For many people, the idea of a criminal conjures up the image of a young hoodlum (probably black) with a gun, rather than a middle aged white man in a high-end Italian suit with a solid gold Rolex, french cuffs, and a tasteful business card with a Wall Street office address. Few have any conception of the extent of social damage done by nonviolent crime often perpetrated by fraud and deceit–white collar crime.


People are frequently astonished to learn that that from a strict dollars-and-cents perspective, crime in the streets is so dwarfed by crime in the suites that the measurable effects of violent and other street crime falls within the margin of error of the effects of white collar crime. That is to say, statistically speaking, it doesn’t count. This is nonetheless true.

The dollar costs to society of reported “conventional” (FBI index) crimes run around $13 billion, roughly four billion of which is attributable to crimes against property. If we cold-heartedly estimate value of a life at six million dollars (a standard cost-benefit measure), the cost of the rough 15,000 homicides a year is roughly $10 billion.

The direct dollar costs of white collar crime, e.g., fraud, money-laundering, and the like, are staggering: $200 billion a year from occupational fraud, $123 billion from tax fraud, $53 billion from bank fraud, $109 billion from mail fraud, $10 billion from insurance fraud, $35 billion from product safety, environmental violations and price fixing, $35 billion from fraud against government programs, $44 billion from others. That is about $609 billion –maybe as high as $1 trillion in direct losses.

Indirect costs are also associated with white collar crime: higher taxes, increased cost of goods and services, higher insurance rates, screening and surveillance equipment to monitor employees, greater prosecution costs on a per crime basis as compared to “conventional” crime (because of the cost to detect, investigate, and prosecute complex criminal conduct), and cost of capital to honest businesses due to loss of investor confidence in financial and business markets. Environmental crimes and work-related diseases generate related costs of medical treatment and consequential absenteeism from work, increased health care costs to businesses providing insurance for employees, and costs of clean-up.

Other less quantifiable costs include the psychological trauma of victimization and alienation, delegitimation, and cynicism because white collar crime erodes trust in the government and the institutions it promotes. Though perhaps not enough, since the promise to run the government “like a business” is not taken a warning flag but as if it were a good thing, even when made by billionaire politicians whose business model is to declare bankruptcy multiple times, stiffing the creditors without stopping the culprit, and despite the fact that people’s actual experience with business, especially big business, is  often less than wholly positive.

“Who are you going to believe, me or your own eyes?”


Corporations,. as everyone knows, are people, or anyway, persons (for 14th amendment purposes) with rights–and they can criminals be too. A classic 1956 study found that all the 70 largest corps in the US had an adverse judicial or administrative decision involving lawbreaking over 45 years. Not all these were criminal, but also included, e.g., health and safety or labor law violations. One advantage of being a major campaign contributor is the privilege of having many of one’s worst peccadillos not classified as crimes. American workers are twice as likely to die at the hands of their employers, who may be slapped with a cost-of-doing business OSHA fine rather than a criminal charge, as they are to be killed by a hoodlum. Still, 159 of the 980 decisions studied were criminal convictions. 98% of culpable corporations were recidivists, with at least two adverse decisions. The average number of adverse decisions was 14. If being a four-time loser makes you habitual, 90% of corporations were habitual offenders. More recently (1975-76), a study of federal enforcement actions against 582 parent corps found that 64% had at least one adverse decision, with an overall average of 2.7 actions. Fortune 200 multinational corporations accounted for 70% of enforcement actions. In 2012, a Senate

Still, 159 of the 980 decisions studied were criminal convictions. 98% of culpable corporations were recidivists, with at least two adverse decisions. The average number of adverse decisions was 14. If being a four-time loser makes you habitual, 90% of corporations were habitual offenders. More recently (1975-76), a study of federal enforcement actions against 582 parent corps found that 64% had at least one adverse decision, with an overall average of 2.7 actions. Fortune 200 multinational corporations accounted for 70% of enforcement actions. In 2012, a Senate subcommitte fiound that the London-based multinational bank HSBC engaged in a wide array of “money laundering, drug trafficking, and terrorist financing.” HSBC acknowledged that “in the past, we have sometimes failed to meet the standards that regulators and customers expect.” (Ahem.) No prosecution resulted.


As The New Yorker explains, below white collar crime relatively safe and highly profitable. The likelihood of being prosecuted is quite small. Less than one-half of one percent of DOJ prosecutions in 1994 involved corporate crimes endangering human life and safety. In pursuit of easy convictions where DOJ or the FBI would face deep-pockets Biglaw firms like Kirkland & Ellis (where I used to work), they tend to pick on the little guys and avoid prosecutions of the powerful. Studies have generally found the probability of detection–prosecution is another matter–of white collar crimes ranges from one in three to one in six. On average, it takes 10+ months for a white collar criminal case to be filed, nearly three times as long as for the average drug case. Complex, document-laden white-collar cases frequently take years to complete.

The extent of fraud involved in the 2008 subprime real estate crisis that nearly took down the world economy is unknown, but it must have been substantial. However no one — repeat — no one — was prosecuted for his role in it. At least in the turn of-the-millennium crisis of 2000, a few big-time players like Jeff Skilling of Enron were prosecuted, convicted, and sent to prison for long terms–under the George W. Bush administration. Since then, the risk has been that one might not be bailed out, and even that risk diminishes with the size of what students of white collar crime call the racketeering enterprise, a term from the RICO statute. “To big to fail” means in practice, “too big to jail.”  The median jail term for fraud is just 12 months; even violators of federal pornography and prostitution laws receive an average 33 months behind bars, while drug traffickers are sent away for a median of 60 months.

