The Old College Try, and The New College Tribunal

Or you'll get a preponderance-of-the-evidence disciplinary hearing.

Or you’ll get a preponderance-of-the-evidence disciplinary hearing.

In disciplinary proceedings involving claims of sexual assault, universities continue to find themselves in an intolerable situation, caught in a lawyer-triangle of the Department of Education’s Office of Civil Rights, student-complainants and the student-defendants.

In part, at least, as a result of OCR’s “Dear Colleague” letter to colleges and universities about Title IX and disciplinary proceedings, there has been an upsurge in reported instances of sexual assault on campus.

At the same time, there has been a sharp increase in lawsuits brought by student-respondents (that is, the male students who are accused), as this Wall Street Journal article details:  In Campus Rape Tribunals, Some Men See Injustice.

The scenario set out in the Journal article has become common, and one troubling from a due-process standpoint:

Last spring, Duke University expelled Lewis McLeod, a senior, for allegedly sexually assaulting a freshman woman in his room after meeting at a bar.

The woman had told Durham police Mr. McLeod had sex with her when she hadn’t wanted to. He said it was consensual. Police investigated but didn’t charge him.

A Duke University disciplinary panel didn’t find he gave her alcohol or used force. But the panel concluded it was “more likely than not” the woman didn’t agree to sex and was too intoxicated to consent. Regarding a degree, Duke lawyers later said: “Mr. McLeod is not entitled to that honor.”

Two weeks before he was to graduate, he became the first student Duke expelled for sexual misconduct under a new university policy.

Mr. McLeod, 24 years old, is suing Duke for his diploma, arguing the university unjustly made him an example to show a get-tough approach. “I believe that I’m wrongfully accused,” he says. “I believe that it was an unfair process and I believe I had something I earned taken away from me.”

His case is part of a broad and rapid change in how U.S. colleges and universities deal with sexual-assault allegations. Campuses have rewritten policies to lower the burden of proof for finding a student culpable of assault, increasing penalties—sometimes recommending expulsion. In the process, schools find themselves in legal minefields as they try to balance the rights of accuser and accused.

We have written about this issue before: Title IX, University Discipline, Sexual Assault and Parallel Proceedings.

Prelude to a parallel proceeding.

Prelude to a parallel proceeding.

Here is a slightly longer piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education.  Last year, we pointed out that:

Not surprisingly, most universities have proven themselves more adept at dealing with “academic” infractions then with “conduct” issues.  With the advent of coeducation and then a more culturally diverse (and potentially more fractious) student, faculty and staff composition, the proficiency gap between academic-related discipline and conduct-related discipline, in many instances, grew more pronounced.

Back in 2011, the federal Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter on the subject of campus sexual assault and how, under Title IX, OCR expects colleges and universities to handle claims of sexual assault. More recently, a White House summit on campus sexual assault; a number of high-profile lawsuits and OCR investigations; and new congressional legislative interest have all conspired to mean that colleges and universities ignore the “Dear Colleague” situation to their peril.

Given the infamous “rape” case against Duke lacrosse players, one would think that Duke would take a more thoughtful approach to these matters, but things seem otherwise.  If one has any doubts about the university’s conduct in that matter, watch the 60 Minutes piece about Mike Pressler, the Duke lacrosse coach whom the university forced to resign.


White-Collar Felon Registries, Hester Prynne and The Drive-By Truckers

No white-collar recidivism here.

No white-collar recidivism here.

Although one must admire the historicist sensibilities of a state legislature that just reinstated the firing squad  as a methodology for execution, the Utah legislature’s passage of a bill to create a white-collar crime registry modeled on sex offender registries is unwise where it is not silly.

As a New York Times article notes:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society.

Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

What are the issues here?
Lillian Gish (1893 - 1993) as Hester Prynne, white-collar felon.

Lillian Gish (1893 – 1993) as Hester Prynne, white-collar felon.

