Federal Prosecutors Research Articles

Uniform Ethical Regulation of Federal Prosecutors

Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rules has led to regulatory confusion that has inhibited the development of clear ethical expectations for federal prosecutors. A uniform system of ethical regulation, dividing regulatory authority amongst the Courts, the Department of Justice, and a to-be-created independent ethical review commission should be adopted to ensure the consistent enforcement of federal criminal law.

Corporate America Fights Back: The Battle Over Waiver of the Attorney-Client Privilege

Abstract: This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. This Article seeks to transcend the feverish rhetoric dominating the debate by undertaking a careful cost-benefit approach to the matter. It con-cludes that the Department of Justice's recent policy statement on privilege waiver, contained in Deputy Attorney General Paul McNulty's 2006 Memorandum, merits a chance to work - with a number of important caveats that are fleshed out in the text.

Federalism and Criminal Law: What the Feds Can Learn from the States

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance is within the states themselves to see how they handle the issue of law enforcement allocation. States have the option of vesting authority in a state-level actor – typically, the Attorney General – or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority because states are weighing the same issues. This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state- or federal-level). A comprehensive empirical survey of criminal law enforcement responsibility in the states – including a review of state codes and case law and interviews with state prosecutors – reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. This contrasts with the federal government’s increasing interference with local crime. The Article explains the source of this difference: In the states, questions of procedure and sentencing are irrelevant to the allocation of power decision because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal involvement in crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government’s decision to get involved with question of local crime.

Risk Management, Law Firm Economics, and Lawyer Integrity: A Research Agenda

This essay will sketch a preliminary research agenda to more fully assess the impact of risk management norms and practices on lawyer integrity under contemporary models of large law firm economics. The historic economic downturn that frames this essay weighs heavily on traditional models of large law firm economics, exacerbating structural tensions and ratcheting up institutional pressures. In a prior work, I argued that the widespread adoption of risk management mechanisms by law firms diminished a full appreciation of the difficult moral choices facing lawyers in modern practice throughout litigation and transactional fields of representation and diluted the deep-rooted, other-regarding obligations of lawyers in society across public and private spheres of service. Drawing on the work of Milton Regan and William Simon, I maintained that the technology of risk assessment and regulation borrowed from the adjacent professional arenas of commerce, insurance, and corporate industry discounted the daily need for the exercise of moral discretion and the daily calling of a higher public obligation. As a result, I asserted, lawyers and law firms together underestimated the burdens of moral agency in the requisite discretionary decisions that are part and parcel of everyday legal advocacy ranging from transactional counseling to litigation discovery. No less important, I added, the same lawyers and law firms routinely neglected their well-settled individual and collective duties of social responsibility to clients, third parties, and the public, and thus discarded the highest ambitions of professionalism in American law displayed in honored traditions of independence, service, and trust. In a powerful rebuttal, Anthony Davis contends that risk management actually enhances individual ethical deliberation within large law firms. The purpose of this renewed inquiry is to more carefully test Davis’s “collaborative” thesis in the context of the large law firm legal services industry and, thereby, to chart new directions for risk management research on the legal profession. To that end, this essay will reconsider the 1997 federal criminal prosecution of John Gellene, a former partner at the Wall Street law firm of Milbank, Tweed, Hadley & McCloy, in order to assess the impact of risk management norms and practices on lawyer and law firm ethical integrity and aspiration. The essay is divided into four parts. Part I revisits my prior critique of risk management norms and practices in lawyer regulation and law firm organization. Part II mounts a defense of risk management norms and practices culled from Davis’s writings. Part III considers norms of integrity carved from David Luban’s body of work on the legal profession. Part IV applies classical, discretionary, and regulatory norms to evaluate the risk management conduct of attorneys during the discovery process in Qualcomm Inc. v. Broadcom Corp.

