INTRODUCTION
Criminal law goes through phases. The criminal justice system in
the common law era evolved from medieval law emphasizing retribution and
moral culpability, with a list of felonies that were incidents of
exploitative and opportunistic behavior. (1) Affirmative defenses and
mitigating factors from this epoch were cases of moral messiness that
shrouded the defendant's internal decision process, injecting
hesitancy into condemnation. (2) The punishment for most felonies,
bluntly stated, was to dispatch the defendant to Hell, cleansing the
wicked from the land and instructing the crowds who witnessed the
execution about the seriousness of wrongdoing. This is not to say the
system was wrong or brutal, even though this description may grate on
modem sentiments. Actually, most people were able to avoid becoming
criminal defendants, and most people avoided becoming the victims of
serious crimes.
The last century saw a fundamental shift in our criminal laws and
available defenses due to the advent of "vice" laws, (3) such
as the Harrison Act (narcotics), Prohibition (alcohol), the Mann Act (4)
(sex trafficking), Comstock Laws (5) (obscenity and contraceptives), and
the contemporaneous federalization of criminal law. (6) Vice laws save
people from themselves. (7) The criminal law began treating addictions
as a form of enslavement. (8) In terms of underlying values, retribution
yielded to rehabilitation and then to deterrence, (9) embodied as the
goal of the Model Penal Code. (10) Rehabilitation and deterrence share a
common utilitarian goal of making individuals behave better. (11)
Incarceration replaced corporal and capital punishment for all felonies
besides murder. (12) This second phase saw the advent of the entrapment
defense and exclusionary rules, which balanced the individual's
rights, expectations, and behavior against the rights, expectations, and
behavior of police officers. (13) Exclusionary rules and the entrapment
defense were true innovations, unknown in common law England.
"Admissibility" became a central component of the defense
lawyer's arsenal; courts found it contradictory to trample
individual expectations of privacy in the process of protecting people
from enslaving themselves to addictions. This period also saw the
universal codification of penal laws and sentencing rules. (14) The goal
of shaping everyone's behavior, unlike the common law's
pursuit of defining evil, necessitated a massive proliferation of
delineated felonies, (15) prohibiting harmful conduct in as many
situations as possible. Criminal law's response to organized crime
in this period (culminating in the RICO statute (16)) targeted
conspiracies to exploit people's weaknesses and addictions. (17)
Clarity, precision, and predictability about the rules and punishments
were important for fostering obedience.
The last three or four decades have brought the gradual advent of a
new phase in which the national security emphasis permeates our entire
criminal law framework. The national security paradigm is affecting our
underlying assumptions about the nature of culpability and the goals of
law enforcement, the way in which we draft and interpret penal code
sections or criminal statutes, our approach to affirmative defenses, and
the strategies or techniques most favored by enforcement officers and
prosecutors. (18) Protecting the American way of life from terrorism,
natural disasters, and other disturbances or uncertainties has become
the overarching goal. Now crime is disruption, rather than sin (as in
the common law era), or degradation (as in the last century). As
Professor Kent Roach observed, "New anti-terrorism laws ...
incorporate a more modern approach that sees crime as one of the many
risks of modem society." (19)
Trends in this new era include militarization of the police, (20)
obsession with gathering information and intelligence, (21) and
collaboration between law enforcement agencies, (22) even across
national borders* A greater portion of law enforcement funding now goes
toward anti-terrorism activities rather than previous allocations.
Funding pushes priorities at the same time that it incentivizes agency
managers to recharacterize unfunded (but needed) areas as anti-terrorist
or related to national security. (23)
We increasingly view criminal activity in terms of group
associations, with those associations balanced against collective
interests of society. (24) Commonplace crimes such as movie piracy, (25)
drug trafficking, (26) money laundering, (27) counterfeiting, (28) and
carjacking now have associations with terrorism. (29) The Executive
Director of the U.N. Office on Drugs and Crime observed in 2002
"public security is now frequently perceived as the primary, or at
least the most effective, way of solving the drug problem--certainly the
one that delivers quicker results than public health programmes, with
greater media attention than prevention campaigns." (30) In 2006,
the United Nations adopted yet another anti-terrorism resolution, the
Global Counter-Terrorism Strategy, urging member states to combat
"crimes that might be connected with terrorism," including all
drug crimes, weapons violations, and smuggling of "any potentially
deadly material." (31)
This is not another essay about how 9/11 changed everything or
dented our democratic values. (32) Modern legal reactions to terrorism
actually began in the 1970s, after a wave of domestic hijackings and
bombings. (33) The 9/11 terrorist attacks continued this trend, with
more thrust given the unprecedented scale of the harm. (34) Nonviolent
disasters, such as Hurricane Katrina, have also helped to recast police
work as disaster response and preparedness; (35) even the collapse of
Enron has pushed criminal law in the direction of preventing harm rather
than responding to it. Thus, while 9/11 has been a major factor in the
shift toward a national security paradigm in criminal law, it has not
been the only factor.
Shifts in a legal culture are not instantaneous, or even sudden,
events. (36) Changes come incrementally, and periods or epochs overlap
at the margins. Jeremy Bentham heralded the codification of criminal
laws and the ascendancy of utilitarianism, (37) the end of the common
law, generations before Oliver Wendell Holmes instructively wrote The
Common Law. The "material support of terrorism" statute (18
U.S.C. [section] 2339B), now the cornerstone of antiterrorism
prosecutions, predated 9/11 by five years, and several United Nations
resolutions pushing every country to pass anti-terrorist legislation had
predated that. (38) The Patriot Act was not just a lurching reaction to
the events of a single day, but rather a continued trajectory that
started years earlier; (39) some of its more controversial provisions
reflected proposals that President Clinton had made. (40)
In the years after 9/11, several commentators warned that the legal
backlash to the event may diminish civil liberties over time. (41)
Public outrage and panic, the argument goes, could result in more
aggressive police tactics used against everyone, (42) more court
decisions upholding police aggression, (43) more legislation authorizing
panoptic surveillance, (44) suppression of political dissent, and racial
or religious persecution in the guise of security profiling. Many saw
all these problems, at least in nascent form, in the Patriot Act. (45)
Carried to an extreme, the ultimate fear was domestic totalitarianism,
an Orwellian police state in which Americans forfeit their freedoms and
tyrannical politicians seize the opportunity to impose martial law. (46)
Even if these predictions turned out to be hyperbole, the essential
concern remains: that antiterrorism measures might escalate to the point
of government overreaching.
At the same time, some called for more reliance on traditional
criminal law to combat terrorism in place of the usual toolbox of
national defense: military force, economic sanctions, and international
diplomacy. The argument was that our criminal justice system was more
effective and more just, less prone to ad hoc rationalizations or
expediencies, and would avert the collateral damage and unseemly
alliances that attend military ventures. (47) Some suggested reforming
criminal law to better handle terrorists, (48) while others argued that
we could use our system in its present form. (49)
In other words, this is not the first article to discuss a
convergence of domestic criminal law and national defense policy. This
may be the first, however, to describe an all-encompassing paradigm
shift, rather than focusing on a particular law, case, or police
practice. It may also be the first to take a decidedly neutral position
on whether the paradigm shift is good or bad. Viewed as a Kuhnian
revolution in the law, (50) the national defense phase approach to
criminal law is both crisis-triggered and a product of changing cultural
norms, shared national values, electioneering dynamics, information
access, and the new technologies available to both criminals and law
enforcement agencies. (51)
Anti-terrorism laws, tactics, and prosecutions are relatively few
in number, and are still a negligible percentage of our overall criminal
docket or police work. (52) The more blunted changes that anti-terrorism
measures bring to everything else reach further.
Anti-terrorism measures can easily infect contiguous components of
criminal law, creating a large spillover effect. (53) Cops on the beat
who undergo a dozen sessions of special training in anti-terrorism
tactics, whether in detection skills, prevention strategies, or disaster
response, inevitably carry that experience into their other police work.
(54) Similarly, in the legislature, lawmaking is an evolutionary
process, in which each session bears the influence of previous sessions
and the existing corpus of enactments. (55) The session after the one in
which Congress enacted anti-terror laws continues to some extent on a
trajectory. (56) When appellate courts rule on a terrorism prosecution,
they create precedents that affect other types of criminal laws. (57)
Empirical evidence suggests that during periods of armed conflict, when
national defense permeates the culture, the Supreme Court rules more
often in favor of law enforcement, at least on non-war claims, than
during other periods, although the Court is no more likely to rule in
favor of the government on war-related issues. (58)
Terrorism sits at the juncture of national defense and criminal
law, and it would be an overstatement to characterize it entirely as one
or the other. This dualistic character makes it a conduit through which
one domain creeps in and pervades the other. (59) Gradually, foreign
policy begins to look like global policing, and domestic criminal law
becomes an instrument of national security. (60)
Part I of the following addresses the impact of modern national
security law on the assumptions and goals that underlie our criminal
justice system. For example, we are witnessing a shift toward focusing
on incapacitation and prevention of crime rather than traditional
deterrence or retribution. (61) Whereas the emphasis of criminal law in
previous eras was punishing the blameworthy (retribution) (62) or saving
people from themselves (deterrence), (63) the new, modern focus is on
preserving our comfortable, secure way of life. Thus, we approach law as
a method of eliminating risks. (64) When we do incorporate elements of
deterrence, the new paradigm shifts the focus towards lowering the
rewards of illegal activity (by foiling terrorist plots or conspiracies
before they succeed) or raising the investment costs for criminals (by
forcing them to screen recruits for undercover agents, launder money,
etc.) rather than traditional deterrence, which focused on the threat of
punishment. (65) Additionally, we are now more likely to presume that
criminals are altruistic or cause-motivated rather than merely
self-interested or greedy. (66) Rehabilitation, an important policy goal
in the era of the Model Penal Code, (67) is virtually absent in the new
paradigm. (68)
Part II will address how the national security paradigm is changing
the way in which we draft and interpret penal code sections or criminal
statutes. The "new" statutes attack the problem of criminal
activity indirectly, by criminalizing material support for terrorist
organizations, transport of illegal workers, etc., rather than the
traditional direct approach of simply proscribing the "bad
activity" or delict. This shift is an outgrowth of the assumption
that direct threat-of-sanction deterrence is ineffective against
criminals motivated by ideologies rather than personal gain. Similarly,
the scienter requirement in these modern statutes is being drafted
differently, and traditional formulations are being interpreted
differently, to reflect a more risk-based concept of
"knowingly" or "should have known." (69) This new
approach to scienter is more general than common law specific intent,
but more specific than common law general intent. (70)
Part III will focus on the availability of affirmative defenses
under the new paradigm. Given the shift towards greater surveillance
(71) and infiltration-oriented undercover agents, the entrapment defense
takes on new importance, as well as search-and-seizure evidentiary
issues related to intercepted phone calls and emails, tracking of web
browsing, and ubiquitous surveillance cameras. Overall, the new regime
appears less merciful toward defendants when it comes to affirmative
defenses and exclusionary rules, as courts weigh the public's
privacy concerns against the seriousness of the threat posed by the new
criminals (a threat to national security and "our way of
life"). In earlier eras, courts also used the "lesser of two
evils" approach to defenses and exclusionary rules, but the
equation was different; most crimes were either opportunistic
exploitation of a single victim or "victimless crimes" where
the defendant primarily harmed himself. Thus, in the past, defendants
enjoyed more favorable outcomes.
The final part describes how the national security paradigm is
exerting broad-based influence over the strategies or techniques favored
by enforcement officers and prosecutors. There is much greater perceived
need for surveillance and infiltration by undercover agents. Profiling
has become more important and necessary, at least in the perception of
law enforcement. (72) The demand for national and interstate cooperation
has grown, and there is more overlap with disaster response teams,
immigration and border control, etc. Interestingly, our government uses
non-penal measures more frequently, like cancelling flights, (73)
intensifying airport screening, and creatively using obstructions to
make crime less convenient. (74) These measures exploit uncertainty to
frustrate or complicate the terrorists' plans. Ironically,
uncertainty is often the terrorists' greatest goal, as it
exponentially magnifies the social impact of a single bombing to have
citizens live in uncertainty about the timing, location, and probability
of future attacks, even where the attacks are statistically less
frequent than natural disasters or other risks that modern life accepts.
Uncertainty is the terrorist's ultimate weapon, but it is also a
tool to combat them in the new regime. Earlier periods of criminal law,
in contrast, focused instead on the need for increased certainty.
Clarity of the rules and certainty of punishments were paramount.
Writing about a widespread cultural drift from an academic
perspective is challenging because one rarely finds sources like court
opinions or legislative history explicitly announcing a sudden,
broad-based change in beliefs or policy thinking. (75) A second-best way
of supporting the hypothesis in this article is to predict what would
happen if a paradigm shift toward national security had happened, and
look at the emerging evidence to compare it to the prediction.
Subsequent sections follow this methodology at times, when sources
indicate a change but the etiology is not explicit or acknowledged.
I. ASSUMPTIONS
Criminal law in every era rests upon certain underlying beliefs and
values. (76) Overarching goals or purposes of penal law shape the
relevant legislation, enforcement, prosecution, and sentencing. Beliefs
about the motivations and abilities of criminals yield predictions about
their likely responses to prohibitions, potential punishments, and
probability of detection.
This Part addresses the impact of modern national security law on
the assumptions and goals that underlie our criminal justice system.
Currently there is a paradigm shift toward incapacitation (77) and
prevention of crime rather than traditional deterrence or retribution.
(78) Increasingly, law functions as a method of eliminating societal
risks. (79) Deterrence continues as a factor, of course, but with a
diminished role and different emphasis. Instead of using threats of
punishment to offset the rewards of crime (traditional deterrence),
newer methods boost the up-front transaction costs of committing crimes.
Traditional deterrence focused on the threat of punishment. (80)
Increasingly, deterrence focuses on raising the investment costs for
criminals.
Our assumptions about criminal intentions or motivations have also
changed. Instead of impulsive or desperate criminals who may be
responsive to traditional deterrence, terrorists and terror-associated
criminals tend to serve a larger cause, making threats of punishment
less important. (81)
A. Retribution and Other Assumptions in the Common Law Era
In the common law era, the overall goal of retribution had a large
influence on the shape of criminal law. (82) The emphasis on retribution
had significant implications. The intentions of the perpetrator were
elemental for categorizing an act as evil. (83) We punished wrongdoers
because they deserved punishment. (84) Justice required punishment of
the guilty and protection of the innocent. (85) When deterrence appeared
as a consideration, it was subordinate to ideas of moral culpability and
"just deserts." (86) During this period, specific intent was
an element of property-related crimes, (87) because the evil of theft
was not in the transport or use of otherwise handy objects, but rather
in the covetousness that sought to have more assets for oneself at
another's expense. (88) Having juries peer into the soul of the
defendant was part of the criminal justice process. (89) In the modern
era, these psychological considerations faded in importance, as strict
liability crimes became commonplace and utilitarian concerns focused
attention on the harmful consequences of an act rather than the depraved
heart of the actor. (90) The "depraved-heart" of common law
became "recklessness" in the Model Penal Code and
twentieth-century statutes. (91)
Generally, felonies at common law shared a characteristic of crass
opportunism on the part of the perpetrator. (92) Given the lack of cops,
forensics, or other features of modern public safety, deterrence was
only marginally feasible, and the law focused on the internal moral
compass of the citizenry, the mens rea. (93) The public morality
(retribution) (94) aspect of common law crimes meant that felonies
should be few but general, easy for everyone to remember, and easy to
avoid violating simply by keeping one's heart and intentions pure,
selfless, and true. (95) Common law mens rea rules meant that people had
less need to know the precise parameters of the acts or circumstances
that constituted a crime.
Some practical considerations also influenced the common law
approach to crime. There were no professional police forces or beat
cops, so most crimes went unsolved. There was no forensic science to
objectively determine the perpetrator, further reducing the likelihood
of solving a crime. Weapons and other instrumentalities of crime were
cumbersome, such as single-loading muskets or pistols, which affected
the types of crimes that perpetrators would undertake, as well as the
ability of law enforcement to deter or apprehend wrongdoers.
Particularly relevant compared to the current paradigm shift, wrongdoers
in the common law era lacked the ability to harm more than a handful of
people at one time. It was virtually impossible for a lone actor to kill
hundreds or thousands of people in one feat.
B. The Interstitial Era
A profound shift occurred after the Civil War due to a convergence
of factors. Federalism, (96) codification, (97) and moral crusades
against addictions and organized crime characterize this period. (98)
The federal government emerged from the war supreme, and through the
Thirteenth and Fourteenth Amendments, the states acceded to federal
intrusions to prevent re-enslavement of freed slaves. (99) Advances in
transportation and technology facilitated the distribution of addictive
substances and trafficking in sex labor. (100) Problems we view as
commonplace were novel at the end of the nineteenth century. (101) The
federal criminalization of slavery led logically to federal prohibitions
of seemingly enslaving vices. (102) Trafficking enabled such
ensnarement, and penalizing traffickers was a new step in criminal law;
prohibition through indirect means became a centerpiece of criminal law
today. (103) The dawn of the twentieth century brought the Harrison Act
(narcotics), (104) the Mann Act (sex trade or "white slave
trafficking"), (105) Prohibition (alcohol), (106) Comstock laws
(obscenity), (107) and the first controls on illegal immigration
(addressing slave-like working conditions). The common thread was to
protect people from themselves, and the idea that normal or
"good" people could unwittingly become "slaves" and
live in misery. (108) All of these laws, of course, also contained
elements of racism, sexism, and classism, (109) but they are not really
in the same category as Jim Crow laws or overt measures to persecute
minorities or the poor. These laws often reflected stereotypes about
immigrants, women, or the poor as being impulsive, helpless, naive, or
irresponsible, and therefore needing the protection of the state; this
self-appointed protective role is very different than laws designed to
exclude, marginalize, or punish societal outsiders.
In a break from the common law era, criminal law became
paternalistic, a tool for social engineering. Criminals were either
pathetic and helpless, (110) or were tempters and slavemasters (i.e.,
the traffickers). (111) The mens rea element that was central to the
common law gradually gave way to many strict liability crimes for public
safety regulations. (112) Possession crimes sit on the border between
general intent and strict liability. Knowing that one possesses
contraband suffices, regardless of the reason or motivation. The Model
Penal Code (MPC), a product of this era and the basis for criminal codes
in almost three dozen states, (113) replaced the "mens rea" or
"intent" requirement with a four-tiered
"culpability" regime. The gradations of culpability
represented levels of awareness of potential harm from the criminal act.
Threats of punishment, or deterrence, became a tool for offsetting
the anticipated benefits of committing a particular crime, rather than a
means of restoring the moral equilibrium. (114) An engineered form of
deterrence gives would-be perpetrators something to lose by committing
the crime. Parole and probation, which emerged during this period, (115)
and plea bargaining, to a lesser extent, are outgrowths of assumptions
about deterrence and incentivizing lawful behavior.
