On Prosecutors (Part 2): Young Prosecutors’ Syndrome

“I want to give the death penalty when somebody steals a bag of potato chips!”

 “At first it was everybody is guilty, I don’t care; if they are here they are going to jail.”

“[W]hen you come out of law school and are new prosecutors, you want everyone to do the max.”

 “Oh, a crack rock! Oh my god, they had a crack rock!”

These are some of the statements attributed to young prosecutors (or veteran prosecutors describing novices) in “The Cure for Young Prosecutors’ Syndrome,” an article based on interviews two prosecutors-turned-professors conducted with 217 state prosecutors in eight offices. Such intemperate remarks might be a sign that the speaker is suffering from the eponymous malady. YPS, according to the authors, is a serious medical condition worldview characterized by (1) a “collection of beliefs and attitudes about the importance of every case,” (2) “the constant quest for trials,” and (3) “aggressive posturing with defense attorneys.” Phrases used to describe the eager novitiates: “hardass,” “balls-to-the-wall,” “gung-ho, got to lock them up!” “guns-a-blazing,” “goes for the jugular,” “full of righteousness and vinegar.”

The cure for YPS is experience. “When describing their professional development over the course of a career, prosecutors frequently point to a growing sense of proportionality or balance, based on an appreciation for the larger context of criminal prosecution.” Veteran prosecutors, says the authors, appreciate that the world is gray rather than black and white, understand the human dynamic of criminal justice, are open to proportionality in sentencing, don’t doggedly pursue trials, and value the contributions of defense bar. The veteran “image of the prosecutor’s role is more textured than the one rookies possess. They are more cognizant and accepting of the limits of the criminal justice system and are more willing to venture beyond the pure advocacy role to achieve results.”

Three questions I had when reading this article:

  1. Is YPS really a thing?

I highlight this piece because its findings don’t really square with my own experience as a prosecuting attorney. Just one example (this isn’t an anonymous blog so I won’t get into the internal dynamics of my office): “When you look at [a case] as a young prosecutor, you look at it as a piece of paper, as a file. You don’t ever put a face behind it.” When I was new to the job, I spent good bit of my day negotiating plea agreements face-to-face with pro se defendants. Every file in fact had a face, and I was encouraged to let defendants tell their side of the story before making a plea offer. The first commandment of interacting with defendants was treat everyone with respect.

  1. If YPS does exist, what causes it?

Perhaps the noted behavior patterns, to the extent they exist, have nothing to do with prosecutors in particular. Should the actual diagnosis be Young Lawyers’ Syndrome? What young lawyer doesn’t crave experience (“the constant quest for trials”), desire the respect of more experienced opposing counsel (“aggressive posturing”), and still cling to some of the idealism that drove us to law school in the first place (“every case is important”)? Young prosecutors happen to have more opportunities than many other young lawyers to try cases, interact directly with opposing counsel, and make a show of how important they believe a case is. Maybe that’s the only reason it’s YPS, not YLS.

  1. If YPS exists, is it all bad?

“If you had a perfect prosecutor you wouldn’t need a court system. You wouldn’t need defense attorneys,” said one prosecutor interviewed. There’s a tiny kernel of truth in this sentiment, but it underplays that our system is an adversarial one, and that prosecutors are advocates. A supervisor at my office told me about a time when, as a young prosecutor, he was going to second-chair a murder trial. On the morning of trial the lead prosecutor asked him if to switch places and assume first-chair duties. My supervisor was taken aback, but understood the logic: he was younger and his passion for the case was more evident. The lead prosecutor apparently thought his enthusiasm would give the team a better chance of victory. And let’s face it, litigation isn’t afternoon tea. To have a sense of balance and proportion is important for a prosecutor, but a prosecutor must also have stamina and conviction to weather long, emotionally-fraught battles.

When Defense Counsel Misses Part of a Trial: United States v. Roy

As Judge Ed Carnes recounts at the start of the 281-page ruling of the en banc Eleventh Circuit in United States v. Alexander Roy,

The error in Roy’s trial occurred when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial. He missed only a small part of the testimony of the 12th of 13 government witnesses. Counsel was out of the courtroom for only seven minutes of a trial that lasted 1,884 minutes or 31.4 hours (not counting recesses and jury deliberations). That is less than one half of one percent of the trial time. During his absence counsel missed only 18 answers out of a total of approximately 2,745 answers that were given by government witnesses during the trial. That is less than one percent of the total testimony against Roy. And the little testimony that counsel had missed was repeated in even more detail by the same witness after counsel returned to the courtroom.

In light of this error—which the parties agree was a violation of Roy’s Sixth Amendment right to counsel—can Roy’s convictions for five sex-related crimes involving minors stand?

The answer hinges on the scope of the harmless error rule and the Supreme Court’s decision in United States v. Cronic, 466 U.S. 648 (1984). No one disputed that Roy’s trial was tainted by a violation of his right to counsel. What, then, to do about the error? Does the harmless error rule apply—meaning the conviction satisfies the Constitution so long as the error can be considered harmless (i.e., it had no bearing on the trial’s outcome). Or is this “one of those rare cases where the presumption of prejudice applies” (i.e., structural error, which triggers a presumption that the error affected the trial’s outcome)? The presence of structural error requires automatic reversal of a conviction. Cronic, 466 U.S. 648 (1984), which the court frames as one of several exceptions to the harmless error rule, held that structural error occurs “when a criminal defendant has been completely denied the right of counsel for a critical stage of trial.” (Other examples of structural error include an erroneous reasonable doubt instruction, the denial of the right to self-representation, and the denial of the right to a public trial.)