Anything But a Racket: Why Professor Richard Epstein's Attack on the Nature and Function of Deferred and Non-Prosecution Agreements Misses the Mark

In light of recent scandals involving companies such as Enron and Arthur Andersen, the need to impose criminal penalties on corporations has been on the rise. More and more often, however, federal prosecutors have utilized deferred and non-prosecution agreements in lieu of indicting and criminally prosecuting business entities. Despite the advantages that such agreements create for both prosecutors and companies, Professor Richard Epstein has vigorously attacked this practice in his recent article, The Deferred Prosecution Racket, contending that deferred and non-prosecution agreements do not serve the public interest because they do not help to restore shareholder confidence in the firm and undermine the principle of separation of powers. Epstein’s arguments are ill-founded, however, as deferred and non-prosecution agreements rebuild shareholder and public confidence in corporations while allowing companies to avoid certain death by indictment. Moreover, it is only by imposing or by threatening to impose criminal liability on business entities, rather than by solely charging individuals, that the government can effectively stop and prevent corporate crime. Advocating for the continuing usefulness and utility of deferred and non-prosecution agreements and against Epstein’s approach of wholly eliminating corporate criminal liability, this Article discusses the concept of corporate criminality, provides an overview of the definition and function of deferred and non-prosecution agreements, and contends that such agreements are the best, if not the only, means of preventing and addressing criminal conduct arising in the corporate context.

Carpetbaggers, Cavalry, and the Ku Klux Klan: Exposing the Invisible Empire During Reconstruction (review)

Reviewed by: Carpetbaggers, Cavalry, and the Ku Klux Klan: Exposing the Invisible Empire During Reconstruction LeeAnna Keith Carpetbaggers, Cavalry, and the Ku Klux Klan: Exposing the Invisible Empire During Reconstruction. By J. Michael Martinez. (Lanham, Md.: Rowman & Littlefield, 2007. Pp. xiv. Cloth, $65.00; paper, $24.95.) Carpetbaggers, Cavalry, and the Ku Klux Klan recreates the history of one of Reconstruction’s most gripping and important confrontations, the federal government’s effort to contain the power and violence of the Ku Klux Klan in the Piedmont region of South Carolina. Centered on events of 1871 and 1872, Martinez’s account covers the major test of the federal Ku Klux Klan Enforcement Acts, criminal codes enacted by the Republican-controlled Congress to address the burgeoning threat of conservative conspiracy and violence in the former Confederacy. The failure of the most prominent South Carolina cases prosecuted under the Enforcement Acts anticipated the sweeping defeat of the government’s new powers in the federal judiciary and by the determined network of southern whites committed to shielding KKK perpetrators from Enforcement Act justice. The South Carolina Klan cases—including hundreds of indictments and more than five hundred arrests in 1871 and 1872—have been well developed in [End Page 394] the literature on Reconstruction. Martinez’s version is more comprehensive than previous published accounts, and it wrestles successfully with the outstanding ambiguities of the story, including its complicated standing before the Supreme Court of the United States. The author substantiates his claim for the historic significance of the South Carolina trials: while they could not prevent the intimidation and murder of southern blacks, the cases revealed the true character of the Ku Klux Klan as a ruthless terrorist organization committed to subverting law and order in the South. Wearing the white hat in Martinez’s KKK drama is an unacknowledged American hero, Maj. Lewis Merrill of the Seventh U.S. Cavalry division. Despite his middling rank (and his uncomfortable subordination to the command of Gen. George Armstrong Custer), Merrill acted with considerable autonomy to investigate Klan violence in York County and other upcountry provinces of South Carolina. When President Ulysses Grant designated nine counties as being in a state of rebellion in 1871, he activated Enforcement Act provisions that suspended the writ of habeas corpus and allowed Merrill and the Seventh Cavalry to hold more than five hundred suspected Klansmen without charge. Merrill’s inquiry uncovered the organizational dynamics and political purposes of the Ku Klux Klan as well as the identity of key participants. His dossier would serve as the foundation for one of the largest federal prosecutions in American history. Carpetbaggers, Cavalry, and the Ku Klux Klan also recognizes the three attorneys who made the government’s case. Amos T. Akerman was Grant’s attorney general, the first to preside over the newly organized Justice Department and a fervent advocate of justice for Republicans and freedmen in the southern states. Serving as prosecutors were U.S. attorneys Daniel H. Chamberlain and David T. Corbin. Both men were carpetbaggers, and Corbin had previously served as an agent of the Freedmen’s Bureau in South Carolina. Martinez echoes Akerman’s judgment that the two prosecutors “managed the business ably” and that together they had played a historic role in “the exposure and destruction of a terrible conspiracy.” Colorful sketches develop the biographies of a number of KKK defendants. The most notorious, perhaps, was Dr. J. Rufus Bratton, who fled York County for Canada and managed to evade incarceration after his conviction under the Enforcement Acts. Like others caught up in the government dragnet, Bratton succeeded in outlasting the federal commitment to bringing Klansmen to justice, living out his days as a free man held in high esteem among like-minded South Carolina whites. [End Page 395] The case of Dr. Bratton illustrates what Eric Foner has called the “unfinished revolution” of the Reconstruction era, which failed to deliver its promise of equality for southern blacks. Martinez’s book is a welcome addition to the growing body of scholarship that presents the human face of this gallant and arduous era of experimentation and progress. LeeAnna Keith The Collegiate School, New York City Copyright © 2009 The...

DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing

The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rulings in fact had significantly less effect on state than on federal sentencing. This is not to say, as we note in Part III, that the Court entirely ignored the states; two recalcitrant states were pointedly reminded of the Blakely/Booker rule, and the Court in its most recent sentencing decision, Oregon v. Ice, (heard in the October 2008 Term) granted state trial judges even more discretion through the practice of imposing concurrent or consecutive sentences for multiple offenses. As a result of the last few terms, many of the recent victories that the Department enjoyed in the political arena it lost in the courts. Under the administration of Attorney General Alberto R. Gonzales, the Department continued its push for more stringent punishments, but changes in circumstances required a new approach. Congress considered and rejected new legislation that might constitutionally replicate DOJ's earlier coup. When DOJs Republican allies in Congress lost their majority position after the 2006 elections, the push for harsher punishments slowed considerably. We expect Attorney General Eric Holder to back away from harsh sentencing laws and tight control over Assistant United States Attorneys (AUSA) in the field. We now see federal district judges sentence below the range provided in the federal sentencing guidelines with building frequently, yet not ignore the guidelines. Though states judges never suffered in the same manner, we expect state legislators to react to the new constitutional requirement by increasing state judicial discretion in sentencing through advisory rather than mandatory guidelines, and expanding judicial authority to stack sentences. Note: This is the not always respectful designation of the Attorney General, other political appointees, and trial attorneys working on Pennsylvania Ave. and other downtown D.C. locations, as distinguished from the 94 U.S. Attorney's Offices located throughout the United States.

New ways of thinking about old crimes

PurposeThe objective of the paper is to describe how criminal prosecutors in the USA have expanded the reach of federal statutes punishing fraud and extortion to combat the influence of organized criminal groups in certain American labor unions and employee benefit plans from 1980 to 2006.Design/methodology/approachThe paper reviews newspaper accounts and published judicial decisions to explain how prosecutors have used fraud and extortion offenses in novel ways on a case‐by‐case basis to prosecute labor‐management corruption in the USA.FindingsAlthough the American federal prosecutor's arsenal is limited to statutory crimes, prosecutors are continually evolving new means of addressing corruption on a case‐specific basis in the best tradition of Anglo‐American common law. By diligently persuading trial judges, appellate courts, and the US Congress of the merit of looking at fraud and extortion in new ways, federal prosecutors have carried out the intent of the statutory laws which Congress enacted to deal with corruption in government, business, and labor unions.Practical implicationsThe federal criminal offense of “honest service fraud,” which was codified by Congress only following successful criminal prosecutions of public and private corruption, will continue to be used to address corruption on the part of persons holding fiduciary duties toward union members and employee pension and health benefit plan participants as the American retired population increases and the national government assumes greater oversight of employee health care.Originality/valueThe paper encourages the reader, especially those in law enforcement, to think creatively about the scope of existing criminal statutes while reviewing or enforcing their application to all forms of organizational corruption.

