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October 30, 2008

"The Crime Factory: Process, Pretext, and Criminal Justice"

The title of this post is the title of this very interesting article by Professor Erin Murphy available through SSRN.  Here is the abstract:

What do Bill Clinton, Roger Clemens, Martha Stewart and L'il Kim have in common? How about adding Marion Jones, Barry Bonds, Kwame Kilpatrick, Frank Quattrone, Donald Siegelman, and Lewis Libby?  The list of notable names could go on, each sharing a particular characteristic in common.  All have been accused of a "process crime" -- an offense not against a particular person or property, but against the machinery of justice itself.

Process crimes have a long and storied history in the American criminal justice system. Familiar variations of such offenses include perjury, obstruction of justice, and contempt; more recent iterations materialize as violations of court orders or failures to appear.  Yet despite the laundry list of politicians, business icons, and sports and entertainment celebrities that have lately found themselves ensnarled in charges related to process crimes, legal scholarship on the topic remains scarce.  Moreover, the extant discussion centers entirely on process crimes in federal courts and typically addresses issues related to prosecutions undertaken for pretextual reasons, like that of Al Capone.

This Article is the first to take a comprehensive look at process crime prosecutions. This survey reveals two critical, but presently unacknowledged, facts about process crimes. First, it uncovers a vibrant yet essentially undocumented practice of process charging in state courts. Second, it depicts a more complicated picture of the purpose of process crime prosecutions. Specifically, in addition to prosecutions brought to remedy core violations of rights or to target otherwise elusive defendants with pretextual charges, process crimes often serve to punish defendants for nothing more than their obstinate or anti-authoritarian behaviors. This Article closes by probing the normative desirability of process charging in light of these observations, and by sounding a note of caution to encourage closer monitoring of such offenses in both a categorical and individual manner.

Of course, Senator Ted Stevens can be added to the list of prominent persons subject to a process prosecution.

October 30, 2008 at 08:14 PM | Permalink


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Al Capone and Senator Stevens have something in commmon other than merely being convicted of "process crimes" in that they both committed other crimes related to the process crimes but were not charged with the more serious offenses. In Stevens' case it was accepting and soliciting bribes. In Capone's case it was stealing the money he failed to report. Both committed other uncharged crimes related to the process crime for which they were convicted.

Other folks on this blog might find other similarities between Capone and Stevens. My observation is that Capone had the capacity to smile where I have only seen Stevens maintain a perpetual scowl. The differences may be that Capone stole big and Stevens stole small. If you are going to be a bear, be a grizzly.

Posted by: mpb | Oct 31, 2008 10:30:25 AM

"The differences may be that Capone stole big and Stevens stole small. If you are going to be a bear, be a grizzly."

Another way of saying this is, "Armed robbers steal thousands. Gentlemen steal millions." The right person to compare Stevens too in this regards is not Capone but Henry Paulson. Indeed, with his already 1/2 billion in pirate booty, Paulson may actually force us to change the word from "millions" to "billions" soon enough.

Posted by: Daniel | Oct 31, 2008 12:00:49 PM

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