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Clemency and Presidential Administration of Criminal Law

Rachel E. Barkow

President Obama’s use of enforcement discretion to achieve important domestic policy initiatives—including in the field of criminal law—has sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front end to achieve policy goals. What about enforcement decisions already made, either by the President’s own agents or by actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. This clemency power is a powerful tool for the President to oversee federal criminal administration. But while centralized authority over enforcement discretion at the front end has grown, the clemency power finds itself falling into desuetude.

This Article explores the fall of the clemency power and argues for its resurrection as a critical mechanism for the President to assert control over the executive branch in criminal cases. While clemency has typically been referred to as an exercise of mercy and even analogized to religious forgiveness, it also serves a more structurally important role in the American constitutional order that has been largely overlooked: It is a critical mechanism for the President to control the executive department in criminal matters. Those in favor of strong presidential administration or advocates of a unitary executive theory should encourage a more robust employment of the clemency power. But even critics of strong presidential powers or unitary executive theory in other contexts should embrace clemency as a mechanism of control in the criminal sphere. Whatever the merits of other unitary executive or presidential administration claims involving military power or oversight over administrative agencies, clemency stands on different footing. It is explicitly and unambiguously grounded in the Constitution’s text, and it has an established historical pedigree. It is also a crucial checking mechanism given the landscape of criminal justice today. The current environment of expansive federal criminal laws and aggressive charging by federal prosecutors has produced a criminal justice system of unprecedented size and scope. Federal prisons are overcrowded and expensive, and hundreds of thousands of individuals are hindered from reentering society because of a federal record. Clemency is a key tool for addressing poor enforcement decisions and injustices in this system, as well as checking disparities in how different U.S. Attorneys enforce the law.

Immigration Reliance on Gang Databases

Rebecca A. Hufstader

Unchecked Discretion and Undesirable Consequences

The Obama Administration has historically expanded the availability of deferred action, which provides a reprieve from the threat of deportation and work authorization to certain undocumented immigrants, through the creation of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These programs, as well as legislative efforts to provide a path to citizenship for undocumented immigrants, increasingly seek to exclude suspected gang members. In doing so, they make gang databases managed by state and local law enforcement increasingly relevant to eligibility decisions. These databases, however, lack the procedural safeguards necessary to curb police discretion, which can allow racial stereotypes and biases to influence decisionmaking and lead to the disproportionate inclusion of people of color. This Note argues that the policy rationales underlying procedural due process highlight the inadequacies of these databases as tools for immigration adjudicators. By using them to determine eligibility for immigration benefits, the Department of Homeland Security (DHS) imports the racial bias inherent in the criminal justice system to the immigration system. In order to avoid this result and increase both fairness and accuracy, DHS should bar adjudicators from relying on gang databases.

More Than “Johns,” Less Than Traffickers

Heather C. Gregorio

In Search of Just and Proportional Sanctions for Buyers of Sex with Trafficking Victims

The U.S. criminal justice system currently lacks a proportional, clear, and effective law targeted at individuals who purchase sex with trafficking victims. These “johns” of trafficking victims (JTVs) historically have remained anonymous and unaccountable. More recently, three unsatisfactory approaches to sanctioning this group have emerged. First, they are sometimes subjected to low-level patronization and solicitation misdemeanors alongside johns of consensual sex workers. Second, they are increasingly prosecuted as traffickers under sex-trafficking legislation. Third, they are occasionally prosecuted as statutory rapists and sex abusers if the victim is a minor. This Note argues that none of these first three approaches are an adequate fit for this population. Treating them simply as johns ignores the seriousness of their offense and does not distinguish prostitution from trafficking. Treating them as traffickers is disproportionate on the other extreme, especially with recent strict liability interpretations of sex-trafficking statutes and mandatory minimums, and furthermore dilutes the term “human trafficking.” Finally, treating them as statutory rapists is underinclusive and ignores the commercial nature of the offense. This Note explores a fourth approach being implemented sporadically on the federal and state levels: prosecuting johns of trafficking victims under legislation explicitly addressing this group. This Note argues that targeted legislation is the most appropriate and fair approach. It advocates modified versions of such legislation, with tailored mens rea standards and flexible penalties correlated to culpability.

The Evidentiary Rules of Engagement in the War Against Domestic Violence

Erin R. Collins

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime. This Article reveals that this presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The Article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by both reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support prosecution.

Death and Its Dignities

Kristen Loveland

Dignity has been associated with death in two very different areas of constitutional jurisprudence: assisted suicide and the death penalty. This Note seeks to analyze what the concept of dignity means in these two contexts: who is the subject of dignity and what are dignity’s requirements? It argues that assisted suicide foregrounds the subjective dignity of the individual; what dignity involves is largely, though not wholly, a question of what an individual considers a dignified way to die. By contrast, the subject of dignity in death penalty jurisprudence is the collective and not the individual. Inasmuch as the jurisprudence claims to speak to the dignity of the individual, that dignity is objective and extends no further than collective dignity’s reach. As a result, what constitutes dignity in execution is almost wholly determined by what appears dignified to society. This Note ends by critically assessing how the two constitutional areas that link death and dignity may fruitfully inform each other. It suggests that assisted suicide’s individualistic dignity includes not just a right to decide how to die, but also a responsibility to collective society to consider how the nature of that suicide may impact collective dignity. In turn, in the death penalty context, states and courts should import subjective individual dignity considerations and reconsider whether their invocation of “dignity” in fact reflects a collective valuation of dignity or merely assuages social sensibilities by masking the reality of death.

