Some things never die.

Although the current heat wave in Minnesota is evidence to the contrary, summer is turning to fall. Among other things, this means a return to politics as usual in Washington. One of the first things we can expect is another batch of stories about the need to raise the debt ceiling. Matthew Ygelsias at Slate has a preview here.

Crime down, prosecutions ... down?

On Friday, I published a chart showing that, despite dropping crime rates, the rate of people being sentenced in federal court has gone up.

As I mentioned then, one plausible explanation for this mismatch is that there is just something particular about federal crimes (which are a small slice of overall crimes). So I went looking for some state-only data. I was able to find some data on the number of number of felonies filed in Illinois courts each year since 1997. If you add that data, you get this chart:

(All three lines are normalized to an index rate of 100 in 1997, so this shows their relative change over time.)

The blue line is the new Illinois data. Unlike the federal sentencing rate (which has gone up despite the drop in crime) the Illinois felony-filing was steady between 1997 and 2006, after which it began to mirror the drop in the overall crime rate. So that's kind of encouraging. And it's evidence that undercuts my implicit hypothesis that the prosecution rate isn't at all sensitive to the crime rate.

Paul Soglin, Mifflin Street, and Fair Use

Eugene Volokh has a nice post about a recent federal court decision discussing the use of Paul Soglin's image on some T-shirts sold at the 2012 Mifflin Street Block Party:

The photographer who took the image used for the shirts sued for copyright infringement, but the Court dismissed the case on fair use grounds.

The opinion also nicely lays out the ironic backstory. As you may know, the Mifflin Street Block Party started during the student protest era, with a young firebrand named Paul Soglin at the forefront. Well, times change. Paul Soglin has now been Madison's mayor a bunch of different times, and he's pretty much a party-pooper nowadays. So it goes.

As for my own experience with the Mifflin Street Block Party, I can personally attest to the high quality of the brownies.

Crimes down, Convictions ... up!

Crime rates in the United States have been plummeting for over 20 years. The cause of this turnaround is a topic of much debate and controversy. The Freakonomics guys say we can thank Roe v. Wade. Kevin Drum says we can thank unleaded gas. The authoritarians say we can thank boots on the ground and pigs in the pen. And there are many other plausible theories. Perhaps the most plausible theory is that a lot of things came together at once. But no one denies that we've seen a remarkable and remarkably unexpected drop in crime—all kinds of crime: rape, murder, theft, etc.

This got me to thinking. Even though you hear more and more about this dropping crime rate, you don't hear much about prosecutors sitting around on their hands with nothing to do. So I wondered whether there was any data on the relationship between the number of crimes committed and the number of people who are actually being convicted of crimes.

Although I'm sure such data exists, I couldn't find it on the Google. So I had to create it myself:

The red line is the crime rate in years 1995 through 2011. You can see there is a precipitous decline. The source for this data is the US Department of Justice.

The green line is the number of people convicted of crimes in federal court in years 1995 through 2011. The source for this data is the United States Sentencing Commission.

What you see, obviously, is a remarkable mismatch. As the crime rate goes down, the number of people convicted of crimes goes up.

Now, one obvious objection to this graph is that it comparing apples to oranges: all crimes versus federal convictions. And that's true. So one possible explanation for this mismatch is that federal crimes have expanded despite the overall fall in the crime rate. But my working assumption is that the federal conviction data is a good proxy for the overall state and federal conviction rate. (Some support for my assumption is provided by the fact that overall incarceration rates continued to rise even while crime rates plummeted.)

Anyhow, you can draw your own conclusions. My conclusion is the obvious one: criminal justice is a one-way ratchet.  

A rude return

I returned from vacation to learn that Cosmo Allegretti, better known to millions of Captain Kangeroo fans as Dennis the Apprentice, Mr. Moose, and Bunny Rabbit, has died. The New York Times has Mr. Allegretti's obituary here.

Prosecutor considering whether to enforce unconstitutional eavesdropping law on a "case by case basis"

Reader(s)™ may recall previous coverage here of Illinois's unconstitutional "eavesdropping" law that makes it a felony for a citizen to make an audio recording a police officer in public.

Last we heard, the law was struck down on First Amendment grounds by the Seventh Circuit Court of Appeals. The state (Cook County, actually) appealed to the Supreme Court, but the writ of certiorari was denied. Thus the matter was settled: the law of the land is that this unconstitutional law is unconstitutional and unenforceable anywhere in this jurisdiction.

So imagine my surprise when I ran across this story today:

A Jacksonville [Illinois] man who had his phone seized for recording an on-duty police officer is not likely to be charged under the state’s controversial [sic: should read "unconstitutional"] eavesdropping law. 

