Was the mass arrest of protesters at Trump’s inauguration legal?

On Trump’s inauguration day, protests took place in DC. Violence occurred during the protests, including throwing stones, damaging vehicles and storefronts. A black bloc appeared to be used by some protesters. Black bloc is a tactic where individuals engage in confrontational force, donned in black clothing for anonymity; often associated with anarchism. David Gomez, a former senior FBI counter-terrorism official, said black bloc activists often take “advantage of the legitimate protesters to destroy things.”

The police arrested 230 individuals. They were charged with felony rioting. Felony rioting prohibits willfully inciting or urging others to engage in a riot where in the course and as a result of the riot a person suffers serious bodily harm or there is property damage in excess of $5,000. A riot is defined as an assemblage of 5 or more persons which by tumultuous conduct or the threat thereof creates grave danger of damage or injury to property or persons. The maximum punishment for felony rioting is 10 years incarceration and/or a fine.

The Probable Cause Standard in Mass Arrests

The validity of the mass arrest will turn on whether there was probable cause. Because the Fourth Amendment protects against unreasonable searches and seizures, an arrest is reasonable if supported by probable cause. Probable cause generally requires a reasonable belief to suspect that the arrestee committed a crime.

The dubious notion that police had particularized suspicion for each of the 230 arrested protesters suggests the mass arrest was illegal under a traditional probable cause standard. But, the traditional standard has a twist where a large riot is involved.

In Barham v. Ramsey, the DC Circuit reviewed a civil suit against DC officials for a mass arrest during 2002 protests against the World Bank and IMF. Three hundred and eighty-six persons were arrested. Police arrested everyone in a certain perimeter of a DC park after witnessing widespread infractions by demonstrators during these protests.

The Court found an Assistant Police Chief violated the plaintiffs’ clearly established Fourth Amendment rights by arresting an undifferentiated mass of people on the basis of crimes committed by a handful of never-identified individuals. Probable cause did not exist merely on the basis of proximity to others independently suspected of criminal activity, nor did it exist for everyone on the basis that some people had committed criminal conduct. The absence of evidence that the police had particularized probable cause to arrest each individual in that park resulted in a violation of the arrestees’ clearly established constitutional rights.

The police, however, suggested mass arrests are justified to maintain control over a large demonstration that turns violent. The Court seemed to agree, noting that:

“when compelling circumstances are present, the police may be justified in detaining an undifferentiated crowd of protesters, but only after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order.”

But, as the police failed to give a dispersal order and time to comply, such justification did not apply.

This exception was expanded upon in a later case, which permits police to arrest individuals if there is a reasonable belief that that the arrestees were part of a cohesive unit that was observed violating the law. The case was Carr v. District of Columbia, where a civil suit was filed on behalf of the  65-75 people arrested for parading without a permit during a march against George W. Bush’s inauguration, during which violence and property damage occurred. In Carr,the DC Circuit affirmed the need for particularized probable cause, but found such a showing could be satisfied where officers have grounds to believe all arrested persons “were a part of [a cohesive unit] observed violating the law.” The Court found a crucial difference between the Barnham demonstrators and Carr demonstrators–the former did not operate as a cohesive unit, whereas the latter did. The Court believed a requirement officers verify each individual engaged in a specific riotous act would be practically impossible in a large riot, thus making the anti-rioting statute unenforceable in situations where it was most needed. The possibility of arresting an entirely innocent person, the Court noted, should be quelled by the fact the question was only probable cause, not an ultimate conviction. The Court also went on to disavow Barnham‘s suggestion that a dispersal order was necessary before conducting a mass arrest. Such an action, while practical, is not a constitutional requirement.

This decision did elicit a dissent from Judge Griffith, who criticized the Court’s departure from the individualized probable cause standard. Specifically calling out the unsupported proposition espoused by the majority

“that police may lawfully execute mass arrests based upon assessments of group behavior and not upon particularized determinations about individual conduct.”

The dissent also noted that the majority was ambiguous as to what “acting as a unit” means. A question which may be answered by the latest mass arrest of Trump protesters.

Did Probable Cause Exist for the Mass Arrest in the Trump Protests?