Proportional Mens Rea

This Essay makes the case for mens rea, a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and,as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment fits the crime. Moreover, proportional mens rea would represent a needed counterweight to prosecutorial behavior whereas current doctrine does not. Given that federal prosecutors do not seek to charge morally blameless people, mens rea doctrine aimed only at protecting moral blamelessness from punishment will largely be redundant of prosecutorial discretion. Proportionality of punishment, however, is a concern that federal prosecutors -- bound by longstanding Executive Branch mandates to seek the maximum supportable penalty in every case and oppose lenient exercises of judicial sentencing discretion--routinely ignore. Judicial mens rea selection, therefore, has a substant substantial contribution to make to the achievement of proportionality of punishment.

Forensic Engineering Analysis Of Firearm Silencers

Firearms Use Comes With A Number Of Potential Health & Environmental Hazards Due To The High Noise Levels Generated. Noise Reduction Is Clearly A Desirable Goal. Firearm Silencers Are Often More Correctly Referred To As Sound Suppressors, Sound Moderators, Or Mufflers In The Interests Of Consistency With Federal Legislation, The Term Ilencershall Be Used Throughout This Paper. Firearm Silencers Are Legal For Civilian Ownership And Use In The Majority Of Us States, Though They Are Heavily Regulated. In States Where Silencers Are Legal Their Regulation Is Typically Accomplished At The Federal Level, Though Many States Do Have Their Own Laws. This Paper Focuses On Federal Legislation And Its Administration, Enforcement, And Litigation. Until 1934 There Were No Restrictions On Silencer Ownership And Use By Private Individuals. In 1934 Congress Passed The National Firearms Act (Nfa) Which Had The Net Effect Of Making Silencer Manufacture, And Possession By Private Citizens, A Prohibitively Costly And Administratively Burdensome Endeavor. The Nfa Legislation Is Articulated In Title 26 Of The United States Code, And The Federal Law Is Administered And Enforced By The Us Department Of Justice (Doj) Via The Bureau Of Alcohol, Tobacco, Firearms, And Explosives (Batfe). Commercially Available Silencers Reduce The Muzzle Report Of A Firearm By Reducing Peak Sound Pressure By 30 To 40 Decibels (Db). A 223 Remington (5.56mm Nato) Caliber Rifle Will Typically Generate Around 160 Db Without A Silencer, And Just 120 To 130 Db With A Typical Commercially Available Silencer Installed. Some Individuals Construct Homemade Silencers, With Varying Degrees Of Success. Federal Prosecutors, Possibly Prompted By An Overzealous Batfe, And Following The Letter Of The Law, Feel Justified In Prosecuting Cases Where The Alleged Silencer Reduces The Noise Generated By Just A Few Db. The Law Defines, In Part, A Silencer, Or Muffler, As Ny Device For Silencing, Muffling, Or Diminishing The Report Of A Portable Firearm This Is A Very Vague Definition, And In Strict Technical Terms It Could Include Legitimate Technologies, Such As A Lengthened Barrel, A Muzzle Brake, Or A Flash Hider, All Of Which Will Diminish, Or Redirect, The Noise Of A Gunshot. Understanding Sound, And Sound Measurement, Is Not Easy, And This Fact Coupled With The Loose Legal Definition Of What Constitutes A Silencer Leads To The Prosecution Of Many Individuals Who, Either Deliberately Or Inadvertently, Have Procured Or Created A Device For Their Firearm That Reduces The Measured Report By Only A Small Amount. A Study Published By The American Medical Association1 Revealed That Recreational Shooters Suffered Hearing Damage Following Very Limited Exposure To Firearms Noise, And That Damage Occurred Even When Shooters Wore Hearing Protection. Paradoxically, In An Age When Both Legislators, And The Population At Large, Are Obsessed With Environmental And Health & Safety Issues, We Have Outdated Legislation In Place That Actually Works To Make An Everyday Item Less Safe For The User, And Less Environmentally Friendly From The Perspective Of Those In The Vicinity Of The User. We Have Legislation That Seeks To Limit The Noise Produced By Motorcycles And Other Motor Vehicles While, Concurrently, We Have Legislation That Makes It Illegal (Or Prohibitively Burdensome & Expensive) To Attempt To Reduce The Dangerous Noise Produced By Firearms. The Injustices And Difficulties Resulting From Poorly Drafted Legislation Have Been Compounded By The Use Of Outdated Batfe Testing Protocols. To Their Credit, Batfe Appear To Have Been Receptive To The Use Of New Technology And Things Have Improved Somewhat In Recent Years. Sound Measuring Equipment With A Data Sample Time Interval Short Enough To Accurately Capture A Gunshot Is Expensive, And Interpretation Of Results Is Difficult For Those Not Well Versed In The Technical Intricacies Of Acoustics. This Paper Includes Two Case Studies. The First Case Study Demonstrates How Outdated Test Protocols And Inappropriate Equipment Lead To Potentially Misleading Results. The Second Case Study Demonstrates How An Overzealous Prosecution Expert Can Paint A Misleading Picture Of An Alleged Homemade Silencer. It Is Concluded That Current Legislation Relating To Silencers Provides Vague Technical Definitions, Leads To Unnecessary And Expensive Prosecutions, Has A Significant Adverse Affect On The Health Of The Nation, And Raises Significant Legal, Administrative, And Financial Barriers To Those Firearms Owners Who Wish To Maximize Safety And Minimize Environmental Impact.