First, a white-collar registry would be “scarlet-lettering” without an offsetting benefit.  Politically satisfying, perhaps, but it is a “pitchfork” approach that upends proportionality and other counterweights that prevent a criminal justice system from turning into an inquisitorial system.  (We have written about pitchfork mentalities before: Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed and  Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression).

On the subject of The Scarlet Letter, consider Hawthorne and the core meaning of the story, which is about confession and redemption rather than legalism’s unforgetting (and unforgiving) recollection of sin.
With regard to “unforgetting,” a registry is  the inverse of the “right to be forgotten” movement, as represented by a recent Eurpean Union case.  Consider this from a Mockingbird article, Divine Memory and The Right to Be Forgotten:
In Hawthorne’s Scarlet Letter, protagonist adulterer Hester Prynne is saddled with a big red letter “A” to be worn on her chest at all times. The letter acts as a shaming reminder to the greater community to keep their sexuality in line. While Hawthorne goes on to make Hester a dignified example of the power of confession, top hits of Google searches aren’t unlike a big letter “a” for many whose mistakes just won’t go away. Identity is at the core of both stories . . . .  Should a foreclosure 16 years ago be part of the plaintiff’s identity? Who gets to control the ever-important first impression- the politician on his rebound or the Google search?
I've got my eye on you.

I’ve got my eye on you.

 

Second, a registry is most justified when there is a substantial body of evidence that offenders are very likely to recidivate; where the victim-population is peculiarly and legally unable to protect itself; and where the harm is not meaningfully compensable.  Sexual depredation of children satisfies these criteria, and thus we see widespread legal and cultural acceptance of sex-offender registries.

 

Although the data is mixed, white-collar felons, like nonviolent offenders in general, have a relatively low rate of recidivism.  Further, white-collar offenders commit money-crimes, and money-remedies are available if the offender is solvent (admittedly, sometimes a big “if”).

He's made his list, he's checked it twice and now it's on the internet.

He’s made his list, he’s checked it twice and now it’s on the internet.

Third, are citizens of Utah, like minors, peculiarly unable to be clothed with legal rights and responsibilities?  Paternalism may have its place, but here? The legislative assumption seems to be that Utahans in general and Mormons in particular are so naive or insular that they need to be protected from themselves.  Or, in the words of a Guardian (UK) article: Utah creates white-collar crime registry to protect ‘trusting’ Mormon population.

What next? Hasidic Jews? Southern Baptists? Episcopalians?  (The last denomination is unfair. I have no data on the subject, but anecdotal evidence suggests that many of the most temporarily successful white-collar offenders are, in fact, Episcopalians).
Fourth, the Utah Attorney General claims that white-collar crime is “epidemic” in Utah.  Again, from the Times:
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
A handful of large dollar loss offenses do not an “epidemic” make.  According to the United States Sentencing Commission, fraud offenses account for only 5.2% of federal inmates — less than firearms offenses (18%) or pornography and prostitution (5.7%), and a figure dwarfed by drug offenses (51%).  The Bernie Madoffs of the world grab eye-popping dollar headlines, but the median loss in fraud offenses committed by offenders in the federal prison population is $696,295 — not a small sum, but a figure which is likely driven misleadingly high by Madoff-like numbers.  Even if it there were an epidemic, the solution is carefully crafted, clear laws that criminalize wrongful activities in a manner consistent with commonly accepted norms in Anglo American criminal law history.

A challenge getting to the keyboard.

A challenge getting to the keyboard.

Fifth, there is no reason to expect that the registry will provide any particular deterrence.  If the prospect of prison, financial ruin, loss of reputation, bankruptcy, dissolution of family, loss of law or CPA licenses, and debarment from federal contracting does not dissuade a bad actor, being put on a website will have little effect.

 

 

 

 

Law should be just, or it is not law, but on occasion it should be tempered with mercy, as the Drive-By Truckers point out in Mercy Buckets:

 


A Meditation On Independence Day

Oh, say, Can you still see plea-bargaining reform?