Codification of criminal law became widespread in this period.
Unfortunately, codification also subtly separates criminal law from the
norms of the community and commonsense ideas of morality. Published
criminal codes may appear superficially to provide better notice to the
citizenry of the law's requirements, but it also allows for the
proliferation of new, technical prohibitions. (116) Previously, judges
could remember the elements of common law crimes, and the common law
populace could generally grasp and remember what actions were
punishable. (117) Written laws can be infinitely more numerous and
unmemorable, as long as they are retrievable through an indexing system
for judges and lawyers. The common law system imposed natural restraints
on the number of felonies; codification has no restraints on quantity
except the time it takes legislatures to promulgate more laws. (118)
Legislatures can regulate conduct in every conceivable domain. During
this period, official sentencing guidelines and gradations of offenses
codified punishments as well. Calibrated sentences, with arithmetic
enhancements and reductions, represented an underlying shift toward
deterrence.
Exclusionary rules and the entrapment defense sprouted up during
this period; they were not present in the common law system. Criminal
procedure in England and other common law countries functioned without
categorical exclusionary rules for evidence obtained by illegal searches
or seizures. (119) No other country had the entrapment defense. (120)
The introduction of these components in our criminal justice system
corresponded to federalization and the enactment of vice laws. Nearly
all of the leading cases for Fourth, Fifth, and Sixth Amendment
exclusionary rules involved police enforcement of vice laws, narcotics,
illegal betting operations, and obscenity, as did all six of the
entrapment cases through which the Supreme Court shaped the rules for
this defense. (121) In a sense, exclusionary rules and the entrapment
defense merely recognize a contradiction in enforcing paternalistic laws
against self-enslavement with methods that also ensnare or entice
defendants. They also were expressions of the deterrence paradigm, as
courts often said the purpose of each was to deter police misconduct.
(122)
Another hallmark distinguishing this era from the common law was
the surge in criminal laws targeting organizations rather than
individuals. (123) Common law crime was very individualistic, and
assumed person-on-person actions. The last century saw a profound shift
toward assumptions about criminal syndicates and gangs, with the concern
being their efficiency in cycling through crimes and ensnaring victims,
their impressive aggregate resources, and to some extent, their
impersonal character as soulless entities. (124) This laid the
groundwork for the criminal treatment of groups in the next era.
C. The National Security Era of Criminal Law
The new paradigm in criminal law operates with two important
changes in these underlying assumptions. First, guaranteeing peace and
safety for the whole society has replaced punishing the blameworthy or
saving people from various enslavements as an overarching goal. (125)
Stability and security are the motivators for penal policy. (126)
Second, incapacitation, or making crimes less feasible to commit, is
replacing the tactic of deterring through threatened punishments. (127)
There seems to be a consensus that terrorists are impervious to
classic deterrence because they are not afraid of punishment. (128) The
symbol of the clever suicide bomber, who spends months in flight lessons
or learning about pyrotechnics, has shattered the traditional view of
criminals as impulsive, antisocial, and supremely selfish. Punishment
twists into martyrdom. Disincentives for terrorists are on the front end
of the equation, increasing the transaction costs of committing the act
(129) or raising the risk of botching the job, (130) rather than
offsetting the presumed rewards with a possible penalty, as we have done
in the past. The new paradigm is more concerned with lowering the
chances of success than discouraging the behavior through threats.
Incapacitation and deterrence can lead in different directions when
applied. Increased security, such as airport screening or ID checks, is
an essential tool of incapacitation, but has less deterrent value. The
ability of government agents to predict crime (who, when, where, and
how) is paramount for ex ante harm prevention, whereas deterrence
prioritized ex post capture of criminals. Methods of gathering
information, whether surveillance or self-reporting, change as the goals
turn from ferreting out criminals to flagging potential threats. (131)
Crime statistics became important in the last century as a way to
understand why crime happened and how policymakers could change the
incentives for would-be offenders. (132) The national security paradigm
uses statistics to know where to put roadblocks and checkpoints.
An additional trend is to associate other seemingly unrelated types
of crime, such as narcotics, counterfeiting, or DVD piracy, with
terrorism. (133) Terrorism colors how we perceive criminal groups; (134)
attacks always spawn a flurry of efforts to uncover "links" to
larger terrorist groups or organized crime. (135) Notions of guilty
association relate closely to the underlying assumptions we have
embraced. (136)
Terrorists are the ultimate embodiment of how we have come to view
criminals: as a threat to our way of life. This same underlying
attitude, however, is also visible in newer criminal law developments
regarding whitecollar criminals who create havoc in the financial
sector, (137) the approach taken to illegal immigration, (138) or even
how we deem looting in the wake of disasters. (139)
II. THE LAW
The national security paradigm is changing the way in which we
draft and interpret penal code sections or criminal statutes. The
argument here is not that everything has already changed, but rather
that things are moving, gradually but observably, in a particular
direction.
The few statutes designed to address terrorism directly are
influencing the rest of the criminal law system through ancillary
provisions. An example is the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), (140) a response to the Oklahoma City bombings,
which has changed the structure of habeas proceedings in the years
since. In fact, most of the Supreme Court's interpretations of
AEDPA pertain to the level of judicial deference required (141) and the
statute of limitations for habeas petitions in capital cases, (142)
rather than cases involving actual terrorists. Judicial interpretations
of provisions in antiterrorism statutes, such as the scienter
requirement of the "material support for terrorism" statute,
generate binding precedent for non-terrorism cases that use identical
phrasing. (143)
A. Indirect Rules
Terrorism statutes more often attack the problem indirectly, by
criminalizing material support for terrorist organizations, transport of
illegal workers, money laundering, etc. This pattern of indirect crime
control now characterizes other areas as well. The traditional approach
to criminal law directly proscribed the bad activity itself. This shift
is an outgrowth of the assumption that direct threat-of-sanction
deterrence is ineffective against criminals motivated by ideologies
rather than personal gain. (144)
Terrorism has proved impervious to traditional criminal
prohibitions and deterrence, so increasingly the United Nations and the
federal government have called for indirect measures that seek to make
commission of the crime less feasible. Indirect rules attacking the
funding sources (145) or the ability of criminals to communicate
secretly, travel easily from place to place, get information about
targets, or obtain weapons, are the favored means in combating
terrorism. (146) Typical is the call from Professor Roach, who suggests:
[We should] spend more resources on regulating the environment
before, during and after acts of terrorism so as to minimize the
harms of terrorism. Before the act of terrorism, this means better
regulation of sites and substances that are attractive to
terrorists. It is particularly important to take steps to ensure
that potential terrorists cannot obtain access to lethal substances
such as toxins, nuclear material and airplanes. The terrorist
attacks that brought down two aircraft in Russia reveal that more
can be done to screen passengers and baggage. Much of this type of
environmental regulation may be achieved by administrative laws
that may present less of a threat to values such as liberty, due
process and equality than the criminal law. Some of these
preventive measures may also have the advantage of making us safer
from accidents involving nuclear material and toxins. (147)
The "material support for terrorism" statute is perhaps
the clearest illustration of this, making it a felony to provide any
type of aid, useful information, or other indirect support to terrorist
groups. (148) The Supreme Court upheld the constitutionality of this
provision in June 2010. There are several other similar statutes that
allow the government to freeze assets of terrorists. (149)
This "fence around the law" approach, while most vivid in
the antiterrorism context, is becoming more typical in other areas of
law enforcement as well, (150) especially in combating narcotics use.
For example, the federal drug--involved premises statute imposes
criminal liability on those who "knowingly open, lease, rent, use,
or maintain any place.., for the purpose of manufacturing, distributing,
or using any controlled substance," discussed more below. (151)
Another federal statute forbids aiding and abetting a felon in obtaining
firearms. (152) White collar crimes under Sarbanes-Oxley, an area far
removed from the violence of terrorism, imposes potential criminal
liability on lawyers and accountants who indirectly enable various types
of security fraud or embezzlement.
Of course, enforcement agencies may use indirect crime control,
even without explicit statutory guidance, by using other unrelated penal
sections to target terrorists or other threats to national security.
These are crossover prosecutions. (153) Immigration enforcement and
deportations have been the most--used tool since 9/11 to attack
terrorism, and narcotics enforcement measures merge into
"narcoterrorism" investigations. (154) As mentioned above,
commentators are associating even film piracy and pedophilia with
terrorism. This brings the influence of national security thinking into
other, seemingly unrelated areas of law, eventually affecting the
drafting or amendments of those statutes. Enforcement tactics are the
subject of a subsequent section; the point here is merely to mention
this as an influence on penal legislation.
B. Evolving Scienter Requirements
Federal criminal statutes favor a scienter formulation of
"knowingly" or "should have known" (155) This new
approach to scienter is more general than common law specific intent,
but more specific than common law general intent. More importantly for
the present topic, the current scienter formulation dovetails with the
overarching goal of prevention or avoidance of harms, rather than
penalizing selfishness or impulsiveness on the part of the wrongdoer.
The new approach has both an objective component (what the
defendant should reasonably have known) and a somewhat diluted
subjective component (what the defendant actually knew or thought);
"knowingly" is thus the equivalent of a duty to avoid
foreseeable harms, and fits well with the policy goal of maintaining
security and preventing disaster, (156) The "material support of
terrorism" statute follows this same scienter formulation, which
became the subject of the Supreme Court's recent Holder case; (157)
the Court upheld the "knowingly" element of the "material
support of terrorism" statute (which Congress added after 9/11)
against a rather plausible void-for-vagueness challenge. The
open-endedness of the modem scienter formulation allows for easy
prosecutions following sting operations, and in the Holder case, allowed
the "material support" label to apply to providing legal
advice to a terrorist organization about how to participate in the
mainstream political process as a non-violent alternative for pursuing
its goals.
The point here is not that the government always wins under
statutes using this mens tea formulation (they do not), but rather that
this formulation facilitates the emerging policy goals of eliminating
risks and incapacitating threats. Judicial opinions discuss the
grammatical ambiguities rather than employing the psychological
precision one might expect when interpreting mens rea provisions; the
analysis turns on deciding to which clauses "knowingly" refers
in the rest of the sentence. (158) Grammaticism is a versatile tool.
Adverbial scienter clauses, especially those as ambiguous as
"knowingly," are always susceptible to being stretched or
constrained by interpretations of which phrases in the rest of the
statute they modify. (159) The social harm of the underlying offense
seems to be a better predictor of the case outcomes in these mens rea
cases than subjective mental factors, such as the availability of the
designated information to the defendant in the case. (160)
This seems counterintuitive, given that the scienter term in
question is "knowingly." One would think that the cases would
turn almost entirely on whether the defendant knew, or could easily have
known, the predicate facts that trigger liability under the statute.
(161) The defendant's knowledge or the ease of access to the
relevant "knowledge" seem less important, however, than how
disruptive the predicate act is to society. The social harm at stake can
drive the result, using grammar as the vehicle.
In fact, mens rea seems to be moving beyond mere risk awareness.
For example, an individual who aids and abets a felon's firearm
ownership can be charged as an accomplice to the felon-in-possession
offense, pursuant to 18 U.S.C. [section] 2(a), (162) without a clear
mens tea element related to the gun-receiver's status as a
convicted felon under [section] 922(g)(1). (163) There is a current
split among circuit courts over whether a defendant charged with aiding
and abetting a felon under [section] 922(g)(1) can be held strictly
liable for knowing the principal's status as a convicted felon.
(164) Similarly, the centerpiece of federal cybercrime legislation is
the Computer Fraud and Abuse Act (CFAA), enacted in 1984. (165) There
have been at least ten amendments to this section, some included in the
Patriot Act, and all significantly expanding the reach or punishments of
the statute. (166) While it includes some provisions for
"intentional" fraud, (167) it also includes what appears to be
strict liability for causing damage to another computer after one has
intentionally accessed it without authorization. (168)
In other words, the scienter element applies only to the
unauthorized access, not the actual damage done to the victim's
computer or network. This has elicited some criticism in the academic
community, but appears to be exactly what Congress intended when it
added this provision in 1996.169 Strict liability is also increasingly
common in criminal statutes. (170) Once reserved for regulatory offenses
that carried no penalty of imprisonment, (171) our criminal justice
system has grown more comfortable with strict liability as a valuable
tool in the incapacitation of dangerous individuals.
C. Greater Discretion
Newer statutes also give prosecutors and investigators more
discretion and flexibility. Criminal law has decreasing clarity about
the specific actions to prohibit, but increasing clarity about
protecting a crime-free state of affairs.
The Patriot Act conferred more authority and discretion on federal
law enforcement officials, and on the executive branch generally. (172)
Most of the increased authority pertains to gathering information, such
as surveillance or authority to demand voluntary disclosure of
information. (173) Data mining (174) is one important issue.
Information-related discretion is the most obvious pro-government
discretionary shift in anti-terrorism and other newer penal statutes,
but the effect is not boundless. (175)
Less obvious, but still significant, is the increased discretion
that comes from a proliferation of indirect crime-control laws,
gradations of offenses, and ambiguity in mens rea provisions. Each of
these multiplies the options for investigators in selecting targets and
prosecutors in charging and plea bargaining. (176) A recent
practitioner's journal observed that criminal laws in our country
"have become dangerously disconnected from the English common law
tradition and its insistence on fair notice, so prosecutors can find
some arguable federal crime to apply to just about any one of us, even
for the most seemingly innocuous conduct (and since the mid-1980s have
done so increasingly)." (177)
III. DEFENSES & EXCLUSIONS
The "information premium" that characterizes the national
security paradigm has also affected the exclusionary rules pertaining to
self-incrimination and searches. Exclusionary rules have increased
significance in the criminal justice system as police rely more on
intercepting phone calls and emails, tracking of web browsing, and
ubiquitous surveillance cameras. In addition, the shift towards greater
surveillance and infiltration-oriented undercover agents gives the
entrapment defense new importance, even if the defense is usually
unsuccessful.
A. Information Premium vs. Privacy
In recent years, information has become all-important, making
privacy intrusions seem more reasonable. A complete factual picture at
trial has more value than before; the exclusionary rules from the Warren
Court era contradict this growing value. Explicit statutory
authorizations for surveillance and extensive data mining (178) have
curbed defendants' abilities to have incriminating evidence
excluded from their trials; not only do courts tend to defer to explicit
intentions of the legislature, (179) but the new statutes also impact
the "reasonable expectation of privacy" analysis that has
framed Fourth Amendment exclusionary rules since Katz. (180)
The Supreme Court's recent Hiibel (181) case provides an
illustration. The Court upheld state statutes that require citizens to
give their name to police during Terry stops. (182) This is one of the
clearest cases of national security concerns influencing other areas of
criminal procedure, as the Supreme Court upheld a ruling by the Nevada
Supreme Court that relied heavily on concerns about terrorism and other
threats to our social order. (183) Other commentators have noted the
spillover effect in the Hiibel case, which appealed a defendant's
conviction for refusing to identify himself to an officer responding to
a domestic violence call; it does provide evidence of the new paradigm
affecting both statutes and jurisprudence. (184)
Other recent Supreme Court cases indicate a trend toward favoring
information disclosure over concerns about privacy or
self-incrimination. In Berghuis v. Thompkins, (185) the Court decided
that defendants must invoke their right to silence explicitly to trigger
a police duty to relent in questioning; otherwise, police can continue
interrogating a stone-silent witness for hours. As mentioned above, the
new Shatzer decision allows police to reinitiate questioning without
defense counsel present fourteen days after the invocation of the Fifth
Amendment right. (186)
Calls for increased information access, or license to interrogate,
come from both sides of the political spectrum. Attorney General Eric
Holder has asked Congress to pass legislation that would eliminate the
Miranda defense in national security cases; (187) it is not clear how
this would align with the Court's decision in Dickerson v. United
States, (188) which invalidated a legislative attempt in the 1970s to
undo Miranda. On the other side, Richard Posner (among many others) has
suggested that the high stakes in anti-terrorism efforts warrant
rule-bending when it comes to obtaining information. (189)
B. Affirmative Defenses Under the New Paradigm
An observable shift is occurring in the area of affirmative
defenses. (190) Previously, courts used the "lesser of two
evils" balancing test to defenses and exclusionary rules, (191) but
the balancing test was different than today, as most crimes were either
opportunistic exploitation of a single victim, or "victimless
crimes" where the defendant was mostly harming himself. This may
have led to more favorable outcomes for defendants than we are seeing
today. (192) In the context of affirmative defenses, there is more
popular (and judicial) resistance today to the utilitarian idea of
"lesser evils." (193)
Recent commentators have argued that the policymakers have more
influence on the availability of affirmative defenses than the
case-by-case application that occurs in the courts, (194) making the
growing legislative hesitancy in this area more significant. Congress
considered and rejected the proposal to include a necessity defense in
the federal criminal code. (195) As Professor Hoffmeier recently
reported, "Seventeen of the nineteen states that codify some
version of the defense reject the unrestricted balancing of harms
proposed by the Model Penal Code." (196)
The defense of entrapment is our legal system's primary method
for regulating undercover operations or stings. (197) The national
security paradigm has made the entrapment defense more significant (but
probably less available) because the goal of protecting safety
necessitates more use of undercover informants. (198) More entrapment
claims today relate to funding terrorism (199) and to bomb plots. (200)
Sting operations are even more useful for incapacitation than for
deterrence, because they allow infiltration of criminal groups and
sabotage of plots from within, or diversion of dangerous potential
criminals into decoy plots.
Stings and other undercover operations also illustrate the
front-end deterrence that permeates the new paradigm. They divert
criminals' resources from their own harmful objectives by plaguing
criminal organizations with uncertainty, internal mistrust, costly
screening methods for recruits, etc. As explained elsewhere, (201)
terrorist leaders and syndicate organizers know that a significant
percentage of their recruited minions are likely to be informants or
undercover agents; conversely, potential recruits may realize that their
recruiter could be a government agent, which would have a chilling
effect on the entire enterprise. (202) Mistrust within a criminal
organization raises the transaction costs of crime, including terrorism,
because criminal leaders and subordinates alike must divert resources to
screening and testing their co-conspirators more than they would
otherwise. (203) Criminal conspiracies make less progress when added
costs drain away time, energy, and other resources. As the field becomes
more cluttered with undercover government agents, leaders find it more
difficult to trust recruits with necessary details and assignments, and
more difficult to recruit anyone in the first place. The likelihood of
unknown traitors within the ranks is discouraging and deflating for
radicals. If terror groups find motivation in their zeal instead of
pecuniary gain, infiltrators undermine the most valuable resource of the
conspiracy. (204) This is a type of "lemons effect" on
criminal conspiracies, which provides an indirect benefit to the rest of
society. (205)
Anti-terrorism sting operations often lead to entrapment claims.
(206) Even so, the defense appears to be less availing for defendants
than before. (207) The federal system, and most states, follows the
"subjective test" for the entrapment defense, which focuses on
whether the defendant was "predisposed" to commit the crime.
