Criminal Law
Sentencing Organizations After Booker
In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.
Criminal Law Comes Home
116 Yale L.J. 2 (2006) Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misdemeanor domestic violence enforcement that are transforming the role of criminal law in the home beyond the criminal punishment of violence. An important legal tool in this transformation is the protection order, which bans a person from the home on pain of arrest and enables treatment of presence at home as a proxy for violence. Through prosecutors' routine deployment of protection orders in the criminal process at arraignment, plea bargaining, and sentencing, the home is becoming a space in which criminal law deliberately reorders and controls private rights and relationships in property and marriage--not as an incident of prosecution but as its goal. The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners (often when substantial jail time is not imposed) is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction. This displacement of the choice to live like intimate partners exemplifies the changing legal meaning of the home, wherein the archetype of private space becomes a site of intense public investment suitable for criminal law control. Read Professor Cheryl Hanna's Response, Because Breaking Up Is Hard To Do.
United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review
115 Yale L.J. 2183 (2006) This Comment argues that a proper understanding of Booker's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any colloquial sense of the term. Two possible conceptions of reasonableness review must be distinguished--"reasonable-length" review and "reasons-based" review--and the latter should be preferred. Reasons-based review focuses not on the terms imposed but on the reasons given for imposing them, insisting that those reasons comport with Congress's sentencing priorities. This paradigm, more so than the vague reasonableness standard, acknowledges congressional authority over sentencing rationales and preserves a central role for Congress's much-beloved Sentencing Guidelines going forward. At the same time, by seeing the Guidelines as providing reasons rather than outcome-oriented formulae, it avoids the rote view of the Guidelines that rendered them unconstitutional under Booker. It is thus not only the most appropriate view on the law, but also capable of reconciling Congress's obvious desire for rule-bound sentencing with the advisory role of the Guidelines as they now stand.
Can Attorneys and Clients Conspire?
114 Yale L.J. 1819 (2005) A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acting within the scope of representation cannot be counted as a conspirator for purposes of the plurality requirement. In other words, there can be no such thing as a conspiracy between an attorney and her client. This Comment argues that the Eleventh Circuit's limitation on attorney-client conspiracies is illegitimate as a matter of statutory interpretation and ill advised as a matter of policy. Part I sets out the facts of Farese. Part II argues that a categorical rule against attorney-client conspiracies is misguided. Part III concludes.
The Duty To Defend
114 Yale L.J. 1489 (2005) Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.
American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts
114 Yale L.J. 1185 (2005) On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole tens of millions of dollars from the Ukrainian people, which he then concealed in U.S. banks. For only the second time in history, a foreign head of government had been successfully prosecuted in the United States. Yet it was the first time that a former leader of a foreign country was convicted in a U.S. court in part for breaking his own country's laws. The U.S. offenses with which Lazarenko was charged criminalize transactions involving money obtained from an underlying illegal act. While these underlying criminal activities typically occur within the United States, Lazarenko stole property and committed extortion within Ukraine. Nevertheless, the district court instructed the jury that it could find him guilty of violating U.S. laws against money laundering, wire fraud, ITSP, and conspiracy if it found that his activities in Ukraine violated Ukrainian law. In effect, the U.S. government helped Ukraine enforce its own laws where Ukrainian courts had failed. Although Lazarenko's corruption was well known in Ukraine, at the time his own country's courts and prosecutors lacked the independence to convict such a powerful political figure. The story is familiar across the developing world: Good laws on the books are not enforced, corruption and lawlessness deepen, and consequently public disillusionment with the promise of democratic reforms grows. Although U.S. prosecutors claimed no such foreign policy designs, this Comment argues that Lazarenko suggests a potentially powerful new tool to promote the rule of law abroad: U.S. prosecutors indirectly punishing violations of foreign laws in U.S. courts by using such violations to prove elements of U.S. crimes. Helping countries in transition enforce their own laws and eliminate corruption at home until their own legal systems become stronger is a heretofore unrecognized collateral benefit of such prosecutions. In considering whether to prosecute foreign officials in the future, the U.S. government should take into account this goal of promoting democracy.
