Death, part 2

Last week I argued that not many Americans actually love the death penalty so much that they are okay with killing innocent people. Yet there's good reason to believe that innocent people have been put to death, which raises the suspicion that innocent people will be put to death. So what do we do about it?

This is part of the context in which claims of "actual innocence" arise. Judge Kopf says that he would sentence a man he knows (or believes?) to be innocent to death in three situations: (1) where clear precedent forbids him to consider claims of actual innocence; (2) where there is a swift pardon process available; or (3) where the defendant sat on his rights and waived his opportunity to raise his claim of actual innocence.

But what does it mean for a judge to know that a defendant is factually, actually innocent? Well, it could be that there is a credible confession from another person. Or it could be that there is exculpatory DNA evidence that

In those cases, though, we generally rely on the prosecutor to agree that the conviction is unjust and to move the court to vacate the convictions. That's what happened in the Central Park jogger case, for example.  Judges aren't usually asked to make determinations of guilt or innocence. That's the role of the police, the prosecutor, the grand jury (in some cases), and finally and irrevocably, the jury.

Judge Kopf was originally motivated to post on the subject in response to another post by the Salon blogger Digby, who tore into Justice Scalia for his supposed belief that "he does not believe it matters under the Constitution if the state executes innocent people."

I share Judge Kopf's antipathy toward Digby's foolish and reductive characterization of Justice Scalia's position. Of course it "matters under the Constitution" whether the state executes innocent people. The question is: how do we determine innocence? If a person has been indicted, tried, convicted, and sentenced to death after a separate penalty hearing; then had that conviction and sentence affirmed after an opportunity to appeal the conviction, the sentence, and every evidentiary ruling underlying it; can the defendant raise, on a collateral attack of that conviction and sentence—in other words, on a petition for habeas corpus—the claim that he is actually, factually innocent of crime the jury convicted him for? In other words, can he get a new trial on the merits by federal judge after having been convicted of trial by state jury?

You could set up a justice system where the answer to that question is yes. Because "death is different," people should not be put to death until their claims of innocence are rejected by a jury at trial and by a judge in a trial on collateral appeal. Maybe that's what it would take to apply the libertarian principle underlying Blackstone's Ratio to the infinite finality of a death sentence.

But does the constitution require this? Scalia implies that he doesn't think so. He implies that he thinks the constitution requires a conviction by a jury of one's peers, and all other due process allowed for. This is far from a radical position. It's the idea that the best way we have come up with to figure out whether someone is "actually innocent" is a public trial with a jury of one's peers. Judges don't have some special access to the truth.

So here's where I come down on this. I'm opposed to the death penalty because I think the killing of innocents is inevitable and this outweighs any potential benefits of capital punishment. But I agree with Scalia that "actual innocence" isn't a colorable basis for collateral review (by a judge) of a punishment that has been imposed after trial and conviction by a jury. Actual innocence in that scenario is a basis for a pardon, or a basis to convince the prosecutor's office to vacate the judgment. Perhaps there's a role for judges to play in staying execution until colorable claims of actual innocence based on newly discovered evidence can be considered by the proper parties (prosecutor, governor, president). But I don't see judges playing a proper role as last-ditch re-triers of fact.

Keep Your Government & Corporate Hands Off My Passwords

You may have heard that Apple has implemented a robust new security feature with its latest mobile operating system: the phone's data is now encrypted by default, and Apple retains no record of your passcode or other "backdoor." As a result, Apple cannot "unlock" your phone, even if it has physical possession of the phone, and even if it is served with a lawful warrant or subpoena. It's simply "technically infeasible" for Apple to comply. Law enforcement might as well send the iPhone to Google, which probably is just as likely to have a record of your iPhone passcode somewhere in its vast treasure trove of data about you.

There's nothing nefarious or even new about this, as this has been the standard for encrypted hard drives since forever. I'm writing this post on a 2010 MacBook Pro (with upgraded RAM and SSD drive, I might add!), and its hard drive is encrypted using Apple's standard File Vault utility. Apple offers to keep a copy of your recovery key, but it's not required. If you care about having a truly secure computer, especially as a lawyer, you decline the offer like I did.

