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Criminal Law

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Race Decriminalization and Criminal Legal System Reform

Michael Pinard

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system. As a result, these reforms do not reach deeply enough. They do not address or confront the reality that simply being Black has been and will continue to be criminalized.

This Article asserts that measures beyond these reforms—measures that reach the root of racial criminalization—are necessary for true criminal legal system transformation.

 

The Prisoner and the Polity

Avlana K. Eisenberg

All punishment comes to an end. Most periods of imprisonment are term limited, and ninety-five percent of prisoners will eventually leave prison. Though it is tempting to think of the “end” in concrete, factual terms—for example, as the moment when the prisoner is released—this concept also has normative dimensions. Core to the notion of term-limited imprisonment is the “principle of return”: the idea that, when the prisoner has completed his or her time, that person is entitled to return to society. Yet, for the principle of return to be meaningful, it must include the idea of a fair chance of reestablishing oneself in the community. The “practices of incarceration”—including the prison environment and prison programs—are thus critically important because they can either facilitate or impede a prisoner’s reentry into society. However, apart from the question of whether conditions of confinement are cruel and unusual as defined by the Eighth Amendment, these practices of incarceration have largely avoided scholarly scrutiny. 

This Article uses the case study of higher education programs in prison to expose the interdependence between the practices of incarceration and the principle of return. Drawing on original interviews with key stakeholders, it investigates how the features of higher education programs reflect and reinforce core beliefs about the goals of punishment and the state’s responsibility towards those it incarcerates. The Article critically examines the dominant harm-prevention justification for prison higher education, and the desert-based objection to it, finding that both are inadequate for failing to take into account the principle of return. 

This Article espouses an alternative approach that would recognize the ongoing relationship between prisoner and polity and devise incarceration practices accordingly. Building on insights from communitarian theory, this approach, which foregrounds the prisoner’s status in the polity, uncovers pervasive “us-versus-them” narratives in the prison context. The first such narrative is between prisoners and those members of the polity who view prisoners, falsely, as having forfeited their claims to membership in civil society. This view of prisoners, as members of a permanent and lower caste, is in direct conflict with the principle of return, which mandates that prisoners have at least a plausible hope of basic reintegration into society and that they avoid further harm—what might be termed “punishment-plus.” The Article also scrutinizes a second, more localized “us-versus-them” narrative between prisoners and correctional officers, which arises from their similar backgrounds and the common deprivation experienced by members of both groups. 

Finally, the Article recommends institutional design changes to mitigate “us-versus- them” dynamics: empowering stakeholders, for example, by affording correctional officers educational opportunities that would help professionalize their role and ease their resentment towards prisoners; and increasing exposure and empathy between incarcerated and non-incarcerated populations, such as by piloting a program that would employ recent college graduates to teach in prison. These and other proposed reforms would refocus the conversation around imprisonment to account for the central role of incarceration practices in revitalizing the principle of return, as well as the inextricable connection between prisoner and polity. 

Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account

James Gray Pope

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that convicted persons retained protection against any servitude that was inflicted not as a punishment for crime but for some non-penological end, such as raising state revenue, generating private profits, or subjugating black labor. Within a few months of the Amendment’s ratification, the Republican majority in the Thirty-Ninth Congress had outlawed the early, race-based forms of convict leasing. When that proved insufficient, the House passed a bill outlawing race-neutral convict leasing, which the Senate postponed when the focus of Republican strategy shifted to black voting rights. 

The Republican reading faded from view after the Democratic Party regained control of the Deep South. For several decades, white supremacist regimes incarcerated African-American laborers en masse and leased them to private employers without facing a serious Thirteenth Amendment challenge. Present-day scholars sometimes treat this silence as evidence that the Amendment authorizes such practices. Courts similarly honor the Democratic reading on the assumption it has always prevailed. So thoroughly has it triumphed that even prisoners’ rights advocates accept it as constitutional truth. 