The Inadequacy of Fiscal Constraints as a Substitute for Proportionality Review
114 Yale L.J. 1177 (2005) The Constitution does not prohibit "everything that is intensely undesirable." In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. Yet Scalia seems to offer some consolation to those who worry about the "intensely undesirable" prospect of disproportionate punishments: He implies that the cost of incarceration acts as a check on the length of prison terms, a check loosely standing in for proportionality review. Thus, Scalia tenders an economic rationale for his contested interpretation of the Eighth Amendment. Unfortunately, his rationale is faulty. Fourteen years after Harmelin v. Michigan, Scalia's allusion to the costs of incarceration seems prescient: Grappling with budget deficits, state legislators across the country have indeed attempted to save money by curtailing the growth of their prison populations. However, this wave of legislation does not support Scalia's further suggestion that the costs of imprisonment should allay concern about disproportionate sentences. This Comment examines one typical response to rising prison costs, Connecticut's Act Concerning Prison Overcrowding. The Act trimmed small amounts of time served for a large number of incarcerated people, without altering the statutory penalty for any particular crime. Such laws are common because they quickly reduce corrections costs without making legislators appear "soft on crime." But, written to control the aggregate time served in states' prisons, they neither purport to address nor in effect do significantly alter the proportionality of individual sentences. Thus, although Scalia correctly posited the existence of fiscal limits to incarceration, he erred in asserting that fiscal considerations might obviate the need for proportionality review. This Comment does not attempt to resolve the debate among legal historians about the existence of a proportionality principle in the Cruel and Unusual Punishments Clause. But it does refute the hypothetical rationalization Scalia offers to support his interpretation of the Founders' intent over that of the dissenters. Part I sets forth the relevant portion of Scalia's argument in Harmelin. Part II discusses the Connecticut Act, a representative example of states' attempts to reduce prison costs. Part III debunks Scalia's reasoning in Harmelin and concludes that fiscal checks are not a substitute for proportionality review.
Integrating Remorse and Apology into Criminal Procedure
114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities. This narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology are poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology serve only as valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community. Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.
Dual Sovereignty and the Sixth Amendment Right to Counsel
113 Yale L.J. 1991 (2004) United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002). In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charged offenses. Prior to Cobb, lower courts had created an exception to this rule, holding that the right to counsel also attached to any additional uncharged crimes that were "factually related" to a specific charged offense. But Cobb rejected this exception and held that "offense" in the right-to-counsel context is synonymous with "offense" in the double jeopardy context. For double jeopardy purposes, a single criminal act that violates both state and federal law constitutes two separate offenses, because it violates the laws of two separate sovereigns. Thus, read literally, Cobb implies that the right to counsel can attach to a charged offense against one sovereign, but not to the same (uncharged) offense against a different sovereign.
What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo
113 Yale L.J. 1955 (2004) Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial judges have to tailor criminal sentences as they see fit. The war began nearly two decades ago with the passage of the Sentencing Reform Act (SRA) of 1984 and the subsequent enactment in 1987 of the comprehensive Sentencing Guidelines regime. It flared up anew in April 2003, with the passage of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today (PROTECT) Act of 2003, Congress's latest attempt to rein in the discretion of sentencing judges. Before the PROTECT Act, a district court's decision to choose a sentence that departed from the range recommended by the Sentencing Guidelines was to be given considerable deference by courts of appeals. In accordance with the Supreme Court's 1996 decision in Koon v. United States, appellate courts had been directed to review Guideline departures for "abuse of discretion." But the PROTECT Act's "Feeney Amendment," named after its author, Florida Representative Tom Feeney, changed the standard of review to "de novo," and seemingly invited appellate courts to regularly second-guess the sentences imposed by district judges. The Amendment, which was approved after just fifteen minutes of debate on the floor of the House of Representatives, quickly earned the condemnation of nearly the entire legal community. Until Thurston, however, courts of appeals around the country had danced around the new standard of review, asserting in case after case that their decisions would be the same using either de novo or abuse-of-discretion review. The First Circuit, which in the past had often led other courts of appeals when it came to sentencing decisions, tackled the new law head-on in Thurston.