Topics

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.

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt. But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence. This relatively low standard can lead to a problem known as “disproportionate impact.” Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction. Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes. In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005. This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

In this Note, Valerie Roddy studies the continuing hesitancy of U.S. courts to include foreign relevant conduct in federal sentences, despite the expansive inclusion of domestic relevant conduct. Roddy analyzes the courts’ principal concerns and concludes that the distinctions that courts are drawing between foreign and domestic relevant conduct are illusory. She argues that to achieve consistency in sentencing and proportional sentencing for international defendants, foreign and domestic conduct must be treated identically. Finally, she contends that distinguishing foreign relevant conduct and subjecting it to a special analysis is best viewed as a means of retaining a measure of discretion in a federal sentencing system struggling with both the potent effect of relevant conduct on sentences and the shrinking judicial discretion over sentences.

Go Directly to Jail: The Criminalization of Almost Everything

The government possesses a variety of tools to control the populace. Obvious examples include the criminal justice system, administrative regulation, and taxation. Because these tools involve varying degrees of coercion, the federal government’s choice of tools in addressing a particular problem has considerable impact on citizens, both financially and in terms of individual rights.

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at “detection” play a decisive role, offenders’ efforts at “detection avoidance” are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This Article adds detection avoidance to the existing theoretical frame with an eye toward informing the current policy debate. The exercise leads to several conclusions. First, despite recent efforts to strengthen laws governing obstruction and perjury, sanctioning is relatively inefficacious at discouraging detection avoidance. Sanctions send a mixed message to the offender: Do less to avoid detection, but to the extent you still do something, do more to avoid detection of your detection avoidance. The Article argues that detection avoidance is often more effectively deterred through the structural design of evidentiary procedure (inclusive of investigation). Specifically advocated are devices that exploit the cognitive psychological shortcomings of individuals and the sociological fragility of their collusive arrangements.

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatorily, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelsteindeterrence and retributivismis capable of justifying the death penalty. More generally, she suggests that while each theory captures an important part of the justification for punishment, each must appeal to some further limiting principle to accommodate common intuitions about appropriate punishments for crimes. Professor Finkelstein claims that contractarianism supplies this additional principle, by requiring that individuals consent to the system of punishment under whose threat they must live. Moreover, on the version of contractarianism for which she argues, they must do so based on a belief that they will benefit under the terms of that system as compared with how they would fare in its absence. While the notion of benefit is often best understood in terms of maximizing one’s expected utility, Professor Finkelsteingambling” decision rule. She then argues that rational contractors applying this conception of benefit would reject any system of punishment that includes the death penalty. For while contractors would recognize the death penalty’s deterrent value, they must also consider the high cost they would pay in the event they end up subject to such a penalty. This Article presents both a significant new approach to the death penalty and a general theory of punishment, one that incorporates the central intuitions about deterrence and desert that have made competing theories of punishment seem compelling.

A great gulf divides insiders and outsiders in the criminal justice system. The insiders who run the criminal justice system—judges, police, and especially prosecutors—have information, power, and self-interests that greatly influence the criminal justice system’s process and outcomes. Outsiders—crime victims, bystanders, and most of the general public— find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result of this gulf, a spiral ensues: Insiders twist rules as they see fit, outsiders try to constrain them through new rules, and insiders find ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s substantive goals. The gulf clouds the law’s deterrent and expressive messages, as well as its efficacy in healing victims; it impairs trust in and the legitimacy of the law; it provokes increasingly draconian reactions by outsiders; and it hinders public monitoring of agency costs. The most promising solutions are to inform crime victims and other affected locals better and to give them larger roles in criminal justice. It also might be possible to do a better job monitoring and checking insiders, but the prospects for empowering and educating the general public are dim.

Elected judges often run “tough on crime” campaigns, which raises concerns that they will be biased against criminal defendants once on the bench. Indeed, studies show that elected judges give harsher punishments to criminal defendants as elections near. Nevertheless, in Republican Party of Minnesota v. White, the Supreme Court found that an elected judge can still be considered impartial even if he knows that his decisions throughout a case might affect his job security. This Note argues that the Supreme Court’s decision in White failed to account for a key factor complicating the election of unbiased judges: media coverage of crime and elections. The media dynamics at work in elections and the particular way judges respond to them may lead to criminal cases being heard by judges who are biased against defendants. To correct this problem, states must affirmatively act to protect criminal defendants’ right to a fair trial by adopting broad recusal requirements. States must change their codes of judicial conduct to allow for mandatory recusal of judges who run tough-on-crime election campaigns.