*An ancient writing tool. But “laptop computer” doesn’t scan as well. The title is from a song by Woody Guthrie.

Parker “Big Red” Fountain pen.


 As just about everyone knows, ex-FBI Director James Comey has raised the issue of whether Trump attempted to obstruct justice in interfering with official investigations of the Russian entanglements of Michael Flynn, Trump’s former National Security advisor. Obstruction of justice is a serious felony, an impeachable offense and one that might lead to indictment. Trump fired Comey on May 8, 2017, after relations deteriorated when the FBI refused to end its probe into Flynn and the Russian connections.

It’s too early to say what, if anything Congress will do, or to guess about what might happen in court in it came to that. But we can consider what would have to be shown to maintain an obstruction charge.

Fasten your seatbelts. This is going to get rocky. Blame the courts, not me.


On Feb. 14, 2017, President Trump met in the Oval Office with James Comey, then FBI Director, about the FBI’s criminal investigation of Michael Flynn, the National Security Advisor, who had resigned the day before over questions about his contacts with Russian officials. What happened at the meeting is disputed.

On June 8, Comey testified before the Senate Intelligence Committee. He saiid under oath that at the February meeting Trump cleared the room, asking Attorney General Sessions and his own advisor and son-in-law Jared Kushner to leave, and told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Comey testified, “I took it as a direction” that “this is what he wants me to do…. [I] replied only that ‘[Flynn] is a good guy.'” Comey said he did not say he would get the matter go.

About two weeks before that, Comey testified that he and Trump had dinner alone. At the dinner, Comey said, Trump told him, “I need loyalty, I expect loyalty.” Trump, Comey said, asked him whether he liked his job and wanted to keep it. Pressed by Trump, Comey to Trump he would get “honesty.” Trump said, “That’s what I want, honest loyalty.”

Comey testified that Trump had told him the Russia investigation was “‘a cloud’ impairing his ability to act on behalf of the country”. He asked Comey to “lift the cloud.” Comey also testified that Trump urged him to “get that fact out” that Trump himself was not being investigated.” Comey explained that he had been reluctant to do that “because it would create a duty to correct, should that change.”

Coney kept detailed contemporaneous memoranda of his conversations with Trump, he said, to make sure he got the details right. Comey gave these to Professor Daniel Richman of Columbia Law School and asked him to make them public in order to hasten the appointment of a Special Counsel. Richman gave them to the New York Times. Bus, Insider 6.8.17. Trump denounced these statements as “leaks,” “illegal” and “lies.” (They do not appear to be illegal.)

After he fired Comey, Trump told Russian officials in the Oval Office the dismissal “had relieved “great pressure” on him,” according to a document summarizing the meeting. “I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said in the document, read to The New York Times by a US official. “I faced great pressure because of Russia. That’s taken off.” Wash. Post 5.19.17. Although he initially stated that Comey had been fired not because of the Russia investigation but because of his handling of the Hillary Clinton emails affair, a day later, Trump told NBC News, “When I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story.” NBC News, Interview with Lester Holt, 5.11.17.

After the firing, Trump tweeted that “Comey had better hope there at no tapes” of the meeting. LA Times, 5.12.17. “Lordy,” said Comey said before the Senate, he hoped there were. None have emerged. After Comey’s Senate Committee testimony, Trump called Comey a liar, in effect, a perjurer — also a serious crime. Comey returned the favor, although of course Trump has not yet made any statement under oath.

On May 17, 2017, the Justice Department appointed former FBI Director Robert Mueller as Special Counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation,” after Attorney General Jeff Sessions properly recused himself from investigating his boss.

This incident has raised the issue of possible charge of obstruction of justice, “There is a criminal investigation going on of one of the President’s top associations . . . he gets fired, he is under investigation and the President brings in the FBI Director and says ‘please stop your investigation,'” said Jeffrey Toobin, CNN senior legal analyst, has said “If that isn’t obstruction of justice, I don’t know what is.” Let’s look at that for sec.


The primary federal obstruction statue is 18 U.S.C.§ 1503, but that only covers obstruction of judicial proceedings. The applicable statute here is § 1505, which prohibits anyone, including the President, from “corruptly” influencing, obstructing or impeding, a pending proceeding before a federal agency or an inquiry or investigation by Congress, or endeavoring to do so.”

To break this down: (1) there must be “proceedings” pending before a federal agency or an investigation by Congress, (2) of which the person accused of obstruction is aware, and (3) he must have and “corruptly” attempted to influence, obstruct or impede the proceedings or investigation.


Here what matters is the investigation into the Russia affair by the Senate Intelligence Committee, started Jan. 10, 2017, and possibly the House Intelligence Committee inquiry, begun Jan. 25., although the Chairman of the House Committee said on Feb. 14 that it would not be investigating Flynn. While Trump almost certainly knew about these Congressional investigations, he did not know on the Feb. 14th that the House would not be looking into Flynn.