Assuming the DC Circuit’s probable cause standard in Carr is applied to the Trump protesters, the police may be able to justify the mass arrest without individualized suspicion that each arrestee committed a riotous act. These arrests should not be valid, however, without a particularized description of the cohesive unit that engaged in the criminal conduct and a reasonable belief that each arrestee was part of that unit. Such an analysis would give effect to the DC Circuit’s concerns in Carr while protecting unnecessarily chilling protected political expression.

Establishing probable cause through group membership (i.e., units) in political protests where violence erupts could chill protected political expression. If the delineation of the group is simply those publicly demonstrating, the risk of acquiescing in police arresting individuals for protected political expression is high. But, if the group’s contours are more narrowly drawn to capture those engaged in the tumultuous and violent conduct, the risk of punishing protected speech is decreased. Depending on how generally the group’s contours are drawn, the chilling effect may be lessened or heightened.

At first glance, this test may appear to nullify the exception for riotous in crowds discussed in Carr, but the Trump protests provide a good example of how this exception can be applied to a more specific group within the larger protesting unit. From news reporting accounts, it appears much of the violence during the protests was from a group engaged in black blocing. (See here and here and here). These protesters worked in groups of individuals clothed in black. Defining the cohesive unit as those demonstrators in groups wearing all black  who had been observed engaging in violence narrows the pool of protesters subject to arrest. Could an innocent individual engaged in peaceful protest be arrested as part of this unit? Yes, but the risk is much smaller if the police are forced to specifically delineate contours for the “cohesive unit” beyond simply identifying a mass of demonstrators in a general area where some unidentified individual committed violence.

As noted in the background, violence is sometimes used as a tactic by individuals taking advantage of a legitimate, peaceful protest. Validating mass arrests based on a general crowd where a few individuals committed violence threatens to create a perverse incentive, whereby protected speech could be suppressed through the use of violent agitators shielded by the crowd. An additional benefit of narrowing the demonstrators subject to arrest to those sharing characteristics of the group engaged in the prohibited conduct is to safeguard against this possibility.



SCOTUS Skeptical of Refusing Disparaging Trademarks

The Supreme Court recently held oral argument in Lee v. Tam, where a band called The Slants was denied a trademark under the Lanham’s Act disparaging clause (15 U.S.C. § 1052(a)).


Simon Shiao Tam is a front man for an Asian-American dance rock band called The Slants. The name was intended to reclaim and take ownership of Asian stereotypes. The Slants believe Asians should not be offended by stereotypical descriptions, but rather be proud of their cultural heritage.

The Patent and Trademark Office, however, felt differently about the meaning of Slants. The office denied Mr. Tam’s application to register their mark, finding it likely to disparage persons of Asian descent and citing the Lanham Act’s disparagement clause. The disparagement clause permits refusing to register a mark that “comprises immoral, deceptive, or scandalous matter; or matter which may disparage….”

Following litigation, the Federal Circuit found the disparagement clause unconstitutional. The law was viewpoint discrimination that did not satisfy the strict scrutiny standard. The Supreme Court granted certiorari to hear the appeal of this decision.

Oral Argument

The government acknowledged a number of points during oral argument to sharpen the issue facing the Court.

  1. The First Amendment was triggered: Government admitted (a) trademarks are used for expressive conduct, (b) the government was not arguing the disparagement clause fit within the narrow categories historically excluded from First Amendment protection like libel and slander, and (c) the government would face First Amendment problems if it used viewpoint discrimination in selecting recipients for benefits of a public program
  2. The disparagement clause could not survive strict scrutiny

The Court focused on two issues during oral argument; the nature of the regulation and the forum in which the regulation applied.

The Court appeared inclined to find the government was engaging in viewpoint discrimination through the disparagement clause. Justice Kagan applied the  clause to a number of scenarios that clearly would constitute viewpoint discrimination, such as permitting a group to register “politicians are good and virtuous,” but denying a group registration as “politicians are corrupt.” The government attempted to refute this contention by arguing all disparagement was prohibited and the government was not attempting to suppress disfavored messages. For example, in 1969 the office had refused registering a mark disparaging the Soviet Union; a disparaging message, but surely not a disfavored message.

The Court seemed more receptive to the government’s arguments about the nature of the forum. The government argued that government speech was involved here, because the government published registered marks in its own publications and then communicated these marks to other countries. Justice Kagan noted that although this may not quite be government speech, it does approach the line. Justice Sotomayor as well remarked that The Slants’s freedom of speech was not being burdened in a traditional way. The band was asking the government to endorse their name to the extent of protecting it beyond what the government chooses. Justice Breyer, however, expressed skepticism because it did not appear that the program’s purpose, helping prevent distraction as to a product’s source, was served by simply eliminating disparaging marks.

