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April 23, 2009

Are federal prosecutors over-charging the Somali pirate?

This recent AP article has me wondering if federal prosecutors should be accused of "over-charging" the Somali pirate (and also wondering if anyone really cares if they are).  Here are excerpts from an interesting piece, which is headlined "Prosecutors beefed up charges against scrawny teen":

When U.S. prosecutors brought piracy charges against a teenager from Somalia, they dusted off a law that has been on the books since George Washington was president and used only sparingly since then.

The law's obscurity, the lack of recent precedent and murky definitions of what constitutes piracy could present challenges to law enforcement. But prosecutors also boosted their case with more common nonpiracy charges that could lead to a long prison sentence, even if the piracy count doesn't stick.

The government "threw pretty much everything they had at this guy because I think they wanted to hedge their bets," said Eugene Kontorovich, a professor at Northwestern University Law School....

There are varying accounts of his age — his lawyers say 15, his parents say 16 and the government says at least 18. The judge heard testimony from his father via telephone from Somalia and from government officials Tuesday before determining Muse should be tried as an adult.

The top count against Muse accuses him of piracy under the law of nations, a charge not used regularly since the 1800s. It carries a mandatory life sentence.

The other charges against him — discharging a firearm, conspiring to commit hostage taking and brandishing a firearm — could be found in drug, kidnapping and conspiracy cases throughout federal courthouses in the United States. They also offer potential penalties up to life in prison.

The government also set up a scenario in which they could eventually drop the piracy count in a plea bargain that would give Muse a chance to dodge a life sentence. That could be necessary if legal questions are raised by the piracy statute.

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April 23, 2009 at 10:12 AM | Permalink


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Prosecutors over-charging? I can't believe it. And in a high-profile case? Inconceivable.

Posted by: Anon | Apr 23, 2009 1:36:57 PM

How is this "overcharging"? Didn't they kidnap someone? Didn't they brandish weapons? Didn't they shoot weapons?

Posted by: federalist | Apr 23, 2009 1:56:45 PM

federalist, you're scaring me. I don't often agree with you two days in a row.
(This, and your take on the school strip-search.)
I would add, "Didn't they commit piracy, in violation of the law of nations?"

Posted by: Def. Atty. | Apr 23, 2009 2:20:59 PM

Re: strip searches. Isn't amazing. If, in a vacuum, you asked schoolboards, parents, teachers etc. "Should we strip search students for ibuprofen?", no one would answer yes. But start coming up with policies etc., and people seem to lose their minds.

This strip search was appalling. What really would have been interesting is if the student violently resisted and was charged with a crime. What result then?

Posted by: federalist | Apr 23, 2009 2:31:43 PM

This is a typical hyperbolic Doug B. post.

Posted by: federalist | Apr 23, 2009 2:36:11 PM

Can you explain, federalist, what you consider to be "typical" and "hyperbolic" about this post? Is it my use of the word "over-charging"?

Are you suggesting that it is just impossible for someone to be over-charged by prosecutors or are you suggesting that it is "hyperbolic" to wonder whether the Somali pirate case involves over-charging. You often suggest I often exaggerated, but I really do not understand the charge in this context. Please explain.

Posted by: Doug B. | Apr 23, 2009 4:24:59 PM

First of all, your post's tone of musing seems to me to be a bit disingenuous. "Overcharging" is a serious charge (as it violates ethics rules--i.e., to do justice) to level against attorneys. You toss it out there, but with a musing tone that gives you deniability. This is an overblown charge against federal proscutors, i.e., hyperbole. These pirates of which this guy was one, were armed, grabbed a vessel, took a hostage. And now he's being charged with all those crimes--how can anyone possibly make a straightfaced argument that he is being overcharged? You won't, of course, you'll just casually toss out a nasty smear of a prosecutor. At least when I make a statement, I don't couch it.

Second, hyperbole is typical of your posts. Need I really go back and document all the hyperventilating about racism and meanies who just want to keep people in jail or whether we're a free country because we lock up drug dealers?

By the way, Doug, if you're looking for examples of where overcharging is a possibility, google Johannes Mehserle. Does anyone really think that this guy decided to execute an arrestee in front of large number of people?

Posted by: federalist | Apr 23, 2009 4:46:37 PM

Thanks for the follow-up, fed. You assert that "Overcharging" is a serious charge, but then it seems you are lodging that charge against the prosecutors involved in then Johannes Mehserle case. So, praytell, when is making such a charge appropriate and when isn't it? Plus, you accuse me of hyperbole because it seems to you that I did not mean my musings to be musings. How about you just take my statements at face value rather than assume some secret motive that you think, in turn, suggests hyperbole. Geez...