The FBI investigation is not a “proceeding” because the FBI has no rule-making or adjudicative power. US v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994). An investigation, the D.C. Circuit Court of Appeals held, “must be more than a “mere police investigation,” and that would include an FBI investigation. The D.C.; Circuit has jurisdiction over D.C., where these events supposedly occurred. Toobin, therefore, is wrong. If all Trump had tried to do was to influence or impede the FBI investigation, he would OK by § 1505, though perhaps in violation of other law and certainly sleazy.

But there was also the Senate Intelligence Committee investigation and, as far as Trump know, the House one. So, there was an investigation of the right sort that Trump is virtually certain to have known about.


The question is whether Trump “corruptly” attempted to influence, obstruct or impede the Congressional investigation. “Corruptly” is a slippery word in the law. It implies an evil or improper motive. Normally motives don’t matter in criminal law. See Wayne LaFave, Criminal Law § 5.3 (5thth ed, 2010). But here they do. The leading Supreme Court case is US v. Aguilar, 515 US 595 (1995) (regarding § 1503). There must be specific intent to obstruct justice, not just intent to do the things that produce the forbidden obstruction or impediment. In the judicial context, § 1503, specific intent may be just intent to do things that “naturally and probably” have that effect.

The requirements are heightened in the context of Congressional investigation, which involves a political branch of government, Here, more than in the judicial branch, there may all sorts of non-evil, non-corrupt intentions to do things that impede or obstruct the investigation. US v. N., 910 F.2d 843  (D.C. Cir.1990). Thus, a powerful Trump supporter might call a Senator on the Committee and urge the investigation be stopped because it’s obviously just designed to embarrass the President.

The D.C. Circuit says this sort of thing is just politics, not obstruction with corrupt intent, even though the specific intent is to do something that will foreseeable impede the investigation. The corrupt specific intent necessary for corruption signifies acting with bad purpose to do, or try to do, something prohibited. (Id.). That doesn’t mean you know it’s prohibited, just that you have bad intent. You also don’t have to succeed: you obstruct just by “endeavoring” to do so with specific intent by means that you know would have the natural and probable consequence of bringing about that effect, even if you fail.


If this this seems a bit like trying to nail down to nail down a blob of mercury, that’s because it is. See J. O’Sullivan, The Federal Criminal “Code:” Is A Disgrace, 96 J. Crim. L. & Criminology 698 (2006). In case you were wondering, the obstruction and other statutes involving “corrupt” intent have survived constitutional challenges. See US v. Cueto, 151 F.3d 620 (7th Cir. 1998) (holding that “corruptly” is not unconstitutionally vague as applied); accord US v. Brenson, 104 F.3d 1267, 1280-81 (11th Cir. 1997). For a survey of obstruction law, see also J. F. Decker, The Varying Parameters of Obstruction of Justice in American Criminal Law, 65 La. L. Rev. 49 (2004). (Both  articles available on line.) What’s relevant here is that loosey-goosey as federal criminal law may be, obstruction, especially in the context of § 1505, congressional investigations, may be easier to charge than to prove.


Former assistant Watergate special prosecutor Philip Allen Lacovara is more confident. He writes in the Wash. Post, 6.7.17: “Comey’s statement lays out a case against the president that consists of a tidy pattern, beginning with the demand for loyalty, the threat to terminate Comey’s job, the repeated requests to turn off the investigation into Flynn and the final infliction of career punishment for failing to succumb to the president’s requests, all followed by the president’s own concession about his motive. Any experienced prosecutor would see these facts as establishing a prima facie case of obstruction of justice.”

Probable cause is a low standard, “reasonable grounds to believe” that the suspect has committed a crime. Draper v. US, 358 US 307 (1959). In ordinary cases against ordinary suspects, it’s practically a rubber stamp. But this is the President of the United States. And any finding of probable cause will be held to much heightened standard.

Here questions will arise, and Trump’s very able lawyers will raise them if the occasion demands. Was Comey correct to take Trump’s “hope” as an instruction? Was the demand for “loyalty” and the inquiry about whether Comey liked his job a threat connected with some sort of direction to abandon the investigation? Was there specific intent to obstruct a Congressional investigation (illegal under § 1505) or just the FBI investigation – not obstruction at all, if rather smelly? There are many other unresolved issues.

This point is different from one raised by Alan Dershowitz of Harvard Law School. He says: “The president has the authority to direct the head of the FBI to stop investigating anyone.” Fox News, 6.28.17. He has that power as Chief Executive and FBI Director’s boss. But such an order, if that’s what it was, might be still obstruction if its specific intent was corruptly to impede a Congressional investigation. In that case, he couldn’t legally use that power. It would be politically foolish to appeal to that power even if it wasn’t a crime. The President also has the pardon power and could pardon himself for any crimes he may have committed so far. It would be politically fatal to use that power. Of course Trump is nothing if not foolish.
“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct,” Comey testified to the Senate Committee. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the Special Counsel will work towards to find out the intention and whether that’s an offense.”


I’ve barely mentioned the “I” word, impeachment. The consequences of conviction by the Senate are removal from office. The constitutional standards for impeachment, are “treason, bribery, and other high crimes and misdemeanors.” Treason and bribery are clear but not at issue here. No one really knows what “high crimes and misdemeanors” are. The Articles of Impeachment prepared against Richard Nixon and Bill Clinton included obstruction of justice. But this would be a finding made by the Senate, not a court of law.

