(Robin Shea) As NFL Commissioner Roger Goodell can tell you, it isn’t easy for an employer to handle off-duty domestic violence situations.
Sometimes your employee is the victim. If so, you may have someone who is distracted, scared, upset, or frequently absent because of physical injury or psychological trauma, or court appearances. She (or he – men can be victims, too) might be spending too much time commiserating with coworkers and not working. And you always have to worry about the possibility that the abuser will show up, causing this “private matter” to spill over into your workplace. Because of these risks, it isn’t unheard of for an employer to terminate the victim because her abuser’spresence is creating too much disruption in the workplace, or putting customers or students at risk.
Sometimes your employee is the perpetrator. But maybe he (or she) behaves like a choirboy at work, and is great at his (or her) job. If you fire for off-duty conduct that has no noticeable impact on your workplace, could the employee assert a claim against you for discrimination or some other type of wrongful termination?
In this legal environment? Do I really have to ask?
In short, there are no easy answers for employers in these situations. But here are a few ideas.
IF YOUR EMPLOYEE IS THE VICTIM . . .
*Adopt a policy on domestic violence (if you don’t already have one), and encourage victims to get help. If your company is big enough and you have the means, you might even want to offer optional evening classes or support groups for victims and their children. The Human Resources department is a great place to house information about community resources for domestic violence victims, such as shelters, individual or family counseling, and social and legal services. You can also post the information on your company intranet, and on bulletin boards. If you have an employee assistance program, you can offer that, as well.
This is the fourth and last part of my post on my new co-authored piece Intellectual Property Infringement as Vandalism (the first part is here, the second here, and the third here.
While, as discussed previously, a number of people advocate for intellectual property to receive the same level of protection as property, few would openly say that it should receive more. In the discussions about intellectual property as property, the latter is generally viewed as a ceiling in that category. One would therefore expect at first blush that when it comes to sanctions, intellectual property infringement would at most be punished at the same level as property violations. Our paper shows that intellectual property infringement bears the most resemblance to vandalism and trespass. In the realm of sanctions, however, not only are the statutory criminal and civil sanctions generally higher for intellectual property infringement than those for vandalism, they are also higher than for downright property theft.
One of the ways to make a comparison is to imagine a hypothetical good of a certain value and examine how it would be treated under intellectual property versus property law. As will become apparent, this exercise is not without its problems and perils, but it is informative nonetheless. Let us assume that an individual distributes a song illegally to 1,001 other individuals. The song would normally cost $1 to download legally. Had all 1,001 individuals who thus obtained illegal copies bought the song in a legitimate fashion, its owner would have earned $1,001. That being said, in this type of situation, undoubtedly not all 1,001 people would have actually bought the good, so the harm to the song owner is lower than that. Furthermore, one could argue that this distribution may constitute a proximate cause for future redistributions, which would bring about greater harm. The extent of this redistribution and of the role that the initial distributor played in their causation are difficult to predict, as is the number of people who would or would not have bought a given song. As a matter of approximation, let us therefore proceed with the figure of $1,001 for the harm (the high end) but with no regard for subsequent harm involving redistribution. Indeed, that is the figure that copyright law would use to evaluate the gravity of the offense. Whether the action was taken for profit or not, a person guilty of this violation could go to prison for up to a year and be fined up to $100,000. If that individual distributed the song to 2,501 people (thus causing a potential harm of $2,501), she would face a maximum sentence of five years if it was done for profit or three years if it was not. She could also be fined up to $250,000.
(Will Baude) Posner and Becker’s blog posts on the economics of the death penalty provide an occasion for a few reflections.
Both Posner and Becker place a great deal of weight behind the empirical evidence that the death penalty deters crimes for which it is a punishment. (Becker explicitly disavows any other justification for the death penalty, Posner acknowledges that lots of other factors play into the calculus, but considers many of them a wash.) They don’t go as far as the famous/infamous Vermeule/Sunstein line that capital punishment may be morally required, but the commitment to this sort of utilitarian line may lead them there.
Now, I happen to support the death penalty for certain serious crimes entirely independently of its deterrent effect. But if the argument for killing murderers is to rest entirely on the econometrics, I will have to be colored skeptical.
