Criminal Law
Forum
“Safety, in a Republican Sense”:
Trump v. United States, Democracy, and an Antisubordination Theory of the Criminal Law
Democratic governance requires holding the powerful to account. This Essay therefore proposes a broad antisubordination theory of the criminal law which grapples directly with disparities in power, rather than obscuring them under the guise of formal equality. Neither formal equality nor its alterna…
Article
Resisting Mass Immigrant Prosecutions
Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective lega…
Review
Prisons as Laboratories of Antidemocracy
Jeffrey Bellin's Mass Incarceration Nation robustly analyzes how state and federal policies have combined to drive up prison populations. Mass incarceration represents a failure of democracy, but the repressive policies of American prisons represent an even graver threat as laboratories of antidemoc…
Forum
Navigating Between “Politics as Usual” and Sacks of Cash
Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting an…
Forum
What Are Federal Corruption Prosecutions for?
This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosec…
Forum
Demoralizing Elite Fraud
The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skep…
Forum
The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco
In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to …
Forum
Abolitionist Prison Litigation
There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understa…
Feature
Policing Protest: Speech, Space, Crime, and the Jury
Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense ground…
Note
Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life Without Parole
Existing Eighth Amendment protections force judges to sort children into pseudoscientific categories. An analysis of sentencing transcripts reveals that sentencers routinely rely on unfounded assumptions when sentencing juveniles to life in prison. Following efforts led by formerly incarcerated yout…
Note
Fitting the MPC into a Reasons-Responsiveness Conception of Subjective Culpability
This Note compares the MPC’s mens rea regime with the “reasons-responsiveness” conception of culpability widespread among criminal law theorists. It argues that if the reasons-responsiveness account is correct, the MPC will often fail to track offenders’ relative culpability, resulting in disproport…
Note
Title 18 Insider Trading
Securities regulation is a poor host for insider trading doctrine. This Note advances an alternative: the law of federal criminal fraud. It argues that a standalone model of Title 18 insider trading can resolve stubborn doctrinal puzzles, stamp out judge-made securities crimes, and reanchor the offe…
Note
Disability Law and HIV Criminalization
Over thirty states maintain laws that criminalize people living with HIV, exposing them to incarceration, fines, and social stigma. This Note argues that many such laws violate the ADA’s ban on public discrimination. While previous challenges to HIV-criminalization laws have failed, federal disabili…
Forum
Victims Versus the State’s Monopoly on Punishment?
Gabriel Mendlow rightly argues that victims deserve larger roles in criminal justice, but mistakenly hints that they deserve exclusive control. Communities are also harmed by crimes and have standing to punish them. This Essay argues that criminal procedure should return to its roots as a communal m…
Essay
The Moral Ambiguity of Public Prosecution
In a legal system where criminal prosecution is the institutional analog of moral blame, a state that acts as exclusive prosecutor exceeds its moral standing and incurs a debt to the victim. The nature of this debt and how we might discharge it are the primary subjects of this Essay.
Forum
By Any Means: A Philosophical Frame for Rulemaking Reform in Criminal Law
Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance.
Article
Police Reform Through a Power Lens
This Article examines recent social movements efforts to shift power over policing to those most harmed by mass criminalization. This focus on power-shifting—the power lens—opens up reform discussions to first-order questions about how the state should provide safety and security, with or without po…
Forum
Introduction
Former Attorney General Eric Holder reflects on the Justice Department’s unique role in American society.
Forum
The Civil Rights Division: The Crown Jewel of the Justice Department
This Essay contrasts the recent history of the Civil Rights Division with the first decades of its existence, arguing that civil rights advocates today should do more than reverse the harms of the Trump years. Rather, advocates must leverage the Division’s institutional dynamics to ensure its effect…
Forum
Thwarting the Separation of Powers in Interbranch Information Disputes
The Office of Legal Counsel (OLC) advises the President in information disputes with Congress. This Essay analyzes how OLC’s increasingly aggressive separation-of-powers advice, the Trump Administration’s utilization of OLC opinions to resist congressional information requests, and congressional acq…
Forum
Treat Every Defendant Equally and Fairly: Political Interference and the Challenges Facing the U.S. Attorneys’ Offices as the Justice Department Turns 150 Years Old
How do the US Attorneys’ Offices restore their damaged credibility with the public? New laws and policies designed to preserve the independence of the Justice Department from politicization are much needed. But it will be even more important to rebuild public trust by reinforcing the culture of inde…
Forum
Stare Decisis in the Office of the Solicitor General
The Office of the Solicitor General (OSG) is generally believed to operate under its own form of stare decisis. But in many circumstances, OSG best serves governmental interests and those of the Supreme Court by submitting positions that it believes are right, even if they depart from prior submissi…
Note
Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences
Because bodily liberty is a fundamental right, the government may confine someone only to the extent necessary to further a compelling interest. Courts limit pretrial detention and civil commitment accordingly but exempt criminal sentences without explanation. This Note argues that carceral sentence…
Comment
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 …
Review
The Politics of Decarceration
Can the political process help undo mass incarceration? This Book Review argues that changes in the two major political parties, the results of recent state-level elections, and changes in public opinion all provide reason to hope that democratic politics is compatible with ending mass incarceration…
Forum
Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants
New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, cou…
Forum
Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience
This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner. Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity desp…
Review
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.
