Saturday, October 17, 2009
Erin Murphy (University of California, Berkeley School of Law) has published Manufacturing Crime: Process, Pretext, and Criminal Justice in the Georgetown Law Journal. Here is the abstract:
What do Bill Clinton, Roger Clemens, Martha Stewart, and Lil’ 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. 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 focuses on 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 insights. First, it uncovers a vibrant yet essentially undocumented practice of process charging in state courts. Second, it identifies a new motivation underlying process crime prosecutions. Specifically, this Article argues that process prosecutions are brought not only to remedy core violations of rights or to target otherwise elusive defendants with pretextual charges, but also 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 sounds a note of caution to encourage closer monitoring of such offenses on both a categorical and individual level.