My own reading of law, history, and the experience of having lived through two attempts at impeachment is that an impeachable offense is whatever Congress thinks it is.

In this case, we have a Republican President and a Republican majority in both Houses. I do not think they will impeach or convict unless their wise men have decided that Trump, an unpopular President who is (I editorialize, but I don’t think this is controversial) totally unqualified and completely unfit for office, has become too much of a liability for them. Whether and when that might happen I would not venture to guess.


Whether opponents of Trump and the Republicans should wish for impeachment is another question. Vice President Pence will replace him unless he is somehow implicated in the web of scandal. Pence is, by all accounts, a smart, able, experienced, deeply reactionary theocrat. He will not carry Trump’s populist appeal. He would be hobbled by a Trump impeachment to some degree. He might be more effective than Trump with blunders at pursuing their common agenda. And should Pence be excluded for some reason, the next in the line of succession is Paul Ryan, Speaker of the House, just as right wing as Pence and no less capable.

These are not prospects liberal or left Trump opponents can view with much equanimity. Bear in mind the old Yiddish curse: “May you get what you wish for.”  I think their – our – solution to the Trump problem lies in political action, no less against Pence or Ryan if either replaces Trump,  and not in the procedures of a Republican-controlled Congress or the hands of the FBI and its past Directors.

We Are All Better than the Worst Thing We Have Done

The well-known capital defense lawyer Bryan Stevenson likes to quote an aphorism he got from a teacher, “We are all better than the worst thing we have done.” We call people who have been convicted of crimes, often because if they didn’t plead, they faced far worse sentences (I will write a blog post about this later) “criminals” or “felons, “or when they get out of jail, “ex-cons.” We define them by one bad feature about them. And of course, people who have been convicted of murder we call “murderers.”


This is like — I am aware that the analogy is not perfect – calling people with disabilities “cripples” or the disabled. Disability is not a wrong or a failing for which someone can reasonably be blaWho Are We?med. The analogy I have in mind is that we pick out one feature, typically negative, and define the entire person by reference to that feature. But people are many-sided. We have all done bad things, not necessarily criminal, but sometimes. It is unfair as well as inaccurate to say reduce anyone to one bad thing they have done, or even several things.


In addition, there is inevitably an explanation, which is not the same as a justification or an excuse, but an account of why the person did that thing, which refers to many factors beyond their control. So, for example, most FBI index crimes are committed by young men in the 18 to 34 year old age group (65.5% of homicides are committed by men in this age group) ( ), a period during which people’s and specifically young men’s, nervous systems are underdeveloped in a way that makes it easier for them to engage in impulsive, shortsighted behavior. That is why teenagers are so stupid and reckless.

That’s not a good reason to commit a crime, but it is a reason why we should not reduce the person to the crime. It is not true that to understand all, even if we could, is to forgive all, nor does it follow that a person we forgive for something bad that they have done ought not be held accountable and even punished. But to understand more is to regard people as whole, many-sided, complex beings. We would hope for similar consideration ourselves. If we were perfectly honest, if we were all held legally accountable for all of the bad things, or even just the very worst things we’ve done, we’d all still be in jail, given our absurd incarceration policies.


I have friends who are “murderers,” who have been convicted of intentional homicide— close friends. They are not wrongfully accused. They did it. Often what they did was awful. But they are my friends because they are not bad people who do bad things. They are people who have done bad things, typically in the distant past, and from age 50 or 60, age 20 is a lifetime away. Some of these people have done better things for the community and for the people around them than you or I.


And yet “ex-felons” or “murderers” (very few people with criminal histories have committed murder), even after they have served their sentence and, in, an old expression that no longer seems to have traction, “have paid their debt to society,” are stigmatized, discriminated against, denied many benefits, including many benefits of citizenship — in at least 12 states that I am aware of, the right to vote. (The pattern of felony disenfranchisement is complex and racially biased against black men. See )

People will not hire them for jobs, ironically leaving them either destitute or for the public to support, even though many of them are perfectly capable of work, even difficult and challenging work that requires serious responsibility and is generally rewarded with good pay.


People should be assessed – should I say judged? Only one might remember the biblical injunction to “judge not” – for who they are as total people. I emphasize again that it does not justify or excuse their crimes committed in the past, however serious. But it does count against treating them as just that one bad thing that they did and nothing more. We are all better than the worst thing that we have done. We can show it if given a chance and trust.

If this sounds like “bleeding heart liberalism,” consider how you would like to be treated if you were convicted of a crime – and yes it could happen to you – perhaps because the risks of going to trial were too great. Even if you did it, you would not want to be labeled as a “criminal,” a “felon,” or an “ex-con,” as if that exhausted everything important about you. You would want to be treated with compassion and understanding. And given a chance. If that is “bleeding heart liberalism,” embrace it, but I think it is just common sense. We are all better in the worst thing we have done. Let’s treat ourselves and others accordingly.


I have a friend, who killed two people 45 years ago, for no good reason, as part of a failed burglary, and served 31 years in prison. He is someone that, when I was getting him out of prison, I would tell people, truthfully, I might be more likely to trust  with my then-small children than I might be willing to trust the never-even-arrested people to whom I was speaking. That is because I had come to know him and knew the kind of person he was.

