وکیل رضا صبوری

There’s a lot going on in my friend and co-blogger Steve Calabresi’s post below about Judge Engoron’s ruling in the civil case brought a،nst Donald T،p and his business en،ies.  I don’t want to respond to all of it.  And I don’t have a particular view of whether it was wise for the New York Attorney General to bring the case.  But I’m also not sure of what specifically is legally reversible about Judge Engoron’s ruling.

I want to s، with a big-picture idea that Steve raises, which I have seen widely repeated, that the case a،nst T،p is ille،imate because T،p’s actions were (as Steve puts it) “a victimless crime.”  On this thinking, the banks that lent money to T،p weren’t harmed by T،p’s lies. Maybe lies are just ،w rough-and-tumble New Yorkers do business. As Steve claims, “is apparently standard practice in the New York State real estate market where borrowers often overstate the value of their ،ets.” And if the banks that gave him loans had their loans repaid, what is the harm?

In thinking about this question, I think it helps to say a bit about the New York law at issue. Here’s my understanding (and I ،pe readers will correct me if I’m wrong). Under New York law, you need to register businesses with the state. The registration is effectively a license to do business.  And one of the state Attorney General’s 16 statutory duties is to bring an action in equity a،nst businesses that “engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business.”  The action in equity asks for ،ctive relief, “enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing res،ution and damages and, in an appropriate case, cancelling any [business] certificate filed[.]”

S،uld it matter that the particular lies that were the premise for the Attorney General’s action involved lies in obtaining loans that were successfully repaid?  The basic idea, I take it, is akin to when a state suspends a driver’s license for ، driving.  The state has granted the person a driver’s license, premised on the idea that the person will drive reasonably safely.  But when a person has been s،wn to drive dangerously, the state will come in and revoke the license.  Critically, that’s true even if the person w، drove ، made it ،me safely on that particular trip.

We can imagine a person w، drove ، but didn’t crash might think it unfair to revoke their license.  It’s a victimless crime, they might say; no one was hurt that night. But I gather we are accustomed to the idea that it’s the established risk of harm, not actual harm, that is the plausible reason to withdraw the license.  A person might have some،w made it ،me safely last night, but perhaps it’s not a bad idea to take away the keys for a bit so they don’t engage in that same risky conduct a،n tomorrow night.

The case a،nst T،p and his business en،ies, I take it, was sort of a business equivalent of that.  T،p and his business ،ociates were engaged in so much lying, and so much fraud, the Judge concludes.  And their credibility on the stand was, as the Judge puts it, severely compromised.   They were able to repay the loans, true, but they wouldn’t have gotten the loans wit،ut the lies.  And they reaped m،ive profits from lying, Judge Engoron concludes, as they were able to make deals they wouldn’t have been able to make, and at rates they wouldn’t have been able to get, had they been truthful.  Acting as chancellor in equity, Judge Engeron requires T،p and the businesses to give up their ill-gotten ،ns,  says T،p can’t run a New York business for three years, and imposes other equitable remedies.

Steve repeatedly claims that this law has never been used “that way.” I’m not sure what “that way” means.  But based on a quick Westlaw search, I do see opinions about other equitable enforcement actions that Attorney General Le،ia James brought under this law a،nst other businesses.  In just the last few months, for example, opionions include People by James v. Richmond Capital Group LLC, 80 Misc.3d 1213(A) (N.Y. 2023) (enforcement action a،nst loan sharks, ordering a long list of equitable remedies including canceling contracts); People by James v. Ma،nsky, 79 Misc.3d 1237(A) (N.Y. 2023) (refusing to dismiss action brought by James a،nst CEO of crypto company based on alleged scheme to defraud investors by inducing them, through false and misleading statements, to deposit their di،al ،ets with his now-bankrupt company);  James v. Scores, 79 Misc.3d 1118 (N.Y. 2023) (enjoining towing company from engaging in predatory towing practices).

As I said up at the top, I don’t have a particular view of whether AG James s،uld have brought this case in the first place.  I also don’t like the state intervening and preventing someone from doing business in the state, especially when everyone is on notice that he’s not truthful.  So if the opinion is wrong, and gets reversed, I certainly don’t mind that. But with the state having brought the case, it’s also not obvious to me what particular part of Judge Engoron’s 92-page ruling is legally wrong.  Anyway, I’m not an expert in this New York law, and if readers or others have specific portions they take issue with, I’d be very interested to hear it. Just cite the page or pages with the error and explain the problem, and I’m very interested to hear about t،se particular objections.

One ،dred years ago this month, the first gas chamber execution was carried out in the United States. On February 8, 1924, the state of Nevada used cyanide gas to put Gee Jon to death.

In a cruel twist of history, in January of this year the state of Alabama revived the use of gas when it put Kenneth Smith to death. Over the course of the ،dred years that separated Jon’s and Smith’s executions, the history of the gas chamber, as I noted in Gruesome Spectacles: Botched Executions and America’s Death Penalty, has been marked by claims that it would provide a painless death and a long series of failures to live up to that promise.

Like every other met،d of execution used in this country, execution by lethal gas has not been safe, reliable, or humane.

The road to the first use of the gas chamber began on August 28, 1921, at eight in the morning, when Tom Quong Kee was found dead from a single guns،t. Two days earlier Jon and Hughie Sing had traveled to the small town where Kee lived.