Neither courts nor advocates have, however, taken into account the framers’ views. Their interpretation sank from sight not because it was wrong but because Democratic paramilitaries terminated Reconstruction, freeing states to expand convict leasing and insulate it against challenges, constitutional or otherwise. Had the Republican reading been enforced during the era of convict leasing, it might have prevented one of the most barbaric and shameful episodes in United States history. And perhaps, if revived today, it might yet accomplish similar results. Nothing in the text, original meaning, or Supreme Court jurisprudence of the Punishment Clause blocks that path. 

Defining “Local” in a Localized Criminal Justice System

Elizabeth Janszky

There is an ongoing movement to democratize the criminal justice system. Providing more avenues for layperson participation, “democratizers” believe, will result in a more egalitarian system. But how to incorporate the public is an ongoing and complicated question. This Note takes a first step in disentangling important differences within the democratization movement. In doing so, it defines for the first time a sub-group of democratizers, which it terms the “localizers.” Analyzing this distinct strand of democratization serves two valuable functions. First, because democratization and localization reforms have often been lumped together, critics of the movement to democratize the criminal justice system have overlooked the unique problems that localizers’ reforms raise. This Note fills a substantial gap in the extant scholarship by providing tools for scholars to evaluate and critique some of the distinct concerns of localization. Second, and perhaps more importantly, this Note serves as a practical road map for localizers by raising questions that they must consider before advancing their reforms, many of which could, if effectuated correctly, immensely improve the current state of the criminal justice system. 

Title IX and Criminal Law on Campus: Against Mandatory Police Involvement in Campus Sexual Assault Cases

Meghan Racklin

This Note argues that policy proposals mandating law enforcement involvement in campus sexual assault cases are harmful to survivors of sexual assault and are inconsistent with Title IX. Title IX’s gender-equality goals require schools to address sexual assault as a civil rights issue, with a focus on its impact on survivors’ continued access to education. Mandatory police involvement proposals will frustrate that goal. These proposals take a criminal law view rather than a civil rights approach, and in doing so, import obstacles that survivors have long faced in the criminal system into the campus process. What is more, these proposals will have the effect of making it more difficult for survivors, particularly those from marginalized communities, to report their sexual assaults to their schools. If survivors are not able to report, they will not be able to access the accommodations they need to continue their education, and schools will not have the information they need to adequately combat sexual assault on campus. Efforts at reform would be better served by focusing on improving the campus process than on limiting survivors’ options.

Challenging Racist Predictive Policing Algorithms Under the Equal Protection Clause

Renata M. O’Donnell

Algorithms are capable of racism, just as humans are capable of racism. This is particularly true of an algorithm used in the context of the racially biased criminal justice system. Predictive policing algorithms are trained on data that is heavily infected with racism because that data is generated by human beings. Predictive policing algorithms are coded to delineate patterns in massive data sets and subsequently dictate who or where to police. Because of the realities of America’s criminal justice system, a salient pattern emerges from the racially skewed data: Race is associated with criminality in the United States. Because of the “black-box” nature of machine learning, a police officer could naively presume that an algorithm’s results are neutral, when they are, in fact, infected with racial bias. In this way, a machine learning algorithm is capable of perpetuating racist policing in the United States. An algorithm can exacerbate racist policing because of positive feedback loops, wherein the algorithm learns that it was “correct” in associating race and criminality and will rely more heavily on this association in its subsequent iterations.

This Note is the first piece to argue that machine learning-based predictive policing algorithms are a facial, race-based violation of the Equal Protection Clause. There will be major hurdles for litigants seeking to bring an equal protection challenge to these algorithms, including attributing algorithmic decisions to a state actor and overcoming the proprietary protections surrounding these algorithms. However, if the courts determine that these hurdles eclipse the merits of an equal protection claim, the courts will render all algorithmic decision-making immune to equal protection review. Such immunization would be a dangerous result, given that the government is hurling a growing number of decisions into black-box algorithms.