The Court’s reluctance to find government speech at play, coupled with the government’s inability to refute that it was engaged in viewpoint discrimination, make it likely that the Supreme Court will uphold the Federal Circuit’s decision that the disparagement clause is unconstitutional.

Additional reading on the case: 

SCOTUSblog, Argument Analysis 

World Intellectual Property Review, Lee v. Tam: SCOTUS provides ‘scant’ insight into view on case

NPR, The Slants: Fighting for the Right to Rock a Racial Slur




Dylann Roof-Individual Autonomy vs. Institutional Integrity

Dylann Roof, who murdered nine people in a Charleston church, has been sentenced to death. The jury deliberated a mere three hours before unanimously delivering a sentence of death to the 22-year-old. [Read more on the verdict here]. Mr. Roof elected to represent himself during the sentencing phase of his trial. The question of whether Mr. Roof should be permitted to represent himself implicates difficult and competing values; the defendant’s autonomy versus the integrity of our criminal justice system.

Background on Dylann Roof

Dylann Roof (21 years old) went to Emanuel African Methodist Episcopal Church in Charleston, South Carolina in June of 2015. He killed nine people  and injured several others. Prior to the shooting, Mr. Roof published a manifesto on the internet with racial slurs, proclamations of white superiority, and opposition to integration.

Mr. Roof was charged in a 33-count indictment for violations of the Hate Crime Act resulting in death or involving an attempt to kill, obstruction of exercise of religion resulting in death or involving an attempt to kill and use of a dangerous weapon, and use of a firearm to commit murder during and in relation to a crime of violence. His charges included ones eligible for the death penalty and the Department of Justice sought the death penalty.

Mr. Roof’s attorney during the guilt phase, David I. Bruck, told the jury in his closing that Mr. Roof subscribed to “the mad idea that he can make things better by massacring the most virtuous, kind and gentle people he could ever have found.” Attorney Bruck also used “delusional” and a psychiatric term during the closing. (via The New York Times). The guilt trial took place over approximately a week and the jury handed down a guilty verdict on all counts after about two hours of deliberation. (via The Washington Post).

Dylann Roof’s Pro Se Representation in the Penalty Phase

Despite Mr. Roof’s attorney arguing in court filings that Mr. Roof “has no right to represent himself in a capital trial, and even less so at the penalty phase[,]” the district judge permitted Mr. Roof to represent himself during the sentencing phase. Mr. Roof had written in his journal that he is “morally opposed to psychology. It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont [sic].” (via The New York Times).

Mr. Roof’s opening statement (via CNN) during the penalty phase:

My opening statement may seem a little out of place.
You may have heard the reason I chose to represent myself so to prevent my lawyers from misrepresentation. That’s absolutely true.
It isn’t because I am trying to keep a secret.
I am not going to lie to you through myself.
My lawyers forced me to go through two mental competency hearings, not because I have an issue, but it is going to be revealed.
In that respect my self-representation has accomplished nothing, you say, what is the point? Point is that I am not going to lie to you.
Other than the fact that I trusted people I shouldn’t have… (inaudible).
There’s nothing wrong with me psychologically.
Anything you heard from my lawyers in the last phase (of the trial), I ask you to forget it. That’s the last thing.

During the sentencing phase Mr. Roof did not cross-examine any of the government’s witnesses and presented no evidence. According to the local paper, in his closing, he “opt[ed] to address the jury with a disjointed and convoluted statement that lasted less than five minutes.” His closing included statements such as

“Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is”
“I think it’s safe to say that someone in their right mind wouldn’t go into a church and kill people”
“You might remember in my confession to the FBI, I told them I had to do it. Obviously, that isn’t true because I didn’t have to do it. I didn’t have to do anything. But what I meant when I said that was I felt like I had to do that. And I still feel like I had to do it.”
“Wouldn’t it be fair to say that the prosecution hates me since they are the ones trying to give me the death penalty?” “You could say, ‘Of course they hate you. Everyone hates you. They have good reason to hate you.’ I’m not denying that. My point is that anyone who hates anything, in their mind, has a good reason.”