Note
Prosecuting Corporate Crime when Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review
Some corporations have become so large or so systemically important that the government cannot credibly threaten efficient criminal sanctions. This Note presents a microeconomic model of corporate criminal prosecution for Too-Big-to-Jail businesses and offers several prosecutorial reforms to help ho…
Forum
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 suggestion…
Note
Separation of Prosecutors
The decentralized structure of the federal criminal-justice system has generated significant criticism. This Note offers a novel explanation and defense of this structure, arguing that decentralization is a feature of congressional design, not a bug of congressional abdication.
Forum
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 …
Forum
Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations
This Essay is rooted in the author’s experience as a formerly justice-involved individual who overcame numerous barriers to become an attorney and advocate. It argues that bar associations should use a conditional-approval process that informs applicants whether the bar intends to admit them before …
Forum
Ending the Incarceration of Women and Girls
Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.
Forum
The Effort to Reform the Federal Criminal Justice System
This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future refo…
Essay
Why Is It Wrong To Punish Thought?
It is an age-old maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, and unexecuted intentions. Yet its justification is something of a mystery. This Essay argues that each of the prevailing justifications is deficient and propo…
Review
Who Locked Us Up? Examining the Social Meaning of Black Punitiveness
In this Review of James Forman, Jr.’s Pulitzer Prize-winning Locking Up Our Own: Crime and Punishment in Black America, Darren Hutchinson reconciles Forman’s research with antiracist accounts of U.S. crime policy. Literature on implicit bias, social dominance orientation, and right-wing authoritaria…
Article
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 equall…
Essay
Police Reform and the Dismantling of Legal Estrangement
In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with t…
Feature
Policing Through an American Prism
Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often accompanied by broader calls for reform. Tensions often run high after officer involved shootings of unarmed civilians,…
Essay
Cops and Pleas: Police Officers’ Influence on Plea Bargaining
abstract.Police officers play an important, though little-understood, role in plea bargaining. This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining. Using original interviews with criminal justice of…
Article
Why Have We Criminalized Aggressive War?
On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether …
Feature
Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror
The United States’ aggressive War on Terror policies since 9/11 have led to significant prison sentences for many young American Muslims, even when their charged criminal conduct cannot be tied to any act of violence in the United States or abroad. A primary reason provide…
Forum
Capital Jurors in an Era of Death Penalty Decline
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s. Following decades during which the death penalty shared broad public support, over the last decad…
Note
Prosecuting Gender-Based Persecution: The Islamic State at the ICC
Reports suggest that Islamic State, the terrorist “caliphate,” has enslaved and brutalized thousands of women from the Yazidi ethnic minority of Syria and Northern Iraq. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…
Comment
The Bostic Question
Introduction Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice,1 but systemic concerns about efficiency, comity, and finality make i…
Review
Systemic Triage: Implicit Racial Bias in the Criminal Courtroom
Crook County: Racism and Injustice in America’s Largest Criminal Court By Nicole van cleve Stanford university press, april 2016 author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerins…
Forum
Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water
In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques routinely offered as evidence (“PCAST Report”). This report raises familiar issues and recommendations. In 2009, the National…
Comment
In Wakefield’s Wake: Rescuing New York's Enterprise Corruption Jurisprudence
introduction For many years, New York State’s enterprise corruption law was grounded in a legal error. Recently, the New York Court of Appeals has sought to correct some of the doctrinal consequences of this mistake. Unfortunately, the court’s solution has left the law unmoored fro…
Comment
From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions
introduction On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evid…
Forum
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 par…
Comment
Ideological Imbalance and the Peremptory Challenge
Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic,1 as prone to manipulation,2 as a potential First Amendment violation,3 and—most often of all—as racist.4 Judge…
Forum
Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws
Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting th…
Feature
Campus Sexual Assault Adjudication and Resistance to Reform
The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. Tha…
Forum
The Rise of Bank Prosecutions
Before 2008, prosecutions of banks had been quite rare in the federal courts, and the criminal liability of banks and bankers was not a topic that received much public or scholarly attention. In the wake of the last financial crisis, however, critics have begun to ask whether prosecutors adequately …
Forum
Complicated Process
Introduction I come to this important Title IX Conversation from a unique perspective. This is not because I was a federal judge for seventeen years. Rather it is because before my judgeship, I was a feminist litigator and a criminal defense lawyer. And from this vantage point, my concern…
Note
Will Putting Cameras on Police Reduce Polarization?
