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One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these “remedial deterrence” effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia—two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court’s particular objectives and constraints.

Although some degree of remedial deterrence is inevitable and legitimate, extreme remedial-cost pressures—like those often present in international criminal proceedings—result in severe doctrinal distortions that subvert the purpose of international courts’ strong remedial rules. Because victims cannot be granted lesser remedies, they often receive no remedy at all. This overkill effect is magnified because the doctrinal distortions spill over to other cases lacking similar remedial costs and to domestic courts and other actors that follow international judicial precedent, even though they do not share the same institutional constraints. To mitigate these consequences, this Article makes two sets of recommendations. First, international courts’ structures and procedures should be designed to avoid excessive remedial deterrence pressures. This Article offers specific proposals for international criminal tribunals. Second, international courts should modify their approach to the effective remedy requirement, allowing some degree of equitable balancing of interests. Such an approach would promote judicial candor and enable courts to avoid untenable remedial costs without unduly distorting other doctrines.

This Note identifies ethical issues raised when criminal defense lawyers write non- fiction books about their clients, and it proposes new ethical rules that shift the balance of interests to weigh more heavily in favor of the client. Two principal ethical considerations arise for lawyers who write books about their clients. First, lawyer-authored publications may cause the attorney-client privilege to be waived and may result in adverse legal consequences for the client. Even where legal consequences do not inure, however, publication may violate the lawyer’s duty of confidentiality, principles of client dignity and autonomy, or both. Second, the lawyer- author’s interest in the commercial viability of the client’s story may conflict with the defendant-client’s interests. This Note offers revisions to the American Bar Association (ABA) Model Rules of Professional Conduct that would impose a substantial waiting period before defense counsel may publish stories about their clients. The revisions strike a balance between the client’s interest in effective representation, the lawyer’s interest in self-promotion, and the public’s interest in a transparent criminal justice system.

The indefinite detention of prisoners at Guanta ́namo Bay Naval Base raises serious concerns about what rights those detainees are entitled to and whether detainees will have the power to exercise them. How, for instance, could a detainee pursue a meaningful appeal of a decision of the Combatant Status Review Tribunal without effective assistance of counsel? How could a detainee challenge his detention when the U.S. government renders that detainee to foreign custody? The All Writs Act, a broad and historic statute originally codified in the Judiciary Act of 1789, provides that “courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act grants the courts equitable power to issue injunctions that ensure that litigants’ substantive rights are not frustrated by interstices in the applicable law. It is in this Act that district courts exercising habeas corpus jurisdiction found detainees’ rights to effective assistance of counsel and thirty days’ notice prior to transfer to foreign custody. While the Military Commissions Act stripped the courts of habeas jurisdiction with respect to alien enemy combatants, the equitable power granted by the All Writs Act can attach to any jurisdiction, including the appellate power given to the D.C. Circuit Court of Appeals to review determinations made at Guanta ́namo Bay. This Note provides a roadmap that courts should apply when considering whether to issue an All Writs Act injunction, and concludes that such injunctions are not only permissible but also an appropriate and important exercise of the courts’ power.

A new approach to national interpretations of international law suggests that, to be successful, national courts must engage in flexible, culturally conscious translations of international norms. Transitional justice projects, however, pose a challenge to this approach. This Note proposes that when criminal prosecutions function as truth-seeking processes, the ability of domestic groups to influence how national courts interpret international law is heightened. In these instances, nonstate actors understandably attempt to capitalize on courts’ awareness of the critical role legal judgments play in engendering national reconciliation in order to secure favorable legal outcomes. Accordingly, courts have the challenge of adjudicating egregious human rights violations while also complying with the strict limitations of international criminal law. This Note suggests that the exigencies of transitional justice may lead national courts to issue interpretations that deviate from the existing body of international law. It examines this thesis through the lens of recent criminal prosecutions in Argentina for massive human rights violations during the Dirty War, in which a federal court greatly expanded the legal definition of genocide, contradicting long-standing international jurisprudence.

The Supreme Court has recognized a proportionality principle under the Eighth Amendment’s prohibition against “cruel and unusual punishments.” The proportionality principle governs both capital and noncapital sentences, yet the Court does not apply the principle equally. In the capital context, the Court has created a robust methodology for determining when the death penalty is disproportionate and has forbidden its use in a number of contexts. In contrast, the Court has virtually renounced proportionality review in the noncapital context. This Note focuses on three points of difference between the capital and noncapital contexts that the Court has identified as justifying its fractured proportionality doctrines: the inherent subjectivity in distinguishing among noncapital sentences; the resultant inadministrability of engaging in robust noncapital proportionality review; and the infringement upon penological decisions made by state legislatures that searching noncapital review would require. It then responds to the Court’s articulated concerns by surveying the noncapital proportionality jurisprudence of the fifty states, which illustrates that there are principled, administrable, and legislatively deferential ways to police noncapital sentences. This Note suggests that the Court adopt a modified strand of states’ jurisprudence in order to craft a more rigorous noncapital proportionality doctrine at the federal level.

Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny provide the federal standard for the admissibility of all expert evidence, including forensic evidence, that is proffered in criminal trials. The standard measures the validity of expert evidence through a flexible four-factor inquiry. Unfortunately, in the criminal context, Daubert fails to promote the goals of trial outcome accuracy and consistency, resulting in tragically unfair outcomes for criminal defendants. This Note proposes a doctrinal tweak that shifts the costs of admitting forensic evidence to the prosecution and promotes criminal justice goals. First, there should be a high presumption against the admission of forensic evidence that must be rebutted with a clear and convincing showing of its validity. Second, the Daubert validity inquiry needs to be reformulated so that the forensic methodology’s “error rate” factor is the primary (and if possible, only) factor the court considers. Third, the error rate should be defined as the lab-specific error rate. The Note ends by considering further possible ways to specify the definition of “error rate” to better promote criminal justice goals.

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute’s recent amendment to the Model Penal Code’s “purposes” provision—the only amendment to the Model Code in the forty-eight years since its promulgation—adopts desert as the primary distributive principle for criminal liability and punishment.

That shift to desert has prompted concerns by two groups that, ironically, have been traditionally opposed to each other. The first group—those concerned with what they see as the over-punitiveness of current criminal law—worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps making things worse. The second group—those concerned with ensuring effective crime control—worries that a shift to desert will create many missed crime-control opportunities and will increase avoidable crime.

The first group’s concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which it disapproves are a reflection of the community’s naturally punitive intuitions of justice. However, as Study 1 makes clear, today’s popular crime-control doctrines in fact seriously conflict with people’s intuitions of justice by exaggerating the punishment deserved.

The second group’s concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half-century that ignoring justice in pursuit of crime control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost-free. However, Studies 2 and 3 suggest that doing injustice has real crime-control costs. Deviating from the community’s shared principles of justice undermines the system’s moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.

The studies reported here provide assurance to both groups. A shift to desert is not likely either to undermine the criminal justice system’s crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system’s punitiveness, and indeed may reduce it.

Prohibition of alcohol from 1919 to 1933 is a paradigmatic case of sumptuary legislation gone awry. Instead of removing alcohol from the market, Prohibition increased alcohol’s potency and decreased its quality, resulting in a spike in drunkenness and accidental deaths while black market corruption and violence abounded. The same criticisms are often leveled at the War on Drugs. However, this Note explores the most important difference between the two, namely, that in spite of their symmetrical failures, Prohibition was met with a decisive backlash and repeal while the War on Drugs retains popular support despite having created incomparably greater violence. This is dramatically illustrated by the war in Mexico, which is currently the most violent conflict in the world. The causes and implications of this divergence in public choice are explored below.

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is almost entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework—including a workable standard of proof—currently exists for determining sufficiency of the evidence in such a case. This Article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. I suggest as a starting point—citing recent juror studies and the need for uniformity and systemic legitimacy—that the threshold should be no less favorable to the defendant than a 99.9% source probability.

Criminal law generally assumes that all defendants are alike. Social science research, however, has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacities—a difference with profound effects on their blameworthiness. The law acknowledges these differences in a few limited areas, most notably in the Supreme Court’s recent decision excluding defendants with mental retardation from death penalty eligibility. But while that decision arguably has begun to percolate into the rest of criminal law, consideration of the unique circumstances facing defendants with mental retardation has not yet reached the law of statutory rape.

When framed as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. This exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized strict liability but have ignored its increased injustice when applied to defendants with mental retardation.

A close analysis of statutory rape law reveals several assumptions which are thought to justify departing from a mens rea requirement for such a significant offense: Would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Further, punishing persons with mental retardation without regard to their awareness of the law, social cues, and the nature of their conduct may also run afoul of constitutional due process and proportionate sentencing principles.

This Article therefore argues that legislators, prosecutors, and judges should modify the ways that defendants with mental retardation may be prosecuted for statutory rape. In particular, the government should have to prove that a defendant with mental retardation had the appropriate mens rea. This Article also recommends formalizing the existing ways of addressing differences in culpability of defendants with mental retardation through charging and sentencing.