Meanwhile, I very much would appreciate it if you would "go back and document all the hyperventilating about racism and meanies who just want to keep people in jail or whether we're a free country because we lock up drug dealers." I do readily question and worry about whether the US can justifiably claim to be the most free country in the world when we have the highest incarceration rate in the world. But that does not strike me as hyperbole, just a legitimate question about what it means to call ourselves a "free country" in light of our imprisonment rate.

And, though I enjoy the movie Yellow Submarine and the blue meanies there, I do not think I have ever called anyone a "meanie" on this blog. And, though I do think unconscious racism impacts the operation of modern criminal justice systems, again usually I am just trying to share my genuine/honest perspective on controversial matters, not throw around needless hyperbole. And, since you seem to be the only one who regularly complains on this front, I am for now inclined to question your judgment/assessments rather than question my own tone.

But maybe if/when you do provide me with concrete examples of my hyperbole based on my actual words --- rather than your mis-perception of my words --- I will try to tone done my more extreme tendencies.

Posted by: Doug B. | Apr 23, 2009 9:26:15 PM

Prof. Berman: Desuetude is recognized only in West Virginia, and not in Federal law.

You could argue that evolving values no longer have anything against piracy. The Supreme Court did something similar to that when it endorsed butt banging in Lawrence v Texas.

Posted by: Supremacy Claus | Apr 23, 2009 10:16:15 PM

If I wanted to cause trouble, I'd suggest a search of the blog for the word meanie and would suggest it is one of federalist's favorite words, but since I don't want to cause trouble, I don't suggest searching the blog for the word meanie just because it is one of federalist's favorite words.

Posted by: George | Apr 23, 2009 10:36:06 PM

On a more serious note, a paper that speaks to "stacking charges":

The Political Economy of Criminal Law and Procedure: The Pessimists' View

Richard H. McAdams
University of Chicago Law School

October 22, 2008

CRIMINAL LAW CONVERSATIONS, P.H. Robson, K. Ferzan and S. Garvey, eds., Oxford University Press, 2009
U of Chicago, Public Law Working Paper No. 243

In The Pathological Politics of Criminal Law, Bill Stuntz provides a powerful critique of the modern American criminal justice system. Other commentators have criticized legislatures for constantly adding to an already overbroad set of criminal prohibitions. Stuntz explains the political dynamic that makes this outcome inevitable. The ultimate result is that the modern prosecutor defines what is criminal by her selection of cases to charge, while criminal legislation is a mere "side-show." Stuntz concludes that this state of affairs is "lawless" and pathological. As a solution, he proposes that courts resurrect or expand certain constitutional doctrines to reclaim some of the power now wielded by prosecutors. In this core text, I summarize and comment on Stuntz's argument.

"When any one offense carries only a mild or moderate punishment, stacking charges allows the prosecutor to threaten a far more severe punishment, one that even the prosecutor considers to be disproportionate to the offense. Prosecutors threaten what by their own lights is unjust punishment to induce risk averse defendants, even those with a good chance of acquittal, to plead guilty." (p 2-3)

Posted by: George | Apr 23, 2009 10:48:38 PM

Given that the Constitution gives Congress the power "to define and punish Piracies and Felonies committed on the high seas and offenses against the Law of Nations" in Article I, it would seem that any attack on the Piracy statute will have quite an uphill climb despite the lack of recent precdents.

Posted by: Zack | Apr 24, 2009 10:31:23 AM

Also note the Piracy provisions 1958 and 1982 UN Conventions on the Law of the Sea (the U.S. Ratified the 1958 Convention, Somalia Ratified the 1982 Convention and the rules on piracy are the same in both treaties). That treaty allows any country to capture and try pirates and defines piracy broadly as "any illegal acts of violence or detention . . . directed "on the high seas, against another ship or aircraft, or against persons or property on board such such ship or aircraft."

Its hard to see what legal problems there will be with a piracy prosecution. Perhaps the only complication may be if the Navy seized the pirate in the territorial waters of another country.

Posted by: Zack | Apr 24, 2009 1:29:00 PM

Perhaps the only complication may be if the Navy seized the pirate in the territorial waters of another country.

Even that wouldn't be a problem under Alvarez-Machain - well, maybe a diplomatic problem, but not a constitutional one.

I say put courtroom facilities in Navy vessels and try the pirates right where they're caught. Capture, fair trial and first-class hanging all in one day - how much more efficient can you get?

Posted by: desuetude | Apr 24, 2009 1:47:58 PM

I am not going to pore through this blog to document each time you've made over the top comments about the criminal justice system. Suffice it to say that the Gov. Easley thread is an exemplar that leaps to mind, as was your casual attribution of racism to me for bringing up the lenient sentences in a racially motivated beating. Your fixation on drunk driving as an argument for more lenient sentences is also bizarre.