A crise e a realidade política

THE POLITICAL SCIENTIST Luiz Werneck Vianna was interviewed by the executive editor of Estudos Avancados, journalist Marco Antonio Coelho, when he spoke about the crisis in the Congress. The interview was held on August 21, 2009, at the University Research Institute of Rio de Janeiro (IUPERJ). In addition to analyzing the causes of the impasse in the Brazilian Parliament, Luiz Werneck Vianna gave his opinion on various political issues. He commented on several burning issues, such as the performance of president Lula, whom he described as a great negotiator that monopolizes Brazil’s political world. He also emphasized the waning of the Workers’ Party (PT), the judicialization of politics, the prospects of the 2010 presidential election, and predicted what will happen when Lula leaves the presidency. He stressed that the media, the Federal Police and the Federal Prosecutor’s Offi ce are now an explosive presence in Brazil’s political milieu. Luiz Werneck Vianna holds a Bachelor’s degree in Law and Social Sciences from the Federal University of Rio de Janeiro. He earned a Master’s degree in Political Science and Sociology from University Research Institute of Rio de Janeiro and a Ph.D. in Sociology from the University of Sao Paulo. He also earned a postdoctoral degree from the Universita Degli Studi di Milano. He is a professor at Iuperj and the author of many books, including Esquerda brasileira e tradicao republicana: estudos de conjuntura sobre a era FHC-Lula (2006).

Working from the Violent Centre: Survival Sex Work and Urban Aboriginality in Maria Campbell’s Halfbreed

