P. “Letter to Mayor Daley.” Cook County Public Defender, 20 Oct. 2017, https://www.cookcountyil.gov/sites/default/files/public_defender_-_finance_response.pdf. Kapos, Shia. “Ken Griffin Showcases $500 Million Art Purchases at Art Institute.” Crain’s Chicago Business, 18 Feb. 2016, www.chicagobusiness.com/article/20160218/BLOGS03/160219824/ken-griffin-showcases-500-million-art-purchases-at-art-institute.

7 Jay’s comments were made during Georgia v. Brailsford, 3 Dall. 1 (1794), excerpts from proceedings of which are available at The University of Chicago Press. “Amendment VII, Document 14: Georgia v. Brailsford (3 Dall. 1 1794).” The Founders’ Constitution, 2000, press-pubs.uchicago.edu/founders/documents/amendVIIs14.html.

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