In Roy, the Eleventh Circuit held that defense counsel’s brief absence from the courtroom should be reviewed for harmless error, not structural error. It wasn’t persuaded that this circumstance fell under the Cronic exception to the harmless error rule.

The Cronic decision limited the presumption of prejudice to cases where defense counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing” in the trial or where there is “the complete denial of counsel” at a “critical stage of [the] trial.” Roy has never contended, and could not contend, that his counsel entirely failed to subject the prosecution’s case to meaningful testing. Defense counsel was present during 99.6 percent of Roy’s trial, and he vigorously represented Roy. Among other things, he cross-examined nine of the government’s 13 witnesses, including [a deputy] whom he cross-examined for 45 pages of the trial transcript. Counsel also called his own competing expert witness in an attempt to rebut [the deputy’s] testimony. And he gave a vigorous closing argument.


If 18 answers from one of 13 witnesses against a defendant were enough to be a critical stage, what would not be? Would a single question and inculpatory answer from a government witness be enough to constitute a critical stage of the trial? Under Roy’s extreme view it would be. The dissenting opinion agrees with that view. If counsel misses even one inculpatory answer from a government witness, in the dissent’s view that’s it, irreparable error has been committed no matter what happens in the rest of the trial. But it cannot be the law that every inculpatory answer given by every government witness (or defense witness on crossexamination) is a separate stage of the proceedings against the defendant. Trials don’t consist of thousands of critical stages.

The court went on to conclude that the error was a harmless one.

Accusing the majority of a “mechanical, minutes-and-seconds approach,” the dissent argues that the error implicated Cronic, and qualified as structural error because of the impossibility of determining whether the error harmed the defendant.

The defendant in this case was denied his right to counsel while the jury heard directly inculpatory evidence, depriving him of a core constitutional guarantee. As the jury watched, the court departed from the traditional trial framework of a defendant having counsel by his side while the prosecution offers evidence against him. Under these circumstances, the denial of counsel yields strong potential prejudice and the effects of the error are “necessarily unquantifiable and indeterminate”—gauging the effect requires speculation. Thus, the circumstances in this case “unquestionably qualif[y] as structural error.”

On precedent and good sense, I think the Eleventh Circuit got this one right. The dissent, I believe, demands something too close to perfection. As the majority emphasizes, our Constitution is a “document designed to govern imperfect people” and requires a fair trial, not a perfect one.

And while the dissent envisions itself as guardians of the “integrity of our system” and a defendant’s right to a fair trial, I’m not so sure. As the late Harvard professor William Stuntz explained in The Collapse of the American Criminal Justice System, procedural strictness doesn’t necessarily advantage criminal defendants. That is, when jury verdicts readily give way to mandated do-overs because of procedural violations, the trial system becomes more expensive, more burdensome, and, because private litigants and the government have limited resources, rarer. The more that our system is one of plea bargaining and not trials, the more power prosecutors have. Moreover, I agree with the majority that undoing Roy’s conviction would undermine the integrity of the judicial process in the public’s eyes, not the other way around.

On Prosecutors (Part I): The Darth Vader of our Criminal Justice System?

In “Reassessing Prosecutorial Power Through the Lens of Mass Incarceration,” an article worth reading if you’re interested in how justice system actors function, author Jeffrey Bellin begins with a story from his days as a line prosecutor. Among the various diversion programs his office employed was the “Stet Docket,” where criminal cases were held in abeyance for six months or a year. If at the end of the term the defendant hadn’t reoffended, the office dismissed the case. As Bellin recounts, the Stet Docket was something overloaded defense attorneys and line prosecutors could both appreciate. To ensure that the Stet Docket wasn’t abused, a line prosecutor needed a supervisor’s approval before diverting a case there. “As supervisors said yes sparingly, one prosecutor became something of a legend simply because he stopped asking. Risking his job, he covertly placed all manner of cases on his own personal Stet Docket, creating a parallel criminal justice universe alongside the formal process available to other defendants.”

For Bellin, this story has a lot to say about the nature of prosecutorial discretion. That is, the power of prosecutors is less the power to hold criminals accountable than it is “the unreviewable ability to (discretely) open exits from an otherwise inflexible system.” Bellin’s is a more sanguine take on prosecutorial discretion than the standard academic view, which stigmatizes prosecutors as shadowy and near omnipotent officials hell-bent on getting convictions and seeing stiff sentences imposed. As Bellin writes, “Prosecutors are the Darth Vader of academic writing: mysterious, powerful and, for the most part, bad.”

Bellin is responding to the work of John Pfaff (professor, Fordham), who in February released a highly-anticipated book, Locked In: The True Causes of Mass Incarceration—and How to Achieve True Reform. Pfaff’s research on the causes of America’s incarceration boom (i.e., how did the prison population in the United States balloon from 200,000 inmates in 1973 to 1.5 million in the 2000s?), has been hailed as groundbreaking, and seems poised to influence the direction of criminal justice reform. His work has received a degree of public influence most law professors can only fantasize about: It has been featured in the New Yorker, the Wall Street Journal, and the New York Times; Barack Obama cited Pfaff’s research in his recent law review article; and it has found an audience with a prominent member of the federal judiciary.

