Criminal Law


The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law

Alina Das

For over a century, noncitizens in the United States have faced adverse immigration
consequences if convicted of certain types of offenses in criminal court. Many criminal
convictions carry severe immigration penalties, including deportation, detention,
and the denial of statuses like asylum and U.S. citizenship. The Supreme
Court recently recognized that these penalties are so intimately tied to criminal
court adjudications that criminal defense attorneys have a duty to advise noncitizen
defendants of the immigration consequences of a conviction before the entry of a
guilty plea in criminal court. Yet there is little clarity about how to determine
whether a particular conviction triggers an immigration penalty. Historically, courts
and immigration officials have applied a categorical analysis to assess the immigration
consequences of a criminal conviction. Under a categorical analysis, a court or
immigration official determines the penalties based on an examination of the statutory
definition of the offense, not the factual circumstances of the crime. However,
several recent Supreme Court, federal court, and agency decisions have ignored this
longstanding analysis and have instead examined these issues through the lens of
Taylor v. United States, a criminal sentencing case that adopts a categorical analysis
in a different context. Distinguishing Taylor and its criminal sentencing rationales,
these decisions have invented a new approach to assessing past criminal
convictions in the immigration context. That approach now permits a circumstance-specific inquiry into facts beyond the criminal court’s findings in some immigration
cases. Under these recent decisions, the immigration consequences of a criminal
conviction no longer turn on the criminal court adjudication alone, but may also be
determined by facts that were not proven or pleaded in the criminal court proceeding.
This Article argues that this shift in approach is based on a fundamental
misunderstanding of the origins of categorical analysis in immigration law and its
independent rationales, including its promotion of notice and an opportunity to be
heard, uniformity, predictability, efficiency, and judicial review in the administrative
agency context. This Article further argues that, because of this flaw in the
current debate, courts have failed to consider the negative impact of the erosion of
categorical analysis on the functioning of the current immigration and criminal justice
systems. The rationales for categorical analysis apply with even greater force
today than they did when categorical analysis was first articulated nearly a century
ago. Rather than erode categorical analysis, courts and the agency should require
its robust application in light of its longstanding rationales and modern-day

Sorting Guilty Minds

Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois

Because punishable guilt requires that bad thoughts accompany bad acts, the
Model Penal Code (MPC) typically requires that jurors infer the mental state of a
criminal defendant at the time the crime was committed. Specifically, jurors must
sort the defendant’s mental state into one of four specific categories—purposeful,
knowing, reckless, or negligent—which will in turn define both the nature of the
crime and the degree of the punishment. The MPC therefore assumes that ordinary
people naturally sort mental states into these four categories with a high degree of
accuracy, or at least that they can reliably do so when properly instructed. It also
assumes that ordinary people will order these categories of mental state, by
increasing amount of punishment, in the same severity hierarchy that the MPC
The MPC, now turning fifty years old, has previously escaped the scrutiny of comprehensive
empirical research on these assumptions underlying its culpability architecture.
Our new empirical studies, reported here, find that most of the mens rea
assumptions embedded in the MPC are reasonably accurate as a behavioral matter.
Even without the aid of the MPC definitions, subjects were able to distinguish regularly
and accurately among purposeful, negligent, and blameless conduct.
However, our subjects failed to distinguish reliably between knowing and reckless conduct. This failure can have significant sentencing consequences for certain
crimes, especially homicide.

Sentencing Entrapment and the Undue Influence Enhancement

Kirstin Kerr O’Connor

With the rapid growth of the Internet, Congress and the United States Sentencing
Commission have expressed concern over the increasing opportunities for sex
predators to target children online. This concern has resulted in the creation of a
complex sentencing regime for such sex offenders. The provision of the Guidelines
that determines the sentence for persons convicted of attempted statutory rape
includes an enhancement for exerting undue influence over the victim. Federal
courts had struggled with whether this enhancement could be applied to those
caught in undercover law enforcement stings in which no real “victim” existed. The
Sentencing Commission intervened in 2009 to specify that the Undue Influence
Enhancement was inapplicable to such undercover operations.
This Note explores the circuit split that prompted the Commission’s clarification
and examines the appropriateness of applying the Undue Influence Enhancement
in undercover Internet stings. In particular, it analyzes the enhancement in light of
entrapment and sentencing entrapment principles and ultimately concludes that
these concerns do not compel a blanket prohibition on utilizing the enhancement in
undercover operations.

Neutralizing the Gendered Collateral Consequences of the War on Drugs

Marne L. Lenox

As a result of the War on Drugs, women are disproportionately impacted by the civil sanctions resulting from felony drug convictions. While legislation imposing collateral consequences of felony drug convictions does not explicitly discriminate against women, these laws reflect sex-based institutional biases and are thereby unequal in effect. While some statutes permit a disparate impact theory of sex discrimination, there exists no statutory protection for women in the context of collateral consequences. And because the Equal Protection Clause of the Fourteenth Amendment does not adequately protect against gender-neutral legislation that adversely affects women, raising a constitutional claim is not a viable alternative to statutory protection. In response, this Note sets forth two separate—constitutionally sound—proposals for legislative reform. First, I suggest that in light of historic sex discrimination, a remedial sex-based exemption from penalties imposed by collateral consequences is in order. In recognition of the Court’s distaste for sex-based legislation, however, I alternatively recommend that Congress exempt from collateral penalties ex-offenders who serve as the primary caretakers of their children.

Evaluating Eyewitness Identification in the 21st Century

The Honorable Stuart Rabner

In the Eighteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Stuart Rabner, Chief Justice of the New Jersey Supreme Court, discusses the court’s recent decision in State v. Henderson. In Henderson, the court revised the longstanding legal framework for testing the reliability of eyewitness identifications. Justice Rabner discusses the case law underlying the traditional framework, the social science that prompted the court’s decision, and the revised framework now in place. He concludes by emphasizing the importance of eyewitness identification in our criminal justice system and calling for continued judicial attention to accepted scientific evidence on eyewitness reliability.