The Power of Prosecutors

Jeffrey Bellin

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious echo chamber enabled by a puzzling lack of dissent. With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

An unchallenged consensus that “prosecutors are the criminal justice system” and that the “institution of the prosecutor has more power than any other in the criminal justice system” has real consequences for criminal justice discourse. Portraying prosecutors as the system’s iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes. The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors).

Towards Permanently Delegitimizing Article 98 Agreements: Exercising the Jurisdiction of the International Criminal Court over American Citizens

Antoinette Pick-Jones

This Note discusses one method to permanently delegitimize Article 98 agreements: exercising International Criminal Court (ICC) jurisdiction over Americans to prosecute them for alleged crimes committed in Afghanistan (“the Situation in Afghanistan”). Since their inception, Article 98 agreements have threatened the ICC’s mission by limiting states parties’ ability to assist the ICC in exercising jurisdiction over Americans. This Note considers potential proceedings against an American in the Situation in Afghanistan as a case study to demonstrate how, in practice, Article 98 agreements undermine the ICC’s anti-impunity mission. First, this Note describes the principles and procedures followed by the ICC. Second, this Note discusses the United States’ legal justifications for Article 98 agreements and responds to these justifications with the most prevalent critiques of Article 98 agreements. Although the legal bases for the agreements under Article 98(2) of the Rome Statute are controversial, this Note assumes that the agreements are legally valid as originally intended by the parties. However, this Note also assumes that Article 98 agreements are never binding on the ICC and thus cannot prevent the ICC from exercising its territorial jurisdiction. Finally, this Note explores the allegations against Americans in the Situation in Afghanistan and considers how Article 98 agreements are likely to hamper the ICC’s proceedings. This Note concludes that the Situation in Afghanistan is an opportunity to demonstrate the need to permanently delegitimize Article 98 agreements, and that it can serve as a catalyst for change, even if Americans are not prosecuted.

Is Selling Malware a Federal Crime?

Marcelo Triana

Congress enacted the Computer Fraud and Abuse Act (CFAA) to impose criminal penalties for a variety of computer misuse offenses. One provision, 18 U.S.C. §1030(a)(5)(A), criminalizes hacking and the use of malicious software (“malware”) by making it a crime to transmit code (i.e., malware) with “intent to cause damage.” Today, § 1030(a)(5)(A) fails to adequately police the black market for malware. The United States Department of Justice has recently used the statute to combat these markets by prosecuting hackers who sold malware. This Note argues that § 1030(a)(5)(A) is ill suited to combat the sale of malware for two reasons. First, certain types of malware do not fit under the CFAA’s definition of “damage.” Second, selling malware does not necessarily satisfy the statute’s “intent” element. Ultimately, the black market for malware needs to be policed, and Congress must amend the CFAA’s outdated elements to deal with the dangers of malware attacks on our increasingly connected society.

The Costs of Waiver: Cost-Benefit Analysis as a New Basis for Selective Waiver of Attorney-Client Privilege

Mathew S. Miller

The nature of corporate criminal liability and the extreme consequences of indictment or conviction place great pressure on corporations to cooperate with federal prosecutors as they investigate corporate wrongdoing. This pressure often leads corporations to disclose privileged corporate communications, including internal investigation reports and notes from employee interviews, to aid prosecutors in their investigation. In most jurisdictions, once these documents are disclosed, the protections of the attorney-client privilege are waived as to everyone—a total waiver. However, in a minority of jurisdictions, when privileged corporate communications are disclosed to the government as part of a criminal investigation, the privilege is waived only as to the government and remains to prevent discovery by third parties, including civil plaintiffs—a selective waiver. Courts have provided various rationales for both positions, although none has been universally endorsed and all are subject to criticism. This Note provides a new justification for the selective waiver rule. It argues that utility-maximizing prosecutors will be more likely to ask for these critical privileged corporate communications under a selective waiver rule because of the high costs of the total waiver rule. This, in turn, will lead to a more efficient and robust investigation and prosecution of corporate crime.

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