(208) Yet predisposition is plain, at least for jurors, merely from the
radicalism that necessarily motivates a terror crime. The national
security mindset clouds the predisposition question under the subjective
test, because these criminals seem less like weak or selfish misfits and
more like a true threat to society. (209) Radical drunk driving lawyer political views
overlap with anti-social attitudes, and color the predisposition
question under the subjective test. (210) In the minority of states that
use an alternative test for the entrapment defense, the "objective
test" of the Model Penal Code, (211) the question instead is how
overboard the police actions were during the undercover operation.
Viewed through the lens of national security, however, the perceived
stakes of societal harm and disruption will inevitably justify more
extreme police actions that would seem otherwise appropriate. (212)
National security concerns will tend to make undercover operations
more prevalent, as this tactic can offset, not merely supplement,
surveillance. (213) A sting operation can be cheaper than surveillance
in many ways: in terms of political blowback, necessary equipment,
warrants, and data sorting/analysis. Of course, sting operations also
supplement surveillance where dangerous individuals are secretive or
generate too little identifying information.
IV. POLICING TACTICS AND STRATEGIES
The national security paradigm is exerting broad influence over the
strategies or techniques most favored by enforcement officers and
prosecutors. This section focuses on three main areas of change:
information gathering, profiling, and random enforcement measures.
Before proceeding to these sections, however, a few miscellaneous trends
in policing deserve at least passing mention, as they affect the ensuing
discussion.
First, police have generally taken on the role of risk management:
crime prevention and disaster response. "[P]olice agencies have
become an increasingly crucial node in the network of institutions
responsible for risk management. Their traditional roles are expanding
to include collection and dissemination of information." (214)
Another widely observed trend in the public administration
literature is the explosion in private security firms that patrol
shopping malls, university campuses, residential developments,
shipyards, etc. as a supplement to regular police. (215) This is not in
response to terrorism, but it does relate to the subject at hand.
Ubiquitous private patrolling is consistent with the shift in deterrence
discussed in previous sections. Private security guards cannot punish
criminals, and may seldom refer cases to regular police or prosecutors,
but screening (checking for IDs) and patrolling help with prevention and
early warning, raising drink driving laws the front-end costs of crime and the risks of
failure for criminal planners. (216) The prevalence of private security
patrols frees up regular police departments to become much more
specialized. (217)
Police forces themselves have grown in recent decades. (218)
"The growth of police relative to population should be considered a
basic social indicator representing an expansion of formal social
control and is clearly worthy of further investigation." (219) They
have retooled and retrained in recent decades to combat organized crime.
(220) Cooperation, both national, interstate, and interagency, is now
commonplace, as is the increasing overlap with disaster response teams,
immigration and border control, etc. (221) Policing today is more
federalized and globalized than ever before. (222)
Militarization of policing is an important, widespread trend. (223)
Police organizations increasingly "adopt many of the trappings of
military organizations, including formal ranks, insignias, uniforms,
codes of discipline, organizational structures, equipment, doctrine, and
culture. (224) Changes in federal law have permitted, and sometimes
required, more blurring between the military and domestic police forces.
(225) Changes to the Posse Comitatus Act, which once forbade military
involvement in civilian law enforcement, came after 9/11 and against the
backdrop of Hurricane Katrina. (226) This is part of a general trend.
(227) Even before 9/11, nearly all police agencies had paramilitary
units or SWAT teams, a significant change from just twenty years before.
(228) Regular police have adopted surveillance technology (229) and
other equipment from the military. (230)
Just as indirect criminal legislation is a hallmark of the new
approach, indirect enforcement is a trend in policing. The largest
example is the use of immigration enforcement as a primary tool in
preventing terrorism, (231) even though the vast majority of deportees
pose no individual security risk. Terrorism, however, is not the only
example of roundabout methods for achieving crime prevention. A
significant rise in background checks for transactions of everyday life,
like renting an apartment, reflect the new approach to societal risk
management. (232)
A. Information
Information access is the single most obvious way in which the
national security paradigm has already changed police tactics and
strategies. (233) Local law enforcement found itself recruited into
anti-terrorism campaigns, primarily assisting by gathering and sharing
potentially useful information. National security concerns, triggered by
horrific surprise attacks, drove a crusade to cull useful facts from as
many sources as possible. (234) Information gathering has brought
budgetary shifts, (235) diversion of police training time, and a
completely different type of collaboration between enforcement agencies.
(236)
Less obvious, perhaps, is the notion that the technology, and the
corresponding cultural infatuation with information and communication,
are as much a cause of the shifting paradigm in policing as they are a
means for implementation. (237) For the first time in history,
technology allows police to do more prevention than post-crime pursuit,
and even when prevention fails and incidents occur, to respond instantly
rather than gradually. Police, prosecutors, and lawmakers have an
opportunity to reinvent their roles in criminal justice. National
security concerns certainly imposed an intelligence-gathering role on
law enforcement, but growth in capacities for intelligence opened new
horizons for ensuring public safety, rather than merely restoring it
after an incident. It is a mutually reinforcing phenomenon.
Aggressive government surveillance since 9/11 is a well-worn
subject, (238) as is our culture's obsession with information
generally. The correlation between the two has received less discussion,
except for constant concerns that the private information portals, such
as Google or smartphone services, will also be sources for sinister
government surveillance of ordinary citizens. Government officials are
also a product of the information-obsessed culture. It would be
surprising, in fact, if even the most benevolent leaders did not want as
much data as possible in today's milieu. Some gathering of
information is done simply "because we can," and this grows
alongside any sinister agendas to suppress political dissent or to
tighten control. This is not to discount the validity of privacy
concerns or the protests of civil libertarians; if sinister characters
are in government and want to oppress the citizenry, panoptic
surveillance certainly empowers such ends.
In practical terms, however, this means that we have entered a new
era of policing, which places a premium on information and intelligence
in three forms: fact accumulation, data generation, and information
sharing. Aptitude and knowledge become more useful and necessary, and as
a result, these traits become qualifications for positions on the force.
(239) This affects not only hiring, but also department policies about
continuing education for officers. (240)
Law enforcement in recent decades has become "actuarial,"
basing decisions on statistical predictions. (241) The huge supply of
data now available lends itself naturally to statistical analysis, and
statistical analysis leads easily into "actuarial policing,"
preventing crime by predicting it. (242) This second step, from
data-mongering to statistical-based decisions, involves some blurry
logic because statistics are patterns of past behavior and predictions
are obviously forward-looking. Actuarial or prediction-based policing
tacitly assumes a particular level of consistency between past patterns
and future patterns and may discount the reactive nature of criminality.
This is now the subject of growing debate in the academic literature.
(243) From a game theory perspective, prediction-based policing is also
predictable policing, which makes it easier for criminals (terrorists or
otherwise) to orchestrate a surprise attack, or simply work around the
policing patterns. (244) From an etiological perspective, statistics can
become self-fulfilling prophecies or a cycle of escalation when they
furnish the basis for policymaking; as police target certain areas or
types of suspects, future statistics about high-crime locales and
apprehended offender traits will reflect this channeling of effort.
Bernard Harcourt calls this the "ratchet effect" of actuarial
policing. (245)
The information obsession, therefore, is the staging for the
subjects of the next two sections, on profiling tactics and random
policing. Of course, many see profiling as prejudice, (246) instead of
scientific crime prevention. (247)
Random policing may seem like a foil to prediction-based tactics
(like profiling), (248) but it is actually consistent with the same set
of assumptions. (249) Officials must assume that potential wrongdoers
also have plenty of information available to make predictions about
policing, to select targets based on their vulnerabilities, and to plan
accordingly. Surprise attacks by police, decoy targets, and unexpected
disruptions in travel or communication can foil criminal plans, or at
least significantly raise the transaction costs of executing a crime
successfully. This creates a special chilling effect, different from the
deterrent effect of threats. (250)
B. Profiling & Prediction
Profiling, not just racial, but also associational, has become a
more pressing issue in recent years, moving from a policy concern about
vestigial racism to an active debate about tradeoffs with security.
(251) The debate about racial profiling has carried on for many years.
(252) Before September 11, 2001, politicians spoke out against using
race as a tool to fight crime. (253) Things seem to have changed since
the terrorist attacks, (254) even in the courts.
The shift is clearly visible in United States v. Arvizu, (255) in
which a border patrol agent in Arizona had stopped a vehicle that was
driving on an unpaved road circumventing a border checkpoint. (256)
Inside the vehicle he saw a man and woman, with three children in the
back with their knees propped up on something beneath them. The driver
had slowed down when he saw the agent and reacted in a stiff, rigid
manner, not looking at the agent; the children waived to him in a
mechanical fashion for several minutes as if being instructed to do so.
(257) A registration check located the home of the vehicle in a nearby
area known for human trafficking and drug smuggling. (258) The agent
stopped the vehicle and asked if he could perform a search. (259) He
found drugs in a bag beneath the children's feet in the backseat
and in another bag behind the rear seat. (260) Arvizu argued the agent
lacked reasonable suspicion to stop the vehicle. (261) The Supreme Court
held that when taking into account the totality of circumstances and the
agent's factual inferences, it was reasonable suspicion to believe
Arvizu was engaged in illegal activity. (262) During oral argument, the
Justices indicated concern about terrorism, which may have affected the
outcome. (263) Some see this case as a new precedent on profiling. (264)
After September 11, in 2002, the Immigration and Naturalization
Service (INS) ordered males between the ages of 16 and 45 from specific
countries, including but not limited to Iran, Iraq, Syria, Libya, and
Sudan, to report to their local INS office for registration,
fingerprinting, photographing and interviewing. (265) The countries were
those that the United States considered sponsors of terrorism. (266) The
use of this special registration ended, however, after one year. (267)
The USA PATRIOT Act allowed law enforcement officers to detain
individuals suspected of terrorism for seven days without charges or
initiation of deportation proceedings. (268) The INS rules allowed
detaining individuals for 48 hours without charges. Shortly after 9/11,
the Foreign Terrorist Tracking Forces arrested and detained hundreds of
Middle Eastern and Muslim men, usually without releasing the
detainees' names or whereabouts. (269) The focus was on men of
Middle Eastern descent and those from Muslim countries, because those
were the areas suspected of having connections with al-Qaeda. (270) Many
of the men spent days or months in detention, and some eventually faced
deportation. (271) Most faced no criminal charges, but were deported for
immigration law violations or prior criminal convictions. (272)
Immigration law became the method to deport individuals who were
allegedly involved in terrorist activity but never charged. (273) Steps
taken to secure the country after 9/11 included a focus on undocumented
workers. (274)
Another change occurred after 9/11: state and local police took a
more active role in immigration enforcement, (275) such as checking
visas. (276) State and local law enforcement had only rarely assisted in
immigration law enforcement before then, (277) despite Congressional
authorization for their involvement in the late 1990s. (278) In the wake
of ineffective anti-terrorism laws, immigration enforcement became the
primary vehicle for incapacitating potential terrorists. (279) The
definition of "national security" stretched beyond prevention
of terrorism and into the prosecution and deportation of common
criminals and immigration violators. (280)
Many commentators have challenged the reliability of profiling as a
means of combating terrorism. (281) Reliable or not, it has currency
now, is attaining greater legitimization, and is shaping the thinking of
law enforcement and legislators. (282) Profiling itself seems to be
following the same trends as other aspects of law enforcement, as it
moves from selectiveness in arrests, prosecuting, and punishment toward
pre-crime targeted surveillance and detention.
C. Uncertainty as a Weapon
Uncertainty is the terrorist's ultimate weapon, but in the new
regime, it is also an effective tool to combat terrorists as well as
other types of criminals. Earlier periods of criminal law, however,
focused instead on the need for increased certainty: clarity of the
rules and certainty of punishments. (283) In the new paradigm,
uncertainty becomes a tool, manifesting itself through random policing
(searches, audits, checkpoints, etc.), surprise disruptions, or decoys.
(284) These tactics have both an incapacitation impact and a front-end
deterrent effect. Random checks occasionally hit pay dirt,
serendipitously foiling criminal plots before they are complete.
Statistically speaking, random checks should bring proportional hits in
terms of incapacitation. Random checks, disruptions, and decoys raise
the up-front transaction costs of crime, as criminals need backup plans
to ensure success, workarounds for circumventing checkpoints, higher
search costs for vulnerable targets, etc. This provides an overall
chilling effect on criminal planning.
Recent commentators have suggested, in fact, that uncertainty may
be a better deterrent than a corresponding risk of punishment that is
clearly quantifiable to would-be criminals, (285) and that uncertainty
induces hesitation and reflection that steers potential offenders away
from bad acts. (286) Professor Harcourt has advocated the use of
randomized enforcement techniques to avoid the problem of police being
predictable to potential criminals, and to avoid the "ratchet"
effect of skewed profiles. (287)
The rules for police decoys are well established, but the legality
of random checkpoints seems to be in flux. Before September 11,
Indianapolis v. Edmona (288) created a general Fourth Amendment
protection against random police checkpoints for vehicles, which had
yielded many drug arrests. During each stop at the checkpoint, police
would explain that it was a drug checkpoint and request the
driver's license and registration. (289) This provided a moment for
the officer to glance around the inside of the car for contraband or to
detect signs of driver inebriation, (290) Narcotics-sniffing dogs would
walk around each vehicle at the same time, (291) and each stop took less
than five minutes if there was no reason for further searching. (292)
The checkpoints were during the day with visible signs posted providing
notice. (293) The Supreme Court ruled these random searches were a
violation of the Fourth Amendment, because the search did not include an
amount of individualized suspicion, only a general interest in crime
control, as distinguished from other checkpoints it had previously
upheld. (294) Edmond was a post-9/11 decision, but it seems to reflect
pre-9/11 values; courts since then have been more likely to find
exceptions to the Fourth Amendment warrant requirement. (295)
The "special needs exception" allows searches and
seizures in situations where there is no warrant and/or probable cause.
(296) For this exception, courts use a balancing test between the
intrusion into the private life of a citizen and the promotion of a
governmental interest. (297) In Illinois v. Lidster, (298) the Court
employed a four-part balancing test, comparing the importance of the
governmental interest or public concern served, the extent to which the
policy advances the public concern, the severity of intrusion into a
citizen's private life, and the purpose of the search as distinct
from traditional law enforcement. (299) Some commentators have argued
that the danger of terrorism alone could make any search reasonable
under this test. (300)
In MacWade v. Kelly, police implemented the Container Inspection
Program in the New York subways. (301) The inspections consisted of
staging random checkpoints where a certain number of individuals had
their belongings searched by uniformed officers at tables near the
entrance of a subway. (302) Individuals had notice of the search from a
prominent sign by the table and explanations by the officers. (303)
Potential subway passengers could either consent to the search or forgo
riding the train. (304) Though a consensual search, police retained
authority to arrest individuals who refused the search and tried to
enter the station again with their belongings. (305) Random selection
determined which passengers to search, and only items large enough to
hold explosive devices were subject to inspection. (306) Witness
testimony provided that the uncertainty of these checkpoints deters
terrorists who plan attacks for long periods to make sure there will be
no interruptions. (307) Unpredictable checkpoint inspection adds an
uncertainty that detail-oriented terrorists prefer to avoid in planning.
(308) The court determined that the random inspections met the special
needs exception to the Fourth Amendment and the searches were
reasonable. (309)
Similarly, United States v. Marquez (310) upheld random body
searches by airport security personnel using hand wands. (311) A hand
wand detected four bricks of cocaine strapped to the defendant. (312)
The court ruled the search was reasonable and constitutional. (313)
While the purpose of the screening was not to find narcotics, Marquez
demonstrates that the policy effectively prevents other types of crimes
besides terrorism. In a clear statement about the value of randomness in
front-end deterrence, the court stated:
Additionally, the randomness of the selection for the additional
screening procedure arguably increases the deterrent effects of
airport screening procedures because potential passengers may be
influenced by their knowledge that they may be subject to random,
more thorough screening procedures.... The procedure is geared
towards detection and deterrence of airborne terrorism, and its
very randomness furthers these goals. (314)
In United States v. Green, (315) a military base checkpoint stopped
every sixth car to review the driver's license and proof of
insurance. Emma Green had neither, prompting a check of the car's
plates, which revealed it was not her car. (316) Green attempted to flee
and was soon under arrest; police easily found drugs during their
inventory search of her impounded car. (317) The court noted that
checkpoints designed to check immigration status, sobriety, license, and
registration have passed constitutional scrutiny in other cases, (318)
and that this checkpoint was specifically to "protect national
security by deterring domestic and foreign acts of terrorism."
(319) In distinguishing this case from Edmond, the court observed that
terrorists tend to use vehicles to move explosives as "car
bombs" and a military base is a foreseeable target. (320)
The previous cases demonstrate the increased use of random searches
to fight terrorism and other crime. In particular, it is noteworthy that
courts have increasingly allowed searches after September 11, despite
the Edmond ruling, although the facts are somewhat similar to those of
Edmond in each case. The random element in MacWade, Green, and Marquez
allowed police to surprise the defendants and possibly deter others.
CONCLUSION
Criminal law in the United States is undergoing a transformation.
National security concerns are affecting law enforcement methods, penal
legislation, and even the exclusionary rules of criminal procedure.
Overall, incapacitating criminals and preventing crime are replacing
deterrence and retribution as underlying policy goals. Some of these
changes have been sudden, particularly those in the immediate aftermath
of catastrophes such as 9/11, Hurricane Katrina, or Enron's
collapse. Other changes have been occurring more subtly. Yet consistent
themes run throughout these trends.
This is not to suggest that the overall shift is necessarily a
wrong turn. Problems plagued earlier approaches to criminal law as well,
even if the pitfalls were different in each period. Previous systems of
retribution and deterrence garnered no fewer criticisms than the modern
thrust of incapacitation. There are theoretical and practical flaws in
each approach. In addition, every penal model includes the inherent,
inevitable peril of abuse by those holding power. Fortunately, our
system still permits these abuses to undergo scrutiny.
Of course, the new paradigm does pose new challenges. Meeting these
challenges requires understanding the congruence of factors currently
remaking criminal law as a whole. It would be misguided, for example, to
assail new incapacitation-driven measures with stale arguments from an
era when social engineering drove our attempts to deter vice crimes, and
before the general population expected the government to guarantee (or
ensure) both personal safety and social stability. The world has
changed, and the criminal justice system is adapting to the new
environment.
(1.) See WAYNE R. LAFAVE, CRIMINAL LAW 9-11 (3d ed. 2000).
(2.) See Gary V. Dubin, Mens Rea Reconsidered: A Plea for a Due
Process Concept of Criminal Responsibility, 18 STAN. L. REV. 322, 338-40
(1966) (discussing historical retribution theories in terms of vengeance
or blameworthiness and the function of criminal defenses in this
context); Francis Bowes Sayre, Mens Rea, 45 HARV. L. REV. 974, 989-90,
1012-16 (1932) (discussing the medieval development of defenses and the
influence of church law).