But because lots of people have iPhones, important people have noticed the change in Apple's default iPhone security settings, and some of them are freaking out. Most notably, Professor Orin Kerr—a well-respected and influential 4th Amendment scholar who blogs at Volokh Conspiracy—called Apple's move a "dangerous game" that would "thwart" lawful warrants and probably lead to reactionary legislation far worse for privacy interests and civil liberties than simply letting Apple store a copy of your passcode.

I had a lot of thoughts in response to Prof. Kerr's post, but I'm a terrible blogger so the vast majority of them have already been ably expressed by others:

• Julian Sanchez detailed all the ways in which Apple's move is nothing new, so presents no shift in the overall "equilibrium" between privacy and law enforcement interests, and certainly is not in derogation of the public interest.
• Matthew Green at Slate did the same, pointing out in particular how any ability we give the US government can be used equally by less friendly governments.
• Windypundit explained how any backdoor Apple can exploit for the government is a backdoor bad guys can exploit. 
• Kerr himself has admirably walked back from his original overreaction ("very troubling") to a more scholarly investigatory mode ("need more information to decide" and "where do you draw the line?").

I recommend you read all these responses. But there are a few things I think have been left unsaid.

Kerr's Sense of "Public Interest" is ... Very Troubling

Kerr's original reaction was based his inability to imagine how Apple's change (encryption by default plus no backdoor) could possibly be in the "public interest." This only reveals either his impoverished imagination or his perverted sense of the "public interest." Others (above) have adequately exposed his lack of imagination, but the deeper problem, I think, is that his sense of the public interest essentially boils down to "law enforcement interests." The fact that Apple's change will make tens of millions of Americans more secure in their papers, effects, documents, photos, etc., apparently doesn't register for Kerr as something that could possibly count as in the public interest. That's really weird. Maybe this is a cheap shot, but Kerr's mindset makes it hard for me to imagine how the 4th Amendment's warrant requirement would meet his definition of the "public interest" if it were up for debate today.

Indeed, Kerr's initial response to Apple's move was suspicion because he thinks anything that makes warrants—the "gold standard" of privacy protection—less effective is presumed illegitimate. Apple's move therefore could not possibly be in the "public interest" because it would make it harder for law enforcement and counter-terrorist officials to crack cases, and Apple's old way already protected people from government snooping without a warrant.

But the existence of the 4th Amendment warrant requirement proves that there is indeed a "public interest" in respecting people's privacy: making millions and millions of Americans more secure in their possessions adds up to an almost insurmountable public interest. Warrants are the minimum constitutional requirement for an invasion of privacy.  It does not follow that there is no freestanding public interest in allowing people to maximize the security of their own possessions. 

Consider, for example, a law that imposed criminal penalties for the destruction of any electronic documents. From Kerr's perspective, this would seem to be obviously beneficial to the public interest. After all, allowing people to destroy documents makes it inevitably less likely that future crimes will be solved. And all of these documents would be protected from government snooping without a valid warrant, and nowadays there's no practical limitation to the number of documents that a person can store so there's no legitimate reason to destroy an electronic document.

Perhaps there's some basis for finding such a law unconstitutional, but my belief is that most people confronted with such a proposal would recoil in terror at such an intrusion on their privacy and autonomy. Such a law, which would decrease the "private interests" of millions, has a huge bar to clear to be considered in the "public interest" overall because for the most part the public interest is just the sum of private interests. And I think this analysis applies almost directly to the question of any policy to make mobile phones less secure than is technically feasible (which is what Kerr's conception of the public interest would require).

If Backdoors are in the Public Interest, Why Require Private Companies to Possess Them?

Now let's consider what would seem to be the natural response if you accept Kerr's premise that Apple's move is in derogation of the public interest: legislation to fix it. That's how we usually advance public interests. He proposes a simple amendment to a 90s law that essentially required cell-phone makers to let law enforcement tap them. Kerr thinks we'll see a movement to change that law just to require smartphone manufacturers to keep a backdoor or a copy of your decryption key so they can crack open a phone's data if served with a lawful warrant.

But even if Kerr is right that it's in the public interest for law enforcement to have this capability (he's not, of course), it's unclear to me why the answer is that people should be forced by government mandate to trust private, profit-maximizing companies with the their secrets. I'm aware of no analogous legislation, and I think it would be quite radical.