From the early 1970s until 2002, at least fifty-nine women--more than half of whom were Aboriginal, (1) and many of whom were street-level sex workers--disappeared from Vancouver's Downtown East Side. Their disappearances from within this small neighbourhood in what has been labelled Canada's poorest postal code were treated with little interest by Vancouver police and municipal officials for two and a half decades. In February 2002, a recently-formed joint RCMP-city police task force charged a Port Coquitlam farmer with the murder of seven of the missing women. At the time of writing, Robert Pickton has been convicted of murdering six of the missing women: Marnie Frey, Georgina Papin, Brenda Wolfe, Sereena Abotsway, Mona Wilson, and Andrea Joesbury. Pickton's lawyers are appealing this conviction; if they fail, federal prosecutors will not try Pickton for the pending twenty additional counts of first-degree murder--a decision not without significant public controversy. To date, however, many of the disappeared women are yet to be accounted for. As the Vancouver investigation has unfolded (and as upwards of twenty more women are now missing from the same Vancouver streets), (2) a number of other serial kidnap and murder cases involving poor, racialized, and/or street-level sex workers have made headlines, particularly in Western Canada. In Edmonton, an RCMP and Edmonton police task force was formed in 2003 to investigate eighty-three cases, dating back to 1982, of murdered and disappeared women. A serial killer murdered four First Nations women and was suspected of killing at least three others in Saskatoon in the early 1990s. In addition, there have been a series of disappearances and violent murders in Winnipeg that police have only begun to investigate. Cases like these fuel the efforts of groups who struggle to combat the social, political, and economic forces that contribute to increasing extreme violence against sex workers in Canada. Although many of these groups regularly underscore the high number of First Nations women involved in the survival sex trade, (3) as well as the overrepresentation of Indigenous women among kidnap, assault, and murder victims in Canada, sex worker activism in Canada remains primarily a white enterprise. Even the briefest consideration of North America's colonial history provides many reasons why Indigenous women are overrepresented in inner-city populations of women who trade sex for dollar amounts which barely provide sustenance or to fund debilitating addictions. Such analyses also highlight a number of reasons for divisions between sex worker activists who work from a labour activist and/or communal human rights position and activists who foreground the role of state-sanctioned racism and colonial violence in populating the survival sex industry. The latter of these social movements--including the Native Women's Association of Canada (NWAC), the Aboriginal Women's Action Network (AWAN), the Aboriginal Healing Foundation (AHF, which funds, among other significant initiatives, a shelter for First Nations women in downtown Montreal), and the NWAC-affiliated research group Sisters in Spirit--emphasizes the combined effects of class bias, misogyny, and culturally ingrained racism in the assault, rape, and murder of many survival sex workers. These organizations and the anti-violence, anti-poverty, and anti-racism initiatives with which they are involved thus insist that Indigenous sex workers suffer and die because they are Aboriginal women whose already precarious cultural status too often becomes difficult to navigate and survive in contemporary urban contexts. Significantly, however, representatives from groups like these often assert that prostitution causes rape, poverty, and violence for Aboriginal women. For example, in 2007, AWAN released a statement opposing the legalization of brothels in Vancouver (proposed in anticipation of the 2010 Olympics). In this statement, AWAN argues that [p]rostitution is inherently violent, [and is] merely an extension of the violence that most prostituted women experience as children. …

The Sex Offender Registration and Notification Act and the Commerce Clause

In 2006, the Sex Offender Registration and Notification Act (SORNA) created a new federal crime of to register which is punishable by up to ten years imprisonment. Since that time, sex offenders across the country have been prosecuted even though the offenders had no prior connection to the federal criminal justice system. For almost all of the prosecutions under SORNA, the argued jurisdictional basis for federal prosecution has been that the sex offender travelled across state lines. Based upon this travel, which is an element of the crime of failure to register, the government has argued that the new registration crime is justified under Commerce Clause authority. An overwhelming majority of courts that have addressed Commerce Clause challenges have accepted the government's argument that interstate travel is a sufficient jurisdictional hook. However, a careful examination of existing Commerce Clause law demonstrates that these courts are mistaken. For the Commerce Clause to have any meaning and for the decisions in Lopez and Morrison to make sense, the alleged interstate travel must be connected to the underlying offense in fact and time. Despite the limitations of prior Supreme Court precedent, courts have enabled the government to prosecute sex offenders who crossed state lines years before SORNA was even enacted. Further, courts have not required any showing that the travel had any connection to the alleged offense of failing to register. While some have argued that the decision in Raich effectively ended the federalism revolution, SORNA expands federal jurisdiction into entirely new territory. As a result, this article concludes that courts should dismiss most indictments under SORNA based upon a lack of federal jurisdiction and/or Congress should amend SORNA to properly reflect the jurisdiction authorized under existing precedent.

Speed/pure war/power crime: Paul Virilio on the criminogenic accident and the virtual disappearance of the suicidal state

This essay applies the theoretical concepts of pure war and speed-politics developed by the critical theorist and urbanist Paul Virilio to the concept of power crime. The aim of this paper is to present readers unfamiliar with Virilio’s work with a philosophical methodology of great potential significance to critical criminology. It is divided into two major parts. The first part re-considers power crime and the broader criminogenic environment in terms of the Virilian notions of velocity, optics, and pure war: criminogenic phenomena are shown to be the necessary and unavoidable by-products of the wider convergences among political, economic, and military systems governed by speed. The second part consists of an empirical case study illustrating the practical applicability of these abstract Virilian concepts: the federal prosecution of the private security firm Custer Battles for fraud. The systemic corruption of the US military procurement process and the inability of the federal judicial system to provide a remedy for the fraud perpetrated against the American public is read as a key sign of the suspension of the liberal juro-political order and the effective abolition of the rule of law by fast moving, or “high velocity”, criminogenic processes.