The problem is not, I think, with some platonic form of capital punishment. I do believe that even those with a criminal or murderous bent respond to some incentives, and that even if many murderers are addled, ignorant and very short-sighted, there might be enough of an effect on the margin for some death penalty regimes to deter serious crimes.
But of course our death penalty regime isn’t that, and isn’t even close. As Steven Levitt pointed out when I took his Economics of Crime , the death penalty is 1, very rare, even for murders, and 2, very slow.
So even if we posit a rational Beckerian potential murderer who sits down and weighs the expected costs and benefits, it seems unlikely that our death penalty regime should have much place in his calculus. In a state with no death penalty and life-without-parole, he faces, if caught and convicted, being locked in a box for the rest of his natural life. In a state with the death penalty and current safeguards, he faces the likelihood, if caught and convicted, of being locked in a box for the rest of his natural life, and a very small probability of being locked in a box for many years, very probably dying of natural causes, but possibly eventually being prematurely killed by the state.
Posner briefly adverts to this problem in his post, but suggests two counterarguments:
First, that the usual estimates for how rare the death penalty is miss the fact that many murders aren’t eligible for the death penalty. He is responding to this argument by Steven Levitt and others, and his point seems fair, although he doesn’t provide his own data, so it is hard to know how far it goes.
(Rick Garnett) Some of us — particularly Dan Markel — have thought and written about mercy, forgiveness, retribution, and punishment theory. All of these topics seem especially timely, given that, a week ago today, Charles Carl Roberts took 10 young girls hostage, tied them up, shot them, and then killed himself. Five of the girls — all of whom were Amish — were killed.
Although the news-beast has been largely content with its Foley-scandal diet, there have been a number of editorials, stories, and blog posts on the religious beliefs of the Amish (for example, here, here, here, and here), and on how they are helping members of the girls’ communities not only to cope with the horror of the girls’ murders, but also to forgive their murderer. CNN, for example, reported:
A grieving grandfather told young relatives not to hate the gunman who killed five girls in an Amish schoolhouse massacre, a pastor said on Wednesday.
“As we were standing next to the body of this 13-year-old girl, the grandfather was tutoring the young boys, he was making a point, just saying to the family, ‘We must not think evil of this man,’ ” the Rev. Robert Schenck told CNN.
“It was one of the most touching things I have seen in 25 years of Christian ministry.”
At the same time, it is worth asking whether, however inspiring or “touching” we find the example of the Amish, we do or should want to emulate them in this case.
Rod Dreher, of the Dallas Morning News and the “Crunchy Cons” blog, had this column on Friday:
Is there any place on earth that more bespeaks peace, restfulness and sanctuary from the demons of modern life than a one-room Amish schoolhouse? That fact is no doubt why so many of us felt so defiled – there is no more precise word – by news of the mass murders that took place there this week. If you’re not safe in an Amish schoolhouse … And yet, as unspeakable as those killings were, they were not the most shocking news to come out of Lancaster County this week.
No, that would be the revelation that the Amish community, which buried five of its little girls this week, is collecting money to help the widow and children of Charles Carl Roberts IV, the man who executed their own children before taking his own life. A serene Amish midwife told NBC News on Tuesday that this is normal for them. It’s what Jesus would have them do. . . .
I don’t know about you, but that kind of faith is beyond comprehension. . . .
No matter how serious your accusations, a Detroit criminal lawyer should be able to make sure your rights are upheld, rather than trampled on, and that your trial proceeds as the law and the Constitution dictates.
(Dan Markel) Earlier posts on the topic of Retributive Damages can be found here. The whole article can be found here.
Recent Normative Scholarship
Unsurprisingly, the complexity, significance, and rapidly evolving nature of punitive damages law has attracted the attention of many scholars. Some legal economists, like Professors Polinsky and Shavell, think extra-compensatory damages should focus on advancing the goal of cost-internalization. As I explained earlier, under this economic framework, a defendant’s culpability or state of mind is immaterial to her obligation to pay for the harms that she causes. Instead, what matters is whether there was any likelihood the defendant would evade paying compensation for the harms she caused. If there is such a possibility, then the amount of punitive damages should be calibrated to the likelihood of her evading compensation. This particular economic approach, however, is clearly at odds with the existing doctrine, which, as we saw in the previous Section, generally requires there to be some finding of malice or recklessness before punitive damages can be awarded.