Not all people who have committed murders are like that, but then, so are not all people who have not, maybe not you. I hope you are, but I would also hope that you would regard people who have committed murders and served time the same respect, consideration, and all around fairness that you would hope for if the circumstances were reversed. We are all better than the worst thing we have done.


And then there is the fact that in jails in Illinois people who have not been convicted of anything, and who are presumed innocent as a matter of law are referred to by their jailers as “offenders,” even though the burden is on the state to prove beyond a reasonable doubt that they are offenders — or more precisely, people who have committed to offenses — and this has not been done in those cases. But that is the topic for another time.…/aPpYR7iFnzxpEGkrL…/story.html…

It has taken time to understand that while friendship can be fragile, it is also incredibly flexible.

Cruelty, Race, and the Death Penalty

It’s not as if capital punishment wasn’t bad enough, but the State of Arkansas is about to go on a killing spree with expiring death drugs the “ordinary” use of which amounts to torture. (As this page remains up the executions will almost certainly have been carried out.)

If we are going to insist on judicially authorized killing with a shred of humanity, if that’s not a contraDeath Chamber Gurneydiction in terms, we’d use the guillotine, which is certain, swift, and (because it instantly severs the spinal cord at the neck) medically provably painless. But decapitation grosses us out, so we’d rather impose excruciating deaths that often take long period with unknown drugs of uncertain provenance. If we couldn’t deal with decapitation, we might execute the condemned with overdoses of medical-grade morphine, which is also certain and certainly painless.

But the real problem is the death penalty itself, which is not only barbaric, but freakish (Furman v. Georgia, 408 U.S. 238 (1972)) (Stewart, J. concurring), as well as racist. It’s no accident that over 80% of the executions since the Supreme Court allowed the reinstitution of the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976) were in the states of the Old Confederacy.  Not that the old South is more racist than, say, Chicago, but the pattern re-creates the historical localization of lynchings.

In view of the immediate occasion of this post being executions in Arkansas, it is telling that of the almost 4,000 documented lynchings,  one Arkansas County, Phillips County, in the Mississippi Delta, accounted for over 6% of all lynching, 243 in all. More than eight in ten American lynchings between 1889 and 1918 occurred in the South.  African Americans make up 13% of the US population, but 42% of the roughly 3,000 people now on death row are black, and 35 percent of those executed since 1976 have been black (figures from the Equal Justice Initiative,; ).

Just to drive the point home, over 75% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims generally are white. ( ) In McCleskey v. Kemp, 481 U.S. 279 (1987), the court considered a study by David Baldus of the Univ. of Iowa showing that black killers of white victims were more than four times as likely to receive the death penalty than killers and victims in any other combination. The Court stated that the “racially disproportionate impact” in the Georgia death penalty was not enough to vacate the death sentence without showing a “racially discriminatory purpose” in the particular case. Statistics weren’t enough to raise a constitutional doubt. But they should raise a doubt in our own minds and that of our legislators.
There may be people who deserve to die, although it might be debated who these are. Some people might nominate corrupt politicians, high-ranking war criminals (there is precedent for this at Nuremberg), and crooked financiers of the sort who crashed and burned the world economy in 2000 and 2008, many members of any one of which groups caused far more atrocious suffering than any individual murderer.

But even if someone deserves to die for whatever reason, the question remains open, do we have the moral right to kill them? In view of the cruel, random and racially biased nature of the way the states impose capital punishment, it seems clear that we are not civilized enough to have a death penalty. And if we were, we probably wouldn’t.

Weaponizing the First Amendment

South Dakota has just passed a law allowingcoexist discrimination against LGBQT (gays, for short) on religious grounds, despite a series of U.S. Supreme Court decisions to the contrary, most recently Obergefell v. Hodges ( ) (legalizing gay marriage).


Expect a lot more of this: purported attempts to “protect religious freedom,” supposedly under attack (but not for Muslims, ahem) that are pretexts for legalization of discrimination. There is proposed Executive Order at this writing circulating in the White House that would essentially repeal all discrimination laws for persons, which includes, you will recall, corporations, who think their God told them to treat gays, women, Muslims, black people, commies or liberals or Jews (same difference), etc. differently and worse than conservative white Christian males of European descent, aka “real Americans.”…/leaked-draft-of-trumps-religio…/

These laws are unlikely to pass constitutional muster at present, not with the current line-up on the U.S. Supreme Court (SCOTUS) or even when Judge Gorsuch is confirmed. When Trump gets to pick the next justice after him, it’s wide open what will happen. But in the meantime these efforts will absorb a lot of time, effort, energy, and money being litigated.


For roughly the last 20 years SCOTUS has been using the First Amendment, twisting it of twisting out of all recognizable shape,  treating it as a battering ram to force through a right-wing activist agenda, roughly in the same way that SCOTUS used the Due Process clause of the 14th Amendment to promote laissez-faire economics in the period from roughly 1890 to 1936.

Constitutional scholars call the “Lochner Era,” after one such case, Lochner v. New York, 198 US 45 (1905) (striking down limitation on working hours as unconstitutional) otherwise unremarkable except for a scathing and brilliant dissent by Justice Holmes –who agreed with laissez-faire economics, but did think it was the business of the courts to write it into the U.S. Constitution.


