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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.

Targeted Warfare: Individuating Enemy Responsibility

Samuel Issacharoff, Richard H. Pildes

Legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. Whereas the traditional practices and laws of war defined enemy forces in terms of categorical, group-based judgments that turned on status—a person was an enemy not because of any specific actions he himself engaged in but because he was a member of an opposing military force—we are now moving to a world that, implicitly or explicitly, requires the individuation of enemy responsibility of enemy persons in order to justify the use of military force. Increasingly, the legitimate use of military force is tied to quasi-adjudicative judgments about the individual acts and roles of specific enemy figures; this is the case whether the use of force involved is military detention or targeted killing. This transformation transcends conventional debates about whether terrorist actions should be treated as acts of war or crime and is more profound in its implications.

This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, quasi-adjudicative processes to ensure accurate, credible judgments about the individual responsibility of particular enemy fighters. For the executive, these changes will propel greater engagement in decisions that had previously been exclusively within the province of the military. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past; this expansion has begun to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually be embodied in the legal frameworks that regulate the use of force. This Article will identify this fundamental transformation as the central factor driving struggles over the proper boundaries of military force and then explore the ramifications of this change for issues like military detention and targeted killings.

Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement

Ingrid V. Eagly

The growing centrality of “criminal aliens” to American immigration enforcement is one of the most significant historical shifts in the federal immigration system. However, little is known about how this dramatic restructuring of federal immigration priorities affects local criminal justice systems. Do noncitizens experience the same type of criminal justice as citizens? This Article seeks to answer this question by offering the first empirical study of how local criminal process is organized around immigration enforcement and citizenship status. It accomplishes this task by analyzing the criminal justice systems of the three urban counties that prosecute the highest number of noncitizens: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona.

Comparative review of law, procedure, and practice in these three counties reveals that immigration’s interaction with criminal law has a far more powerful impact on local criminal practice than previously understood. Across all three counties, the practical effects of the federal government’s reliance on arrests and convictions in making enforcement decisions are felt at every stage of the criminal process: Immigration status is part of routine booking at local jails, “immigration detainers” impede release on criminal bail, immigration officials encourage criminal prosecutors to secure plea agreements that guarantee removal, and noncitizens are sometimes deported before their criminal cases are completed. Yet, there is surprising variation in how these three counties have structured their criminal practices in light of the consistently deep connections between criminal process and immigration enforcement. As this Article develops, the three jurisdictions have adopted distinct models of noncitizen criminal justice—what I term alienage neutral, illegal-alien punishment, and immigration enforcement. Each model reflects significant agreement across county agencies about the appropriate role of noncitizen status in criminal case adjudication and of local involvement in deportation outcomes. These findings have important implications for the institutional design of both local criminal systems and federal immigration enforcement.

Indeterminate Sentencing Returns: The Invention of Supervised Release

Fiona Doherty

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release. A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing. Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender. This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length. I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement. Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so. This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

What’s in a Name? Challenging the Citizen-Informant Doctrine

Ariel C. Werner

Over the last fifty years, courts and scholars have debated the utility and reliability of informants—individuals who alert law enforcement to the occurrence of crime, point law enforcement in the direction of potential perpetrators, and help law enforcement prosecute those eventually charged. There are three primary types of criminal justice informants: (1) criminal and confidential informants, (2) anonymous tipsters, and (3) citizen-informants. Judicial examinations and scholarly critiques of informants have focused almost exclusively on the first two categories. These informants are deemed suspect, either because they are so enmeshed in the justice system that they have questionable motives, or because they inculpate others under a veil of anonymity. Meanwhile, the third category of informant—the citizen-informant—has evaded rigorous scrutiny because of the “citizen-informant doctrine,” a premise embraced by the federal courts and many state courts. The citizen-informant doctrine reasons that individuals who witness or fall victim to crime and willingly identify themselves to law enforcement officers are presumptively reliable. This presumption enables law enforcement officers to conduct searches and seizures that would otherwise be unlawful based on uncorroborated reports from untested civilians. The citizen-informant doctrine has major consequences for the robustness of the Fourth Amendment’s protection against unjustified government intrusions, and it has an enormous impact on the integrity of police investigations and criminal prosecutions. Yet this doctrine rests on shaky foundations that have heretofore been insufficiently probed. This Note proposes that courts require law enforcement officers to conduct more exacting inquiries before relying on the word of a so-called citizen-informant.

Hearsay and Confrontation Issues Post-Crawford: The Changing Course of Terrorism Trials

Jessica K. Weigel

In 2004, the Supreme Court overhauled the established interpretation of the Confrontation Clause of the Sixth Amendment when it decided Crawford v. Washington. This Note attempts to augment the existing literature by elucidating the Crawford standard in the context of terrorism prosecutions in Article III courts. It details the shifts between Ohio v. Roberts and Crawford, analyzes subsequent federal case law, and tests the new framework on hypothetical terrorism fact patterns. This Note anticipates that for some types of evidence, such as ex parte affidavits and written summaries of testimony, the Crawford test will create significant hurdles for prosecutors in terrorism cases. A viable solution to this problem is for the government to make greater use of witness depositions abroad pursuant to Federal Rule of Criminal Procedure 15(c)(3).