As for your response, to be blunt, I find it laughable. Do you really mean to argue that saying that you're wondering whether a particularly nasty charge is accurate is not a bit of a smear? What if I wondered aloud, with not even the bit of analysis whether you played favorites with grades? Or what if I wondered aloud about your honesty to a tribunal?

I always thought law profs were more circumspect--guess I was wrong.

Let's look at the Mehserle case. Highly racially-charged case. Rioting. And obvious political pressure on the DA. And we get a charge of murder, when it seems highly unreasonable to conclude that Mehserle decided one day to summarily execute an arrestee in front of a crowd.

Let's look at the pirate case. There is every indication that this guy is guilty of all of these offenses. So why is "overcharging" anything to wonder about? Maybe you could argue that he's getting a raw deal and that his is a case for mercy, but that's a lot different from "overcharging".

Praytell, do you see the difference?

And by the way, "meanie" was not a quote. It's a shorthand way for me to characterize the predictable whine about people like me who want to see criminals locked up, as if it's my desire put people away for the sheer joy of it.

Posted by: federalist | Apr 24, 2009 2:51:04 PM

Federalist: Personal question. What do you do in the law? You are one of the few good guys around here. I will do my utmost to keep you off the arrest list when accounts get settled with the lawyer profession.

If you would like to act on the law, rather than just comment on the law, let me know by private email. I will think of something cool to do in federal court.

Posted by: Supremacy Claus | Apr 24, 2009 4:25:08 PM

Corporate lawyer. This stuff is just an interest.

Posted by: federalist | Apr 24, 2009 4:33:23 PM

Fed: Sorry. Even I cannot come up with something juicy for you, unless in white collar defense or finance.

Posted by: Supremacy Claus | Apr 24, 2009 7:32:12 PM

I am pleased and amused to see that federalist and Supremecy Claus have made a love connection here (though it is notable that neither of you actually work in the criminal justice system). I wish you'd both seek to channel your frustrations with the status quo into more thoughtful and rigorous commentary, but I remain happy to have you both engage (and now connect) in my sandbox.

As for specifics, federalist, I still wonder about your assertions that I make lots of "over the top" comments about the CJ system. I went back and re-read the Easley thread and it seems what most troubled you is that I described those in prison as "people" rather than as "criminals." Meanwhile, as my students know, I casually attribute racial bias (and gender bias and economic bias) to just about everyone (myself included). The fact that you keep complaining about an "urban discount" in cases involving racial minorities hardly makes me worry about the validity of this attribution in your case.

Finally, you should feel free to "wonder aloud" about my grading practices and my work in court. Asking hard and uncomfortable questions are essential to revealing hidden problems and achieving justice. Of course, one should only put out the inquiry when having some reasonable foundation for such wondering (like an AP article) and also should be willing to have one's identity known when presenting such questions. But I find troubling the suggestion that I should self-censor in this forum because asking hard question might be perceived as "a bit of a smear." Tellingly, you do not self-censor when you identify cases of concern from your perspective, and I am again wondering if bias more than logic explains when you think hard questions should be asked about the status quo.

Posted by: Doug B. | Apr 25, 2009 8:21:03 AM

the federalist said: "Overcharging" is a serious charge (as it violates ethics rules--i.e., to do justice) to level against attorneys."

I'm not sure it's possible to know anything about the federal "justice system" and utter those words with a straight face.

I'd love to hear the federalist's take on a somewhat common phenomenon in which citizens indicted and plausibly threatened with 30 years in prison end up bargaining for sentences ranging from 3 months home detention to 12 to 18 months.

It seems to me the federal system, in which upwards of 96 percent of the cases end in leveraged plea bargains, simply couldn't function as it does in the absence of ritualistic overcharging.

Bill Stuntz is my hero. In a better world, he'd be leading an uprising of lawyers distraught by the hash demagoguing legislators and lazy justices have made of the Bill of Rights.

Posted by: John K | Apr 25, 2009 12:13:35 PM

a "love connection"? Hardly. I answered a question.

Very rarely do I complain about the "urban discount" (you know, there's a difference between mentioning something as a phenomenon and complaining about it). I just mention in because it runs counter to the argument that the criminal justice system is biased against minority criminals. I also find it strange that in all of your mention of system and individual bias, you fail to even acknowledge that urban defendants tend to get breaks. As for your insinuation that I am racially biased because I (a) point out a black defendant/white victim case where the defendant was treated (in my view) with excessive lenience and (b) I don't believe that racial disparity necessarily results from racial bias, well, let's just say I am undeterred. I have little interest in cowering before political correctness.