This era ended during the Great Depression when SCOTUS, after striking down several New Deal programs on the grounds, became aware that there was a national emergency and the perceived legitimacy of the courts as obstacles to doing something about it might backfire on the courts themselves. It’s a longer story than that, but you can read about it if you like. Google “Lochner Era” and “the Switch in Time.” From the mid 1930s to the mid 1990s, more or less, the courts pretty much let Congress do whatever it wanted with social and economic legislation because, it held, Congress had power under the Constitution to regulate Commerce, and everythingf affected commerce. But when it came to legislation involving restrictions on individual rights, or oppressive to racial or national minorities, the Courts got very particular.


In 1997 SCOTUS handed down City of Boerne v. Flores, 521 U.S. 507 (1997), a seriously arcane decision, very technical, about the Religious Freedom Restoration Act introduced by Rep. Charles Schumer and Sen. Teddy Kennedy in 1993. The Court struck down part of the Act on the grounds that Congress had exceeded its constitutional powers to legislate, and in so doing, gravely restricted and imposed onerous conditions upon those powers. The masochistic or super-nerdy can read my piece on the case and its subsequent history, , but warning: it’s really technical. Well written, though.


In more familiar and accessible news, SCOTUS has used the First Amendment to strike down limits of corporate campaign contributions in Citizens United v. Federal Election Commission 558 U.S. 310 (2010) (nonprofit corporations), subsequently extended to for-profit corporations and other groups, building on an older ruling, Buckley v. Valeo, 424 US 1 (1976) (holding that money is speech). I’ve written a short accessible nontechnical article, half of which is about this. When money speaks

Corporations are persons under the 14th Amendment and therefore protected by the First Amendment, and have been for over 130 years, since Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886). This is a principle many people wrongly think to have been established by Citizens United. It’s much older. That’s how the Lochner Court was able to apply, or misapply, the Due Process clause to corporations over a century ago.


What this Court has been doing in the name of Freedom of Speech and Free Exercise of Religion is to extend these principles to promote a far-right agenda, attacking antidiscrimination laws and enabling multinational corporations to drown out the voices of the people by deluges of money on the pretense that their billions is just like your $25, limiting Congress’ power to legislate against things the right-wing majority of the Court doesn’t like.


If that doesn’t sound like what the Courts should be doing, it’s because it’s not. Justice Holmes had it right. He personally agreed with the policy outcomes of the Lochner Court. In his policy ideas, he was a laissez-faire conservative or what we call today a libertarian. But he thought that the judge’s job was to interpret the law. It was not make it up and impose his own policy preferences on the country. He thought it was especially not the judge’s job to do this by interpreting the Constitution in a way that requires an almost-impossible-to-get constitutional amendment or a different Court that might take many decades to come about and undo the damage.

I’m not conservative when it comes to policy, you may have noticed, but I am when it comes to what I think judges should do. If they want to make policy, they should get themselves elected to the legislature or run for executive office. When they put on the black robes, take the oath, and sit down behind the bench, what they’re supposed to do is what the law requires, no less, no more, in as minimal a way as possible, and whether or not they like the outcome. Judge Gorsuch says, “I decide cases.” If only.


It took almost 50 years to reverse the errors of the Lochner court, 58 to undo the Jim Crow segregation upheld in Plessy v. Ferguson, 163 US 537 (1896) (holding that the Equal Protection Clause of the 14th Amendment was consistent with “separate but ‘equal’ segregation, overruled by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)); see here for the history Richard Kluger’s Simple Justice, possibly the best book ever written about American law.

The Supreme Court has weaponized the First Amendment and handed it over to the corporations and the religious right. The Christian religious right, not the Muslim right. The stakes are high. Prepare for a very long and tough battle. Contribute to the ACLU and the National Lawyer’s Guild.…/…/south-dakota-religious-freedom/

Except as Punishment for a Crime for Which One has been Duly Convicted – the Loophole in the 13th Amendment

hands on prison bars «

13th (available on Netflix) is an incredibly important and beautifully made film that situates the loophole in the 13th amendment that allows involuntary servitude for persons who have been “duly convicted of a crime” in the long history of variously successful attempts to reimpose the moral, and in many cases the practical, equivalent of slavery on African-Americans. The film features the brilliant and charismatic Michelle Alexander and the great Angela Davis, as well as anti-death penalty advocate and civil rights activist Bryan Stephenson, among others, including Newt Gingrich!

From the Klan to Jim Crow and lynching, to the “war on drugs” and the “war on crime” (dog whistle code words for the war on black people) the murder of black leaders like Chicago’s Fred Hampton of the Black Panthers, not to mention Martin and Malcolm, mass incarceration that has put 2.3 million people in jail, and prison, 40% of them Black men, who comprise 6.3% of the population, this country has made unremitting and fairly successful efforts to keep black people where they were before the Civil War. Young black men have a 1-in-3 likelihood of going to prison, compared to a 1-in-17 likelihood for their while counterparts. (Figures from film).