National Security and the Press: The Government's Ability to Prosecute Journalists for the Possession or Publication of National Security Information

In 2006, then Attorney General Alberto R. Gonzales raised the possibility that journalists could be prosecuted for publishing national security information. In addition, the federal government's prosecution of two former lobbyists for the American Israel Public Affairs Committee (AIPAC) for possessing and disseminating national security information has been called an attempt by the government to prosecute individuals who behave like journalists. This article identifies existing laws under which the press could be criminally prosecuted for the possession and/or publication of national security information and describes how the courts have addressed those laws. The article concludes that while there is support for Constitutional protection for journalists in these cases, the Supreme Court of the United States is unlikely to interpret the First Amendment as protecting journalists from prosecution for possessing and/or publishing national security information. Therefore, the article contends that Congress should amend the statutes outlined herein to limit prosecution to instances when there is evidence of intent to harm the United States.

From Apalachin to the Buffalo Project: Obstacles on the path to effective federal responses to organized crime, 1957–1967

The Apalachin meeting of recognized underworld leaders from cities across the USA was held in upstate New York on November 14, 1957. The event, well known to historians and justice system officials, has become a textbook case rarely examined for its larger context of how American government officials learned to confront the organization and strength of the American Mafia, later called La Cosa Nostra (LCN). From 1957 to 1967, three presidents, four attorneys general, and hundreds of federal agents and prosecutors traveled an obstacle-filled path toward investigating, indicting, prosecuting, and convicting Apalachin attendees and their successors. Steps were taken to challenge the power of the mob during the Eisenhower and Kennedy administrations, but they were consistently plagued by false starts, frustrations, and side steps. Each obstacle further instructed policy makers, however, on the need for an intensive and coordinated effort grounded in common goals and interagency cooperation. This article considers six key obstacles to the decade-long quest for a concerted federal initiative against organized crime. It examines how the characteristics and the impact of each obstacle contributed to a meandering and slothful federal response to the Mafia’s power. Lessons learned about how to effectively attack the mob were finally implemented in May 1966 when President Johnson institutionalized Executive agency cooperation, making the Attorney General (AG) the focal point in the war on organized crime. One element in this new initiative was known as the ‘Buffalo Project,’ an experiment commencing officially in January 1967 in Buffalo, New York to concentrate intelligence, investigations, and prosecutive resources working across bureaucratic lines to pursue guilty pleas or convictions. The Project, a closely supervised operation directed by the Justice Department’s Organized Crime and Racketeering Section (OCRS), was conceptualized as a small team of supervisory federal investigators and experienced prosecutors who built cases against local Mafia associates and leaders to withstand the scrutiny of the federal justice system. Assistance was also rendered by state, local, and international organizations. The Project formed a template for the DoJ Criminal Division’s Strike Force program.

Seeding Trials: Just Say “No”

A seeding trial is marketing in the guise of science. In 2003, Annals published a seeding trial sponsored by Merck & Co. No one told Annals the true purpose of the trial until the Editor received a...

Global Cartels Redux: The Amino Acid Lysine Antitrust Litigation (1996)

This paper tells the story of the global lysine cartel of 1992-1995 and the subsequent U.S. federal prosecutions that followed. It focuses on how estimates of the cartel’s U.S. overcharges varied widely in the months prior to settlement with most of the smaller members of the class of plaintiffs and how additional data gathering and improved analytical techniques later arrived at a more accurate estimate of injuries to direct buyers. The detection and convictions of the lysine cartel in 1995-98 was the first criminal victory over an international cartel by the Antitrust Division of the Department of Justice in more than 40 years. They signaled a watershed in the anti-cartel campaigns of governments and private plaintiffs worldwide in the years since.