Bellin’s article questions a key tenet of Pfaff’s work: that prosecutors, not judges or legislators, “have been and remain the engines driving mass incarceration.” Bellin points out a host of weaknesses in Pfaff’s research, casting doubt on the data Pfaff relies on to bolster his assessment. Bellin’s article also lays out a persuasive assessment of prosecutorial power that undermines the trope of the Zeus-like DA. One key power of prosecutors is their ability to file criminal charges against an individual or entity. Bellin observes that the charging power is limited and that charging decisions reflect the behavior of other actors within the justice system:

[P]rosecutorial charging decisions are strongly susceptible to the powerful influence of other criminal justice figures. This is because unlike prosecutorial dismissals, prosecutorial charging is regulated. . . . As everyone recognizes, felony charges require either an indictment by a grand jury or a probable cause finding by a judge. In addition, ethics rules prohibit the prosecution of a charge that is not supported by probable cause.

More importantly, there are powerful, indirect checks on charging. Prosecutors only care about charges to the extent they lead to convictions. As a result, prosecutors charge with an eye on future proceedings. This means that, in light of a clear increase in the harshness of other criminal justice actors, we would expect charges to become more severe over the past four decades without any change in prosecutorial aggressiveness. For example, if legislatures broadened sexual assault offenses, victims became more likely to report, police became more likely to arrest, juries became more likely to convict, and judges became more likely to sentence (or any one of those things), prison commitments for those crimes would increase, without a change in prosecutorial aggressiveness. Prosecutors would be acting as they always have, assessing cases based on the likely outcome – i.e., the actions of other, more powerful, criminal justice actors – and charging accordingly.

Bellin also suggests that “overcharging” has little effect on outcomes for defendants:

The prosecutor predicts what a jury and judge will do with the case in light of laws enacted by the legislature. If the prediction is flawed, defendants will (on balance) go to trial and win. Even if overcharged defendants lose at trial, or plead guilty, that alone would not lead to an incarceration increase. Judges reign at sentencing. Absent a mandatory minimum sentence . . . , the judge can ignore the prosecutor’s characterization of the criminal conduct and impose a sentence that reflects the conduct itself, rather than any inflated overcharge. All a prosecutor accomplishes by overcharging – i.e., charging an offense that a jury will reject and a judge will discount at sentencing – is an increased risk of pretrial dismissal and a defendant who insists on a trial. As a consequence, the mechanism by which increasing “prosecutorial toughness when it comes to charging people” unilaterally hikes prison populations remains elusive.

According to Bellin, the plea bargaining power—another discretionary function of prosecutors—operates under similar restraints:

While the prosecutor’s ability to offer leniency in a plea (essentially a close cousin of outright dismissal) is virtually unchecked, efforts to ratchet up severity run into a variety of obstacles. The primary check on a prosecutor’s ability to impose punishment through plea bargaining is that any plea deal requires the defendant’s agreement. The Constitution guarantees every defendant the right to reject even the most generous plea offer and proceed to trial.

Even if the defendant agrees to plead guilty, the prosecutor must overcome another obstacle before punishment is imposed, the judge. Judges approve all plea deals. If the judge believes the deal does not fairly reflect the defendant’s conduct, she can reject it – even if she belatedly makes the determination at sentencing after reviewing a presentence report. If the judge approves a deal, she typically retains final say on sentence. While some plea agreements dictate a particular sentence, others leave the sentence to the judge. In either scenario, the judge determines the ultimate sentence by implicitly approving the parties’ stipulated sentence, or explicitly selecting a sentence.

The prosecutor’s plea bargaining power is further limited by the fact that legislators, judges, and juries fill in the landscape in which plea deals are evaluated. By determining what will occur in the small percentage, but large number, of cases that go to trial, these actors guide the outcome in plea bargained cases. . . .  Studies suggest that plea deals across a large number of cases reflect a predictable discount from generally agreed-upon, likely trial outcomes.

Bellin and Pfaff share the belief that our society locks up too many of its citizens, but Bellin believes Pfaff’s proposed reforms—imposing mandatory charging and plea guidelines for prosecutors, and increasing transparency in prosecutors’ offices—will only exacerbate what they both see as a problem. As Bellin explains:

There are already a series of rules that restrict prosecutors’ ability to “impose” incarceration. Grand juries screen felony charges, petit juries determine guilt, judges impose sentences, and defendants must agree to any plea deal. Those are as powerful a set of rules as anything reformers can conjure up. The one thing existing rules don’t constrain is prosecutorial leniency, the ability to quietly open exit doors. Mandatory charging and plea bargaining guidelines would change that.

. . . Given that most of what prosecutors do out of public sight is dismiss cases, [Pfaff’s] transparency proposals are again more likely to increase rather than decrease incarceration levels. If legislators and the public had a better sense of what prosecutors are doing (i.e., dropping cases brought to them by the police), they might react by restricting that dismissal power.

Bellin makes a strong case that while prosecutors can make a severe system lenient, they can’t “unilaterally make a relatively lenient system severe.” “The point, he writes, “is that prosecutors are primarily ‘worker bees’ who toil in the system, rather than wizards bending it to their will.”