I have a client who may be risking 12 years in prison after spending 3 years in jail without a conviction because he couldn’t make bail (another racist twist to the system because black people make in average only slight more than half what white people do,, and their unemployment rates are twice the white rate, _not_ counting incarcerated persons–a point made by the movie), refused a deal I got him for _probation_ because, he says, he will just have his probation violated by an arrest for walking while black. He’d rather take his chances in a trial.

He’s not being irrational. The prosecutor from whom I got the deal, pretty much warned me point blank that that’s what would happen. And the probation violation that sends you to prison for an arrest, probable cause standard rather than beyond a reasonable doubt is a further racist ribbon in this nasty package white people and accommodating black politicians have made for their poorer black male counterparts.

Of course black people aren’t property and can’t be literally sold down the river anymore, but the 13th amendment loophole is big enough to float a steamboat through. This is a useful corrective to the worshipful treatment of the 13th amendment in Spielberg’s typical flag waving soft-focus epic on the framing and passage of that amendment.

Corporations are making a killing off of modern-day slavery in America.

Posted by ATTN: on Monday, November 21, 2016



What do you say to the police if they stop you to ask you about anything where you think it is even remotely possible you might be suspected of a crime? Invoke your right to remain silent and to see an attorney. Otherwise, Nothing.

We all know “our  rights,”  Miranda v. Arizona, 384 U.S. 436 (1966), because we all grew up watching TV.  Too few people use these rights. Instead, they talk themselves into deeper trouble.


You have a right to remain silent. Use it. Today, since Berhuis v. Thompkins, 560 U.S. 370 (2010), you have to expressly invoke your right to remain silent, stating clearly that you are not saying anything. The police are not your friends. They are not, as a group, interested in getting the bad guys. They are interested in closing a case by making an arrest.  You will do as well as anyone else. Don’t make it easier for them.

Anything you say can and will be used against you in a court of law. Believe it. Trying to talk your way out of trouble will almost always dig you deeper in. Police reports often contain many statements you didn’t make, and there is no one believable to say you didn’t make them. Why make give the police real admissions you will be stuck with? Your explanations will be transformed into incriminating statements. You will be caught in contradictions, or contradiction will appear in evidence that destroy your credibility.

The police are trained interrogators, legally allowed to lie, and skilled at getting you to say things that you will really truly wish you hadn’t said. Lawyers are trained interrogators. Only the foolhardy among us would put ourselves up against a beat cop or a detective. We can’t lie, for one thing. It’s true: we can’t. They can.

“But I’ve done nothing wrong, what do I have to hide? I’ll just explain things to them and they will let me go home.” I hear that a lot talking to people in holding cells. Just because you’ve done nothing wrong doesn’t mean you can’t be arrested. The standard is probable cause, a low standard. It’s roughly a reason that a reasonable person would have to think you had committed a crime.  Invoking your right to remain silent is not such a reason. Anything else you say might be.

Don’t say anything else apart from invoking your rights. Just about anything you say that is not a 500 candlepower assertion of your Miranda rights probably constitutes a waiver of those rights that allow the police to continue to question you. Oregon v. Bradshaw, 462 U.S. 1039 (1983). There the suspect asked, “What’s going to happen to me now?” The Supreme Court treated that as a waiver allowing continued questioning.


You have a right to an attorney. If you cannot afford one, one will be provided to you. You must assert your demand for an attorney clearly in a way that cannot be misinterpreted. Davis v. United States, 512 U.S. 454 (1994). “I’m asserting my right to remain silent and I want to speak to an attorney.” That should do it.  There is no magic formula, just as long as it crystalline. If you ask for an attorney to be present while you are detained, the police must stop questioning you until your attorney arrives. United States v. Edwards, 451 U.S. 477 (1981). If they don’t, repeat the mantra: “I’m not saying anything and I want to see a lawyer.”

If the request is not clear and unequivocal, it is ineffective. Davis v. United States, 512 U.S. 452 (1994). It is up to the police to decide whether to stop questioning you or indeed, to provide you with an attorney if you have not made it crystal clear you want a lawyer. Don’t make the police guess whether you want a lawyer and therefore must stop questioning you. Most courts have ruled they don’t have to.

If the police ask (in violation of Edwards), “What do you need a lawyer for? They only gum up the works. Just answer a few questions and then you can go,” the answer is, “I want my attorney to advise me on that point.” We do gum up the works. That’s our job. We will advise you to say nothing, in case you wanted to know.  And as with invoking your right to remain silent, invoking your right to an attorney is a good idea whether or not you think you have done anything. Don’t worry whether it might make you seem guilty. If the police didn’t think you might be guilty, they would not be detaining and questioning you.


If, like a lot of people, you do not have a regular attorney, or cannot remember his or her number, or can’t reach him or her, one will be provided for you. A public defender. It is ok to add to, “I want to see an attorney,” “Please provide me with one.” The cops ought to provide you with an attorney, that is, call the P.D., after you have demanded to see one. If they don’t, it’s safe to ask for one, if that’s all you do. You are not stuck with the P.D. or for that matter with any lawyer just because that’s the first (or next, etc.) lawyer you see. Many P.D.’s are, by the way, smart, dedicated, hard-working people every bit as good or better than almost any private attorney.