The jury returned with a death sentence after deliberating approximately three hours. (via NPR).

Self-Representation in the Criminal Justice System

Around 50 years ago, Anthony Faretta was facing  grand theft charges in California and had been appointed a public defender. Mr. Faretta sought to represent himself,  informed the believing the public defenders were too loaded down with a heavy case load. The judge initially accepted his waiver of counsel, but then reversed, appointing the public defender and rejecting Mr. Faretta’s overtures for self-representation. Mr. Faretta’s appeal culminated in the Supreme Court finding it unconstitutional to force a lawyer upon a defendant who voluntarily and intelligently elects to proceed without counsel.

Mr. Roof’s self-representation presents the uneasy factual pattern of a defendant exercising his right to self-representation, but at the cost of possibly obtaining a death sentence through a faulty trial. This difficult quandary  of a defendant’s autonomy versus society’s interest in ensuring integrity within its criminal justice system divided the Court (6-3) in Faretta.

Although the majority found the right of self-representation was embodied within the Sixth Amendment, they noted that this ruling seemed to contradict other cases that held counsel’s aid was essential to ensure the defendant a fair trial. Mr. Roof’s defense of himself should give pause to an assertion he had a fair trial. We do not permit an automatic death penalty, but require a death sentence express a moral judgment based on the unique facts of the case and the defendant. Boston Marathon bomber, Dzhokhar Tsarnaev, was represented by a qualified, competent attorney. Mr. Roof’s closing argument is simply not comparable to the 90 minute closing with a developed argument and supporting evidence about how a radicalized older brother filled the void of absent parents in Mr. Tsarnaev’s adolescence.

The majority, however, rather cursorily dismissed a situation like Mr. Roof’s, acknowledging the prospect self-representation may be detrimental, but the defendant’s choice must nevertheless “be honored out of that respect for the individual which is the lifeblood of the law.” (quotations and citation omitted). Mr. Roof’s decision, however, appears to be based on hostility to the concept of mental disease given his journal comments about psychology being a phony invention by Jews. This explanation validates Justice Blackmun’s fear that States “subordinate the solemn business of conducting a criminal prosecution to the whimsical…caprice of every accused who wishes to use his trial for personal or political self-gratification.” That a fair trial producing a just sentence may have been subordinated in favor of Mr. Roof’s conspiracy theory on mental health is troubling. Mr. Roof’s decision is made even more inscrutable as Mr. Roof himself argued mental illness during his closing, noting that “I think it’s safe to say that someone in their right mind wouldn’t go into a church and kill people….” Chief Justice Burger believed the criminal justice system “should not be available as an instrument of self-destruction[,]” yet insuring justice in every criminal trial “is ill-served, and the integrity of and public confidence in the system are undermined when an easy conviction is obtained due to the defendant’s ill-advised decision to waive counsel.” Though Mr. Roof may have been competent and voluntarily elected to waive counsel, neither the defendant’s autonomy nor society’s interest in achieving justice is served if the defendant presents the very defense that was the basis for refusing counsel’s aid.

Although much of this post has been critical of Mr. Roof’s self-representation, it is not clear permitting him to proceed pro se was wrong. First, the Farretta opinion does support permitting Mr. Roof’s decision. Also, there is force to the Faretta majority’s point that the defendant retain some autonomy over the proceeding for which he would ultimately bear the consequences. Mr. Roof’s case is a more difficult application given the literal life and death stakes, coupled with a youthful and irrational defendant. A possible solution to a quandary like that created by Mr. Roof is for  the prosecution present mitigating evidence in their role as a gatekeeper. There would likely be obstacles to doing so, such as the defendant’s refusal to cooperate, but the prosecution in preparing its own case likely comes across mitigating evidence or could conceivably gather some such evidence without serious hardship. Admittedly, this is not a perfect solution, but the prosecution taking some steps to show the jury mitigating evidence, where the defendant has elected to represent himself or herself and refuses to present such evidence, may help to preserve the integrity of our system.

Forfeiting Ferrari’s Ferrari

The Second Circuit recently addressed an order finding a due process violation in a post-seizure hearing over Suffolk County retaining a Ferrari pending the outcome of a forfeiture proceeding in Ferrari v. County of Suffolk.