Morgan County [Illinois] State’s Attorney Robert Bonjean said Monday that he is not anticipating prosecuting an eavesdropping charge against Randy Newingham — at least not at this time.

For the public at large, this does not mean that recording on-duty officers will never be prosecuted in Morgan County.

“We’ll review those reports and we’ll continue to monitor the decision from the 7th Circuit court,” Bonjean said. “I don’t foresee myself making any blanket decision, just taking it on a case by case basis.”

Let's break down this lawless nonsense.

First, he says he'll "continue to monitor the decision from the 7th Circuit." What a bizarre statement. Is he continuing to monitor Brown v. Board as well? The case is over. O-vah. The law is unconstitutional. That means you don't get to prosecute people for violating it anymore.

Yet Mr. Bonjean says he doesn't foresee "making any blanket decision, just taking it on a case by case basis." Let me help you out, Mr. Bonjean: the 7th Circuit made the blanket decision for you. When a federal circuit court finds a state law unconstitutional, that ruling is—well, it's kind of like a magical blanket that gets put over the entire state, and that blanket makes the law in question unconstitutional everywhere it touches. So you just get to cozy up underneath the blanket and prosecute the other laws that haven't been found unconstitutional (yet).

Mr. Bonjean apparently doesn't understand how legal authority works in a common law system:

“Quite honestly, I haven’t made a decision,” Bonjean said. “Officially I’ve [indicated] to [Police Chief Tony Grootens] that I won’t file charges. But technically it’s a felony charge, so I have three years from the date of the offense to file a charge.”

Do you understand what happens when you prosecute someone for violating a "law" that has been found unconstitutional? That's called violating a person's civil rights. The Seventh Circuit's opinion is "clearly established law" that would make prosecuting Mr. Newingham illegal. You might want to brush up on this stuff, sir.

It gets worse, actually, when you read the comments of Tony Grootens, the Chief of Police of the department which made the false arrest:

Grootens said he believed that Newingham was sincerely ignorant of the law.

“Believe me, [the State’s Attorney’s Office is] busy enough,” Grootens said. “There’s more pressing things on their plate right now than to go with that. I already took care of it. … I told him not to be doing it. He honestly thought he was OK to do it, so now if he continues to do it, I can’t tell you that he certainly won’t be arrested.”

This final comment should probably be the motto of his police department, encircling the badge: "We can't tell you that you certainly won't be arrested." Even if your conduct has been specifically found to be protected under the First Amendment by the federal court of appeals whose rulings are law in this jurisdiction, they can't guarantee that you won't be arrested for committing a phony felony.

Do corporate executives have any fiduciary duties?

Yesterday, while on the train heading to the courthouse, I perused my Twitter feed and saw this tweet by Slate blogger Matthew Yglesias:

Awful lot of people are under the false impression that corporate executives have a fiduciary duty to shareholders.
— Matt Yglesias (@mattyglesias) August 1, 2013

This caught my attention because I am one of those people under the allegedly false impression that "executives" of businesses owe fiduciary duties to the company and its shareholders. In fact, I thought this was just a specific case of the general principal that all agents are fiduciaries, and all employees of corporations are its agents. Officers (i.e., "executives"), as the company's most powerful agents in its day-to-day affairs, surely must comply with the duties of care and loyalty, right?

And yet, here was the learned legal scholar* Matthew Yglesias breezily dismissing my understanding of corporate law and substantive principles of agency.

My first thought was that maybe this was just sarcasm. But a subsequent Yglesias tweet clarified that he believed only directors, not mere "executives," owed anyone fiduciary duties. This was like a punch in the gut. Could I really have misunderstood something so fundamental?

Of course not. Ygelesias is dead, stupid wrong. For example, here is the Delaware Supreme Court, in Gantler v. Stephens:

[W]hether or not officers owe fiduciary duties identical to those of directors has been characterized as a matter of first impression for this Court. In the past, we have implied that officers of Delaware corporations, like directors, owe fiduciary duties of care and loyalty, and that the fiduciary duties of officers are the same as those of directors. We now explicitly so hold.

Notably, this was a principle that was so obviously true that the Delaware Supreme Court hadn't actually ever gotten around to explicitly holding it until 2009—likely because no lawyer could come up with a non-trivial argument to the contrary. This is because, as I noted above, the existence of these duties flows naturally from the agency relationship. The only conceivable theoretical question would be the scope of the duties, which can vary depending on the nature of the agency relationship. This is why the question in Gantler wasn't whether officers have fiduciary duties, but only whether they are "identical" to the fiduciary duties of directors. And they are.

So: whew!

*Correction: Mr. Yglesias is not a scholar, much less a legal scholar, but he is a college graduate who is able to write very fast.

--Bart Torvik