Instead, if we really think it's in the public interest for all smartphones to be crackable by government, any "key escrow" should be in public hands. In other words, the legislation should require smartphone passwords to be registered with the FBI or some other government agency. Maybe event the Supreme Court. Or maybe the legislation could require mobile operating systems to have a backdoor that only the government itself is allowed to access. The same rules would apply: e.g., law enforcement could only access this publicly held database of passwords with a lawful warrant.

Now, the black helicopter brigade will scream and moan—"Are you crazy!? Trusting the government with out secrets??" But this is a modest proposal. Would you rather trust a private corporation like Apple, or the public-spirited civil servants in the good ole United States government? 

And of course it would be made a serious crime for anyone to access this data without a warrant or for any improper purpose. To some extent we have no choice to trust the people in power, and wouldn't we rather this information be in the hands of public servants rather than private corporations, if we're going to force it to be in someone's hands? This would also alleviate the concerns about bad-guy foreign governments being able to serve warrants on Apple; they'd have no rights to the information held secure by Uncle Sam in its Fort Know bunker.

Obviously, I'm trying to illustrate the absurdity of the proposed legislation. It strikes me as absurd to legislate that people register their passwords with the government. But it's obviously more absurd to require that they register their passwords with private companies. Isn't it?

Americans Don't Want to Kill Innocent People

I've been meaning to respond to Mr. Gillette's thoughtful post inspired by Judge Kopf's statement that “many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.”

Perhaps this is a simple statement of admirable humility: the death penalty is administered by error-prone humans, and thus innocent people will be ground up in the machinery of death that it creates.

¯\_(ツ)_/¯

Indeed, Judge Kopf relies on a democratic principle: Americans surely know the justice system is imperfect, yet they support the death penalty as part of the justice system. Therefore, the American people are comfortable with the occasional execution of an innocent person. His job as judge is just to implement the justice system established by the democratically enacted laws.

I think there's profound error here. Yes, the American people know the justice system is "imperfect," but not in the way Judge Kopf thinks. I would bet a lot of money that the most well-known aphorism about the American criminal justice system is Blackstone's ratio:

It is better that 10 guilty persons escape than that one innocent suffer. 

Based on this, the popular perception of the American criminal justice system is that it is too lenient. There are too many technicalities, too many loopholes, too many appeals. O.J.!

So I reject Judge Kopf's supposition that people who support the death penalty assume, or are even comfortable with the fact, that innocent people will inevitably be put to death. In all my years of arguing with people about the death penalty (and I've been on both sides) I've never heard the pro-death side acknowledge that innocent people will be killed, thems the breaks. No one has ever argued for what I'll uncharitably christen Kopf's Ratio:

It's okay to kill one innocent man so that 10 guilty men can be put to the death the people think they so richly deserve.

This is not a cherished principle of American law, thank God, and let's hope it never is.

Unfortunately, we are coming to learn that Kopf's Ratio might better reflect the reality of American law, and that raises the question of what to do about post-conviction claims of "actual innocence." More on that next week (if you're lucky).

The Greatest Game (2014 edition)

I am trying, and sometimes failing, to pay less attention to football. As a result, I did not do a post about the Most Important College Football Game Of The Year, i.e., the University of Iowa vs. Iowa State. We have previously covered the 2013 and 2012 versions of the MICGCOTY game here and here.

Recognizing the importance of MICGOTY, sports writer (and Marquette University alum) Charles P. Pierce has an article about the game on Grantland. Mr. Pierce devotes a fair amount of his article to the fact that Iowa State initially missed the game winning field goal but Iowa head coach Kirk Ferentz called time-out at the last moment before the snap in order to try to "ice the kicker." The move backfired as Iowa State made the field goal after the time out. Mr. Pierce suggests that this outcome wonderful because icing the kicker is bad coaching.

I don't know what Mr. Torvik thinks of the icing the kicker strategy but I do know that he is delighted when 13 of the 14 Big 10 schools lose.

Some heavy reading on the death penalty.

Judge Richard Kopf has an terrific post (first and third definitions) on his blog, Hercules and the Umpire today. It concerns the death penalty and the execution of people who are "factually," i.e., actually, innocent. I'll do a poor job of summarizing the post in a minute but you should really read the post and then click back to this. I'll wait.