(3.) See, e.g., CRAIG REINARMAN & HARRY G. LEVINE, CRACK IN
AMERICA: DEMON DRUGS AND SOCIAL JUSTICE 5-8 (1997).
(4.) See Mann Act, ch. 395, 36 Stat. 825 (1910) (codified as
amended at 18 U.S.C. [section][section] 2421-2424 (2006)) (also known as
the White Slave Traffic Act); see also Lindsay Rogers, The Power of the
States over Commodities Excluded by Congress from Interstate Commerce,
24 YALE L.J. 567, 567-72 (1915).
(5.) See Comstock Act, ch. 258, 17 Stat. 598 (1873) (current
version at 18 U.S.C. [section][section] 1416-62 (1964) and 19 U.S.C.
[section] 1305 (1964)); United States v. Chase, 135 U.S. 255, 257-58
(1890). For a thorough judicial discussion of the history and background
of Comstock Laws, see Williams v. Pryor, 220 F. Supp. 2d 1257, 1285-88
(N.D. Ala. 2002).
(6.) See Note, Federal Cooperation in Criminal Law Enforcement, 48
HARV. L. REV. 489 (1935). See generally Rogers, supra note 4, at 567-72.
(7.) Richard S. Markovits, On the Economic Inefficiency of a
Liberal-Corrective-Justice-Securing Law of Torts, 2006 U. ILL. L. REV.
525, 540; see also Rufus G. King, The Narcotics Bureau and the Harrison
Act. Jailing the Healers and the Sick, 62 YALE L.J. 736 (1953).
(8.) See REINARMAN & LEVINE, supra note 3, at 324-27.
(9.) See Eugene Smith, Crime in Relation to the State and to
Municipalities, 11 AM. J. Soc. 90, 93-94 (1905).
(10.) MODEL PENAL CODE [section] 1.02 (2007).
(11.) See Livingston Hall, The Substantive Law of Crimes,
1887-1936, 50 HARV. L. REV. 616, 652-53 (1937).
(12.) See Simeon E. Baldwin, Whipping and Castration as Punishments
for Crime, 8 YALE L.J. 371 (1899) (lamenting the advent of imprisonment
and the disappearance of whipping and castration); see also Charlton T.
Lewis, The Indeterminate Sentence, 9 YALE L.J. 17 (1899).
(13.) See Dubin, supra note 2, at 340-43 (connecting utilitarianism
and deterrence to excuses in criminal law).
(14.) See, e.g., Hall, supra note 11, at 616 (writing in 1937); Max
Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 863 (1930)
("Anglo-American law is in a fair way of becoming statutory, not by
a great act of summation like the Burgerliches Gesetzbuch or the Swiss
Code, but piecemeal by the relentless annual or biennial grinding of
more than fifty legislative machines."); see also Lewis, supra note
12 (writing in 1899 about problems with the new sentencing codes).
(15.) See Hall, supra note 11, at 622-23 ("One result of this
has been to make everyone a criminal. If the fines and short jail terms
for which one was legally liable were actually enforced, few would have
any net income, or leisure out of jail in which to spend it.");
Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703
(2005); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383,
383 (1908) ("Not the least notable characteristics of American law
today are the excessive output of legislation in all our jurisdictions
and the indifference, if not contempt, with which that output is
regarded by courts and lawyers.").
(16.) 18 U.S.C. [section][section] 1961-68 (2006).
(17.) See Note, Criminal Conspiracy: Bearing of Overt Acts upon the
Nature of the Crime, 37 HARV. L. REV. 1121 (1924).
(18.) See, e.g., DAVID H. BAYLEY & CLIFFORD D. SHEARING, U.S.
DEP'T OF JUSTICE, THE NEW STRUCTURE OF POLICING: DESCRIPTION,
CONCEPTUALIZATION, AND RESEARCH AGENDA vii (2001) ("[T]he role of
the public police may be changing significantly. In particular, its
agenda is becoming increasingly that of government rather than
individuals; it is specializing in criminal investigation and undercover
surveillance; its operations are undertaken in groups; and it is
increasingly militarized in equipment and outlook.").
(19.) Kent Roach, The Criminal Law and Terrorism, in GLOBAL
ANTI-TERRORISM LAW AND POLICY 129, 129 (Victor V. Ramraj, Michael Hor
& Kent Roach eds., 2005).
(20.) See Edward R. Maguire & William R. King, Trends in the
Policing Industry, 593 ANNALS AM. ACAD. POL. & SOC. SCI. 15, 21
(2004) ("Militarism has always been present to some degree in
policing, but some observers note that it is expanding, in both the
United States and abroad."); see also Eric Blumenson & Eva
Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda,
65 U. CHI. L. REV. 35, 113 n.293 (1998); Raj Dhanasekaran, When Rotten
Apples Return: How the Posse Comitatus Act of 1878 Can Deter Domestic
Law Enforcement Authorities from Using Military Interrogation Techniques
on Civilians, 5 CONN. PUB. INT. L.J. 233, 252-53 (2006); Sean J. Kealy,
Reexamining the Posse Comitatus Act: Toward a Right to Civil Law
Enforcement, 21 YALE L. & POL'Y REV. 383, 385-87 (2003); David
A. Koplow, Tangled Up in Khaki and Blue. Lethal and Non-Lethal Weapons
in Recent Confrontations, 36 GEO. J. INT'L L. 703, 800 (2005);
Diane Cecilia Weber, Warriorcops: The Ominous Growth of Paramilitarism
in American Police Departments (Cato Institute, Briefing Paper 50,
1999); Peter B. Kraska & Victor E. Kappeler, Militarizing American
Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS.
1 (1997); Robert Dreyfuss, Hawks and Doves, ROLLING STONE, Aug. 7, 1997,
at 42 ("[T]he continuing militarization of drug law enforcement is
symbolized by President Clinton's appointment of a retired Gulf War
general, Barry McCaffrey as "drug czar ... McCaffrey in turn has
increased the staff positions several-fold and filled many of them with
active-duty military officers.").
(21.) See, e.g., C.J. EDWARDS, CHANGING POLICE THEORIES FOR 21ST
CENTURY SOCIETIES 262-69 (1999); Ellen Nakashima, White House Proposal
Would Ease FBI Access to Records of Internet Activity, WASH. POST, July
29, 2010, at A1, available at
www.washingtonpost.com/wp-dyn/content/article/2010/07/28/
AR2010072806141.html.
(22.) See ETHAN A. NADELMANN, COPS ACROSS BORDERS: THE
INTERNATIONALIZATION OF U.S. CRIMINAL LAW ENFORCEMENT 103-247 (1993)
(describing a process that began slowly in the last century but has
greatly accelerated since publication of his text): Maguire & King,
supra note 20, at 28-30.
(23.) See William A. Niskanen, The Several Costs of Responding to
the Threat of Terrorism, 128 PUB. CHOICE 351, 355 (2006); Evan N.
Turgeon, National Security, Policing, and the Fourth Amendment: A New
Perspective on Hiibel, 27 BUFF. PUB. INT. L.J. 23, 59-60 (2009).
(24.) See David Cole, Terror Financing, Guilt by Association, and
the Paradigm of Prevention in the 'War on Terror', in
COUNTERTERRORISM: DEMOCRACY'S CHALLENGE, 233, 234-46 (Andrea
Bianchi & Alexis Keller eds., 2008).
(25.) See, e.g., MARK S. HAMM, TERRORISM AS CRIME: FROM OKLAHOMA
CITY TO ALQAEDA AND BEYOND 7 (2007); GREGORY F. TREVERTON ET AL., FILM
PIRACY, ORGANIZED CRIME, AND TERRORISM (2009); LAURA ZAKARAS, RAND
CORPORATION, FILM PIRACY AND ITS CONNECTION TO ORGANIZED CRIME AND
TERRORISM (2009), available at
http://www.rand.org/pubs/research_briefs/RB9417/index1.html.
(26.) See HAMM, supra note 25, at 7, 201-17; see also Executive
Director of the U.N. Office on Drugs and Crime, Making Drug Control
'Fit For Purpose': Building on the UNGASS Decade, 17-18, U.N.
Doc. E/CN.7/2008/1 (Mar. 7, 2008), available at
http://www.unodc.org/documents/commissions/CND-Session51/
CND-UNGASS-CRPs/ECN72008CRP17E.pdf [hereinafter U.N. Drug Control
Report] ("Institutionally, the support structure for this
multilateral machinery was put in better order by merging drugs and
crime in the UNODC in 2002. The need to treat drug trafficking,
organized crime, corruption and terrorism as linked phenomena is
increasingly recognized and has moved up high on international priority
concerns.").
(27.) See JIMMY CURULE, UNFUNDING TERROR: THE LEGAL RESPONSE TO THE
FINANCING OF GLOBAL TERRORISM 176 (2008); HAMM, supra note 26, at 9-17,
196.
(28.) See HAMM, supra note 26, at 17-19, 128-32.
(29.) See id. at 217; see also Daniel M. Filler, Terrorism, Panic,
and Pedophilia, 10 VA. J. SOC. POL'Y & L. 345 (2003)
(documenting instances where public commentators have repeatedly linked
terrorism with pedophiles).
(30.) See U.N. Drug Control Report, supra note 26, at 10; see also
Peter H. Reuter, The Unintended Consequences of Drug Policies, at 11-13
(RAND Corporation, Report No. 5, 2009).
(31.) United Nations Global Counter-Terrorism Strategy, G.A. Res.
60/288, U.N. Doc. A/RES/60/288 (Sep. 6, 2008) (emphasis added).
(32.) See, e.g., Russell Hardin, Civil Liberties in the Era of Mass
Terrorism, 8 J. ETHICS 77 (2004) (arguing that the legal responses to
9/11 have undermined the Madisonian ideal for restrained government).
(33.) See, e.g., Ric Simmons, Searching for Terrorists. Why Public
Safety Is Not a Special Need, 59 DUKE L.J. 843, 850-871 (2010)
(providing an excellent history of antiterrorism laws and enforcement
measures in the twentieth century). See generally PHILIP B. HEYMANN,
TERRORISM AND AMERICA (1998) (providing a history of terrorism in the
twentieth century); William F. Shughart II, An Analytical History of
Terrorism, 1945-2000, 128 PUB. CHOICE 7 (2006). Courts in the 1970s
created an "administrative search" or "special
needs" exception to the warrant requirement for airport screening
in light of the threat of bombings and hijackings. See, e.g., McMorris
v. Alioto, 567 F.2d 897, 900-02 (9th Cir. 1978); United States v.
Edwards, 498 F.2d 496, 499-501 (2d Cir. 1974) (upholding the warrantless
pre-boarding search of an airline passengers' bags); United States
v. Albarado, 495 F.2d 799, 806 (2d Cir. 1974) ("[T]he use of a
magnetometer is a reasonable search despite the small number of weapons
detected in the course of a large number of searches. The absolutely
minimal invasion in all respects of a passenger's privacy weighed
against the great threat to hundreds of persons if a hijacker is able to
proceed to the plane undetected is determinative of the reasonableness
of the search."); United States v. Cyzewski, 484 F.2d 509, 512 (5th
Cir. 1973) ("[C]ourts have consistently held airport security
measures constitutionally justified as a limited and relatively
insignificant intrusion of privacy balanced against the need to protect
aircraft and its passengers."); United States v. Slocum, 464 F.2d
1180, 1182 (3d Cir. 1972) (upholding metal detector screening for
airline passengers); United States v. Bell, 464 F.2d 667, 673 (2d Cir.
1972) ("In view of the magnitude of the crime sought to be
prevented, the exigencies of time which clearly precluded the obtaining
of a warrant, the use of the magnetometer is ... a reasonable
precaution."); United States v. Epperson, 454 F.2d 769, 771 (4th
Cir. 1972) (upholding airport metal detectors); Downing v. Kunzig, 454
F.2d 1230, 1231-32 (6th Cir. 1972); United States v. U. S. Dist. Court,
407 U.S. 297 (1972) (upholding courthouse metal detector screening).
(34.) See Leonieh Uddy, Nadia Khatib, & Theresac Apelos,
Trends: Reactions to the Terrorist Attacks of September 11, 2001, 66
PUB. OPINION Q. 418 (2002) (comprehensive survey of poll data
documenting effects of 9/11 on popular sentiments about government and
law enforcement); see also DENNIS PISZKIEWICZ, TERRORISM'S WAR WITH
AMERICA: A HISTORY 15-98 (2003) (detailing twentieth-century domestic
terror attacks and the legal and political responses prior to 9/11).
(35.) See, e.g., EDWARDS, supra note 21, at 301-03; John R.
Harrald, Agility and Discipline. Critical Success Factors for Disaster
Response, 604 ANNALS AM. ACAD. POL. & SOC. SCI. 256 (2006)
(describing major overhauls and the reorganization of law enforcement
after 9/11, and again after Hurricane Katrina).
(36.) See Sayre, supra note 2, at 1017 (describing the gradual and
fluctuating shift from the common law era into his own era at the
beginning of the twentieth century).
(37.) Bentham was very concerned about this problem, and included
"notoriety" (being easily knowable) as one of the seven
"[p]roperties or qualities which ... a body of laws, designed for
all purposes without exception, must be possessed of." JEREMY
BENTHAM, Jeremy Bentham, an Englishman, to the Citizens of the several
American United States: Letter II, in JEREMY BENTHAM, 'LEGISLATOR
OF THE WORLD': WRITINGS ON CODIFICATION, LAW, AND EDUCATION 117
(Philip Schofield & Jonathan Harris eds., 1998).
(38.) See Abraham D. Sofaer, Terrorism and the Law, 64 FOREIGN AFF.
901 (1986)
(39.) See Catherine Lutz, Making War at Home in the United States:
Militarization and the Current Crisis, 104 AM. ANTHROPOLOGIST 723, 731
(2002); Simmons, supra note 33, at 850-71.
(40.) See Thomas C. Martin, The Comprehensive Terrorism Prevention
Act of 1995, 20 SETON HALL LEGIS. J. 201, 212 n.50 (1996); Jonathan F.
Mitchell, Legislating Clear-Statement Regimes in National-Security Law,
43 GA. L. REV. 1059, 1091 (2009); Diane Carraway Piette, Piercing the
"Historical Mists": The People and Events Behind the Passage
of FISA and the Creation of the "Wall," 17 STAN. L. &
POL'Y REV. 437, 470 (2006); Ilya Podolyako, Nowhere to Hide.
Overbreadth and Other Constitutional Challenges Facing the Current
Designation Regime, 14 TEX. J. C.L. & C.R. 193, 199 n.25 (2009); see
also Orin S. Kerr, Internet Surveillance Law After the USA PATRIOT ACT:
The Big Brother that Isn't, 97 NW. U. L. REV. 607 (2003).
(41.) See, e.g., Hardin, supra note 32; M. Shamsul Haque,
Government Responses to Terrorism: Critical Views of Their Impacts on
People and Public Administration, 62 PUB. ADMIN. REV. 170 (2002); Shirin
Sinnar, Patriotic or Unconstitutional? The Mandatory Detention of Aliens
Under the USA PATRIOT ACT, 55 STAN. L. REV. 1419 (2003); William J.
Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137 (2002).
(42.) See HEYMANN, supra note 33, at 114-20; Elizabeth A. Cheney,
Leaving No Loopholes for Terrorist Financing: The Implementation of the
USA PATRIOT ACT in the Real Estate Field, 58 VAND. L. REV. 1705 (2005).
(43.) See Christian Halliburton, Leveling the Playing Field: A New
Theory of Exclusion for a Post-Patriot Act America, 70 MO. L. REV. 519
(2005).
(44.) See Heather Hillary & Nancy Kubasek, The Remaining Perils
of the Patriot Act: A Primer, 8 J.L. SOC'Y 1 (2007); Joshua H.
Pike, The impact of a Knee-Jerk Reaction: The PATRIOT ACT Amendments to
the Foreign Intelligence Surveillance Act and the Ability of One Word to
Erase Established Constitutional Requirements, 36 HOFSTRA L. REV. 185
(2007); Sharon H. Rackow, How the USA PATRIOT ACT Will Permit
Governmental Infringement upon the Privacy of Americans in the Name of
'Intelligence' Investigations, 150 U. PA. L. REV. 165l (2002);
Douglas J. Sylvester & Sharon Lohr, Counting on Confidentiality:
Legal and Statistical Approaches to Federal Privacy Law After the USA
PATRIOT ACT, 2005 WIS. L. REV. 1033 (2005); Andrew E. Nieland, Note,
National Security Letters and the A mended PATRIOT ACT, 92 CORNELL L.
REV. 1201 (2007).
(45.) See, e.g., MARK SIDEL, MORE SECURE, LESS FREE? (2007)
(arguing that antiterrorism measures since 9/11 have significantly
eroded civil liberties); Susan N. Herman, The USA PATRIOT Act and the
Submajoritarian Fourth Amendment, 41 HARV. C.R.-C.L.L. REV. 67 (2006)
(arguing that the Act relegated the courts to a subservient position,
eliminating important checks and balances).
(46.) See Alison M. Jaggar, Responding to the Evil of Terrorism, 18
HYPATIA 175 (2003) (arguing that governments can perpetrate terrorism on
their own citizens via so-called anti-terrorism measures); see also
BRUCE ACKERMAN, BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN AN
AGE OF TERRORISM (2006).
(47.) See HAMM, supra note 25, at 14-20.
(48.) See generally Sofaer, supra note 38.
(49.) See Roach, supra note 19, at 129-30.
(50.) See generally THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC
REVOLUTIONS (1962).
(51.) See Sven Bislev, Globalization, State Transformation. and
Public Security, 25 INT'L POL. SCI. REV. 281 (2004).
(52.) See Niskanen, supra note 23, at 353; Charles D. Weisselberg,
Terror in the Courts: Beginning to Assess the Impact of
Terrorism-Related Prosecutions on Domestic Criminal Law and Procedure in
the USA, 50 CRIME L. & SOC. CHANGE 25, 29 (2008).
(53.) See Roach, supra note 19, at 139 ("There are normative
dangers of distorting criminal law principles in order to facilitate the
apprehension of terrorists. One danger is that extraordinary powers may
be introduced and justified in the anti-terrorism context but then
spread to other parts of the criminal law."); see also COUNCIL OF
EUROPE COUNTERTERRORISM TASK FORCE, CYBERTERRORISM--THE USE OF THE
INTERNET FOR TERRORIST PURPOSES 81-83 (2007) (discussing how
counter-terrorism cybercrime statutes "can be applied to all kinds
of criminal activities on the Internet.").
(54.) See, e.g., James Pinkerton, Former Air Force Jet Gets'
New Orders: Help Police Make Life Safer for the Flying Public Plane,
HOUS. CHRON., July 10, 2010, at B1 ("Diverted from a final flight
to an Arizona airplane graveyard, a retired U.S. Air Force
aircraft's new mission will be to help Houston police train on how
to tackle terrorists, foil hijackers and search for on-board
bombs....").