Oh, say, Can you still see plea-bargaining reform?

We all like the Fourth of July; most of us want it to mean something beyond cookouts and fireworks.  When my children were little, I would read aloud to them the entire Declaration of Independence, an oration they found both alarming and distracting. The nation’s Independence Day celebration has changed over time, as has its people (alarmed or distracted) and their culture.

We have an Independence Day in film and in song, works of art that speak to a patriotism grounded in a corporate concept (national independence) and in a citizen concept (individual independence).

Here in the early portion of the 21st-century, it is the domestic liberty of individuals, rather than the specter of foreign domination from across the seas, that is the most fruitful subject for reflection this Independence Day.  At the end, you can decide which is more apt: alarm or distraction.

In the Declaration of Independence, the list of grievances against King George III and his agents is lengthy and detailed, a fact that my young children frequently brought to my attention as I declaimed in our den.

Need to read the fine print.

Need to read the fine print.

In general, however, the revolution that followed the Declaration was a “conservative” revolution, at least compared to successor-revolutions such as the French and the Bolshevik.  In terms of its genesis, the complaints in the Declaration were the complaints of Englishmen who had been denied English rights.

Further, many of the concepts underpinning those rights – for example, the nature of the sovereign and his subservience to God, the more powerful King – arose out of the Protestant Reformation in Europe.  There were many flavors and strains of what we call “Protestant,” but one of several unifying factors was an emphasis on the individual’s direct access to the divine, rather than a requirement that the individual proceed through a priest or a bureaucratic episcopate that could grant or withhold dispensation, including that ultimate dispensation of liberty and property rights — the freedom and freehold of the kingdom of God.  The individual believer could now read a sacred text (the Bible) for himself or herself.  Priest, prince, pope: all potentates were sidelined.

In our pluralistic, post–Christendom culture, what bearing (if any) does this historical, cultural and religious context have this Independence Day?

On this Independence Day, the concept of “independence” is informed by two consistent drumbeats.

First, the national-security state that has grown ever since September 11 shows no sign of abating.

Still got the briefcase, though.

Still got the briefcase, though.

Second, the editorial, social-media and congressional criticism of prosecutorial handling of post-recession financial institutions and white-collar defendants feeds an apparently deep-seated need to assign particular blame for generalized ills.

For a white-collar defense lawyer, he confluence of these two drumbeats is deafening. For business people – indeed, for all citizens – the scales have been tipped further in favor of the state and its investigatory and prosecutorial apparatus.  Substantively, there continues an arguable over- criminalization of undesirable but not, at heart, criminal conduct, a legislative spasm driven by an unseemly result–orientation.

The grand jury has long been unmoored from its original function as a buffer between the sovereign and subject.  Reform of the grand jury and the plea-bargaining system is overdue but unlikely to happen in the near-term.  (On the other hand, Martin Luther thought he was merely trying to reform the church and did not intend, as Winston Churchill said in another context, to set Europe ablaze).

Maybe I needed the microphones.

Maybe I needed the microphones.

In addition, the “presumption of innocence” about which we all learned (or, at least, used to learn) in civics class has been translated into a presumption of guilt.  Most citizens, most of the time, believe that when a person or company is charged with a criminal offense, they are guilty (or perhaps guilty of something pretty close to the charged offense).  (We have discussed presumption problems here and here).

Such impulses and shifts in presumptions do damage due process and, ultimately, the status of a free people.  Citizens in white-collar professions are often the first to clamor for more national security externally and more law-enforcement domestically.  In many circumstances, of course, that clarion call is entirely appropriate, even vital, to our survival as a nation.  On the other hand, the call can only be answered by the raw exercise of sovereign power.  One need not be a Protestant Reformer or a Declaration subscriber to wonder if another call, this one for reflection and vigilance, is not perhaps overdue if we are to maintain those liberties — that “independence” — that we all treasure.

Happy Independence Day.