In the wake of national outrage and polarization over several high-profile police shootings of unarmed citizens, reformers have called for police officers to wear body cameras. This Note argues that, despite the seeming objectivity of the camera, video footage remains susceptible…
Forum
Evidence-Based Sentencing and the Taint of Dangerousness
Today’s world is “all about the data.”1 In a variety of contexts, innovators have offered statistical models as a way to reduce or eliminate human error.2 The promise of quantitative optimization has even influenced our criminal justice system. About twenty states have developed or a…
Forum
For the Title IX Civil Rights Movement: Congratulations and Cautions
On September 25, 2015, the Yale Law Journal held a “Conversation on Title IX” that confirmed the existence of a new civil rights movement in our nation and our schools. The movement’s leaders are smart, courageous survivors of gender-based violence—virtually all of whom are current un…
Comment
Tort Concepts in Traffic Crimes
Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more.1 Traffic is likely the most pervasive form of violence most Americans encounter.2 Accordingly, the law devotes substantial attention to preventing that bloodshed, allocating losses, and punishing …
Note
Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases
Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion. In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Gui…
Forum
Only Once I Thought About Suicide
I. Every prison and jail in Virginia has a series of cells used for solitary confinement. Fairfax County Jail had three units for solitary confinement. None had windows. The R-Cells had ceilings so high that a tall man could not reach them by jumping. The other had a door so thick and hea…
Forum
Worse than Death
For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we he…
Forum
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails
The United States is exceptional not only because it incarcerates so many people, but also because of the inhumane and degrading conditions that prevail in so many of its jails and prisons.1 This country stands alone among Western nations in its widespread and routine use of extreme and pro…
Forum
The Liman Report and Alternatives to Prolonged Solitary Confinement
Introduction Our nation’s prisons and jails are often shrouded in secrecy. Media access to prisoners, particularly those in solitary, is limited or non-existent, and many states do not provide adequate data on how their penal systems actually operate.1 As Justice Kennedy recently put it…
Forum
Time-In-Cell: Isolation and Incarceration
What is solitary confinement, and what has been constitutional law’s relationship to the practices of holding prisoners in isolation? One answer comes from Wilkinson v. Austin,1 a 2005 U.S. Supreme Court case discussing Ohio’s super-maximum security (“supermax”) prison, which opene…
Forum
Time-In-Cell: A Practitioner’s Perspective
Earlier this year, The New York Times reported that President Obama ordered the Department of Justice to review the practice of federal prison administrative segregation, commonly referred to as “solitary confinement.”1 The Association of State Correctional Administrators (ASCA), the mem…
Forum
Roundup: Recent Developments in Criminal Justice and Mental Health Law
Over the past few weeks, several major developments have occurred at the intersection of criminal justice and mental health law. This Roundup briefly summarizes these matters and discusses how each reflects current trends in the criminal justice system’s approach to individuals with mental …
Forum
Hall v. Florida and Ending the Death Penalty for Severely Mentally Ill Defendants
This Term in Hall v. Florida the Supreme Court held a portion of Florida’s death penalty statute unconstitutional under the Eighth and Fourteenth Amendments.1 Specifically, the Court invalidated Florida’s rigid system for determining whether a capital defendant is intellectually disabled…
Forum
A Conversation with Justice Sotomayor
On February 3, 2014, Justice Sonia Sotomayor delivered the James A. Thomas Lecture at Yale Law School. This transcript is adapted (with slight editing) from that lecture, which took the form of a conversation between Justice Sotomayor and Linda Greenhouse. The lecture touched on topics including Jus…
Forum
Justice Sotomayor and Criminal Justice in the Real World
As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as…
Forum
No Way Around Consent: A Reply to Rubenfeld on “Rape-by-Deception”
Recently, Jed Rubenfeld has argued for a new rape law principle that aims to unravel an intriguing riddle that he has posed about obtaining sex by means of deception. In this Essay, Tom Dougherty argues that Rubenfeld’s self-possession principle itself gives a role to consent that deception can effe…
Forum
Sex Without Consent
Modern rape law lacks a governing principle. In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Jed Rubenfeld contends that the most obvious candidate—sexual autonomy—is inadequate. I agree, though for vastly different reasons. Rubenfeld advances a conception of rape as a violation …
Forum
Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud
In this Essay, Professor Patricia J. Falk argues that Professor Jed Rubenfeld’s solution to the “riddle of rape-by-deception” goes too far in eviscerating the body of rape law that courts and legislatures have developed over the past decades. Falk suggests that eliminating nonconsent and foregroundi…
Forum
Delineating the Heinous: Rape, Sex, and Self-Possession
In this Essay, Professor Ramachandran examines Professor Rubenfeld’s concept of self-possession, which Rubenfeld presents as a helpful way to define the harm of rape. She argues that if the concept represents exclusive physical control over one’s body, it is an elusive and undesirable ideal, and as …
Forum
Rape-by-Deception—A Response
In this Essay, Professor Jed Rubenfeld responds to commentary on The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, published in Volume 122 of the Yale Law Journal. Engaging with four different interlocutors, he suggests that sex-by-deception remains a serious puzzle in rape law, and t…