If you have a lawyer and know his or her phone number, it’s also OK to say, after you have asserted your right to see an attorney, “I want my phone call,” or “Please let me use the phone to call my lawyer,” words to that effect. Nothing more. If you reach your attorney say nothing in the presence of the cops. Not, “They busted me while I was selling drugs,” or “they caught me robbing the store.” Just, I”m in custody at ___________” or “I’ve been arrested and I’m at ____________”  (it is OK to ask the cops the address where you are detained).

It’s OK to say, if you have been arrested for selling drugs or robbery, what you have been arrested for. Don’t say that you did it, even if you did. And talk to your lawyer, P.D. or private, outside the presence of the cops during this exchange if possible. If not, say where you are, will the lawyer please come, you’ve been arrested. Leave it at that.

Eventually, the cops will want to see you with your lawyer. If your lawyer doesn’t advise you to take the fifth, to refuse to answer all questions because the answers may tend to incriminate you, get a new lawyer. And take the fifth anyway.


In short, you have two primary responses to police questioning. The first is, “I’m not saying anything.” The second is, “I want to see a lawyer.” Repeat as necessary. This is often easier to say than to do in the scary situation, inherently coercive, because that is when Miranda applies, of custodial interrogation. It’s worse if you did do something because there is an impulse to confess. So, two easy rules: Say you’re saying nothing. Say you want a lawyer. Do not deviate from these rules.

The “remedy” for a Miranda violation is suppression. The statements cannot be admitted against you in court. However, statements illegally obtained in violation of Miranda can be used to impeach you, undermine your credibility and make you look like a liar. See, e.g., Harris v. New York, 401 U.S. 222 (1971). So it’s much better if there are no statements, whether legally obtained by waiver or illegally obtained by a violation of Miranda, to incriminate or impeach you.

There are likely to be enough surprising statements in the police reports and testimony that you didn’t make and waivers or ambiguities you didn’t commit. The police are not allowed to lie about that to the court because that’s perjury, a crime, but when was the last time you heard of a cop being prosecuted for perjury? There has to be evidence, the prosecutors don’t score points with their bosses going after cops, and your word won’t do.  So don’t make it easier to put you behind bars. It’s easy enough as it is.

If this seems like a minefield, that’s why you need a lawyer.

Remember two simple easy rules, whether you didn’t do it or especially if you did. Whatever the police and prosecutors tell you, all you have to say to them is:

  1. I’m not saying anything, and
  2. I want to see a lawyer.

That is all you say.


A lot of clients in jail or on bond tell me, The cops didn’t read me my rights. Does that mean the arrest was improper?

No, it does not. As stated, the remedy for a Miranda violation is suppression of the un-Mirandized statements. It’s not that you walk.  If the cops don’t ask you any questions and don’t read you your rights, they can arrest you because they think they have probable cause (and a judge agrees at your preliminary hearing) (and they always find probable cause). If they ask you questions and don’t read you your rights, and you don’t answer the questions, the arrest is fine if there is probable cause. If they don’t ask you questions and don’t read you your rights, but you make statements anyway (it happens all the time), the arrest is fine if there is probable cause, and the statements are admissible.

Yes, the cops ought to read you your rights. That’s proper procedure. But if they don’t, and you make a statement, orally or in writing, the statement is arguably inadmissible. It’s suppressed. But you still are properly arrested if there’s probable cause and no other violation, such as an illegal search.   Make things simple. Don’t say anything except, I’m not saying anything and I want to see a lawyer.


If it’s totally clear that you are not a suspect, and you have to be completely certain that you’re not, then it is OK to talk to the police. Say, for example, you are a middle-aged white guy in a suit and tie, on foot, who is a witness to a hit-and-run committed by someone else (this happened to me), then you can feel more comfortable offering evidence to help the police do their job, catching bad guys. But you have be 100% certain that you are not a  suspect and will not become one because of anything you say. If the situation seems even potentially coercive, remember: silence is golden. Prison bars are steel.


Since we are talking about coercive situations, an important point. Illinois, like many states, has a “stop and identify” law, 725 ILCS 5/105-14. If a police officer has “reasonable suspicion,” an articulable basis, not just a hunch, but not probable cause, s/he may detain you in the vicinity and demand your name and address and an explanation of your actions. Unless you are doing something that requires identification, such as driving a car, the officer cannot demand ID, because this is the land of the free.

These encounters do not trigger Miranda unless they become coercive, so answer briefly, truthfully, and vaguely. “I’m Justin Schwartz, I live at 0001 W. Devon, Chicago, and I’m shopping/looking for a friend/out for a walk — something true, vague, and innocent. Not, “I’m looking for my drugs/guns.” Don’t say that. Not as a joke, especially not if it’s true.

Don’t lie to the cops. It’s not a crime, as lying to the Feds is a crime, see 18 U.S.C 1001 (False Statements), even when not under oath, but it’s a bad idea. The point is to defuse the situation. The encounter is supposed to brief and more or less right where you’re stopped, or Miranda is triggered. Then see the two simple rules above.


A final note. Always be polite and respectful with the police, keep your hands open and away from your body (or clearly visible), and do not make any sudden movements. The police are armed men and women with the authority to kill you with virtual impunity — unless caught on video, and then it’s too late to be any good for you anyway. Most of them won’t do it–there is a lot of paperwork involved, and most of them are reasonably decent individuals. But why take a chance? Politeness and caution never hurt anyone.