I think Bellin has it right. (Certainly, most days I don’t feel like a wizard, but rather like the merest of muggles.) Of course the takeaway shouldn’t cheapen the power prosecutors wield. There’s a good reason the rules of professional conduct hold prosecutors to higher ethical standards than other attorneys, and a prosecutor who doesn’t grasp the gravity of his role is bound to do damage. But as Bellin’s anecdote suggests, the power of the prosecutor is at its apex in its ability to open escape hatches from what the law otherwise demands.

Posner on Punishment

In back-to-back dissents last week, Richard Posner, 7th Circuit judge and America’s most-cited legal scholar, questioned the legality and wisdom of the sentences imposed on two defendants, Norvell Moore and McKinley Kelly. In Kelly v. Brown (2017 WL 1026121), the 7th Circuit declined to review the 110-year sentence Kelly is serving for two murders he committed when he was 16 years old. Under Miller v. Alabama, 132 S. Ct. 2455 (2012), mandatory life without parole for a juvenile convicted of murder is unconstitutional. Before sentencing a juvenile to life without parole for murder, a judge must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Kelly’s life-equivalent sentence complied with Miller, the court said, because the sentencing judge considered his age as a mitigating factor.

Posner would have allowed Kelly to pursue his Miller claim in the district court because the sentencing judge made only a single statement about Kelly’s age. “So cursory a statement does not evidence the deliberate reflection on Kelly’s character that would be necessary to conclude that he is ‘irretrievably depraved’ and his ‘rehabilitation is impossible.’ ” Posner cited statistics to show that Kelly, who won’t be eligible for parole until he is 70, will have effectively served a life sentence before then—the average life expectancy for juveniles sentenced to life is 50.5 years. He also cited a 2015 DOJ study demonstrating “that more than 90 percent of juvenile offenders grow out of such antisocial behavior by young adulthood and do not re‐offend after their first contact with a court—and that regardless of the sanction imposed on the child.”

Posner’s dissent in Kelly may not be noteworthy except for its publication the day after United States v. Moore (2017 WL 1018345). To frame Posner’s dissent in Moore, it’s not necessary to set the full procedural scene, which is complicated. So to make this as brief as I can: For stealing a BMW after showing the driver he was armed, Moore was charged in federal court with carjacking, using or carrying a firearm during and in relation to a crime of violence, and possession of a firearm following a felony conviction (Moore had three prior felony convictions for robbery). A jury found Moore guilty of the felon-in-possession and using-or-carrying charges, and a judge sentenced Moore to 240 months’ imprisonment (consecutive 120-month terms on each of the counts). Moore successfully appealed and at a second trial was acquitted of everything but the felon-in-possession count. A different judge sentenced Moore to 240 months—twice the 120-month term the judge has imposed for that conviction following the first trial. The 7th Circuit affirmed the sentence.

In dissent Posner argued that the retrial judge could sentence Moore to 120 months and no more. Here are a few takeaways from Judge Posner’s opinion, which urges judges to rethink the big picture of sentencing:

  • Posner suggests that a “problem with the government’s reliance on the robberies to push up the defendant’s sentence was that he’d been punished for those robberies—on what principle was he to be repunished for them?” This is an odd suggestion. It’s well-established and almost axiomatic that a defendant’s criminal history is appropriate for a judge to consider during sentencing. From habitual offender statutes to the Federal Sentencing Guidelines, which calculates an offender’s recommended sentence by reference to two axes, one of which quantifies an offender’s criminal history, the law makes an offender’s record a leading consideration at sentencing. It’s not that an offender is being repunished for past crimes—something that would violate the double jeopardy clause—but that he can be punished more severely for the present offense because he has shown that a more lenient sentence won’t adequately deter him from future crime and his past history demonstrates a high risk of reoffending, meaning he’s a danger to the community. First-time offenders aren’t treated the same as repeat offenders—and shouldn’t be.
  • Posner incongruously follows the above point by writing that a “defendant’s criminal history can of course be a relevant consideration at sentencing,” but casts doubt on whether it was important here. Again, odd. It’s reasonable to question whether a drug conviction has much bearing upon an offender’s sentencing for, say, assault or tax evasion, but Moore was previously convicted of three robberies and his present charges arose of out an alleged carjacking.

[O]ne of [Pfaff’s] concerns is the high discount rates of typical violent offenders, though he doesn’t use the phrase “high discount rates” but instead says that “those contemplating crime often don’t know how long sentences are, or even that sentences have gotten longer. More important, those who are most likely to engage in violence and antisocial behavior tend to be very present-minded. They don’t think a lot about tomorrow. What really deters them, if anything does, is the risk of getting caught in the first place: policing and arrests, not prison sentences.”

 Many violent offenders, moreover, age out of crime, often as early as their mid- to late-twenties—“by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started ‘aging out’ of crime, violent behavior in particular. … A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.” Among other alternatives to prison for dealing with violent criminals, Pfaff mentions “hot-spot policing,” which “identifies … high-crime blocks and significantly increases patrols and community involvement there [and] has produced significant results.”

 I read Pfaff’s Wall Street Journal article when it was published (somehow, because when I attempted to reread it now I can’t get around the WSJ paywall) and appreciated his recasting of the “mass incarceration” debate. While there is broad support for reducing prison terms and promoting alternatives to incarceration for drug offenders, society hasn’t had this discussion: Should we do the same for violent offenders? By inserting his influential name into the mix, Posner may jump-start that discussion among judges and attorneys.


