Criminal Procedure
Deference Spillover: The End of Witherspoon in Capital Appeals
Witherspoon v. Illinois bars the state from disqualifying jurors solely for opposing the death penalty. That holding remains good law. But practice, Witherspoon is a mirage in capital appeals. This Comment explains why—tracing Witherspoon’s demise to the “spillover” of a deferential habeas standard of review into direct appeals.
Piety Police
This Note uncovers the history of how the Brigham Young University Police Department blurred the boundaries between criminal law and church doctrine. These practices included sting operations that used students as undercover agents to target morals offenses. Such tactics illustrate the risks of religiously affiliated policing as it spreads nationwide.
To Be Given to God: Contemporary Civil Forfeiture as a Taking
Civil asset forfeiture was once a law-enforcement tool. Today, however, police and prosecutors use forfeiture to fundraise, not to fight crime. This Note challenges the constitutionality of these profit-motivated government confiscations. It argues that these “contemporary civil forfeitures” are not forfeitures at all—they are compensable takings.
The Eyes-On Doctrine
Across the germinal period of American constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: the judicial power includes supervisory authority over prison government and conditions of confinement. This Note argues for a witting revival of that commonsense regime.
Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge
In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Monitoring requirements.
The Fourth Amendment and General Law
This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s underlying values better than competing theories.
Excessive Sentencing Reviews: Eighth Amendment Substance and Procedure
Using Louisiana law as a case study, this Essay describes the consequences of the lack of substantive limits on noncapital sentences. It then critiques the focus on procedural rights that results from this vacuum of substantive rights, and discusses how to harness procedural changes to address excessive sentences.
Equalizing Access to Evidence: Criminal Defendants and the Stored Communications Act
The Stored Communications Act poses an increasing threat to criminal defendants’ ability to access evidence. This Note analyzes pathways criminal defendants can pursue to access evidence within the current statutory framework and argues that the statute is unconstitutional as applied to cases where such pathways to exculpatory evidence are blocked.
Fruit of the Racist Tree: A Super-Exclusionary Rule for Racist Policing Under California’s Racial Justice Act
What would it take for a state to eliminate racial bias in policing? This Comment explores one intervention set forth in California’s new Racial Justice Act: a guarantee of charging or sentencing relief for anyone subjected to police racism during arrest or investigation.
The Ostensible (and, at Times, Actual) Virtue of Deference
Rethinking Police Expertise reveals how litigators can use police officers’ assertions of expertise against them. This Response questions the value, however, of urging judges to treat police expertise as a “professional technology” as opposed to a “professional virtue.” Insisting on this conceptual distinction may weaken the article’s considerable normative potential.
Probable Cause Pluralism
According to the Supreme Court, the most important phrase in the Fourth Amendment, “probable cause,” is not possible to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement, while avoiding the perils of doctrinal rigidity.
The Power of Police Officers to Give “Lawful Orders”
Forty-four states, the District of Columbia, and the federal government criminalize disobeying the “lawful orders” of police officers. But it is uncertain which orders are lawful. This Comment proposes a model statute that would clarify and limit police authority while informing civilians about the legal risks of disobedience.
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”
Timbs v. Indiana reaffirms the Constitution's role in determining the bounds of licit punishment. This Essay weaves together doctrines that are often siloed but answer the same question: what can't governments do as punishment? I argue that the law has begun to build the principle that governments not set out to cause debilitation when they punish.
A Proposal to Stop Tinkering with the Machinery of Debt
In the wake of the Supreme Court’s 2019 decision in Timbs v. Indiana, which applied the Excessive Fines Clause to the States, this Essay argues that defendants are better protected by replacing the clause’s “gross disproportionality” standard with the more rigorous proportionality guarantee of the Excessive Bail Clause.
Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs
This Essay sketches the outlines of a forfeitures jurisprudence under the Eighth Amendment’s Excessive Fines Clause in which the effect of property deprivations on individuals and their families—in particular, the infliction of financial hardship—is a core criterion in assessing a forfeiture’s severity.
Bias In, Bias Out
The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment in our criminal justice system.
Jury Selection as Election: A New Framework for Peremptory Strikes
The ability of peremptory strikes to contribute to impartial juries has long been debated. This Note argues that both defenders and critics have overlooked an important value served by peremptory strikes beyond impartiality: democratic legitimacy. Just as elections help legitimate the state’s coercive power, jury selections help legitimate the trial’s coercive power.
The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance
The Fourth Amendment allows police to perform warrantless searches of individuals if they give consent to be searched and that consent is voluntary. Based on original laboratory research, this Essay posits that fact-finders assessing voluntariness underappreciate the extent to which suspects feel pressure to comply with requests to be searched.
The High Stakes of Low-Level Criminal Justice
Alexandra Natapoff reviews Misdemeanorland, summarizing the book’s key contributions and extending its insights about New York City’s system of misdemeanor managerial social control to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.
The Present Crisis in American Bail
This Essay reviews the recent rise of systemic injunctions against money bail systems and a major question they raise: what level of scrutiny applies to allegedly unconstitutional bail systems. It concludes that, in light of history and precedent, strict scrutiny is the appropriate standard.