(55.) Regional influences and perceptions of threat also play an
ongoing role in the modem adoption of criminal statutes by states. See
Robert Chamberlain and Donald P. Haider-Markel, "Lien on Me":
State Policy Innovation in Response to Paper Terrorism, 58 POL. RES. Q.
449 (2005).
(56.) For an interesting discussion of the legislative session that
enacted the Patriot Act, see Beryl A. Howell, Seven Weeks: The Making of
the USA PATRIOT ACT, 72 GEO. WASH. L. REV. 1145 (2004).
(57.) See United States v. Ressam, 553 U.S. 272 (2008) (holding
that "carrying explosives during the commission of a felony"
could apply to felonies as unrelated as the nonviolent act of lying to a
government official); Weisselberg, supra note 52, at 31-33; Stuntz,
supra note 41, at 2139.
(58.) See Lee Epstein, Daniel E. Ho, Gary King & Jeffrey A.
Segal, The Supreme Court During Crisis: How War Affects Only Non-War
Cases, 80 N.Y.U. L. REV. 1 (2005); Weisselberg, supra note 52, at 42.
(59.) See Weisselberg, supra note 52, at 26; Michael B. Mukasey,
Jose Padilla Makes Bad Law. Terror Trials Hurt the Nation Even when They
Lead to Convictions, WALL ST. J., Aug. 22, 2007, at A15 ("[I]f
conventional legal rules are adapted to deal with a terrorist threat,
whether by relaxed standards for conviction, searches, the admissibility
of evidence or otherwise, those adaptations will infect and change the
standards in ordinary cases with ordinary defendants in ordinary courts
of law.").
(60.) See Roach, supra note 19, at 139.
(61.) See Cole, supra note 24, at 247-49 (describing Attorney
General Ashcroft's new "paradigm of prevention" after
9/11); see also Ariela Gross, Review: History, Race, and Prediction:
Comments on Harcourt's "Against Prediction," 33 L. &
SOC. INQUIRY 235, 238-42 (2008). For a recent judicial discussion of the
distinction between incapacitation, retribution, and deterrence, see
United States v. Smith, 387 F. App'x 565, 572 (6th Cir. 2010). See
also FRANKLIN E. ZIMRING & GORDON HAWKINS, INCAPACITATION--PENAL
CONFINEMENT AND THE RESTRAINT OF CRIME (1995); Catherine M. Sharkey, Out
of Sight. Out of Mind. Is Blind Faith in Incapacitation Justified?, 105
YALE L.J. 1433 (1996).
(62.) See Sayre, supra note 2, at 988-89.
(63.) See Smith, supra note 9, at 93-95.
(64.) See DAVID A. MOSS, WHEN ALL ELSE FAILS; GOVERNMENT AS THE
ULTIMATE RISK MANAGER 300-02 (2002); Cole, supra note 24, at 247-49
(describing the DOJ's new "paradigm of prevention");
Maguire & King, supra note 20, at 22.
(65.) See Kai A. Konrad, The Investment Problem in Terrorism, 71
ECONOMICA 449 (2004) (discussing terrorist incentives and strategies
from a game theory perspective, and the effect of different response
measures by the attacked state).
(66.) See, e.g., Robert A. Pape, The Strategic Logic: of Suicide
Terrorism, 97 AM. POL. SCI. REV. 343 (2003); Shughart, supra note 33, at
11-13, 35-36; see also Richard A. Bierschbach, Mediating Rules in
Criminal Law, 93 VA. L. REV. 1197, 1203-05 (2007) (discussing the
underlying assumptions of traditional retributivism).
(67.) MODEL PENAL CODE [section] 1.02 (2007).
(68.) See D.A. Andrews & James Bonta, Rehabilitating Criminal
Justice Policy and Practice, 16 PSYCHOL. PUB. POL'Y & L. 39,
40-41 (2010); Nancy Gertner, Supporting Advisory Guidelines, 3 HARV. L.
& POL'Y REV. 261, 276 (2009); Nancy Glass, The Social Workers
of Sentencing? Probation Officers, Discretion, and the Accuracy, of
Presentence Reports Under the Federal Sentencing Guidelines, 46 CRIM. L.
BULL., no. 1, 2010; Carissa Byrne Hessick, Ineffective Assistance at
Sentencing, 50 B.C. L. REV. 1069, 1100-02 (2009).
(69.) See, e.g., 18 U.S.C. [section] 2339 (2006) (making it a
felony to harbor or conceal "any person he knows, or has reasonable
grounds to believe, has committed or is about to commit" terrorist
acts); id. [section] 175b(c) (imposing penalties for anyone who
"knowingly violates this section" pertaining to shipping
biological agents and toxins in interstate or foreign commerce).
(70.) See Holder v. Humanitarian Law Project, 130 S. Ct. 2705
(2010) (upholding the constitutionality of the "material support of
terrorism" statute and interpreting its scienter element of
"knowingly"); Negusie v. Holder, 129 S. Ct. 1159 (2009)
(discussing the "knowingly" verbiage in exclusion provisions
of refugee statutes).
(71.) See Richard A. Posner, Privacy, Surveillance, and Law, 75 U.
CHI. L. REV. 245 (2008).
(72.) See, e.g., Mariano-Florentino Cuellar, Choosing Anti-Terror
Targets by National Origin and Race, 6 HARV. LATINO L. REV. 9 (2003);
Hardin, supra note 32, at 79-82; Stuntz, supra note 41, at 2162-80;
Brian Michael Jenkins, Bruce Butterworth & Cathal Flynn, What We Can
Learn from the Christmas Day Bombing Attempt, WASH. POST, March 26,
2010, at A23, available at
http://www.rand.org/commentary/2010/03/26/WP.html ("Don't
treat all passengers alike.... Screening all passengers identically
means that nearly all passengers will be screened inadequately.
Stringent screening can be used on only a fraction of passengers, so
intelligence must help define who they will be."); see also
LAWRENCE M. SOLAN & PETER M. TIERSMA, SPEAKING OF CRIME 48-51 (2005)
(discussing profiling in pretextual traffic stops from a sociolinguistic
perspective).
(73.) See David Cole, The Priority of Morality: The Emergency
Constitution's Blind Spot, 113 YALE L.J. 1753, 1774 (2004); Kelly
Yamanouchi, Feds Approve Liberia Flights, ATLANTA J.-CONST., May 26,
2010, at A15, available at 2010 WLNR 10807041 ("Also last year,
Delta's planned inaugural flight to Nairobi, Kenya, was canceled
amid terrorist threats....").
(74.) See Neal Kumar Katyal, Architecture as Crime Control, 111
YALE L.J. 1039 (2002).
(75.) See Sayre, supra note 2, at 1017 (describing the same
challenge in explaining the shift that was occurring in his day from the
common law era to the early modern approach: "As the underlying
objective of criminal administration has almost unconsciously shifted,
and is shifting, the basis of the requisite mens rea has imperceptibly
shifted, lending a change to the flavor if not to the actual content, of
the criminal state of mind which must be proved to convict. Of course,
established legal formulae and recognized doctrines continue. No abrupt
changes are discernible. We still convict for cases of malicious
houseburning and not for purely accidental ones. But every change in the
underlying objective colors the application of the old doctrines and
leads to gradual modification.").
(76.) See Dubin, supra note 2.
(77.) See Roach, supra note 19, at 131; see also Linda S. Beres
& Thomas D. Griffith, Do Three Strikes Laws Make Sense? Habitual
Offender Statutes and Criminal incapacitation, 87 GEO. L.J. 103 (1998)
(describing and analyzing the extreme growth in incarceration rates and
the underlying policy of incapacitation).
(78.) See Cole, supra note 24, at 247-49 (describing the DOJ's
"paradigm of prevention").
(79.) See Moss, supra note 64, at 300-02.
(80.) See Konrad, supra note 65 (discussing terrorist incentives
and strategies from a game theory perspective, and the effect of
different response measures by the attacked state).
(81.) See PISZKIEWICZ, supra note 34, at 127-29; Pape, supra note
66 (discussing the pragmatic strategy of suicide terrorists to affect
political change, particularly territorial independence); Shughart,
supra note 33, 11-13, 35-36.
(82.) See Dubin, supra note 2, at 338-40.
(83.) See Dubin, supra note 2, at 348. Strict liability was
disfavored at common law, except for certain sex crimes that seemed
inherently immoral enough to evince inner depravity automatically. See
id.
(84.) See Bierschbach, supra note 66, at 1203-05.
(85.) See id. at 1203 ("All varieties of retributivism are
concerned primarily with one thing: doing justice in the particular
case. Retributivism holds that an offender should be punished
'because, and only because, [he] deserves it'" (quoting
Michael S. Moore, The Moral Worth of Retribution, in PUNISHMENT &
REHABILITATION 94 (Jeffrie G. Murphy ed., 1995))). The early law courts
descended from ecclesiastical courts, so it is not surprising that
morality was central. See Hall, supra note 11, at 637 (describing how
the "rule of strict construction" evolved from this earlier
era but was disappearing in the early twentieth century); Sayre, supra
note 2, at 983-84 (explaining the influence of canon law on the
development of mens rea).
(86.) See United States v. Barnaby, 51 F. 20, 24 (C.C.D. Mont.
1892); Covy v. State, 4 Port. 186, 1836 WL 639, at *4 (Ala. 1836);
Rogers v. State, 149 N.W. 318, 319 (Neb. 1914); McKay v. State, 132 N.W.
741, 745 (Neb. 1911); Gibson v. Somers, 103 P. 1073, 1074 (Nev. 1909);
Territory v. McFarlane, 37 P. 1111, 1112 (N.M. Terr. 1894); State v.
Kerns, 34 S.E. 734, 735 (W.Va. 1899); State v. Tyler, 5 Ohio Dec. 588,
1898 WL 666, at *4 (Ohio Comp.Pl. 1898); Eastman v. Premo, 49 Vt. 355,
360 (1877); see also Note, A "Constructive" Flight from
Justice, 8 HARV. L. REV. 494, 495 (1895).
(87.) See Hall, supra note 11, at 641-42.
(88.) See id. at 653 (calling in 1937 for the final extirpation of
the common law "vicious will" concept from modern
"penology").
(89.) See Sayre, supra note 2, at 988-89.
(90.) See Dubin, supra note 2, at 350.
(91.) See Kenneth W. Simons, Should the Model Penal Code's
Mens Rea Provisions Be Amended?, 1 OHIO ST. J. CRIM. L. 179, 188 (2003).
(92.) See Sayre, supra note 2, at 990-92.
(93.) See Hall, supra note 11, at 641-42.
(94.) See Ferdinand Tonnies, The Prevention of Crime, 2 INT'L
J. ETHICS 51, 52-53 (1891).
(95.) See Livingston Hall, Strict or Liberal Construction of Penal
Statutes, 48 HARV. L. REV. 748, 759 n.56 (1935).
(96.) See Felix Frankfurter, The Business of the Supreme Court of
the United States--A Study in the Federal Judicial System, 39 HARV. L.
REV. 325, 331 (1926).
(97.) See generally Hall, supra note 11 (discussing codification of
criminal laws in particular); Radin, supra note 14, at 883.
(98.) See Craig M. Bradley, Anti-Racketeering Legislation in
America, 54 AM. J. COMP. L. 671, 673-75 (2006).
(99.) See James Gray Pope, Contract, Race, and Freedom of Labor in
the Constitutional Law of "Involuntary Servitude," 119 YALE
L.J. 1474, 1482-92 (2010); see also Maguire & King, supra note 20,
at 736 (explaining that federal intervention into narcotics trafficking
had originally seemed reasonable: "[i]n other areas of law
enforcement, when Congress has thrown federal power into the balance,
these local problems have usually diminished or disappeared."
(citing Lacey Act of 1900, Pub. L. No. 97-79, [section] 2, 95 Stat. 1073
(1981) (current version at 16 U.S.C. [section][section] 3371-3378
(2006)) (poaching); Act of October 29, 1919, ch. 89, [section][section]
1, 3, 5, 41 Stat. 324, 325 (1919) (current version at 18 U.S.C.
[section] 2312 (2006)) (transportation of stolen vehicles); Lindbergh
Law, ch. 271, [section][section] 1, 3, 47 Stat. 326 (1932) (current
version at 18 U.S.C. [section] 1201 (2006)) (kidnapping)).
(100.) See Note, Depression Migrants and the States, 53 HARV. L.
REV. 1031 (1940) (discussing the massive migrations that occurred during
the Great Depression and their effect on state and federal laws).
(101.) See Bradley, supra note 98, at 673-77; see also Hall, supra
note 11, at 618 ("Expansion and alteration of the substantive
criminal law since 1887 has been largely the result of two types of
forces. One has called for an increase of the area of conduct regulated
by penal sanctions, to cope with new problems raised by changes in the
social and economic milieu of the country since the Civil War, and to
enforce by legislation the increasingly high standards of business
morality which were coming to be generally accepted. The other force has
sought greater effectiveness in law enforcement by changing the common
law pattern of act and intent, so as to make conviction simpler and
surer....").
(102.) See David T. Courtwright, The Hidden Epidemic. Opiate
Addiction and Cocaine Use in the South, 1860-1920, 49 J. S. HIST. 57, 71
(1983) (connecting cocaine prohibitions to whites' fears of slave
uprisings); Sanford H. Kadish, Excusing Crime, 75 CALIF. L. REV. 257,
288 (1987) ("The once popular view was that the addict was enslaved
to his habit, irresistibly hooked in ways beyond his capacity to alter,
and in the thrall of the body-and-soul-wracking experiences of
withdrawal."); Kimani Paul-Emile, Making Sense of Drug Regulation:
A Theory of Law for Drug Control Policy, 19 CORNELL J.L. & PUB.
POL'Y 691, 714(2010).
(103.) See Bradley, supra note 98, at 674.
(104.) Harrison Narcotics Tax Act, ch. 1, 38 Stat. 785 (1914). The
United States was following the Hague Opium Convention (International
Opium Convention art. 9, Jan. 23, 1912, 38 Stat. 1912, T.S. No. 612),
which obliged adherents to control the manufacture, sale, use, and
transfer of "morphine, cocaine and their respective salts."
Id.
(105.) Mann Act, ch. 395, 36 Stat. 825 (1910) (codified as amended
at 18 U.S.C. [section][section] 2421-2424 (2006)).
(106.) See Bradley, supra note 98, at 676-78.
(107.) Comstock Act, ch. 258, 17 Stat. 598 (1873) (current version
at 18 U.S.C. [section][section] 1416-62 (2006) and 19 U.S.C. [section]
1305 (2006)); see also Williams v. Pryor, 220 F. Supp. 2d 1257, 1285-88
(N.D. Ala. 2002) (detailing the history of enactment, subsequent
amendments, enforcement, and judicial interpretations); Margaret A.
Blanchard, Anthony Comstock and His Adversaries: The Mixed Legacy of
This' Battle for Free Speech, 11 COMM. L. & POL'Y 317
(2006); Margaret A. Blanchard, The American Urge to Censor. Freedom of
Expression Versus the Desire to Sanitize Society--from Anthony Comstock
to 2LiveCrew, 33 WM. & MARY L. REV. 741 (1992); Jon M. Garon,
Entertainment Law, 76 TUL. L. REV. 559, 635 (2002).
(108.) See Herbert Fingarette, Addiction and Criminal
Responsibility, 84 YALE L.J. 413, 427 (1975) ("A typical
layman's view of drug addiction is dominated by the myth of the
addict's slavery: In this view drugs typically associated with
drug-dependency have powers such that their repeated use even for a
short period will "hook" the user."); Jessica G. Katz,
Heroin Maintenance Treatment. Its Effectiveness and the Legislative
Changes Necessary to Implement it in the U.S., 26 J. CONTEMP. HEALTH L.
& POL'Y 300, 327 (2010) (describing how in the 1960s, the head
of the Bureau of Narcotics and Dangerous Drugs talked about heroin
maintenance programs as "consigning hundreds of thousands of our
citizens to the slavery of heroin addiction forever."); Gregory A.
Loken, Legal Cocaine and Kids: The Very Bitterness of Shame, 18 HOFSTRA
L. REV. 567, 603 n.225 (1990) ("Abuse of children by drunken
fathers was a favorite image of the temperance movement in the
nineteenth century.... [Eventually,] however, Prohibitionists were
relying instead on arguments about the "slavery" of alcohol
addiction and the economic benefits to society from a sober working
class."); Rufus G. King, The Narcotics Bureau and the Harrison Act.
Jailing the Healers and the Sick, 62 YALE L.J. 736, 748 (1953)
("The true addict, by universally accepted definitions, is totally
enslaved to his habit. He will do anything to fend off the illness,
marked by physical and emotional agony, that results from abstinence....
[H]e must remain the abject servitor of his vicious nemesis, the
peddler."); Sidney J. Spaeth, The Twenty-First Amendment and State
Control over intoxicating Liquor: Accommodating the Federal Interest, 79
CALIF. L. REV. 161, 167 (1991); Marcia Yablon, The Prohibition Hangover:
Why We Are Still Feeling the Effects of Prohibition, 13 VA. J. SOC.
POL'Y & L. 552, 564 (2006) (citing examples of Prohibition Era
advocacy that linked alcoholism to slavery). See also Steven Wisotsky,
1983 WIS. L. REV. 1305, 1414-15, who reports the following interesting
anecdotes:
Similar rumors about cocaine circulated during World War I. Reports
in the press alleged that German agents were attempting to enslave
America by selling or giving cocaine to school children in an
attempt to convert them into addicts. In the pre-Harrison Act
period, other baseless, outrageous and racist claims about the
effects of cocaine were made. For example, it was alleged that
"[m]ost attacks upon white women of the South ... are the direct
result of a coke-crazed negro brain." One doctor claimed that
cocaine improved the marksmanship of blacks and conferred a
temporary "resistance to the 'knockdown' effects of fatal wounds."
Id.
(109.) See Bradley, supra note 98, at 674.
(110.) See, e.g., Carmona v. Ward, 576 F.2d 405, 411 (2d Cir.
1978); Heard v. United States, 348 F.2d 43, 48 n.1 (D.C. Cir. 1964)
(mentioning "the body's slavery to the continued use of
opiates"); Castle v. U.S., 347 F.2d 492, 493 (D.C. Cir. 1964)
(slavery to opiates); People v. Thomas, 566 P.2d 228, 281 (Cal. 1977)
("[T]he heroin addict is widely believed to be a self-indulgent
social parasite who caters to his uncontrolled craving for the drug at
the expense of his family and community obligations; a member of a
criminal subculture who feeds his habit by engaging in theft,
prostitution...."); Tracy v. Mun. Court, 144 Cal. Rptr. 263, 281
(Ct. App. 1978); McMurtry v. Bd. of Med. Exam'rs, 4 Cal. Rptr. 910,
915-16 (1960); State v. Caldeira, 602 P.2d 930, 933 (Haw. 1979); Op. of
the Justices to House of Representatives, 393 N.E.2d 313, 319 (Mass.