Correcting Race and Gender: Prison Regulation of Social Hierarchy Through Dress

Gabriel Arkles

This Article examines the enforcement of racialized gender norms through the regulation of dress in prisons. Dress, including hair and clothing, is central to the ways government and other institutions enforce hierarchical social norms. These norms are based on the intersection of race and gender, as well as religion, sexuality, class, age, and disability. For many people, dress is a way to express identity, exercise autonomy, practice religion, participate politically, experience pleasure, preserve health, or avoid violence. My review of prison dress regulations shows that prison systems commonly impose penalties including solitary confinement for deviations from dominant social norms. Examples of these deviations include wearing hair in an Afro, covering hair with a headscarf, or having long hair if incarcerated as a man. I situate prison rules in the historical context of dress regulation and prison evolution in the United States. The justifications—such as repression of homosexuality and group affiliation, prevention of attacks and escapes, and promotion of hygiene and rehabilitation—that prison officials offer for these rules raise normative and instrumental concerns. Nonetheless, courts frequently diminish individual and community interests in dress while deferring to prison regulations that lack complete or credible justifications. In furtherance of the goal of prison abolition, I propose an integrated approach for change through policy amendments, doctrinal shifts, and broader grassroots efforts for social transformation.

How Does One Operate or Manage an Enterprise? Insights from Boyle v. United States

Michael Levi Thomas

The Racketeer Influenced and Corrupt Organizations Act (RICO) is an innovative criminal and civil statute drafted by Congress to combat whole criminal organizations. Section 1962(c) of RICO, its most used provision, prohibits an individual from conducting or participating in the conduct of an enterprise’s affairs through a pattern of racketeering activity. In Reves v. Ernst & Young, the Supreme Court sought to resolve a circuit split over the interpretation of this section and ultimately held that the “operation or management” test would determine liability under § 1962(c). However, the Reves Court did not fully define the operation or management test, nor have the lower courts applied it in a consistent manner. Recently, Justice Stevens, dissenting in Boyle v. United States, alleged that the Court’s interpretation of RICO’s associated-in-fact enterprise element conflicted with Reves and the operation or management test. Justice Alito, writing for the majority, denied such a conflict. This Note continues that conversation by examining whether a conflict exists between the operation or management test and the Court’s interpretation of RICO’s associated-in-fact enterprise element. Finding that a strict conception of the operation or management test does conflict with the Court’s recent interpretation of associated-in-fact enterprise in Boyle, this Note proposes a less restrictive interpretation of § 1962(c), and thus a more flexible application of the Reves operation or management test, that more consistently interacts with a broad understanding of enterprise as defined in Boyle. Simply put, this Note argues that courts can hardly require that a RICO defendant play a role in the leadership of an enterprise itself, while readily applying RICO to enterprises that have no real leadership structure.

Racial Critiques of Mass Incarceration: Beyond the New Jim Crow

James Forman, Jr.

In the last decade, a number of scholars have called the American criminal justice system a new form of Jim Crow. These writers have effectively drawn attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals. This Article argues that despite these important contributions, the Jim Crow analogy leads to a distorted view of mass incarceration. The analogy presents an incomplete account of mass incarceration’s historical origins, fails to consider black attitudes toward crime and punishment, ignores violent crimes while focusing almost exclusively on drug crimes, obscures class distinctions within the African American community, and overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow analogy diminishes our collective memory of the Old Jim Crow’s particular harms.

Tinkering with the Machinery of Death: Lethal Injection, Procedure, and the Retention of Capital Punishment in the United States

Jonathan Yehuda

This Note builds on the work of Professor William Berry, who has proposed a concept called “procedural exceptionalism” to explain the persistence of the death penalty in the United States in an age of abolition elsewhere in the West. Berry argues that there is a distinctive American faith in the procedural protections afforded defendants, such as the jury trial and multiple levels of appeal, which helps legitimize the institution of capital punishment in the United States. This analysis, however, only takes into account the conviction and sentencing aspect of the death penalty. This Note contends that the actual method by which executions are carried out is equally important in explaining the retention of capital punishment. This Note applies Berry’s idea of “American procedural exceptionalism” to method of execution in the particular context of judicial decisions governing the administration of lethal injection. It argues first that lethal injection as a method of execution perpetuates the notion of a more “humane” death penalty, and second that judicial faith in the perfectibility of the procedures governing lethal injection serves to reinforce this notion. This faith in the perfectibility of the procedure of lethal injection works in conjunction with a similar faith in the procedures governing conviction and sentencing to create an equilibrium that allows for the continued use of capital punishment in the United States.

Accounting for Punishment in Proportionality Review

Julia L. Torti

The Eighth Amendment has been interpreted to demand proportionality between an offender’s crime and his punishment. However, the current proportionality standard is widely regarded as meaningless. In weighing the severity of the crime against the harshness of the punishment, modern courts do not consider any aspect of the sentence beyond the number of years listed. This Note argues that a more comprehensive analysis of the features of a sentence that contribute to its severity has the potential to reinvigorate the proportionality principle by giving courts a fuller picture of the harshness of modern sentences. Although there are some hurdles to conducting this more robust analysis, this Note proposes methods by which courts could consider the true length of carceral sentences, the prison conditions in which the sentences are served, and the collateral consequences that accompany many criminal convictions. In so doing, this Note demonstrates that some methods of accounting more accurately for the harshness of punishments are neither impracticable nor in tension with other areas of Eighth Amendment doctrine.

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