Article
The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy
122 Yale L.J. 1372 (2013).
“Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in vir…
Forum
The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct
This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors…
Note
The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement
121 Yale L.J. 194 (2011).
Section 2 of the Fourteenth Amendment allows states to disenfranchise citizens on
account of “rebellion, or other crime” without reducing the size of the state’s delegation in the
House of Representatives. In its 1974 decision in Richardson v. Ramirez, the Supreme Court held
th…
Feature
Rethinking Criminal Law and Family Status
119 Yale L.J. 1864 (2010).
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their essays, Professors Ala…
Comment
Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions
119 Yale L.J. 1703 (2010).
Feature
When Family Matters
In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial stat…
Note
Gangs in the Military
118 Yale L.J. 696 (2009).
Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to p…
Comment
The Sentence Imposed Versus the Statutory Maximum: Repairing the Armed Career Criminal Act
118 Yale L.J. 369 (2008).
Comment
Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power
117 Yale L.J. 1549 (2008).
Feature
Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't
117 Yale L.J. 1374 (2008).
This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio o…
Feature
The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion
117 Yale L.J. 1420 (2008).
Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional…
Essay
Justifications, Power, and Authority
117 Yale L.J. 1070 (2008).
Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…
Note
The Case Against Automatic Reversal of Structural Errors
117 Yale L.J. 1180 (2008).
This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given ty…
Comment
Seeking More Scienter: The Effect of False Claims Act Interpretations
117 Yale L.J. 981 (2008).
Comment
On Target? The Israeli Supreme Court and the Expansion of Targeted Killings
116 Yale L.J. 1873 (2007).
Forum
Police Pretext as a Democracy Problem
Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accoun…
Forum
On Rights and Responsibilities: A Response to The Problem with Pretext
Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do. Citron starts from the…
Forum
How Whren Protects Pretext
Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberate…
Forum
Throwing Away the Key
The problem today is not only the draconian sentences that white-collar offenders are receiving, but the fact that because of the elimination of parole they will actually have to serve them. For example, if Michael Milken had been sentenced under today's sentencing regime, and if he had been made to…
Forum
White-Collar Defendants and White-Collar Crimes
At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe. Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to sati…
Note
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 …
Forum
Because Breaking Up Is Hard To Do
Just about everyone has been in a romantic relationship that, in hindsight, should have ended sooner than it did. Why do people stay? Hope, or commitment, or because they share a lease or she owns the car. Life and love are complicated, and, as Neil Sedaka sang, “Breaking up is hard to do.” That…
Article
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 misd…
Forum
A CSI Writer Defends His Show
As a former crime scene investigator, I was once called to testify on the stand in a criminal trial. Before giving my testimony, I had to explain to the jury the responsibilites and qualifications of forensic scientists in the criminal justice system. Now, five years later, prosecutors are complaini…
Forum
Sentencing Review: Judgment, Justice, and the Judiciary
Since United States v. Booker, the main task of sentencing academics and appellate judges has been to solve the riddles of its mandated “reasonableness” review. This is a crucial task because the answers reached will largely determine whether Booker’s promise of fresh discretion in federal sen…
Comment
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…
Comment
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 acti…
Feature
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.
Comment
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 "in…
Comment
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…
Essay
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 substan…
Comment
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 charg…
Note
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 j…
Article
What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause
112 Yale L.J. 1943 (2003)
When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…
Essay
Digital Architecture as Crime Control
112 Yale L.J. 2261 (2003)
The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engine…
Comment
A Better Interpretation of "Special Needs" Doctrine After Edmond and Ferguson
112 Yale L.J. 2591 (2003)
Article
Conspiracy Theory
112 Yale L.J. 1307 (2003)
Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justificatio…
Note
A Site Where Hackers Are Welcome: Using Hack-In Contests To Shape Preferences and Deter Computer Crime
112 Yale L.J. 1577 (2003)
While the Internet has revolutionized communication and commerce, it has also created the conditions for a type of crime that can be committed anonymously, from anywhere in the world, and with consequences that are unprecedented in scope. With the failure of traditional law …
Note
Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation
111 Yale L.J. 1417 (2002)
Article
Architecture as Crime Control
111 Yale L.J. 1039 (2002)
Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cybersp…
Article
Rethinking the Puzzle of Escalating Penalties for Repeat Offenders
110 Yale L.J. 733 (2001)
The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabi…