Your defense of your "wondering" is laughable. I NEVER suggested that you shouldn't ask hard questions. But there is a huge difference between asking hard questions and casually tossing out things like "overcharging". You made no effort to deal with the actual facts of the case (as we know them now); instead, you just tossed it out there. How is "overcharging" even on the table? We have a malum in se crime, a crime of violence, and a crime which has serious economic impact. Now you may think that this pirate shouldn't have the book thrown at him--fine. Say that. Say that, politically, the Obama Administration cannot afford to lose this one, so they are taking a hard line. Say that the Administration needs to think about lenience here. But at least deal with the facts before you casually toss things out.

You are absolutely right, Doug, I don't pull my punches. But the difference between my shots and yours is that I am willing to acknowledge that I am taking a shot (rather than hiding behind some pious "I am just asking hard questions" nonsense and I try to make my shots, you know, evidence-based, rather than reflexively showing your allergy to harsh sentences.

As for your Easley recollection, it is laughable. You completely understate my complaint. It wasn't that you said people vice criminals. It was that you referred to Easley as someone who simply wanted to lock people in cages, an inflammatory, over the top comment about someone who is trying to keep society safe. Such bombast is silly, and doubly silly in this context. We could call American soldiers who have killed the enemy "killers", could we not? But that's not really fair, is it? Same with characterizing Easley's approach as simply "locking more people in cages".

John K., I understand your point, and a lot of commentary has been written on it. I'll note that in this case, it's a bit inapposite. Piracy is a serious crime, as is the violence (allegedly) committed by this defendant.

Posted by: federalist | Apr 25, 2009 2:10:33 PM

Prof. Berman: I commend your humor, your physical courage. I hope your novelty seeking has been a bit rewarded.

If you have 4.0 academic averages, kindergarten to law school, you have been reading 80 hours a week, most of life. You are like naive, sheltered children, teaching other naive, sheltered children. You have a fictional image of criminals, biased by the power and financial interests of the criminal cult enterprise. All arguments are at the margin, and fundamentals are never reached.

Keeping it simple, and narrow. What could shift the economic interest of the lawyer from the protection and immunization of the criminal to protecting millions of crime victims a year?


If a statute can reverse the long series of decisions holding the police has no duty to individuals, the police, the prosecutor, and judges could be sued for failing to act within professional standards of due care of each. That would bring the level of policing and crime control the lawyer enjoys in his neighborhood to the neighborhoods of everyone else.

Problem solved. The interests of the crime victims and of the lawyer profession are in the same direction.

Posted by: Supremacy Claus | Apr 25, 2009 4:12:09 PM

John K: You may have missed this comment from another thread.

Bill Stuntz is a vile, criminal lover, rent seeking, horrible person. I pray he meet his end in a carjacking by a parolee. He likely lives in a lawyer neighborhood. There the death penalty for all violent criminals is on the spot, as the police shows up blasting. This vile racist hypocrite has condemned law abiding minority crime victims to their fates, unprotected by government. They should form direct action groups, and bring street justice to his left wing cult indoctrination camp classes. Anyone who has undergone his indoctrination is totally unfit for any government position, being totally biased in favor the violent criminal.

Posted by: Supremacy Claus | Apr 25, 2009 5:52:21 PM

Just curious, SC: do you allow for the possibility innocent and wrongly accused citizens are routinely convicted of crimes they didn't commit?

Are you even remotely aware of the work of any of the innocence projects operating around the country?

Posted by: John K | Apr 25, 2009 10:29:00 PM

John K: Not only am I aware of this high false positive rate of criminal procedure, but I list it as evidence of the total failure of the criminal law. In a quarter of the cases of false conviction, there was a false confession. That says, the entirety of criminal procedure is worthless garbage. It addresses only 1 in 100 major crimes, immunizing its client the vicious criminal, with a false negative rate of 99%. Then, let's say, the false conviction rate is 20%, based on technical invalidation by new, modern laboratory testing. That rate may be dwarfed by the commodity like transactions of plea bargaining. Innocent take the offer out of uncertainty, and no procedure takes place at all in 97% of cases. The false positive rate may be as high 50% in that context.

Call a plumber to fix a broken toilet. 99 out or 100 times, he leaves with the toilet still broken. Then in 1 of 5 times, he fixes a toilet that was not broken at all. He then sends you a bill for $1 million each visit. Cool?

That plumber would not be sued, it would be arrested as a threat to the public safety.

Imagine if plumbers of such incompetence gave themselves total immunity and discretion. Is that cool with you? Why is such total failure acceptable with millions of victims a year, and hundreds of thousands of innocent people railroaded to prison?

I have patience. I can wait for you to tell me when you are ready to do what you have to. I will help you overcome your criminal cult indoctrination. It has made very bright modern people accept Medieval, 1250 methodology, garbage doctrines without so much as a inkling of something being wrong. Then, cult methods makes them personally attack and shun any dissenter.

Posted by: Supremacy Claus | Apr 25, 2009 11:08:25 PM

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