1979); Commonwealth v. Silva, 488 N.E.2d 34, 39 (Mass. App. Ct. 1986)
("A statute designed to protect the public from illegal drugs
recognizes that drug addiction degrades and impoverishes those whom it
enslaves and that addiction is a significant cause of family disruption
and crime."); State v. Bejar, 717 P.2d 591, 595 (N.M. Ct. App.
1985); State v. Terrebonne, 364 So.2d 1290, 1292 (La. 1978); People v.
Broadie, 332 N.E.2d 338, 477 (N.Y. 1975) ("Drug addiction degrades
and impoverishes those whom it enslaves. This debilitation of men, as
well as the disruption of their families, the Legislature could also lay
at the door of the drug traffickers.").
(111.) See, e.g., Ormento v. United States, 328 F. Supp. 246, 256
(S.D.N.Y. 1971) ("Petitioner carefully avoided the personal use of
drugs while preying on the community and profiting from the enslavement
of others to drug addiction."); People v. Thomas, 566 P.2d 228, 234
(Cal. 1977) (stating that any heroin addict is "a dangerous
proselytizer who corrupts and enslaves the young and the weak in order
to gratify his own needs").
(112.) See Dubin, supra note 2, at 350; Hall, supra note 11, at
641-42 (describing the decline of specific intent in the early decades
of the twentieth century).
(113.) See Ric Simmons, Private Criminal Justice, 42 WAKE FOREST L.
REV. 911, 973 (2007) ("Indeed, the greatest change to substantive
criminal codes during the first seventy years of the twentieth century
was probably the Model Penal Code, which was designed by academics and
other professionals to simplify and streamline substantive criminal
law.").
(114.) For a critical review of the academic literature on
deterrence, see Michael Tonry, Learning from the Limitations of
Deterrence Research, 37 CRIME & JUST. 279 (2008).
(115.) See Hall, supra note 11, at 652 (writing in 1937 that
"[p]robation, parole, the indeterminate sentence and appellate
review of the length of sentence, as they exist today, are largely
products of the past half century").
(116.) See generally Luna, supra note 15; Hall, supra note 11,
619-40; Pound, supra note 15.
(117.) See Richard A. Posner, The Material Basis of Jurisprudence,
69 IND. L.J. 1, 14 (1993) ("The successful barristers and the royal
judges--virtually all of whom were former barristers--formed a small,
cozy, homogeneous community. The common law is the expression of the
values of this community. The lack of a felt need to systematize the
common law by reducing it to a code is a reflection of the
community's homogeneity. They had no more need for a code than the
native speakers in a language community need a grammar book to know how
to speak.").
(118.) See Radin, supra note 14, at 863 (describing the
"relentless annual or biennial grinding of more than fifty
legislative machines").
(119.) Roper v. Simmons, 543 U.S. 551, 624 (2005) (Scalia, J.,
dissenting); Wolf v. Colorado, 338 U.S. 25, 30 (1949) (surveying ten
jurisdictions of the United Kingdom and the British Commonwealth of
Nations); Regina v. Leatham, (1861) 8 Cox C.C. 498, 501 ("It
matters not how you get it; if you steal it even, it would be
admissible...."); see also Akhil Reed Amar, On Text and Precedent,
31 HARV. J.L. & PUB. POL'Y 961 (2008); Nancy Amoury Combs,
Copping a Plea to Genocide. The Plea Bargaining of International Crimes,
151 U. PA. L. REV. 1, 48 (2002); Erik Luna, A Place for Comparative
Criminal Procedure, 42 BRANDEIS L.J. 277, 319-20 (2004); Jenny McEwan,
Striking a Balance in Unlawfully Obtained Confession Cases. United
Kingdom Pragmatism Against Principle, 44 SAN DIEGO L. REV. 597, 600
(2007); Mike Redmayne, The Structure of Evidence Law, 26 OXFORD J. LEGAL
STUD. 805, 807 n.11 (2006); Bruce P. Smith, The Fourth Amendment,
1789-1868. A Strange History, 5 OHIO ST. J. CRIM. L. 663, 665 (2008);
Kweku Vanderpuye, The International Criminal Court and Discretionary
Evidential Exclusion: Toeing the Mark?, 14 TUL. J. INT'L &
COMP. L. 127, 151 (2005); Rebecca R. Zubaty, Foreign Law and the U.S.
Constitution: Delimiting the Range of Persuasive Authority, 54 UCLA L.
REV. 1413 (2007). But see New York v. Quarles, 467 U.S. 649, 673 (1984)
(O'Connor, J., concurring).
(120.) See Jacqueline Ross, Tradeoffs in Undercover Investigations:
A Comparative Perspective, 69 U. CHI. L. REV. 1501, 1521-22 (2002)
(explaining that in Europe the general rule is for the defendant to be
found guilty but for the police to be charged as accessories to the
crime in situations that would be analogous to entrapment in the United
States); Ian Walden & Anne Flanagan, Honeypots: A Sticky Legal
Landscape?, 29 RUTGERS COMPUTER & TECH. L.J. 317, 320-39 (2003)
(comparing entrapment rules for the United States, England, Canada, and
Australia, particularly with regard to computer-crime decoys known as
"honeypots").
(121.) See Jacobson v. United States, 503 U.S. 540, 554 (1992)
(reversing the defendant's conviction because the government failed
to establish that defendant was independently predisposed to commit the
crime for which he was arrested); Mathews v. United States, 485 U.S. 58,
63-66 (1988) (rejecting government's argument that entrapment
defense should be unavailable because defendant did not concede all
elements of the charged crime); Hampton v. United States, 425 U.S. 484,
488-89 (1976) (holding that the defense of entrapment was unavailable to
the defendant because he was predisposed to commit the crime); United
States v. Russell, 411 U.S. 423, 433 (1973) (holding that the
defendant's concession that there was evidence to support the
jury's finding that he was predisposed to commit the crime barred
his claim of entrapment); Sherman v. United States, 356 U.S. 369, 373
(1958) (holding that entrapment was established as a matter of law
because petitioner was induced to commit the crime); Sorrells v. United
States, 287 U.S. 435, 451 (1932) (holding defense of entrapment
available for defendant who gave government agent alcohol during
Prohibition).
(122.) Deterring police misconduct was the primary justification
for the exclusionary rule during the Warren Court era. United States v.
Calandra, 414 U.S. 338, 347 (1974) ("[T]he rule's prime
purpose is to deter future unlawful police conduct...."); Lego v.
Twomey, 404 U.S. 477, 489 (1972) ("This is particularly true since
the exclusionary rules are very much aimed at deterring lawless conduct
by police...."); McGautha v. California, 402 U.S. 183, 211 (1971)
("[T]o permit such use created an unacceptable risk of deterring
the prosecution of marginal Fourth Amendment claims, thus weakening the
efficacy of the exclusionary rule as a sanction for unlawful police
behavior."); Harris v. New York, 401 U.S. 222, 225 (1971)
("Assuming that the exclusionary rule has a deterrent effect on
proscribed police conduct, sufficient deterrence flows when the evidence
in question is made unavailable to the prosecution in its case in
chief."); Chapman v. California, 386 U.S. 18, 45 n.2 (1967)
(Stewart, J., concurring) ("The exclusionary rule in that context
balances the desirability of deterring objectionable police conduct
against the undesirability of excluding relevant and reliable
evidence."); Linkletter v. Walker, 381 U.S. 618, 637 (1965)
("[A]s to the exclusionary rule, the purpose was to deter the
lawless action of the police and to effectively enforce the Fourth
Amendment."); Elkins v. United States, 364 U.S. 206, 217 (1960)
("The rule is calculated to prevent, not to repair. Its purpose is
to deter--to compel respect for the constitutional guaranty in the only
effectively available way--by removing the incentive to disregard
it."); Mapp v. Ohio, 367 U.S. 643, 651 (1951). But see Irvine v.
People of Cal., 347 U.S. 128, 136 (1954) ("That the rule of
exclusion and reversal results in the escape of guilty persons is more
capable of demonstration than that it deters invasions of right by the
police.").
(123.) For a good historical discussion that aligns well with the
points in this article, see Bradley, supra note 98, at 678-90.
(124.) See id.; see also Orin S. Kerr, Updating the Foreign
Intelligence Surveillance Act, 75 U. CHI. L. REV 225 (2008) (arguing
that FISA is too "person-oriented" and should be rewritten to
address networks and aggregate behavior).
(125.) See Roach, supra note 19, at 132 ("[C]riminal law
reform has been offered as a symbolic and relatively cheap response to a
broad range of social, economic and cultural problems.").
(126.) See id. at 132-33.
(127.) See Gross, supra note 61. Deterrence remains within our
system, but is giving way to policies calibrated to make specific crimes
less likely to occur and harder to carry out. See, e.g., ERIC A. POSNER
& ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE
COURTS 230-48 (2007).
(128.) See id. at 147 ("[W]e should assume that at least some
terrorist activity cannot be deterred and spend more resources on
regulating the environment before, during and after acts of terrorism so
as to minimize the harms of terrorism."). But see ALAN DERSHOWITZ,
WHY TERRORISM WORKS 117 (2002).
(129.) See GURULE, supra note 27, on defunding terrorism.
(130.) See generally HAMM, supra note 25, about routine law
enforcement activities repeatedly foiling dangerous terrorist plots.
(131.) See Richard A. Posner, Privacy, Surveillance, and Law, 75 U.
CHI. L. REV. 245 (2008); Roach, supra note 19, at 135.
(132.) See Kenneth Chelst, An Algorithm for Deploying a Crime
Directed (Tactical) Patrol Force, 24 MGMT. SCI. 1314 (1978).
(133.) See HAMM, supra note 25, at 12-20, 128-132.
(134.) See Roach, supra note 19, at 140 ("Some terrorism
offences are defined in such a broad manner that they resemble both
status offences and guilt by association.").
(135.) For a good discussion of how group association is changing
defenses in criminal law, see Eugene R. Milhiz, Group Status and
Criminal Defenses: Logical Relationship or Marriage of Convenience?, 71
MO. L. REV. 547 (2006).
(136.) See PlSZKIEWICZ, supra note 34, at 127-29; Nora V.
Demleitner, Misguided Prevention. The War on Terrorism as a War on
Immigrant Offenders and Immigration Violators, 40 CRIM. L. BULL. 6
(2004); Roach, supra note 19, at 138 ("The idea of collective
punishment is implicit in Dershowitz's argument that the political
cause of the terrorists should be punished for acts of terrorism because
'the cause hopes and expects to benefit collectively from
terrorism'. The problem is that 'causes' do not commit
acts of terrorism, individuals do. From the perspective of the criminal
law, the punishment of the cause imposes punishment on the innocent.
Although at times he seems aware of the injustice of collective
punishment, Professor Dershowitz concludes that 'any effective
attack calculated to reduce terrorism--especially suicide bombers must
include an element of collective responsibility and punishment for those
supporting terrorism'. This departs from the fundamental focus on
individual responsibility under the criminal law and the idea 'that
punishing the mentally innocent with a view to advancing particular
objectives is fundamentally unfair. It is to use the innocent as a means
to an end'. Although the notion of collective guilt can influence
public discourse, it is alien to legal discourse.").
(137.) See FRANCIS T. CULLEN ET AL., CORPORATE CRIME: UNDER ATTACK
355-64 (2d ed. 2006).
(138.) See Cole, supra note 24, at 238-46 (describing the
immigration applications of the "paradigm of prevention").
(139.) Modern "looting" statutes, for example, usually
provide that the offense be committed in circumstances "in which
normal security of property is not present." LA. REV. STAT. ANN.
[section] 14:62.5(A) (2010); see also Stuart P. Green, Looting, Law, and
Lawlessness, 81 TUL. L. REV. 1129, 1145 (2007).
(140.) See 28 U.S.C. [section][section] 2241-2255, 2261-2266.
(2006).
(141.) See, e.g., Magwood v. Patterson, 130 S. Ct. 2788 (2010)
(permitting AEDPA review of habeas petition); Renico v. Lett, 130 S. Ct.
1855 (2010) (relying on AEDPA in upholding state court ruling that a
retrial based on a hung jury did not violate double jeopardy); Berghuis
v. Smith, 130 S. Ct. 1382 (2010) (holding that AEDPA forbids review of
fair cross-section requirement for jury in murder trial); Waddington v.
Sarausad, 129 S. Ct. 823 (2009) (reinstating conviction under AEDPA that
had been reversed due to jury instructions on accomplice liability in a
murder); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (reversing
conviction under AEDPA review based on contrary mitigating evidence);
Carey v. Musladin, 549 U.S. 70 (2006) (upholding, based on AEDPA, state
court decisions about whether victim's family members wearing
supportive buttons in the courtroom prejudiced the murder trial);
Miller-El v. Dretke, 545 U.S. 231 (2005) (relying on AEDPA to uphold
state court decision against the defendant on a claim of juror
prejudice); Brown v. Payton, 544 U.S. 13 (2005) (relying on AEDPA to
uphold court's decision, over defendant's objection, to permit
prosecutor's remarks asking the jury to ignore mitigating factors).
(142.) Holland v. Florida, 130 S. Ct. 2549 (2010); Jimenez v.
Quarterman, 129 S. Ct. 681 (2009); Button v. Stewart, 549 U.S. 147
(2007); Pace v. DiGuglielmo, 544 U.S. 408 (2005); Johnson v. U.S., 544
U.S. 295 (2005); Carey v. Saffold, 536 U.S. 214 (2002); Duncan v.
Walker, 533 U.S. 16 (2001); Artuz v. Bennett, 531 U.S. 4 (2000).
(143.) Another trend is the intentional convergence of judicial
interpretations from various countries and jurisdictions in reaction to
worldwide anti-terrorist legislation. See Cole, supra note 24, at
269-75.
(144.) See PISZKIEWICZ, supra note 34, at 127-29.
(145.) See, e.g., Cole, supra note 24, at 239-41 (embargoing of
individuals or groups under the International Emergency Economic Powers
Act (IEEPA), 50 U.S.C. [section][section] 1701-06 (2006)).
(146.) See GURULE, supra note 27 (discussing U.S. legislation for
freezing the assets of foreign terrorists); Roach, supra note 19, at 138
("Laws against the financing of terrorism are not aimed at
terrorists or even those who may sympathize with their cause, but
business people who are required, on pain of criminal conviction, to use
their own resources to ensure that they are not assisting terrorists.
Such systems are also encouraged by lists distributed by international,
regional and domestic agencies of people who are designated as
terrorists, lists that are often incorporated in the domestic law of
many nations. Those listed are not generally given an opportunity to
make submissions before they are listed and the provisions for removing
those mistakenly added to the list may be slow and not repair the damage
of being officially listed as a terrorist.")
(147.) Roach, supra note 19, at 147.
(148.) See Cole, supra note 24, at 236-39 (describing the
"material support" statute and its use by the federal
prosecutors).
(149.) See Holder v. Humanitarian Law Project, 130 S. Ct. 2705
(2010).
(150.) See Richard H. McAdams, The Political Economy of Entrapment,
96 J. GRIM. L. & CRIMINOLOGY 107, 159-62 (2005) (discussing the
modem proliferation of proxy crimes and their disconnect from
retributive rationales for punishment).
(151.) 21 U.S.C. [section] 856(a)(1)(2006).
(152.) Id. [section] 841(c)(2).
(153.) "Crossover prosecutions" is used here to refer to
the application of regular criminal laws (unrelated to terror) to combat
terrorism, usually as a means of incapacitating potential terrorists;
"spillover effects" is the mirror image of this concept, the
application of anti-terror legislation to non-terrorism contexts. For
poignant examples of spillover, see SIDEL, supra note 45, at 91-92
(describing a case of prosecutors using New York's antiterrorism
statute to charge a gang leader for the murder of a ten-year-old girl in
the Bronx; a North Carolina prosecutor who tried using his state's
antiterrorism statute to charge methamphetamine producers with
manufacturing "chemical weapons;" and Virginia's use of
antiterrorism statutes to prosecute and convict lone snipers John Allen
Muhammed and Lee Boyd Malvo).
(154.) See United States v. Mohammed, 538 F. Supp. 2d 281 (D.D.C.
2008); Miller v. U.S. Dep't of Justice, 562 F. Supp. 2d 82, 102
n.12 (D.D.C. 2008); Press Release, U.S. Dep't of Justice, Member of
Afghan Taliban Convicted in U.S. Court on Narco-terrorism and Drug
Charges (May 15, 2008), available at http://www.justice.gov/
opa/pr/2008/May/O8-crm429.html; Terry Frieden, U.S. Indicts 50
Colombians it Calls 'Narcoterrorists ', CNN ONLINE (March 22,
2006), http://articles.cnn.com/2006-03-22/justice/
justice.farc_1_farc-face-drugtrafficking-charges-cuevas-cabrera?
s-PM:LAW; Narcoterrorism, U.S. DRUG ENFORCEMENT ADMIN.,
http://www.justice.gov/dea/ongoing/narco-terrorism.html (last visited
Dec. 8, 2010); INSPECTOR GENERAL, DEP'T OF DEFENSE, REPORT NO.
D-2009-109, CONTRACTS SUPPORTING THE DOD COUNTER NARCOTERRORISM
TECHNOLOGY PROGRAM OFFICE (2009), available at
http://www.dodig.mil/audit/ reports/fy09/09-109.pdf (last visited Dec.
8, 2010); LOCKHEED MARTIN'S COUNTER NARCO-TERRORISM TECHNOLOGY
PROGRAM AND OPERATIONS SUPPORT (CNTPO),
http://www.lockheedmartin.com/products/ CounterNarcoTerrorism/index.html
(last visited Dec. 8, 2010).
(155.) Stephanie Martz, Why Criminal Law Should Matter To Business,
Speech Before the Civil Justice Reform Group (May 23, 2006), in
CHAMPION, July 2006, at 42.
(156.) For example, in drafting the federal drug-involved premises
statute, Congress imposed criminal liability on those who
"knowingly open, lease, rent, use, or maintain any place ... for
the purpose of manufacturing, distributing, or using any controlled
substance." 21 U.S.C. [section] 856(a)(1) (2006). The legislative
goal apparently was to cover a broad spectrum, but the mens tea
requirement has befuddled the courts. See Matthew P. Fitzsimmons,
Primal', Significant, or Merely More than Incidental: What Level of
Intent Does the Federal Drug-Involved Premises Statute Really Require?,
35 NEW ENG. J. ON CRIM. & CIR. CONFINEMENT 177, 208-10 (2009).
Similarly, the Comprehensive Drug Abuse Prevention and Control Act makes
it a crime for a person to possess or distribute a listed chemical
"knowing, or having reasonable cause to believe, that the listed
chemical will be used to manufacture a controlled substance." 21
U.S.C. [section] 841(c)(2) (2006). There is a current split between
circuit courts as to this mens rea provision as well. See, e.g., United
States v. Khattub, 536 F.3d 765, 769 (7th Cir. 2008); United States v.