Scalia’s Criminal Law Legacy: Fourth Amendment Edition

I just hate Fourth Amendment cases. I think those things–it’s almost a jury question, you know–whether this variation is an unreasonable search and seizure; variation 3,542. Yes, I’ll write the opinion, but I don’t consider it a plum.

So said Justice Scalia, of his distaste for search and seizure cases. It’s a striking statement when you consider the extent of Scalia’s influence on Fourth Amendment doctrine. “When it comes to search and seizure, it is now Scalia’s Court,” Professor Thomas Clancy (University of Mississippi) declared in a 2010 paper on the Fourth Amendment in the Roberts era. Search and seizure cases have also inspired some of Scalia’s sharpest prose. New Republic contributor Jeffrey Rosen adjudged Scalia’s dissent in the Fourth Amendment case Maryland v. King the Justice’s “smartest, wittiest ruling of all time” and “one of the best Fourth Amendment dissents ever.”

Katz v. Text and History

A good starting point for a study of Scalia’s search and seizure jurisprudence is Minnesota v. Carter, 525 U.S. 83 (1998). Three decades earlier Katz v. United States, 389 U.S. 347 (1967), birthed modern Fourth Amendment doctrine. Under Justice Harlan’s two-part test in Katz, the Fourth Amendment’s protections against unreasonable searches and seizures apply when the government invades a person’s “actual (subjective) expectation of privacy” and such “expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Scalia joined the Court’s opinion in Carter, applying Katz to hold that the defendants, who had been visiting another person’s apartment for a short time to package cocaine, didn’t have a legitimate expectation of privacy in the apartment. He wrote separately to explain how the Court had strayed from the Fourth Amendment’s text and historical context in the generation since Katz. The Carter Court, like the dissenting Justices, relied on Katz—i.e., by deciding whether defendants had a legitimate expectation of privacy in the apartment. Scalia believed that a straightforward application of the amendment’s language led to the same result:

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … .” [T]he phrase “their … houses” in this provision is, in isolation, ambiguous. It could mean “their respective houses,” so that the protection extends to each person only in his own house. But it could also mean “their respective and each other’s houses,” so that each person would be protected even when visiting the house of someone else. [H]owever, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to “houses” without giving it the same interpretation with respect to the nouns that are parallel to “houses”—“persons, … papers, and effects”—which would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

A review of “founding-era materials” confirmed for Scalia that the Framers understood the Fourth Amendment this way. In his view, an analysis grounded in text and history was preferable to the “fuzzy” and “self-indulgent” Katz test, which lacks a “plausible foundation in the text of the Fourth Amendment.” That “notoriously unhelpful” standard provides judges with no external guidance; and when judges lack external guidance they turn within for the answers: “[U]nsurprisingly, those ‘actual (subjective) expectation[s] of privacy’ ‘that society is prepared to recognize as reasonable,’ bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable.” (Justice Scalia had a similar problem with the Eighth Amendment’s “evolving standards of decency” test—“it is all too easy to believe that evolution has culminated in one’s own views.”)

Katz Plus

Arguably the most significant change to Fourth Amendment doctrine since Katz came in United States v. Jones, 565 U.S. 400 (2012). All nine Justices agreed in Jones that a “search” occurred when the government attached a GPS device to the defendant’s vehicle and used the device to monitor its movements. For a five-justice majority, Justice Scalia relied on the doctrine of common-law trespass, not on the Katz test. Because the government physically intruded upon private property, a search occurred, regardless of whether the owner of the vehicle had a reasonable expectation of privacy in its undercarriage. Scalia explained:

Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding.

In effect, Jones reframed the Katz test as a supplement to, not a substitute for, the common-law trespassory test. As Fourth Amendment scholar Orin Kerr (George Washington University) explained, Justice Scalia’s opinion in Jones caused a stir: “A lot of people had to rewrite treatises and casebooks and commercial outlines because everybody had understood the Katz test to be the only test in town. Not so after Jones.”

Broad on the Right

To limit this post to a digestible length, I’ve been forced to cut a number of opinions that must be studied to comprehend the scope of Scalia’s thinking and influence on Fourth Amendment doctrine. To the chopping block: (1) Scalia’s lone call in Arizona v. Gant, 556 U.S. 332 (2009) to rid the law of New York v. Belton, 453 U.S. 454 (1981), and Thornton v. United States, 541 U.S. 615 (2004), which give police broad search authority when they arrest a suspect during a traffic stop; (2) His skepticism of stop-and-frisk in Minnesota v. Dickerson, 508 U.S. 366 (1993); (3) His dissent in Prado Navarette v. California, 134 S. Ct. 1683 (2014), where he called the Court’s ruling—that an anonymous report of a single instance of careless driving rose to reasonable suspicion for a stop—a “freedom-destroying cocktail”; and (4) his privacy-favoring majority opinions in Kyllo v. United States, 533 U.S. 27 (2001) (re: thermal imaging) and Florida v. Jardines, 133 S. Ct. 1409 (2013) (re: dog sniffs).

From this plethora I’ll highlight Scalia’s tour de force dissent in Maryland v. King, 133 S. Ct. 1958 (2013). The Court held that using an oral swab to obtain a DNA sample from an arrestee did not violate the Fourth Amendment, even where there were no grounds to suspect the sample would link the arrestee to a crime. The intrusion was justified, the Court said, because DNA allowed the justice system to establish the defendant’s identity. In response, Scalia issued a heated, “let the Court be anathema” dissent:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.