The Law: Executive Power and Prosecution: Lessons from the Libby Trial and the U.S. Attorney Firings

Presidential control of federal prosecution has created, throughout American history, tensions between realities of political control and ideal of rule of law. While control guarantees a measure of democratic accountability for how law enforcement power is exercised, potential for that political control to become politicized is always there and has periodically erupted in significant scandals in American politics. Between 2003 and 2007, two such scandals occurred, serving to remind us of tenuous balance in federal law enforcement system between accountability and independence and between politics and rule of law. The investigation and prosecution of Vice Dick Cheney's chief of staff, I. Lewis Scooter Libby, by an independent special counsel demonstrates that our long argument about how best to handle criminal allegations against high-ranking branch officials, started in modern context by Watergate, has yet to be resolved. The scandal that erupted in 2007 over firing of U.S. attorneys, leading to resignation of Attorney General Alberto Gonzales, demonstrates that conflict over political control of prosecutorial power is not just isolated to a few high-profile cases. Both cases remind us of importance of attorney general as linchpin in federal justice system between president and prosecutors and difficulties created by dual roles that attorneys general play as both presidential advisors and law enforcement officers. When that delicate balance tips toward political side of job, confidence in impartial administration of justice is undermined. Issues in Executive Control of Prosecution The root of conflict over how much control president should exercise over prosecutorial function lies within U.S. Constitution. The source of authority is found in Article II power to take care that laws be faithfully executed and in president's ability to appoint, by advice and consent of Senate, officers to aid him in execution of law. Advocates of a strong executive understanding of presidential power argue that president has all of law enforcement power because such power is in nature, and that in order to fulfill this Article II command, he must have complete control over officers exercising this power on his behalf. Justice Antonin Scalia argued this position strenuously in his dissent in Morrison v. Olson, 1988 case upholding independent counsel statute. (1) This expansive notion of presidential power, particularly as it relates to prosecution, has been challenged on several fronts. First, historical experience with development of federal prosecution shows that this power was not perceived as inherently executive or under unitary control of in early days of country. Rather, prosecution was highly decentralized and controlled, if at all, not by attorney general but by judicial authorities and through comptroller general (who was, in turn, controlled by Congress) and Department of Treasury (Krent 1989; Lessig and Sunstein 1994). Lawrence Lessig and Cass R. Sunstein contend that if the framers' and early Congresses' actual practice is any indication of their original understanding, then they did not understand prosecution to be within notion of 'executive Power' exclusively, and therefore did not understand it to be within exclusive domain of President (1994, 15-16). Even as federal prosecutorial power expanded and Department of Justice was created in 1870 in an effort to centralize control of federal law enforcement, prosecution remained highly decentralized, with U.S. attorneys operating with a high degree of autonomy from control by Main Justice. The nature of federal system and size and complexity of federal legal apparatus all contributed to relative independence of U. …

Charlie Wilson's War. Dir. by Mike Nichols. Prod. by Gary Goetzman and Tom Hanks. Universal Pictures, Relativity Media, Par ticipant Productions, and Playtone, 2007. 97 mins. (Universal Pictures, http://www.universalpictures.com/)

“Charlie Wilson's War” is a misnomer, in that the title refers to one war, while Wilson's wars were many. The Texas congressman Charlie Wilson, played by Tom Hanks with an effortless blend of shame and grace, is a freewheeling boozer and womanizer in the halcyon days of the late 1970s, when “political correctness” was not yet chic, and sex, drugs, and rock ‘n’ roll had lost their Vietnam War-era implications. A pair of Deep Throats, we should remember, had recently done in both Richard M. Nixon and the prudish 1950s sensibility he seemed to embody. Wilson's wars include his battle to save his career (he is under assault from the federal prosecutor Rudolph Giuliani, who is tracking down evidence of cocaine use) and, equally, his battle with congressional colleagues who see no imperative to support Afghan freedom fighters. Wilson also battles a Central Intelligence Agency (cia) bureaucracy that...