Malice Aforethought and Self-Defense: Mutually Exclusive Mental States?

Stephanie Spies

This Note analyzes the relationship between “malice aforethought,” the mens rea required to commit murder, and self-defense, a potential justification for a killing. Although both concepts are well-established in criminal law, there is a dearth of jurisprudence dealing with their intersection. Specifically, many jurisdictions, including the Second Circuit, have yet to conclusively address the issue of whether the mental state required for proving a self-defense justification is incompatible with the mens rea of malice aforethought required for committing murder under the primary federal murder statute, 18 U.S.C. § 1111. Because under federal law, self-defense is an issue of common law, rather than statutory, the existing case law on this question in federal jurisdictions is inconsistent, inconclusive, and often nonexistent. Some circuits have indicated, often in dicta, that malice is incompatible with the reasonable fear for one’s safety that is required when acting in self-defense, while other courts have found it consistent for a defendant to possess a preformulated intent to kill another person but also act (and therefore kill) in the moment due to a fear for his or her life or safety. While both positions present analytical difficulties, these problems all stem largely from the definitional ambiguity surrounding “malice aforethought” and courts’ subsequent inconsistent applications of the concept in murder trials. Therefore, this Note argues for the adoption of a clear and consistent definition of “malice aforethought” which encompasses its common law definition, requiring a depraved or evil mental state beyond mere intent to kill.

Adversarial Asymmetry in the Criminal Process

Daniel Epps

It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue—which I call adversarial asymmetry—is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems—including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions—would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process. In fact, a more consistently adversarial system might have surprising advantages over our own, providing more accountability for prosecutors while being more consistent with the rule of law. And while heightened adversarialism unquestionably poses risks, alternative institutional structures could minimize those dangers. Even if actually implementing such a system is unrealistic or unappealing, the proposal has value as a thought experiment, for it exposes deep fault lines in the theoretical foundation of our system of criminal prosecution. Our current approach combines an adversarial process with politically accountable prosecutors—yet we lack a compelling account of what precise level of adversarialism is optimal or why political accountability is the right tool for producing good behavior from prosecutors. It should thus be unsurprising that our system often works poorly in practice. Absent a better reason to think that our current approach is the only option, we should be more willing to reconsider basic structural arrangements in criminal justice.

Conditional Spending and the Need for Data on Lethal Use of Police Force

Grace E. Leeper

When it wants to be, the federal government is good at counting things. It tracks average daily caffeine intake (300 milligrams per adult older than twenty-two in 2008), weekly instances of the flu (875 reported by public health laboratories in the week ending January 14, 2017), monthly production of hens’ eggs (8.97 billion in December 2016), and annual bicycle thefts (204,984 in 2015). But it currently cannot provide a comprehensive count of how often police officers use lethal force against its citizens. The deaths of Michael Brown, Walter Scott, Tamir Rice, Laquan McDonald—all unarmed, black, and shot by police officers—and far too many others have forced the issue of lethal police use of force into the national consciousness. But while many recent reports have focused on the unreliability of current data, there has been relatively little consideration of how, exactly, the federal government might go about getting it. This Note seeks to fill this gap by laying out the contours within which the federal government can act to incentivize states to collect more and better data. After highlighting the need for robust data collected at the federal level and describing various issues with the current state of federal collection of law enforcement data, this Note outlines the legal landscape legislators considering such a policy must grapple with: the combination of federalism concerns that are particularly acute in the sphere of state and local law enforcement, and the Supreme Court’s somewhat ambiguous conditional spending jurisprudence. Finally, it explains how the federal government might incentivize data collection without running afoul of the law, proposing a legislative scheme for federal collection of law enforcement data that combines national guidelines, conditional spending requirements, and competitive grant funding.

Trial Judges and the Forensic Science Problem

Stephanie L. Damon-Moore

In the last decade, many fields within forensic science have been discredited by scientists, judges, legal commentators, and even the FBI. Many different factors have been cited as the cause of forensic science’s unreliability. Commentators have gestured toward forensic science’s unique development as an investigative tool, cited the structural incentives created when laboratories are either literally or functionally an arm of the district attorney’s office, accused prosecutors of being overzealous, and attributed the problem to criminal defense attorneys’ lack of funding, organization, or access to forensic experts.

But none of these arguments explain why trial judges, who have an independent obligation to screen expert testimony presented in their courts, would routinely admit evidence devoid of scientific integrity. The project of this Note is to understand why judges, who effectively screen evidence proffered by criminal defendants and civil parties, fail to uphold their gatekeeping obligation when it comes to prosecutors’ forensic evidence, and how judges can overcome the obstacles in the path to keeping bad forensic evidence out of court.