As a matter of policy prescription, the economic approach’s inconsistency with extant doctrine is obviously not a knock against it. Generally speaking, individuals and entities should have to pay for the mess they make; if they can exploit enforcement gaps by private and public parties, there will be an incentive to take insufficient care, which will also run the risk of under-deterrence. But the cost-internalization approach, which is conceptually unconcerned with mens rea or culpability, is better thought of as pursuing “augmented” damages, rather than “punitive” damages. This allows us to contrast augmented damages from other extra-compensatory damages.
Other scholars have provided an alternative to the cost-internalization rationale for punitive damages by instead discussing punitive damages awards in terms of how they vindicate a victim’s dignity and autonomy interests, which have been injured by the defendant’s misconduct. In some common law jurisdictions, these extra-compensatory damages are more precisely labeled as “aggravated” damages—and they would go to plaintiffs for the injury to their dignity. Some supporters of these non-economic accounts have defended large parts of extant common law punitive damages law on the grounds that these practices serve as vehicles by which victims or their allies can take measures to persuade juries to avenge the victim’s interests through ad hoc, and therefore unpredictable, awards of money damages to victims. Indeed, for some social justice tort theorists, common law jury-driven punitive damages practice serves as a way for an ordinary person to fight malfeasant entities and their lobbyists seeking business-friendly “tort reform.” Some scholars, such as Galanter and Luban, drawing on the work of Jean Hampton’s victim-vindication justification for punishment, even view themselves as committed to the goals or values of retributive justice.
(Susan Kuo) If you injure someone in self-defense, do you then have a duty to aid him? A student asked me this, which got me thinking … if I were to get the jump on Jason Voorhees before he was able to cleave me in half with his ax, leaving him mortally wounded (but not irretrievably so), would I need to call the doctor, quick, quick, quick? Instinct says, no, let the psychopath bleed out. Logic, however, says that I might need to hit ‘911’ on the dial pad. I would, after all, have had a hand in creating the peril that has befallen him. Even if he was the aggressor and I was justified in my use of force to save my own skin, this very same force has now put him in harm’s way. I went a-hunting and found that at least one court has ventured down this path. The Montana Supreme Court, in Montana v. Kuntz, 995 P.2d 951 (Mt. 2000), held that, while folks who put other folks in peril need not risk bodily injury or death to help the imperiled, imperilers do have a legal duty to help or summon help. A failure to so aid, if it causes the aggressor’s death, is criminal. In the Montana case, Ms. Kuntz apparently stabbed her significant other in the chest in self-defense. She did not call for medical help, and her boyfriend died.
(Susan Kuo) I’ve been reading up about courtesy summonses — a topic of interest among some lawyers in my state. In South Carolina, “a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons.” (If you want to take a gander at it, it’s here on page 4, Section 22-5-110, and here, Section 22-5-115.) A courtesy summons is issued by a magistrate or municipal judge in lieu of an arrest warrant and is based on an affidavit sworn out by a person who is not an investigating law enforcement officer. The affidavit must establish probable cause to believe that the recipient of the summons committed the misdemeanor. These summonses enlighten He-Who-Is-Summoned about the charges, but cannot be used to execute an arrest. He-Who-Shall-Not -Be-Arrested may then be tried. If convicted, he will be arrested and booked. If he is found not guilty, he sidesteps the arrest and booking process and heads on home.
From what I can tell, a courtesy summons is a nice way to tell someone that he has wronged you in a non-felonious, albeit criminal, way. Southerners are, if nothing else, very polite.