As Jeffrey Rosen wrote at New Republic, “With rigor and wit, Scalia meticulously demolishes [the Court’s] made-up claim.” Scalia’s wit was also on display at oral argument, after counsel for Maryland began her address by stating, “Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.” Scalia shot back: “Well, that’s really good. I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too.” (Which triggered the sort of laughter that made Scalia the Court’s funniest justice.)

Scalia recognized the benefits of DNA science, but didn’t believe those benefits justified the Court’s position: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

He concluded:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.

To which he appended this footnote:

Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).

Narrow on the Remedy

While Scalia frequently interpreted the Fourth Amendment in ways that protected privacy and limited the government’s investigatory powers, he had a narrow conception of the exclusionary rule, which generally operates to exclude the government’s illegally-seized evidence of the defendant’s guilt from a trial. As Professor Kerr wrote:

Scalia was a strong opponent of the Fourth Amendment exclusionary rule. When the Court heard a case about its scope, Scalia’s vote was easy to predict. Scalia took the government’s side every time. His votes made him part of a conservative majority that consistently chipped away at the exclusionary rule over Scalia’s thirty years on the Court.

Scalia’s opinion in Hudson v. Michigan, 547 U.S. 586 (2006), emphasized the limits of the exclusionary rule. Because of the rule’s “substantial social costs”—to quote Justice Cardozo on the subject, “The criminal is to go free because the constable has blundered”—Scalia reasoned that the rule is a “last resort, not our first impulse” and should not be applied unless its benefit of deterring police misconduct outweigh its substantial social costs.

About the Constitution, Not Political Ideology

Of final note is that Justice Scalia’s Fourth Amendment jurisprudence, like his views on the Sixth Amendment, proves he was no ideologue. (The same can said of his colleagues, too; judges are less political and ideological than some would have us think.) In Prado Navarette and King, for instance, each of his dissents were joined by the same three justices, all of whom are considerably more liberal than Scalia (Ginsburg, Sotomayor, and Kagan). In Gant, Scalia joined Stevens’ opinion for the Court, along with Justices Souter, Thomas, and Ginsburg—to make a diverse group of three liberals and two conservatives. Similarly diverse was Scalia’s Kyllo majority, with Souter, Thomas, Ginsburg, and Breyer—a slightly different set of three liberals and two conservatives.


Scalia won and lost many of his Fourth Amendment battles by a one-vote margin. Whether his impact on the Fourth Amendment perseveres—or even grows posthumously—may depend on Judge Neil Gorsuch. As Professor Lawrence Rosenthal (Chapman University) wrote about the future of search and seizure law in the post-Scalia era, “Fourth Amendment jurisprudence is at a crossroads. If Justice Scalia’s replacement adheres to originalism, a narrow majority may continue along that path . . . . A replacement sympathetic to Justice Brandeis’s pragmatism, however, would follow a far different course.”

Scalia’s Criminal Law Legacy: The Batson Edition

If you’re a litigator, or have sat on a jury panel, you know that jury selection is really a process of deselection. Attorneys for each side challenge members of the venire to effect their removal. The remainder comprises the jury and any alternates. Our legal system recognizes two forms of challenges attorneys may raise to boot prospective jurors from the panel. The first, the for-cause challenge, is a request to dismiss a prospective juror because he or she is disqualified from service. Disqualification usually arises because the venireperson has a demonstrable bias in favor or against one of the parties. For-cause challenges are not automatic; the judge must find that the potential juror is legally disqualified from service. The other is the peremptory challenge. Each party to a trial has a limited number of peremptory strikes it can use to remove prospective jurors without having to state its reasons, without regard to jurors’ legal qualification to serve, and without having to suffer objections from the opposing party (for the most part—see below).

Five months before Scalia took his seat as an Associate Justice, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986), which held that a prosecutor violates the Equal Protection Clause by using a peremptory challenge to exclude a juror solely because that juror shares the racial identity of the defendant. Justice Thurgood Marshall hailed the 7-2 decision as “a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries.” Over the next decade, Justice Scalia led a tiny battalion intent on halting Batson’s encroachment into peremptory challenge territory. In three major cases that extended Batson’s protections, Scalia found himself on the losing side.

White defendants can challenge exclusion of a black venireperson: Powers v. Ohio, 499 U.S. 400 (1991)

Under the doctrine of stare decisis, judges generally adhere to precedent. Stare decisis is not an “inexorable command,” however—the Constitution Annotated’s list of “Supreme Court Decisions Overruled by Subsequent Decision” is 236 rulings long. When a judge concludes that a precedent is erroneous, the judge must choose to overrule the decision or follow stare decisis. In making that choice, judges consider, among other factors, how much time has passed since the precedent was handed down. The longer a precedent has survived, the more weight is given stare decisis. Today, three decades later, Batson is a fixture, probably beyond reproach. Not in 1991. Five years after Batson was decided, Scalia, joined by Justice Rehnquist (who had been among the Batson dissenters) challenged its foundations.

Scalia began his dissent in Powers by affirming that all citizens have an equal protection right not to be excluded from jury rolls on the basis of race or other irrelevant factors. “This principle,” he continued,

would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently but the same. In fact, it would constitute discrimination to exempt them from the peremptory-strike exposure to which all others are subject.