The case arose from the seizure of a Ferrari owned by James Ferrari following his arrest for speeding. Mr. Ferrari was a reckless driver with a repeated history of drunken driving. Suffolk County had a DWI Seizure Law that permitted forfeiture of a vehicle seized for violating laws against intoxicated or reckless driving. The law was specifically aimed at repeat drunk drivers, providing for forfeiture only when (a) the vehicle was an instrumentality of a specifically enumerated, serious crime and (b) the driver involved has at least one prior conviction for such a crime. Suffolk County Local Law No. 7-2004 § 1 (2004).

Title owners are entitled, under the Due Process Clause, to a prompt, post-seizure hearing to determine whether the County may retain the vehicle pedente lite (pending the outcome of a valid forfeiture proceeding). Krimstock v. Kelly (“Krimstock I”). At Mr. Ferrari’s post-seizure hearing the County introduced evidence, prior to resting its case, that Mr. Ferrari had repeatedly committed serious driving violations, had been arrested for an unusually dangerous bout of intoxicated joy-riding, and had shown documented unwillingness to abide by New York’s laws prohibiting seriously impaired or reckless driving. Mr. Ferrari had come forward with no evidence that an alternative measure (like posting bond) would suffice to address the County’s concern that returning the vehicle could endanger the public and the car.

Mr. Ferrari pled guilty and surrendered title  to his Ferrari to Suffolk County. But, he later filed suit in federal court under 42 U.S.C. § 1983, alleging his due process rights were violated in the post-seizure hearing that resulted in the County retaining his vehicle pending the outcome of the forfeiture proceeding.

The district court awarded Mr. Ferrari summary judgment (as to liability), effectively finding that the Due Process Clause required the County to prove that alternative measures would not suffice to protect the County’s financial interest, in addition to showing that Ferrari was liable to destroy the car if he received it back. The Second Circuit reversed the district court and remanded with instructions to enter judgment for Suffolk County.

The Second Circuit found two errors in the district court’s ruling for Mr. Ferrari. First, the district court erred in concluding that their decision in Krimstock I prevents a county or municipality from relying on public safety concerns as a basis for retention pedente lite. Second, the district court’s understanding of what the County must show to make out a prima facie case of necessity went well beyond what the Due Process Clause requires.

In Krimstock I, the Second Circuit found a New York City forfeiture statute violated the Due Process Clause because it did not afford claimants a prompt, post-seizure opportunity to test the probable validity of the retention of their vehicles pendente lite. The  interest in preventing the vehicle from being used as in instrumentality in future drunk driving incidents was insufficient to justify the complete lack of  a prompt, post-seizure hearing pending the final judgment of forfeiture according to Krimstock. The Second Circuit clarified that prior precedent paid relatively little attention to public safety concerns in retaining vehicles subject to forfeiture due to the nature of the forfeiture statute at issue. Suffolk County’s forfeiture statue, however, is expressly directed at impaired or reckless operation of vehicles. The Court determined neither Krimstock I, nor other authorities support requiring the government to justify retention pedente lite on the sole basis that its financial interest in the vehicle may be imperiled. The Second Circuit noted that it would be odd to justify ultimate forfeiture on the basis of preventing the vehicle from being further used as an instrumentality of a crime, but such a basis is invalid for retention pending the forfeiture proceeding’s outcome.

As to the second error, the Court found no justification for requiring the process Mr. Ferrari demanded. Applying the Matthews v. Eldridge test, which balances the private interest affected, the risk of erroneous deprivation through the procedures used and the value of other safeguards, and the government’s interest, the Court determined that allocating the burden of proving alternative measures’s infeasibility would not greatly add to the protection already afforded owners under Suffolk’s existing procedures. The Court noted that such a procedure may actually be detrimental to owners, because requiring the County gather evidence on the availability of alternative measures could delay hearings. In addition, evidence regarding alternative measures is generally uniquely within the owner’s purview, thereby making it relatively easy to gather. Moreover, due process permits shifting the burden of production to a party where evidence of a particular matter is uniquely in the possession of that party. Thus, the Second Circuit found that when the County presents evidence that a driver has a history of intoxicated or reckless driving (evidence that serves to make out a prima facie case that retention pedente lite is necessary to protect the County’s financial interest and its interest in protecting the public), the County may, consistent with the Due Process Clause, shift the burden of going forward onto the owner-driver to point to a specific alternative measure that he is willing and able to sustain that might satisfy the County’s interests, and to demonstrate that such alternative measure would be feasible for him.