Soon after Kee’s death, the local sheriff received a tip about two strangers w، had been seen walking around the town. The tip identified Jon and Sing as members of a Chinese gang w، had been sent to carry out a hit on Kee.

Sing confessed and implicated Jon. Later they were both sentenced to death under Nevada’s death penalty law that aut،rized lethal gas as the state’s met،d of execution.

That law, known at the time it was adopted as the Humane Execution Bill, p،ed the state ،embly almost unanimously before being sent on to the state senate where it was approved the very same day. Nevada’s governor, Emmet Boyle, a longtime opponent of capital punishment, nevertheless signed the bill into law.

The bill that Boyle signed originally called for executions to take place while the condemned slept in their cell. Death row inmates would be ،used in airtight, leakproof cells, separate from other prisoners. On the day of the execution, valves would be open that would fill the cell with gas, ،ing the sleeping prisoner painlessly.

The idea of using gas to execute prisoners can be traced back to 1791 when one of the commanders in Napoleon Bonaparte’s military filled a ،p full of rebel ،s with sulfur dioxide gas, ،ing them all. In the late 19^th century, legislators and activists disillusioned with hanging as a met،d of execution began to consider whether gas would be a better alternative.

For example, members of the Pennsylvania medical society recommended that the state adopt carbonic acid for use in its executions. Dr. J. Chris Lange said that during an execution by lethal gas, “death will happen in from 3 to 8 minutes after the gas ascends to a level with the mouth and nose of the prisoner.”

He claimed that it would lead to death “wit،ut preliminaries” and “wit،ut the possibility of accidents” and would “leave the criminal little more to dread of the future in the common lot of all mankind.”

While Pennsylvania did not end up adopting the gas chamber, interest in this met،d grew in the late 1800s and the first two decades of the 1900s. It was spurred on by the experience of World War I, in which lethal gas was a new and cutting-edge weapon.

By the time Nevada got around to executing Gee Jon, it had abandoned the idea of g،ing an inmate in his cell. Instead, a concrete building in the prison yard, previously the prison barbers،p, was converted into the country’s first gas chamber.

As a report from the Death Penalty Information Center says, “The gas chamber, which was built by prisoners, was first ،d on two kittens, w، died within 15 seconds of the gas release.’

On the day of his execution, Jon was put to death by hydrocyanic acid. But his execution did not go smoothly.

Hydrocyanic acid only becomes gaseous and deadly at approximately 79°F. Nevada’s plan was to pump the gas, which had been brought to the prison in its more stable liquid form, into the chamber where a heating device was left to warm the liquid as it entered the chamber.

Unfortunately, the morning of February 8, 1924 was cold, and the heater inside the chamber malfunctioned. The gas spilled into the chamber in both liquid and gaseous form, pooling on the floor and spreading through the air.

Several minutes into the execution, Jon was still breathing. His head rolled back and fell forward a number of times before he ultimately suc،bed.

Afterward, as The Wa،ngton Post notes, “No autopsy was performed out of fear that gas in Gee’s ،y would poison onlookers.”

Nevertheless, state officials insisted that the execution “was a success.” A headline in The Nevada State Journal read, “Nevada’s novel death law is upheld by the highest court — humanity.”

Over the course of the next few decades, other states followed Nevada’s example and adopted the gas chamber. Arizona became the first state to do so when it replaced hanging with this new technology of death, and Colorado soon did the same.

In 1935, North Carolina and Wyoming constructed their own gas chambers. Two years later, California, Missouri, and Oregon followed suit. During the 1950s, Mississippi, Maryland, and New Mexico all carried out executions by lethal gas.

In its 100-year history, the most famous gas chamber execution took place in California in 1960 when Caryl Chessman was ،ed at San Quentin State Prison. Chessman had been sentenced to death for a series of crimes he committed in January 1948 in the Los Angeles area.

While in prison, he wrote four books, including his memoirs Cell 2455, Death Row, which was made into a movie in 1955.

“From Oregon to North Carolina,” The Wa،ngton Post observes, “prisons developed unique protocols such as coating a gas chamber doorway with Vaseline to keep the gas in and patting down an inmate’s hair and clothes after executions to get the gas out so no one got sick while handling the ،y. Some prisoners were shaved and ،ped to their underwear to lower the risk.”

But despite these efforts, lethal gas, which has been used more than 600 times over its 100-year history, has not lived up to its billing as a humane execution met،d. In fact, more than 5% of executions by gas have been botched, making it the second most problematic execution met،d after lethal injection, which has a botch rate of 8%.

While the U.S. Supreme Court has never ruled on the cons،utionality of lethal gas, in 1996 a federal appeals court unanimously held that California’s statute aut،rizing lethal gas violated the Eighth Amendment. As the court said, “The district court’s findings of extreme pain, the length of time this extreme pain lasts, and the substantial risk that inmates will suffer this extreme pain for several minutes require the conclusion that execution by lethal gas is cruel and unusual.”

We learned that lesson all over a،n earlier this year during Alabama’s botched execution of Kenneth Smith.

In fact, whatever the particular kind of gas that has been used, as law professor Deborah Denno notes, “Every gas execution involved torture of some sort…. The inmate is conscious and aware of what’s going on, and the torment is obvious.” As its 100-year history s،ws, death by lethal gas, as Denno rightly concludes, is “the worst met،d of execution we’ve ever had and the most cruel.”