In Scalia’s view, the equal protection clause is implicated when peremptory strikes are employed systematically to exclude all members of a group from jury service, but not when the racially-discriminatory use of peremptories falls shy of systematic exclusion. Scalia acknowledged that his interpretation of equal protection principles would allow the government to strike a black juror solely because of his race, but

the stricken juror has not been “treated differently” in the only pertinent sense-that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby “stigmatize” his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities-most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious . . . that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another.

The result of Batson was the abolition of the traditional, unfettered peremptory challenge, which Scalia felt was deserving of preservation:

“[I]rrelevant” personal characteristics are by definition the basis for using [peremptory challenges]; relevant characteristics would produce recusal for cause. . . . [T]he irrelevant characteristics relied upon are frequently those that would promptly trigger invalidation in other contexts-not only race, but religion, sex, age, political views, economic status. Not only is it implausible that such a permanent and universal feature of our jury-trial system is unconstitutional, but it is unlikely that its elimination would be desirable. The peremptory challenge system has endured so long because it has unquestionable advantages. . . . [I]t is a means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible. In a criminal-law system in which a single biased juror can prevent a deserved conviction or a deserved acquittal, the importance of this device should not be minimized.

The theme running through Scalia’s dissent in Powers is that the Court’s approach is nakedly results-driven. To reach its end, Scalia argued, the Court (1) ignored “a vast body of clear statement” that defendants could not challenge the exclusion of a juror of another race; (2) invented a right that jurors have an equal protection interest not to be excluded from a jury because of their race (Batson, Scalia explained, “announced an equal protection right, not of prospective jurors to be seated without regard to their race, but of defendants not to be tried by juries from which members of their race have been intentionally excluded.”); and (3) relaxed the strictures of the third-party standing doctrine to allow a criminal defendant to challenge the violation of another person’s constitutional rights.

I’d bet that Scalia was fond of the aphorism, “The road to Hell is paved with good intentions.” While recognizing that the Court was acting on a sense of justice, and that many would see the decision as a triumph for racial justice, Scalia saw something darker. It wasn’t just that the Court had twisted the law to achieve its desired result—the result would produce real injustices:

The Court’s decision today is unprecedented in law, but not in approach. It is a reprise, so to speak, of Miranda v. Arizona, in that the Court uses its key to the jailhouse door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law. . . . The sum and substance of the Court’s lengthy analysis is that, since a denial of equal protection to other people occurred at the defendant’s trial, though it did not affect the fairness of that trial, the defendant must go free. . . .

Judging from the Court’s opinion, we can expect further, wide-ranging use of the jailhouse key to combat discrimination. Convictions are to be overturned, apparently, whenever “race is implicated in the trial” . . . . To me this makes no sense. Lofty aims do not justify every step intended to achieve them. Today’s supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected. If for any reason the State is unable to reconvict Powers for the double murder at issue here, later victims may pay the price for our extravagance. Even if such a tragedy, in this or any case, never occurs, the prosecutorial efforts devoted to retrials will necessarily be withheld from other endeavors, as will the prosecutorial efforts devoted to meeting the innumerable Powers claims that defendants of all races can be relied upon to present-again with the result that crime goes unpunished and criminals go free.

Private litigants are also bound by Batson: Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)

Edmonson expanded the protections of Batson by holding that private litigants in civil cases cannot exercise race-based peremptory strikes without violating the Constitution. The ruling’s constitutional underpinnings are found not in Batson, but in the state action doctrine. Private actors can’t violate the Constitution. For instance, a private employer who tells her employees they can’t have right-leaning bumper stickers on their vehicles if they want to avail themselves of the company parking garage doesn’t violate the First Amendment. If a governmental office instituted such a policy, it would be unlawful viewpoint discrimination. The Edmonson Court applied the Constitution to private litigants by reasoning that private litigants become governmental actors when they use peremptory strikes, and are thus subject to the same constitutional restrictions placed on the government in Batson and Powers. In Georgia v. McCollum, 505 U.S. 42 (1992), Edmonson reached its logical extension—that criminal defendants are also governmental actors when they exercise peremptory challenges.

It was “terminally absurd,” Scalia thought, for the Court to say that “a criminal defendant, in the process of defending himself against the state,” is in fact “acting on behalf of the state.” His strongest condemnation of the Court’s ruling was directed not at the “sheer inanity” of its justifications, but at its consequences for criminal defendants:

Today’s decision gives the lie once again to the belief that an activist, “evolutionary” constitutional jurisprudence always evolves in the direction of greater individual rights. In the interest of promoting the supposedly greater good of race relations in the society as a whole (make no mistake that that is what underlies all of this), we use the Constitution to destroy the ages-old right of criminal defendants to exercise peremptory challenges as they wish, to secure a jury that they consider fair.

Sex discrimination in jury selection is unlawful: JEB v. Alabama, 511 U.S. 127 (1994)

Welcome to Scalia at his most sarcastic. Dissenting from the Court’s ruling that using peremptory challenges to exclude a potential juror because of his or her sex violates equal protection, Scalia opened, “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors.” He went on to poke fun at the Court for spending much of its opinion condemning historic discrimination against females, while the case at hand concerned the exclusion of male jurors from a trial over paternity and child support.