Identical Factual Pattern for All Defendants Rendered Enhancement Application to One Unreasonable

In United States v. Cotto-Negro the First Circuit vacated and remanded for resentencing a procedurally unreasonable sentence in a Hobbs Act robbery.

The Court found the district court clearly erred in applying an enhancement (bodily injury sustained by victim (USSG § 2B3.1(b)(3)(A)) to Mr. Cotto-Negron’s Guidelines, which was not applied to his two co-defendants. At sentencing the court justified the enhancement’s application on the basis Mr. Cotto-Negron’s role in the robbery was factually distinct from his co-defendants’s. The First Circuit, however, found no record evidence to support the district court’s conclusion. The plea agreements for all three defendants and two of the PSRs (the third PSR was not made a part of the appellate record) reported the exact same facts about the robbery and depicted identical roles for each defendant. Thus, the district court clearly erred in ascribing a different level of culpability to Mr. Cotto-Negron based on his role in the offense.

Additionally, the First Circuit rejected the government’s attempts to analogize Mr. Cotto-Negron’s argument with United States v. Kneeland. In Kneeland, the defendant argued it was error for the district court to apply a role enhancement when his equally culpable co-defendant did not receive the enhancement.  In particular, the government highlighted language in Kneeland that even if the court were to assume the roles were commensurate with one another, this, without more, would not justify reversing the sentence. The First Circuit distinguished between an argument that the enhancement is not factually supported and an argument that it was procedurally unreasonable to apply the enhancement.  The court put aside the issue of whether the court could apply the enhancement to Mr.Cotto-Negron despite deciding not to apply the enhancement to the co-defendants, because the district court may not justify the disparate enhancement applications based upon clearly erroneous facts.



President’s Role in Advancing Criminal Justice Reform by President Obama

In the latest Harvard Law Review, President Obama authors an article discussing his past with criminal justice reform, the current criminal justice landscape, the criminal justice reform measures his administration achieved, and reforms that the President can continue to work towards. The full article can be found here.

The article contains four parts. The final part on unfinished work highlights areas I hope will be addressed in the future, including sentencing reform legislation, strengthening forensic science in the criminal justice system, and improving criminal justice data collection. Criminal justice data collection in particular could be a tool that helps to develop the best policies going forward. An overview of the points President Obama makes in the article’s four parts are below.

1. The Current Criminal Justice Landscape & Need for Reform

“With just 5% of the world’s population, the United States incarcerates nearly 25% of the world’s prisoners.”

President Obama goes on to detail the fiscal and human costs of our system. The cost to house federal prisoners is $7 billion, but incarceration costs soar to $81 billion when combined with state and local operations.  More than eleven million Americans are cycled in and out of jails annually, and  the system’s failings are disproportionately felt by communities of color. Lately, however, there has been bipartisan support and state level reforms in red states that suggests hope for reforms.

2. How the President Can Drive Significant Reform At The Federal Level

“[T]here is still much that Presidents can do to make the justice system better serve the public…my Administration has used the tools at its disposal to effect change at the federal level: from the legislative reforms we’ve advanced, to the policies we’ve changed in the executive branch, to the second chances we’ve given to those who received clemency, we have brought our system more in line with the values that define us.”

President Obama goes on to identify: (a) achieving reforms to federal charging and sentencing practices, (b) sentencing reform legislation, (c) advancing federal prison reforms, (d) focusing on reentry, and (e) reinvigorating clemency.

3. Steps the President Can Take to Achieve State & Local Level Reform

“[S]tates and localities oversee most policing, as well as 90% of the prison population. That is why I’ve been so committed to finding ways to encourage continued state and local government ingenuity and to highlight those state reforms that should be models for others to follow.”

President Obama goes on to identify: (a) advancing policing reforms, (b) eliminating the criminalization of poverty, (c) spurring state sentencing reform and justice reinvestment, (d) keeping the focus on reform, (e) promoting data driven solutions, (f) highlighting ways the  juvenile justice system falls short, and (g) creating opportunities through the My Brother’s Keeper Initiative and the Council on Women and Girls.

4. Unfinished Work

“Even as I am proud of what we accomplished, I am aware of how much work is left unfinished. Our criminal justice system took a long time to build and will take a long time to change.”