Truong, 425 F.3d 1282, 1289 (10th Cir. 2005); United States v. Galvan,
407 F.3d 954, 958 (8th Cir. 2005); United States v. Kaur, 382 F.3d 1155,
1157-58 (9th Cir. 2004); United States v. Prather, 205 F.3d 1265, 1269
(11th Cir. 2000). The majority view is that it requires either
subjective knowledge of an objective cause to believe to convict. See
Galvan, 407 F.3d at 957; Kaur, 382 F.3d at 1157: Prather, 205 F.3d at
1270-72. See also the thorough discussion in Brian Walsh, Circuits Split
as to Statutory Interpretation of the Mens Rea Requirement in 21 U.S.C.
[section] 841(C)(2): The Tenth Circuit Provides the Correct Answer, 48
DUQ. L. REV. 123 (2010).
(157.) See Holder v. Humanitarian Law Project, 130 S. Ct. 2705
(2010) (upholding the constitutionality of the "material support of
terrorism" statute and interpreting its scienter element of
"knowingly").
(158.) For example, in 2009 the Supreme Court addressed a scienter
provision nearly identical to the one in Holder in the federal identity
theft statute, which prosecutors were using to ferret out illegal
immigrants whose phony Social Security numbers on employment paperwork
happened to be someone else's real number (another example of a
crossover prosecution). Flores-Figueroa v. United States, 129 S. Ct.
1886 (2009); see also The Supreme Court, 2008 Term--Leading Cases, 123
HARV. L. REV. 312 (2009).
(159.) See Hall, supra note 11, at 644.
(160.) See also United States v. Williams, 553 U.S. 285, 290 (2008)
(mentioning how grammatical analysis often controls interpretation of
the "knowingly" scienter requirement, and then ruling in favor
of the defendant in a pornography case).
(161.) The MPC's four levels of culpability, however, were
mostly tiers of the awareness of risk that factfinders could attribute
to defendants.
(162.) 18 u.s.c. [section] 2(a) (2006) ("Whoever commits an
offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a
principal.").
(163.) See Lisa Rachlin, The Mens Rea Dilemma .for Aiding and
Abetting a Felon in Possession, 76 U. CHI. L. REV. 1287 (2009).
(164.) The Ninth Circuit applies strict liability, while the Third
and Sixth Circuits require that the defendant had knowledge or
"reasonable cause to believe" that the principal is a
convicted felon for the defendant to be convicted as an accomplice under
[section] 922(g)(1). See United States v. Gardner, 488 F.3d 700, 713
(6th Cir. 2007); United States v. Graves, 143 F.3d 1185 (9th Cir. 1998);
United States v. Xavier, 2 F.3d 1281 (3d Cir. 1993); United States v.
Canon, 993 F.2d 1439 (9th Cir. 1993).
(165.) Counterfeit Access Device and Computer Fraud and Abuse Act
of 1984, Pub. L. No. 98-473, [section] 2102(a), 98 Stat. 2190 (codified
as amended at 18 U.S.C. [section] 1030 (2006)).
(166.) See id.; Computer Fraud and Abuse Act of 1986, Pub. L. No.
99-474, [section] 2, 100 Stat. 1213 (1986); Minor and Technical Criminal
Law Amendments Act of 1988, Pub. L. No. 100-690, [section] 7065, 102
Star. 4404 (1988); Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub. L. No. 101-73, [section] 962(a)(5), 103
Stat. 502 (1989); Crime Control Act of 1990, Pub. L. No. 101-647,
[section][section] 1205(e), 2597(j), 3533, 104 Stat. 4831,4910, 4925
(1990); Computer Abuse Amendments Act of 1994, Pub. L. No. 103-322,
[section] 290001 (b)(f), 108 Stat. 2097 (1994); National Information
Infrastructure Protection Act of 1996, Pub. L. No. 104-294,
[section][section] 201,604(b)(36), 110 Stat. 3491, 3508 (1996); Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L.
No. 107-56, [section][section] 506(a), 814, 115 Stat. 366, 382 (2001);
Criminal Law Technical Amendments Act of 2002, Pub. L. No. 107-273,
[section][section] 4002(b)(1), (12), 4005(a)(3), (d)(3), 116 Stat. 1807,
1808, 1812, 1813 (2002); Cyber Security Enhancement Act of 2002, Pub. L.
No. 107-296, [section] 225(g), 116 Star. 2158 (2002); Identity Theft
Enforcement and Restitution Act of 2008, Pub. L. No. 110-326,
[section][section] 203-08, 122 Stat. 3560, 3560-65 (2008).
(167.) 18 U.S.C. [section] 1030(a)(4) (2006).
(168.) ID. [section] 1030(a)(5)(C).
(169.) See Trevor A. Thompson, Terrorizing the Technological
Neighborhood Watch: The Alie-Nation and Deterrence of the "White
Hats" Under the CFAA, 36 FLA. ST. U. L. REV. 537, 561-68 (2009).
(170.) For example, the Ohio state legislature amended its criminal
gambling statute to make strict liability more explicit in reaction to
the Ohio Supreme Court's determination that some level of criminal
intent must be present in State v. Lozier, 803 N.E.2d 770, 774-75 (Ohio
2004). See Act of June 24, 2004, Amend. Sub. H.B. 163, 2004 Ohio Laws
4620; Felicia I. Phipps, Strict Liability or Recklessness: Untangling
the Web of Confusion Created by Ohio Revised Code Section 2901.21(B), 35
U. DAYTON L. REV. 199 (2010); see also John L. Diamond, The Myth of
Mortality, and Fault in Criminal Law Doctrine, 34 AM. CRIM. L. REV. 111,
116-17 (1996); Assaf Hamdani, Mens Rea and the Cost of Ignorance, 93 VA.
L. REV. 415 (2007) (describing several examples of the trend and
suggesting that mens rea requirements should be calibrated according to
the perpetrator's information costs); Susan F. Mandiberg, The
Dilemma of Mental State in Federal Regulatory Crimes. The Environmental
Example, 25 ENVTL. L. 1165, 1166-69 (1995); Alan C. Michaels,
Constitutional Innocence, 112 HARV. L. REV. 828, 831 (1999); Jarrod
Forster Reich, Note, "No Provincial or Transient Notion ": The
Need for a Mistake of Age Defense in Child Rape Prosecutions, 57 VAND.
L. REV. 693,694-97 (2004).
(171.) See United States v. Bailey, 444 U.S. 394, 404 n.4 (1980);
MODEL PENAL CODE [section] 2.05(1)(a) (1985); id. [section] 2.05 cmt. at
283 ("The law goes far enough if it permits the imposition of a
monetary penalty in cases where strict liability has been
imposed."); Larry Kupers, Aliens Charged with Illegal Re-entry Are
Denied Due Process and, Thereby, Equal Treatment Under the Law, 38 U.C.
DAVIS L. REV. 861, 880-81 (2004); see also David J. Karp, Note,
Causation in the Model Penal Code, 78 COLUM. L. REV. 1249, 1253 n.13
(1978).
(172.) See David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 960-72
(2002) (discretion to detain immigrants); Harold C. Relyea, Organizing
for Homeland Security, 33 PRES. STUD. Q. 602 (2003).
(173.) SIDEL, supra note 45, at 66-71.
(174.) See Christopher Slobogin, Government Data Mining and the
Fourth Amendment, 75 U. CHI. L. REV. 317 (2008).
(175.) An additional offset to the potential invasion of privacy is
the clutter phenomenon--an overwhelming amount of information makes it
infeasible to find the useful intelligence in the pile. Clutter makes
terror prevention very difficult, but it also makes it hard to cull
information useful for targeting anyone.
(176.) See Julie R. O'Sullivan, The Federal Criminal
"Code" Is" a Disgrace. Obstruction Statutes as Case
Study, 96 J. CRIM. L. & CRIMINOLOGY 643,646 (2006).
(177.) Harvey A. Silvergate, The Decline and Fall of Mens Rea,
CHAMPION, Sept.-Oct. 2009, at 15. Silvergate also discusses the
expanding discretion and plea-bargaining leverage that prosecutors have
in the multiplication of gradations of offenses, Id. at 18.
(178.) See Slobogin, supra note 174. The PATRIOT Act reduced
restrictions on law enforcement agencies' ability to search
telephone, e-mail communications, medical, financial, and other records;
eased restrictions on foreign intelligence gathering within the United
States; expanded the Secretary of the Treasury's authority to
regulate financial transactions, particularly those involving foreign
individuals and entities; and broadened the discretion of law
enforcement and immigration authorities in detaining and deporting
immigrants suspected of terrorism-related acts. The Act also expanded
the definition of terrorism to include domestic terrorism, thus
enlarging the number of activities to which the PATRIOT Act's
expanded law enforcement powers could be applied. Abrams indicates that
[t]he main thrust of the Act was directed to broadening and
strengthening law enforcement tools of investigation and procedures
and methods that can be used to attack terrorist groups and
activities. Many of these strengthened tools, procedures and
methods can be used as well against ordinary criminals and criminal
activity; they are not restricted to being used only in
anti-terrorism contexts.
NORMAN ABRAMS, ANTI-TERRORISM AND CRIMINAL ENFORCEMENT 9-10 (2003).
(179.) See the recent discussion of the phenomenon, and emerging
trends in this regard, in Gillian E. Metzger, Facial Challenges'
and Federalism, 105 COLUM. L. REV. 873 (2005).
(180.) Katz v. United States, 389 U.S. 347 (1967).
(181.) Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004).
(182.) Id.
(183.) Hiibel v. Sixth Judicial Dist. Court, 59 P.3d 1201 (Nev.
2002), cert. granted, 540 U.S. 965 (2003), aff'd, 542 U.S. 177
(2004).
(184.) See, e.g., Gerald G. Ashdown, The Blueing of America: The
Bridge Between the War on Drugs and the War on Terrorism, 67 U. PITT. L.
REV. 753 (2005); M. Christine Klein, A Bird Called Hiibel: The
Criminalization of Silence, in CATO SUPREME COURT REVIEW, at 357 (Cato
Institute, 2004); Peter Koclanes, Unreasonable Seizure." "Stop
and Identify" Statutes Create an Illusion of Safety by Sacrificing
Real Privacy, 57 FLA. L. REV. 431 (2005); Luna, supra note 15, at 707;
Turgeon, supra note 23; James G. Warner, Dudley Do Wrong. An Analysis of
a "Stop and Identify" Statute in Hiibel v. Sixth Judicial
District Court of Nevada, 39 AKRON L. REV. 245 (2006); William H.
Weisman, Where Everybody Knows Your Name: Compulsory Identification and
the Fallacy of the Hiibel Majority, 71 BROOK. L. REV. 1421 (2006); Jamie
L. Stulin, Comment, Does' Hiibel Redefine Terry? The Latest
Expansion of the Terry Doctrine and the Silent Impact of Terrorism on
the Supreme Court's Decision to Compel Identification. 54 AM. U. L.
REV. 1449 (2005).
(185.) 130 S. Ct. 2250 (2010).
(186.) Maryland v. Shatzer, 130 S. Ct. 1213, 1219-22 (2010).
(187.) See Charlie Savage, Holder Backs a Miranda Limit for Terror
Suspects, N.Y. TIMES, May 10, 2010, at A1 ("We're now dealing
with international terrorists, and ! think that we have to think about
perhaps modifying the rules that interrogators have and somehow coming
up with something that is flexible and is more consistent with the
threat that we now face.").
(188.) 530 U.S. 428 (2000).
(189.) Judge Richard Posner, however, sees a significant conflict
between intelligence gathering and law enforcement, of which stings are
an integral part, and argues that an agency attempting to do both
simultaneously will be ineffective at both. See RICHARD A. POSNER,
UNCERTAIN SHIELD: THE U.S. INTELLIGENCE SYSTEM IN THE THROES OF REFORM
110-17, 135 (2006). In another book, Posner states:
The broader point is that prevention is a much more important
policy goal in the case of global terrorism than in the case of
ordinary crime. The nation can live with 30,000 ordinary murders a
year, but not 30,000 murders by terrorists. Criminal punishments
are designed to limit the crime rate, but not to reduce it to zero;
the costs would be disproportionate to the benefits. This is much
less clear in the case of terrorism.
RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 2245 (7th ed. 2007).
(190.) See POSNER, UNCERTAIN SHIELD, supra note 189.
(191.) See, e.g., United States v. LaFleur, 971 F.2d 200, 204 (9th
Cir. 1992) ("The duress defense, which provides the defendant a
legal excuse for the commission of the criminal act, is based on the
rationale that a person, when confronted with two evils, should not be
punished for engaging in the lesser of the evils."); State v.
Rumble, 680 S.W.2d 939 (Mo. 1984); PAUL H. ROBINSON, CRIMINAL LAW 410
(1997) ("Many statutes require that the threat of harm must be
'imminent' in order to entitle the actor to act under a
lesser-evils defense."); Michael R. Dimino, Sr., Police
Paternalism." Community Caretaking, Assistance Searches, and Fourth
Amendment Reasonableness, 66 WASH. & LEE L. REV. 1485, 1511 (2009);
Kyron Huigens, The Continuity of Justification Defenses, 2009 U. ILL. L.
REV. 627, 676-77 (2009); Malcolm Thorburn, Justifications, Powers, and
Authority, 117 YALE L.J. 1070, 1072 (2008). For a discussion of the
development of affirmative defenses at common law, and the scienter
requirement for each, see Sayre, supra note 2, at 1004-16.
(192.) See Sayre, supra note 2, at 1016-20; Dru Stevenson,
Entrapment by Numbers, 16 U. FLA. J.L. & PUB. POL'Y 1 (2005)
(showing that the entrapment defense is on the decline, both in how
often it arises and in how often it succeeds).
(193.) See Michael H. Hoffheimer, Codifying Necessity: Legislative
Resistance to Enacting Choice-of Evils Defenses to Criminal Liability,
82 TUL. L. REV. 191 (2007).
(194.) See generally Thorburn, supra note 191.
(195.) See Hoffheimer, supra note 193, at 233-34.
(196.) Id. at 242-43. An additional new trend in affirmative
defenses is the effect of group association, discussed above as a
component of the emerging national security paradigm. See generally
Milhiz, supra note 135, at 548 ("Group status has become
increasingly significant with respect to criminal defenses. With varying
degrees of success, academics, judges, and commentators have argued that
group status can serve as an appropriate basis for defending against a
charge or for avoiding or reducing punishment.").
(197.) See McAdams, supra note 150, at 108.
(198.) See Dru Stevenson, Entrapment and Terrorism, 49 B.C.L. REV.
125 (2008).
(199.) See, e.g., United States v. A1-Moayad, 545 F.3d 139 (2d Cir.
2008); United States v. Abdi, 463 F.3d 547, 554 (6th Cir. 2006)
(defendant charged with providing material support); United States v.
Aref, No. 04-CR-402, 2007 WL 603508, at *2-4 (N.D.N.Y. Feb. 22, 2007)
(sting operation and criminal prosecution for providing funds to Islamic
terrorists); Almog v. Arab Bank, 471 F. Supp. 2d 257, 259 (E.D.N.Y.
2007) (involving tort action against Jordanian bank alleged to have
knowingly provided banking and other services that facilitated the
actions of terrorist organizations); United States v. Salah, 462 F.
Supp. 2d 915, 915 (N.D. Ill. 2006).
(200.) See, e.g., United States v. Merlino, 592 F.3d 22 (lst Cir.
2010); United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008); United
States v. Siraj, No. 07-0224-cr, 2008 WL 2675826 (2d Cir. July 9, 2008);
United States v. Hughes, 273 F. App'x. 587 (9th Cir. 2007); United
States v. Nettles, 476 F.3d 508, 510 (7th Cir. 2007) (personal vendetta
bomb plot to mimic Oklahoma City bombing); United States v. Ressam, 474
F.3d 597, 598 (9th Cir. 2007) (Al-Qaeda attempt to bomb the Los Angeles
Millennium celebrations); United States v. McMorrow, 471 F.3d 921, 923
(8th Cir. 2006) (bomb threats on Fargo, North Dakota); United States v.
Olmeda, 461 F.3d 271, 277 (2d Cir. 2006) (possession of eighteen pipe
bombs and other munitions); United States v. Mohamed, 459 F.3d 979, 981
(9th Cir. 2006) (threatened Islamic terror bomb attack on Los Angeles);
United States v. Campa, 459 F.3d 1121, 1158-60 (11th Cir. 2006) (history
of bombings in southern Florida); United States v. Keller, No.
2:09-cr-20303, 2010 WL 55508 (E.D. Mich. Jan. 6, 2010); United States v.
El-Hindi, No. 3:06CR719, 2009 WL 1373270 (N.D. Ohio May 15, 2009);
Fenton v. U.S., No. 02-57-P-S, 2009 WL 230081 (D. Me. Jan. 20, 2009);
United States v. McDavid, No. 2:06-cr00035-MCE, 2008 WL 850307 (E.D.
Cal. Mar. 28, 2008); United States v. Crocker, 260 F. App'x 794
(W.D. Tenn. 2008); United States v. Patterson, No. S-99-0551, 2007 WL
2705224 (E.D. Cal. Sept. 14, 2007); United States v. Mazloum, No.
3:06CR719, 2007 WL 2778731 (N.D. Ohio Sept. 4, 2007); Aref, 2007 WL
603508, at *9 n.10 (Islamic terror bomb plots); Hurst v. Socialist
People's Libyan Arab Jamahiriya, 474 F. Supp. 2d 19, 22 (D.D.C.
2007) (litigation over Lockerbie plane crash); United States v. Lin, No.
CR-01-20071-RMW, 2007 WL 101647, at *1 (N.D. Cal. Jan. 5, 2007)
(defendant told woman that her family was going to die and that her
brother was next); Estate of Heiser v. Islamic Republic of Iran, 466 F.
Supp. 2d 229, 248 (D.D.C. 2006) (bombing of American installations in
Saudi Arabia); United States v. Coronado, 461 F. Supp. 2d 1209, 1210
(S.D. Cal. 2006) (involving violation of statute prohibiting
distribution of information relating to explosives, destructive devices,
and weapons of mass destruction); Blais v. Islamic Republic of Iran, 459
F. Supp. 2d 40, 45 (D.D.C. 2006) (bombing of American installations in
Saudi Arabia); People v. Quinonez, No. H027654, 2006 WL 2567718, at *1
(Cal. Ct. App. Sept. 7, 2006) (bombs placed at elementary schools and
childcare center in California to distract authorities during bank
heist); People v. Osantowski, 736 N.W.2d 289, 295 (Mich. Ct. App. 2007)
(terror threats and bomb production); State v. Sands, No. 2007-L-003,
2008 WL 5428252 (Ohio Ct. App. Dec. 31, 2008); State v. Sands, No.
2006-L-171, 2007 WL 37792, at *1 (Ohio Ct. App. Jan. 5, 2007) (attempted
bombing of municipal authorities in Ohio); State v. Luers, 153 P.3d 688,
691 (Or. Ct. App. 2007) (bombing of oil refinery/storage facilities).