Scalia revisited his objections to the Court’s constitutional policing of jury selection, before arguing that the Court’s fourth expansion of Batson and corresponding curtailment of the peremptory was more bad news for criminal defendants:

The loss of the real peremptory will be felt most keenly by the criminal defendant, whom we have until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.” And make no mistake about it: there really is no substitute for the peremptory. Voir dire (though it can be expected to expand as a consequence of today’s decision) cannot fill the gap. The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them.

By JEB, it was clear that Scalia had lost the fight to preserve an unfettered peremptory challenge. By a significant margin, too—he never had more than three votes for his position. Batson and its progeny have now woven their way into the very DNA of trial procedure. So much so one may question the relevance of Scalia’s Batson-line dissents. But his opinions on the subject are worth a read because they display Scalia’s thinking on a range of subjects at the heart of his legal philosophy: tradition, the minting of new constitutional rights, the Court’s willingness to bend its own precedents and rules to facilitate their expansion, and the unintended costs of such rights.

Scalia’s Criminal Law Legacy: Sixth Amendment Edition (Part 2)

For a second (and abbreviated) post on Scalia and the Sixth Amendment (first post here), I turn to the Sixth Amendment’s last-enumerated right: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” At minimum, the clause means that the government cannot bar an accused’s privately-retained attorney from the courthouse. (At the time of the founding, England prohibited most felony defendants from employing counsel.) Over time, the Supreme Court has interpreted the clause to guarantee five distinct rights: (1) the right to court-appointed (i.e., publicly-funded) counsel, if the accused cannot afford to hire counsel; (2) the right to counsel of the accused’s choice; (3) the right to effective assistance of counsel; (4) the right to conflict-free counsel; and (5) the right to forgo counsel and represent oneself.

I had initially planned to cover at least three of the above categories, but I’ve committed to bring this series to a close within a month of its start. Due to unexpected obligations at work my pace has lagged. In light of my approaching deadline, I’ll limit myself here to the right of self-representation . . .

Since Faretta v. California, 422 U.S. 806 (1975), the Supreme Court has recognized that the Sixth Amendment guarantees a defendant the right to waive his right to counsel to represent himself at trial. The right of self-representation is not made explicit in the Sixth Amendment’s text. As Justice Breyer explained in Indiana v. Edwards, 554 U.S. 164 (2008), the Court

implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused; (4) the absence of historical examples of forced representation; and (5) “respect for the individual.”

Faretta is not universally beloved. In Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000), which declined to recognize a right of self-representation on appeal, the Court cast a cold eye on Faretta. Justice Breyer’s concurrence noted that “judges closer to the firing line have sometimes expressed dismay about [Faretta’s] practical consequences.” Doubtless, in most cases of pro se representation the adage “one who is his own lawyer has a fool for a client” is proved true. I’ve tried two pro se cases. In one, the defendant took the stand and admitted to the crime. In the second, in which the defendant was accused of his beating his girlfriend, he stood up for closing argument, stated “Let me just say it takes two to tango,” and then sat down. Both defendants were quickly convicted.

Scalia defended the right of self-representation against doubts about its wisdom and constitutional pedigree. In Martinez, he concurred only in the judgment, declaring, “I do not share the apparent skepticism of today’s opinion concerning the judgment of the Court (often curiously described as merely the judgment of ‘the majority’) in Faretta . . . .” In Edwards, Scalia, joined only by Justice Thomas, disagreed with the Court’s allowing a state to deny the defendant the right to represent herself when she is not mentally competent to conduct a trial without counsel.

In one sense, Scalia’s opinions on self-representation aren’t standard Scalia fare. He believed Faretta was correctly decided, but wasn’t certain the right fell under the Sixth Amendment. If he’d authored Faretta he “might have rested the decision upon the Due Process Clause rather than the Sixth Amendment.” Here, Scalia seems to suggest that self-representation is a “substantive due process” right. During his tenure on the Court, Scalia was a consistent and vocal critic of the substantive due process doctrine, which he argued was an “infinitely plastic concept” that allowed judges to impose their personal preferences without constitutional authority. Scalia was almost always scrupulous in identifying the source of a right (or the lack thereof)—but not here. To justify the right of self-representation, Scalia also invoked “the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice.” This passage called to my mind Justice Kenney’s (in)famous words in the abortion ruling Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Scalia had ridiculed Kennedy’s proclamation as the “famed sweet-mystery-of-life passage” and “the passage that ate the rule of law.”

In another sense, Scalia’s affinity for the self-representation right is only natural. No fan of paternalism, he could appreciate that Faretta allowed for self-determination, notwithstanding that in most cases self-representation is the fool’s prerogative. It’s not surprising that the Justice who once referred to judges as “employee[s] of the State” would not be keen to have another “employee of the State” (a majority of defendants are represented by public defenders or private attorneys who accept appointments) commandeer the defense of an unwilling defendant. Scalia also spent a career opposing what he saw as the proclivity of judges to contort the Constitution in the service of some supposed higher good. In Edwards he wrote, “In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury.” And then, the Framers wouldn’t have approved either: “I have no doubt that the Framers of our Constitution, who were suspicious enough of governmental power-including judicial power-that they insisted upon a citizen’s right to be judged by an independent jury of private citizens, would not have found acceptable the compulsory assignment of counsel by the government to plead a criminal defendant’s case.”