The Life of Crimmigration Law

This short essay introduces a collection of articles that arose from the Denver University Law Review’s symposium Crimmigration: Crossing the Border Between Criminal Law and Immigration Law, held in February 2015 at the University of Denver Sturm College of Law. The essay borrows heavily from the Epilogue to my book Crimmigration Law.

Public Lawyers and Marijuana Regulation

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution but also the more immediate risk of professional discipline. Elsewhere, we wrote about the difficult place in which lawyers find themselves when representing marijuana clients. We argued that while both the criminal law and the rules of professional conduct rightly require legal obedience from lawyers, other countervailing factors must be considered when evaluating lawyers’ representation of marijuana clients. In particular, we asserted that considerations of equity and access to justice weigh dispositively in favor of protecting lawyers who endeavor to help their clients comply with state marijuana laws, and we suggested means of interpreting relevant criminal law provisions and rules of professional conduct to achieve this result. This article builds on that analysis, taking on the particular issue of the public lawyer’s’ role in marijuana regulation. For government lawyers, the key issues in exercising discretion in the context of marijuana are not clients’ access to the law and equality but rather determining the clients’ wishes and serving them diligently and ethically. Lawyers representing state agencies, legislatures and the executive branch of government draft and interpret the rules and regulations regarding marijuana. Lawyers for federal, state and local governments then interpret those rules to determine the obligations and responsibilities of those they represent and to help their clients meet those obligations and carry out their required tasks. Both state and federal prosecutors are charged with determining what conduct remains illegal under the new rules and, perhaps more importantly, with exercising discretion regarding whom to prosecute and to what extent. Marijuana regulation is not a niche area of government regulation; it will influence the practice of virtually every public lawyer in the years to come. Public lawyers must understand the changes in marijuana law and the implications for government clients. Given the pervasiveness of the modern regulatory state, the situation is no easier — and, in many ways, it is more complicated — for public lawyers than it is for private ones. Public lawyers face myriad practice challenges with respect to marijuana law reform, and while we do not purport to identify and resolve all of the issues that are sure to arise in this short paper, we hope that the article helps alert public lawyers to some of the risks involved in participating in marijuana regulation so that they can think carefully about their obligations when these issues arise.

Remember Not to Forget Furman: A Response to Professor Smith

Professor Robert J. Smith encourages readers, lawyers, and courts to forget Furman v. Georgia and to focus instead on death penalty challenges grounded in the diminished culpability of nearly all capital defendants. We applaud Professor Smith’s call to focus on the mental and emotional characteristics that reduce the blameworthiness of so many of those charged with capital crimes; recognizing diminished culpability as the rule rather than the exception among capital defendants conveys a reality that rarely finds its way into reported cases. We are troubled, however, by Professor Smith’s call to “forget Furman.” We believe the title and the article’s efforts to undermine Furman-based challenges disserve Professor Smith’s principal goal — addressing the United States’ broken death penalty system.

The Battle of the Bulge: The Surprising Last Stand Against State Marijuana Legalization

Although marijuana possession remains a federal crime, twenty-three states now allow use of marijuana for medical purposes and four states have adopted tax-and-regulate policies permitting use and possession by those twenty-one and over. In this article, I examine recent developments regarding marijuana regulation. I show that the Obama administration, after initially sending mixed signals, has taken several steps indicating an increasingly accepting position toward marijuana law reform in states; however the current situation regarding the dual legal status of marijuana is at best an unstable equilibrium. I also focus on what might be deemed the last stand of marijuana-legalization opponents, in the form of lawsuits filed by several states, sheriffs, and private plaintiffs challenging marijuana reform in Colorado (and by extension elsewhere). This analysis offers insights for federalism scholars regarding the speed with which marijuana law reform has occurred, the positions taken by various state and federal actors, and possible collaborative federalism solutions to the current state-federal standoff.

Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client)

