Interesting Posner Opinion

Both Sentencing Law & Policy and Appellate Law & Practice have good posts about Judge Posner's opinion in U.S. v. Gladish. S. Cotus had this to say:

For many people that practice criminal law, the scenario is sort of normal.  Some guy gets on the internet and starts chatting with a cop.  Only the cop claims to be a thirteen-year-old girl....

He was charged with violating 18 U.S.C. § 2422(b), which "which, so far as bears on this case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense...."

So, here it is:  1) No sex; 2) no contact; 3) just words.  Posner, to his credit, takes a break from writing articles which explain why the executive should be able to detain random people (even partners at large law firms) without judicial review to write a quite coherent opinion about the law of the "substantial step...."

Posner explains that usually these stings involve the defendant going to meet the “girl” somewhere.  Those, he says, are okay, even though, “It is always possible that had the intended victim been a real girl the defendant would have gotten cold feet at the last minute and not completed the crime even though he was in position to do so. But there is a sufficient likelihood that he would have completed it to allow a jury to deem the visit to meet the pretend girl a substantial step toward completion, and so the visit is conduct enough to make him guilty of an attempt and not merely an intent.....”

Got it?  Playing games on the internet (where all parties are full of it), at least in the Seventh Circuit, is not a lie.  Just don’t make plane reservations.

From a teaching perspective, what is really nice is Posner's explanation of what "substantial step means." I've already added an edited version of the opinion to my syllabus for next semester.

Comments

[Daniel]

I actually found this to be a very troubling opinion, as I do most Posner opinions. I am not a fan of his and this opinion is a good reason way, even if I agree with the conclusion.

"But there is a sufficient *likelihood* that he would have completed it to allow a jury to deem the visit to meet the pretend girl a substantial step toward completion, and so the visit is conduct enough to make him guilty of an attempt and not merely an intent....."

I despise the metaphor of probabilistic thinking in the law. It is the tragedy of the modern law (for which I blame Holmes) that the expression "reasonable doubt" in statistical terms has become fetishized. This has been an excuse to use exchange the standard of the "reasonable man" from the "man on the street" to the "man of economics and statistics". This same blindness in Holmes work is extended by Posner. Because the man on the street, the man of ordinary experience, knows that there is a big difference between talking the talking, walking the walking, and actually going though with the deed. The notion that there is a substantial step between Internet chatting and a plane ticket but no substantial step between the plane ticket and the actual sexual act is so surreal as to communicate a fundamental unawareness as to how ordinary people live their lives. His attempt to distinguish the cases can only be described as disconnected from ordinary experience.