(201.) See Stevenson, supra note 198, at 192-94.
(202.) See Bruce Hay, Sting Operations, Undercover Agents, and
Entrapment, 70 MO. L. REV. 387,412-13 (2005).
(203.) See id.; see also Stevenson, supra note 198, at 192-94.
(204.) See Stevenson, supra note 198, at 192-94.
(205.) See George A. Akerlof, The Market for "Lemons ":
Quality Uncertain&.' and the Market Mechanism, 84 Q.J. ECON.
488,488-90 (1970).
(206.) See Stevenson, supra note 198, at 125-30; see also United
States v. Lakhani, 480 F.3d 171,178-80 (3d Cir. 2007); United States v.
Nettles, 476 F.3d 508, 517 (7th Cir. 2007); United States v. Hale, 448
F.3d 971,989 (7th Cir. 2006); United States v. Rahman, 189 F.3d 88, 142
(2d Cir. 1999); United States v. Polk, 118 F.3d 286, 289-91 (5th Cir.
1997); United States v. Aref, No. 04-CR-402, 2007 WL 603508, at *4
(N.D.N.Y. Feb. 22, 2007); United States v. Siraj, 468 F. Supp. 2d 408,
413-14 (E.D.N.Y. 2007); Elgabrowny v. United States, No. S5 93 CR. 181,
2003 WL 22416167, at "10 (S.D.N.Y. Oct. 22, 2003); United States v.
Awadallah, 202 F. Supp. 2d 82, 107-08 (S.D.N.Y. 2002); United States v.
Bin Laden, No. S(7) 98 CR. 1023, 2001 WL 30061, at "1-2 (S.D.N.Y.
Jan. 2, 2001) (describing surveillance and capture of Al Qaeda
associate); United States v. Bin Laden, 91 F. Supp. 2d 600, 613
(S.D.N.Y. 2000); Paul Marcus, Presenting Back from the (Almost) Dead,
the Entrapment Defense, 47 FLA. L. REV. 205,244 n.227 (1995) (discussing
sting operation against Egyptian Sheik Omar Abdel Rahmen and subsequent
criminal proceedings and defenses); John Caher, Terrorism Trial of
Muslims Raises Issues of Entrapment, 236 N.Y.L.J., Sept. 14, 2006, at
12; Brendan J. Lyons, Intent of Missile Plot Not Lost in
Translation." FBI Case Juror Says Panel Dismissed Concerns that
Defendants" Were Duped, ALBANY TIMES UNION, Oct. 13, 2006, at A1;
William K. Rashbaum, Lawyer Confronts lnJbrmer in Subway Bomb Plot Case,
N.Y. TIMES, May 5, 2006, at B2; Michelle Shepherd, Muslim Went
Undercover to Save Lives, HAMILTON SPECTATOR (Ont., Can.), July 14,
2006, at A12.
(207.) See Stevenson, supra note 192, at 16-24 (documenting a
decline over the last several years in entrapment defense cases).
(208.) See id. at 10-11.
(209.) See Stevenson, supra note 198, at 187-92 (discussing the
subtle effect that antiterrorism stings have on the predisposition
analysis).
(210.) See id
(211.) See id.; MODEL PENAL CODE [section] 2.13 (1985).
(212.) See Stevenson, supra note 198, at 179-83.
(213.) See id. at 183-85 (arguing that more use of undercover
operations in the fight against terrorism will lower the
government's need for surveillance and indirectly enhance the
protection of civil liberties).
(214.) Maguire & King, supra note 20, at 22.
(215.) See EDWARDS, supra note 21, at 255-59; BAYLEY &
SHEARING, supra note 18, at 13-28; David H. Bayley and Clifford D.
Shearing, The Future of Policing, 30 L. & Soc. REV.
585,586-91,598-603 (1996); Elizabeth E. Joh, The Paradox of Private
Policing, 95 J. CRIM. L. & CRIMINOLOGY 49, 49 (2004)
("Increasingly, the private police are considered the first line of
defense in the post-September 11th world. Hardly anything is known about
the private police, yet they are by far the largest provider of policing
services in the United States, at least triple the size of the public
police. More importantly, the functions, responsibilities, and
appearance of the private and public police are increasingly difficult
to tell apart. This development has been surprisingly underappreciated.
What's more, the law recognizes a nearly absolute distinction
between public and private. This means that private police are largely
unburdened by the law of constitutional criminal procedure or by state
regulation."); Maguire & King, supra note 20, at 20-21.
(216.) But see Bruce L. Benson & Brent D. Mast, Privately
Produced General Deterrence, 44 J.L. & ECON. 725 (2001)
(arguing--against what they admit is the mainstream view-that private
security does not reduce crime rates for larceny or assault).
(217.) See EDWARDS, supra note 21, at 255-57, 271-74.
(218.) See Maguire & King, supra note 20, at 24.
(219.) Id.
(220.) See EDWARDS, supra note 21, at 276-80.
(221.) See Maguire & King, supra note 20, at 28-30.
(222.) See id. at 29-30.
(223.) See Kraska & Kappeler, supra note 20; see also Maguire
& King, supra note 20, at 21-22; Dhanasekaran, supra note 20, at
252-53; Kealy, supra note 20, at 385-87; Koplow, supra note 20, at 800.
(224.) Maguire & King, supra note 20, at 21; see also BAYLEY
& SHEARING, supra note 18, at 19 (noting that "military
equipment and tactics are being used more often").
(225.) See Maguire & King, supra note 20, at 21.
(226.) See Dhanasekaran, supra note 20; Kealy, supra note 20; Tom
A. Gizzo & Tama S. Monoson, Call to Arms: The Posse Comitatus Act
and the Use of the Military in the Struggle Against International
Terrorism, 15 PACE INT'L L. REV. 149 (2003); Jessica DeBianchi,
Note, Military Law: Winds Of Change--Examining the Present-Day Propriety
of the Posse Comitatus Act After Hurricane Katrina, 17 U. FLA. J.L.
& PUB. POL'Y 473 (2006); John R. Longley III, Note, Military
Purpose Act. An Alternative to the Posse Comitatus Act--Accomplishing
Congress's Intent with Clear Statutory Language, 49 ARIZ. L. REV.
717 (2007); Sean McGrane, Note, Katrina, Federalism, and Military Law
Enforcement." A New Exception to the Posse Comitatus Act, 108 MICH.
L. REV. 1309 (2010).
(227.) See Ann Althouse, The Vigor of Anti-Commandeering Doctrine
in Times of
Terror, 69 BROOK. L. REV. 1231 (2004) (discussing trends in the
doctrine restricting the federal government from imposing duties on
non-federal officials).
(228.) See Maguire & King, supra note 20, at 21.
(229.) See, e.g., Tom Hays, NYPD Commissioner." NYC Bomb
Suspect 'Homegrown', ABCNEWS.COM (May 11, 2010),
http://abcnews.go.com/US/wireStory?id=10615890 ("The system
covering the streets of lower Manhattan eventually will have 3,000
police and private cameras--far fewer than in London. But the NYPD
officials said they hope to make their system much more sophisticated by
using computer software that can program cameras to automatically detect
suspicious packages or activity picked up by the cameras and alert
police.").
(230.) See id.
(231.) See Cole, supra note 172, at 960-74.
(232.) David Thacher, The Rise of Criminal Background Screening in
Rental Housing, 33 L. & Soc. INQUIRY 5 (2008).
(233.) See BAYLEY & SHEARING, supra note 18, at 19.
(234.) See Niskanen, supra note 23, at 353.
(235.) See id. at 355; Turgeon, supra note 23, at 59-60.
(236.) See Maguire & King, supra note 20, at 28-30; NADELMANN,
supra note 22, at 177-81 (describing trends in the New York City Police
Department in the 1990s).
(237.) For an interesting example of this phenomenon, see Maguire
& King, supra note 20, at 31:
In fact, however, new technologies sometimes change what officers
do and can thus alter the activity systems of police organizations.
For example, before the adoption of mobile data terminals (MDTs),
officers required some visible display of probable cause before
stopping a motor vehicle. The installation of MDTs in patrol cars,
however, allowed officers to unobtrusively run motor vehicles in
fishing expeditions for warrants and probable cause. Access to such
information increases the number of people with which the police
will have contact, and it also defines the conditions of their
interactions.
(238.) Allison Jones, The 2008 FBI Guidelines: Contradiction of
Original Purpose, 19 B.U. PUB. INT. L.J. 137 (2009) (arguing that the
FBI's changed guidelines for wiretaps and other surveillance give
unfettered discretion to authorities and few protections to innocent
civilians); Niskanen, supra note 23, at 353. Innumerable commentators
have exhausted the increased prevalence of government surveillance, data
mining, and reporting requirements, and the encroachment of national
security thinking in this domain of policing, so it seems unnecessary
here to cover the same ground.
(239.) See EDWARDS, supra note 21, at 297 ("[C]ourts'
increasing reliance on scientific evidence means that there are some
growing training needs for detectives with regard to crime scene
analysis. The use of computers and the organization of investigative
teams in major inquiries also requires the sort of skills that many
detectives do not possess but could reasonably be expected to
acquire.").
(240.) See id. at 304-08.
(241.) See BERNARD E. HARCOURT, AGAINST PREDICTION 1-38 (2007);
Gross, supra note 61, at 235-38.
(242.) See HARCOURT, supra note 241, at 77-110 (documenting the
"proliferation of actuarial methods in punishing and
policing"); Thacher, supra note 232, at 7-11.
(243.) See, e.g., HARCOURT, supra note 241; John Monahan, A
Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners,
Predators, and Patients, 92 VA. L. REV. 391 (2006); Katherine Y. Barnes,
Against Judgment, 93 CORNELL L. REV. 689 (2008) (reviewing HARCOURT,
AGAINST PREDICTION (2007)); Gross, supra note 61; Yoav Sapir, Against
Prevention? A Response to Harcourt's "Against Prediction"
on Actuarial and Clinical Predictions and the Faults of Incapacitation,
33 LAW & SOC. INQUIRY 253 (2008) (book review); Yoram Margalioth,
Looking at Prediction from an Economics Perspective: A Response to
Harcourt's "Against Prediction", 33 LAW & SOC.
INQUIRY 243 (2008) (book review); Bernard E. Harcourt, A Reader's
Companion to "Against Prediction": A Reply to Ariela Gross,
Yoram Margalioth, and Yoav Sapir on Economic Modeling, Selective
incapacitation, Governmentality, and Race, 33 LAW &Soc. INQUIRY 265
(2008).
(244.) See RICHARD A. POSNER, PREVENTING SURPRISE ATTACKS 34 (2005)
("[I]f only people who appear to be of Middle Eastern origin are
searched carefully at the airport, terrorist groups will focus on
recruiting people who do not fit the profile."). This is part of
Bernard Harcourt's "elasticity" argument in his stinging
critique of prediction-based policing--that it may fail in reducing
crime. See HARCOURT, supra note 241, at 3. It is also a variation of the
"equilibrium" argument about profiling, which suggests that
the profiled group will alter its behavior--or perhaps find itself
mostly incarcerated--to the point where the predictions begin to fail,
and police return to random selection. See, e.g., John Knowles et al.,
Racial Bias in Motor Vehicle Searches. Theory and Evidence, 109 J. POL.
ECON. 203 (2001).
(245.) See HARCOURT, supra note 241, at 145-70. Of course, these
two problems contradict each other: if profiling fails as criminals
respond, there will be less of a ratchet effect; and, a pronounced
ratchet effect would lead to a less accurate profile of the remaining
population, such that police would abandon it after repeated failures.
(246.) See, e.g., Ruben Hernandez-Murillo and John Knowles, Racial
Profiling or Racist Policing? Bounds Tests in Aggregate Data, 45
INT'L ECON. REV. 959 (2004); Gross, supra note 61; see also SOLAN
& TIERSMA, supra note 72, at 48-51.
(247.) See Jenkins et al., supra note 72 (advocating more
intelligence-based profiling or screening at airports, rather than
uniform or random measures).
(248.) Cf. HARCOURT, supra note 241, at 5, 237-39 (treating random
police tactics as the opposite of profiling).
(249.) See Barnes, supra note 243, at 701-02.
(250.) One caveat is political support; polls indicate that
Americans support uniform or consistent sacrifices of their civil
liberties, like national ID cards, more than random checks of personal
possessions. See Uddy et al, supra note 34, at 419.
(251.) See Hardin, supra note 32, at 79-82.
(252.) See SOLAN & TIERSMA, supra note 72, at 48-51; David
Oscar Markus, Fourth Amendment Forum: Is Profiling a
Constitutionally-Permissible Weapon in the War on Terror?, CHAMPION,
Mar. 2003, at 35.
(253.) See sources supra note 242.
(254.) See id.
(255.) 534 U.S. 266 (2002).
(256.) See id. at 268-69.
(257.) See id. at 270-71.
(258.) See id.
(259.) See id. at 271-72.
(260.) See id. at 272.
(261.) See id.
(262.) See id. at 277.
(263.) See Stuntz, supra note 41, at 2157-59.
(264.) See Hirsch & Markus, supra note 252, at 40.
(265.) See id. at 37.
(266.) See id.
(267.) See Demleitner, supra note 136.
(268.) See id. at 5.
(269.) See id.
(270.) See id.
(271.) See id.
(272.) See id.
(273.) See id. at 6.
(274.) See id.
(275.) See id.
(276.) See id.
(277.) See id. at 7.
(278.) See id.
(279.) See id.
(280.) See Cole, supra note 24, at 247-49 (describing the
DOJ's "paradigm of prevention" especially in the context
of immigrant detentions and deportations); Demleitner, supra note 136,
at 8.
(281.) See HARCOURT, supra note 241 (disputing the efficiency of
profiling and arguing that it leads to a self-exacerbating ratchet
effect); SOLAN & TIERSMA, supra note 72, at 48-51 (arguing that
profiling is connected to sociolinguistic differences between linguistic
subcultures); Hardin, supra note 32, at 79-82.
(282.) See Cole, supra note 172, at 974-76; Jenkins et al., supra
note 72.
(283.) See generally Chelst, supra note 132 (algorithm proposed for
police enforcement).
(284.) See United States v. Battiste, 343 F. App'x 962, 964
(5th Cir. 2009); United States v. Curtin, 489 F.3d 935, 938 (9th Cir.
2007); Gleason v. U.S., No. 2:05-cr-178, 2010 WL 1629943 (S.D. Ohio Apr.
20, 2010); Warren v. McDaniel, No. 2:07-cv-1186-PMP-RJJ, 2010 WL 1418212
(D. Nev. Apr. 6, 2010); Richards v. Sacramento Cnty. Prob. Dep't,
No. 2:06cv-01367-AK, 2009 WL 2253269 (E.D. Cal. July 28, 2009); Harrison
v. State, No. CA CR 08-102, 2008 WL 4493427 (Ark. App. Oct. 8, 2008);
Prime Gas, Inc. v. City of Sacramento, 109 Cal. Rptr. 3d 261 (Ct. App.
2010); Commonwealth v. King, 852 N.E.2d 1143 (Mass. 2006); Daniels v.
State, 110 P.3d 477 (Nev. 2005); see also Joseph A. Colquitt, Rethinking
Entrapment, 41 AM. CRIM. L. REV. 1389, 1398, 1420 (2004); Laura D.
Hogue, Criminal Law, 57 MERCER L. REV. 113, 117 (2005); Elizabeth E.
Joh, Breaking the Law to Enjorce it. Undercover Police Participation in
Crime, 62 STAN. L. REV. 155, 164 (2009); Walden & Flanagan, supra
note 120 (comparing entrapment rules for the United States, England,
Canada, and Australia, particularly with regards to computer-crime
decoys knows as "honeypots").
(285.) See, e.g., Tom Baker, Alon Harel & Tamar Kugler, The
Virtues of Uncertainty in Law: An Experimental Approach, 89 IOWA L. REV.
443 (2004) (demonstrating the value of uncertainty about detection and
the size of sanctions in both the criminal setting and the punitive
damages area of torts); Alon Harel & Uzi Segal, Criminal Law and
Behavioral Law and Economics. Observations on the Neglected Role of
Uncertainty in Deterring Crime, l AM. L. ECON. REV. 276 (1999)
(demonstrating that uncertainty about detection combined with
well-warned sanctions creates the most efficient level of deterrence).
(286.) See Seana Valentine Shiffrin, Inducing Moral Deliberation:
On the Occasional Virtues of Fog, 123 HARV. L. REV. 1214 (2010).
(287.) See HARCOURT, supra note 241, at 237-39. As an aside,
Harcourt raises an interesting point about using uncertainty to combat
terrorism:
Measures that raise the price of one and only one specific
activity, such as airplane hijackings, are likely to produce
troubling substitution effects. Measures that raise the price of
all terrorist acts, or, conversely, reduce the resources of
terrorists are less problematic arc likely to increase the use of
nonterrorist activities as compared to illegal terrorist activities
without producing unanticipated substitution. The optimal strategy
to combat terrorism is to reduce the terrorists' resources across
the board.
Id. at 236.
(288.) 531 U.S. 32, 35 (2002).
(289.) See id
(290.) See id
(291.) See id
(292.) See id.
(293.) See id.
(294.) See id. at 41.
(295.) See Anthony C. Coveny, When the Immovable Object Meets the
Unstoppable Force: Search and Seizure in the Age of Terrorism, 31 AM. J.
TRIAL ADVOC. 329, 336 (2007).
(296.) See id. at 343.
(297.) See id. at 345.
(298.) 540 U.S. 419, 420 (2004).
(299.) See id. In Florida v. J.L., 529 U.S. 266 (2000), Justice
Ginsburg suggested that the government's compelling interest in
preventing terrorism would justify permitting such a search, stating,
"[w]e do not say, for example, that a report of a person carrying a
bomb need bear the indicia of reliability we demand for a report of a
person carrying a firearm before the police can constitutionally conduct
a frisk." Id. at 273-74.
(300.) See Coveny, supra note 295, at 369.
(301.) See MacWade v. Kelly, 460 F.3d 260, 264 (2d Cir. 2006).
(302.) See id.
(303.) See id.
(304.) See id. at 265.
(305.) See id.
(306.) See id.
(307.) See id. at 266.
(308.) See id.
(309.) See id. at 270-75.
(310.) 410 F.3d 612 (9th Cir. 2005).
(311.) See id. at 615.
(312.) See id.
(313.) See id.
(314.) Id. at 617-18.
(315.) 293 F.3d 855, 862 (5th Cir. 2002).
(316.) See id at 857.
(317.) See id
(318.) See id at 858.
(319.) Id.
(320.) See id. at 859.
Dru Stevenson, Professor of Law, South Texas College of Law.