Three usually unexpressed, and too often unnoticed, conceptual dichotomies underlie our perception and understanding of lawyers’ ethics. First, the existence of a special body of professional ethics and professional regulation presupposes some special need or risk. Criminal and civil law are apparently insufficient. Ordinary day-to-day morality and ordinary ethics, likewise, are not considered to be enough. What is the risk entailed by the notion of a profession that is special; who needs protection, and from what? Two quite different possible answers to this question provide the first of the three dichotomies examined in this article: one can understand the risk as primarily to a vulnerable client from a powerful professional; or, to the contrary, from a powerful client-lawyer combination toward vulnerable others. Second, what is the foundational orientation of lawyers? Are lawyers serving primarily their particular clients, and those clients’ preferences, choices and autonomy? Or is the primary allegiance of lawyers to some community or collective goal or interest distinct from the particular goals or interests of the client? The third dichotomy concerns not the substance of therisk, or the primary orientation, but the appropriate means of responding to that risk or that fundamental obligation. Should professional ethics be implemented primarily through rules? Or, should we rely on character and the discretion of lawyers to make a thought out, all things considered, decision? Each of these three presents a fundamental difference in how we perceive and address issues of lawyers’ ethics. Each affects our understanding and analysis on multiple levels, from (1) determining the appropriate or requisite conduct in aparticular situation, to (2) framing a specific rule or approach for a particular category of situations, to (3) more general or abstract theory or policy. A person’s inclinations in regard to the dichotomies affects the conclusions that person will reach on each of those levels of analysis, yet those inclinations and assumptions are frequently unexamined and unarticulated. One’s position on each of the dichotomies tends to structure the approach and outcome without the issues and choice having been explicitly addressed or possibly even noticed. This article is an effort to ameliorate that problem. Part I addresses the question of what is the risk in the work of lawyers, or the function of lawyers, for which professional ethics is the answer. The concluding section focuses on the particular problem of the corporation as client. Part II then asks the related and possibly consequent question of what is the foundational orientation or allegiance of the lawyer? Is it to the individual client? Or is it to some larger community interest? Again, the concluding section focuses on thecorporation. Part III turns to the means or method for addressing the obligations and possible problems of the professional ethics of lawyers. Should lawyers’ ethics guide and confine the conduct of lawyers primarily through rules? Or should it function primarily through reliance on the knowledge, judgment and character of lawyers? If the latter were the guide, ethical decisions would be made on a situation by situation basis under the discretion of each lawyer. Toward the end of each discussion possibilities for bridging the dichotomy are considered (and with such bridges each dichotomy may come to look more like a spectrum or continuum.). At several points after its introduction in Parts I and II, the special problem of the corporation as client is revisited and possible solutions suggested. Illustrating the usefulness of keeping the dichotomies in view, Part IV applies them to several exemplary situations of ethical difficulty in actual lawyer practice. For readers finding it difficult to envision the consequences of these distinctions, turning ahead to Part IV may be useful in making the discussion more concrete. Some commonalities across the dichotomies and connections among them are then developed in the concluding section, Part V.

Naturalizing Immigration Imprisonment

Only recently has imprisonment become a central feature of both t across every level of government and involving civil and criminal law enforcement tools. Examining the population as a whole provides crucial insights as to how we arrived at this state of mass immigration imprisonment. While political motivations — parallel to those that fueled the rapid expansion of criminal mass incarceration — may have started the trend, this Article demonstrates that key legal and policy choices explain how imprisonment has become an entrenched feature of immigration law enforcement. In fact, legislators and immigration officials have locked themselves into this choice, as there are now literally billions of dollars, tens of thousands of prison beds, and innumerable third parties invested in maintaining and expanding the use of immigration imprisonment. Using the literature on path dependence and legal legitimacy, this Article explains the phenomenon of immigration imprisonment as a single category that spans all levels of government. Rather than continue further along this path, the Article concludes by suggesting that policymakers should seek a future reflective of immigration law enforcement’s past when imprisonment was the exception rather than the norm.

Immigration Law by Proxy: The Case of Colorado’s Human Smuggling Crime

Despite the federal government’s well known expansive reach in creating and enforcing immigration law, the states retain substantial authority to play an important role in migrants’ lives. Through their traditional powers to adopt criminal statutes and police their communities, states can indirectly — but intentionally — inject themselves into the incidents of ordinary life as a migrant. Colorado’s human smuggling statute, currently being challenged before the state supreme court, illustrates this type of state regulation of migration. This essay addresses the statute’s reach, its shaky constitutional footing, and places it in a broader context in which states criminalize immigration-related activity.

Causation and Harm in a Multicomponent World

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the "causal nexus" requirement. This requirement had emerged as a response to patent litigations involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm must be specifically attributable to the infringing feature. In Apple IV, the Federal Circuit noted that proving causation was "nearly impossible" in these multicomponent cases. So it decided to water down the causal nexus requirement saying that it was enough for Apple to show that the infringing features were "important"and customer sought these particular features. This lower standard is an ill-advised mistake that leaves multicomponent product manufacturers more susceptible to patent holdup. My critique takes two parts. First, I argue that a single infringing feature rarely, if ever, "causes" consumers to buy the infringer’s multicomponent products. The minor features at issue in Apple IV illustrate this point vividly. Thus, the new causal nexus standard does not accurately reflect how causation and harm operate in a multicomponent world. Second, I explain why the court was so willing to accept such little evidence of real injury. It improperly applied notions of traditional property law to patents. Specifically, the court viewed patent infringement as harmful regardless of any concrete consequences. This view may resonate for other forms of property where an owner's rights are paramount and a trespass is considered offensive in and of itself. But the same concepts do not apply to patent law where the Supreme Court has consistently said that private interests must take a back seat to the public good. Based on these principles, the courts should restore the "causal nexus" requirement and not presume causation.