President Obama identifies the following commonsense steps that he’shopeful can be accomplished in the future, including: (a) passing sentencing reform legislation, (b) taking steps to reduce gun violence, (c) addressing opioid misuse and addiction as a public health issue, (d) strengthening forensic science and identifying wrongful convictions, (e) improving criminal justice data collection, (f) restoring the right to vote for those who have paid their debt to society, and (g) making better use of technology to promote trust in law enforcement.



Strict in theory, tractable in practice

Despite offering a simplistic principle to guard cherished liberties, strictimissi juris is a seldom used tool in our legal system. Strictissimi juris is a doctrine requiring interpretation in the strictest sense; usually deployed where natural liberties are restrained.

The Doctrine’s Past

Strictissimi juris may have sparse judicial treatment, but its contours have nonetheless been delineated. Unsurprisingly, given the doctrine’s connection with liberties, the cases have revolved around political controversies such as the Second Red Scare and Vietnam War.

The Supreme Court addressed strictissimi juris during the 1960’s, when reviewing a conviction for a Smith Act violation involving registering as a member of the Communist Party. The Court found applying the doctrine to the criminal intent necessary, because otherwise a person who adheres to lawful and constitutionally protected purposes may be punished for unprotected purposes which he does not necessarily share. Ultimately, the Court reversed the conviction for insufficient evidence.

During the Democratic Party’s 1968 National Convention violence erupted amongst anti-war protesters leading to convictions for violations of the Anti-Riot Act.In reviewing these convictions, the Seventh Circuit found strictissimi juris applicable where:

  1. a group activity that is a bifarious undertaking, where both legal and illegal purposes and conduct are involved and
  2. is within the shadow of the First Amendment

When these elements exist a defendant’s criminal intent must be judged strictissimi juris. Such a “[s]pecially meticulous inquiry is justified and required because of the real possibility…of an unfair imputation of the intent or acts of some participants to all others.” For although the defendant may participate in the activity and be sympathetic to its legitimate aims, he did not intend to accomplish them by unlawful means.

The First Circuit utilized the doctrine to reverse a conviction for an anti-Vietnam War advocate. In doing so, the court proclaimed

“The metastatic rules of ordinary conspiracy are at direct variance with the principle of strictissimi juris.

The case stemmed from a series of events that originated with publishing A Call to Resist Illegitimate Authority and ended with four defendants being convicted of conspiracy charges. Strictissimi juris required acquitting one defendant due to insufficient evidence where the defendant’s actions did not extend beyond general anti-war, anti-draft remarks. Evidence that the defendant said he would do “anything” to further opposition to the Vietnam War or that he hoped his words would give men the courage to take active steps in draft resistance were dismissed as insufficient to establish specific intent.

The Second Circuit distilled these authorities to conclude that under strictissimi juris, a court will engage in heightened review to ensure sufficient evidence of the defendant’s own advocacy and participation in the illegal goals of the conspiracy, taking care not to impute the illegal intent of alleged co-conspirators to the actions of the defendants. But declined applying this review where only illegal goals were involved, because strictissimi juris only applies in specially limited circumstances involving a bifarious undertaking.

The Doctrine’s Future

Strictissimi juris is relatively obscure and likely to remain so. Holder v. Humanitarian Law Project contained facts seemingly within the doctrine’s framework with a bifarious undertaking implicating First Amendment rights. Individuals and nonprofits wanted to support the legal objectives of a designated terrorist organization by providing training in peaceful dispute resolution, political advocacy, and contributions. The groups feared prosecution for providing material support to a terrorist organization, however, and sought an injunction. Strictissimi juris would seem to offer these groups protection from criminal liability, because although the terrorist organization had illegal goals and engaged in illegal conduct, the humanitarian groups did not share these illegal goals and would not participate in the illegal conduct. But Congress and the Supreme Court foreclosed this outcome with a statute that did not require specific intent to aid in the illegal conduct and a judicial ruling that the First Amendment was not offended by prohibiting the speech involved in the case.

The future could involve novel applications of the doctrine beyond its political roots. White collar appears to be a fertile ground for strictissimi juris to grow. White collar often involves bifarious undertakings where actors share legal financial goals, but activities to accomplish this include both legal and illegal conduct; plus commercial speech, like political speech, is entitled to First Amendment protection.