(Michael Cahill) Now a chance to trumpet other people’s work. Following up on my previous post, I want to point out that the “consequentialist retributivist” position I present there is not solely my own (though I do think my article provides an especially direct and thorough elaboration of it). Others have also advanced such a view, or strongly hinted at it, or at least have shared its critique of the competing retribution-as-deontological-duty view. For example, in this article (written at the same time as, and independently of mine), Mitch Berman expresses what I take to be a similar position in the end, though in a very different way and with different emphasis. Mark White confronts the same problem (how do we pursue retribution in a world of scarce resources?) in this piece, though his analysis and conclusions differ somewhat. (Interestingly enough, White’s piece was also written around the same time, and independently of mine.) Doug Husak points out the need to balance retribution with other goals in this short piece (scroll down to page 991 of the volume). Last but certainly not least, noted Prawf Dan Markel presents a similar view on pages 2193-94 and 2212-13 of this article, among several other places.
Now my question: does anybody disagree?
First of all, it seems quite interesting to me that other several people were pursuing similar questions, and reaching compatible answers, at the same time I was. (I’m glad I didn’t write a different article before getting to this one.)
More generally, though, I wonder if the retribution-as-duty view, long associated with retributivist thinking, still has any committed adherents. As my article discusses, even Michael Moore (as serious and sophisticated a retributivist as anyone) seems to have retreated from that view in his recent writing. I’ve also heard from criminal-law theorist Kim Ferzan about an informal conversation she had with some other retributivists, including, I think, Moore and Berman, and others I can’t recall. The generally shared view seemed to be that while “negative” retributivism (avoiding punishment of the innocent) might be a duty, “positive” retribution (punishing the guilty) should probably be seen as something like a good.
(Jonathan Simon) In his NYT column yesterday declaring the era of conservative dominance begun by Ronald Reagan to be over, Bill Kristol offered the following eulogy for that era:
“Conservatives have been right more often than not — and more often than liberals — about most of the important issues of the day: about Communism and jihadism, crime and welfare, education and the family. Conservative policies have on the whole worked — insofar as any set of policies can be said to “work” in the real world. Conservatives of the Reagan-Bush-Gingrich-Bush years have a fair amount to be proud of.”
I’m not sure exactly what Kristol means by being right about “crime” but if he is invoking the claim made by conservative politicians starting with Wallace, Nixon, and Reagan in ’68, that liberals were dangerously out of touch with voters concerns about crime I wish to dissent. This claim is and was unfair to both liberal and conservatives. Liberalism helped launch and sustain the war on crime, and conservatives do not deserve exclusive blame for the resulting hyper-extension of the worst kinds of “big government” carried out in its name.
The historical record shows that liberals saw early and with alarm that rising crime in the 1960s was a threat to their New Deal coalition based in the big metropolitan areas. LBJ declared war on crime and launched a full scale presidential commission to explore its causes and solutions. While he imagined the war to be a front in his war on poverty, he began the pattern of massive federal investment in state law enforcement that continued through the 1970s (ironically Reagan largely ended that flow, while investing in other strategies).
Without an experienced and proven Detroit Violent Crimes Lawyer who possesses the necessary knowledge and skills to negotiate the complex laws and statutes of your specific case, you will be at an extreme disadvantage and be subjected to a lengthy prison term or even worse.
The New York Times recently featured the stories of unauthorized immigrant mothers whose parental rights to their children have either been terminated or at risk of being terminated as a result of their incarceration in jail or detention centers. One mother, for instance, was apprehended two years during an immigration raid of her workplace and has since been serving time in prison for identity theft. While in jail, a couple petitioned to adopt her son (to which she did not give consent) and the court approved the petition several months later without her knowledge.
This news article highlights one of the troubling consequences of increased immigration law enforcement in the U.S. on immigrant families and the communities in which they reside. One part of the opinion is worth quoting. In terminating the woman’s parental rights, the judge stated that, “[h]er lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child.”
I was perturbed by this statement and chose to include it here because it points to an area that may be explored further: the intersections between family law, criminal law and immigration law. In recent years, a number of legal scholars have focused on exploring the relationship between family law and criminal law. Among them are Prawfsblawg’s Dan Markel and Ethan Lieb, who, along with Jennifer Collins, have authored a book and several articles addressing the role of family ties in the criminal justice system. Jeannie Suk has examined the concept of the home and family privacy as it relates to domestic violence enforcement and the operation of the Fourth Amendment, while Melissa Murrayhas considered the way in which criminal law and family law work cooperatively to structure the normative contours of intimate life.