Criminal Procedure
Fourth Amendment Reasonableness After Carpenter
In Carpenter v. United States, the Supreme Court held that a warrant is required when the government collects certain categories of third-party data. This Essay argues that a categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with warrantless electronic surveillance, courts should instead consider whether such surveillance is reasonable.
Democratic Policing Before the Due Process Revolution
Prevailing narratives of the Warren Court’s Due Process Revolution emphasize how it constrained police behavior. This Essay questions this account. It returns to the legal culture before the Revolution, focusing on three lectures by the prominent scholar Jerome Hall. Due process, it concludes, as much justified as restrained police discretion.
The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”
The “criminal justice reform” movement is in danger. Efforts to change the punishment bureaucracy are at risk of being co-opted by bureaucrats who have created and profited from mass human caging. This Essay seeks to understand the true functions of the punishment bureaucracy and to offer suggestions for dismantling it.
What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence
Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of a just prison sentence.
The Pope and the Capital Juror
The Pope recently pronounced capital punishment impermissible. Counterintuitively, this might make capital punishment less popular but more prevalent. This Essay anticipates this dynamic, and explores how “death qualification” of juries insulates the death penalty even as community morality evolves away from it.
In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System
The noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. This Essay argues that state child services should strive to mitigate the tension between these identities and take an active role in shielding these parents from immigration consequences of family-law proceedings.
Beyond the Box: Safeguarding Employment for Arrested Employees
Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.
Dangerous Defendants
Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equally dangerous defendants and non-defendants.
Government Hacking
The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have sharply divide.
From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions
Innocence and Override
For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down part of Florida’s capital sentencing scheme in January because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” In response, the Florida legislature eliminated override in March, and the Delaware Supreme Court invalidated its own state’s override system on August 2, leaving Alabama as the only state that still permits the practice. Override in Alabama has been attacked on other grounds as well; in 2013, two Justices of the United States Supreme Court expressed Eighth Amendment concerns that Alabama overrides are arbitrary and linked to political pressure.