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White is Right: The Racial Construction of Effective Assistance of Counsel

Alexis Hoag-Fordjour

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into constitutional jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.

The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness and that—but for counsel’s unprofessional errors—there is a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law applies to defense counsel when determining ineffective assistance of counsel claims.

The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. This Article applies a critical lens to examine the historical and racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow-era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.

Digital Privacy for Reproductive Choice in the Post-Roe Era

Aziz Z. Huq, Rebecca Wexler

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a premium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, criminal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access information, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.

This Article offers an in-depth analysis of the core legal issues concerning abortion related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and economic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and economic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states’ efforts to conscript them into a war on reproductive choice. We then lay out precise, tangible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative intervention: a statutory evidentiary privilege to shield abortion-relevant data from warrants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care.

The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform

Nasrin Camilla Akbari

In the American criminal justice system, individuals from marginalized communities
routinely face longer terms and greater rates of incarceration compared to their
nonmarginalized counterparts. Because the literature on mass incarceration and
sentencing disparities has largely focused on the experiences of Black and Hispanic
individuals, far less attention has been paid to the overincarceration of Native peoples.
Yet there are clear indications that Native peoples are both overrepresented
within the criminal justice system and subject to unique sentencing disparities as
compared to other ethnicities. While these issues are partly motivated by traditional
drivers of criminal behavior, including access barriers to housing, employment, and
education, this Note argues that there is a greater systemic issue at play: the
enduring legacy of colonialism. Accounting for—and correcting—this legacy in the
criminal justice system is a complex task, though not an impossible one. For
example, over the past twenty years, the Canadian criminal justice system has
implemented a novel, remedial sentencing approach to address the overincarceration
of Aboriginal offenders: the
Gladue approach. Recognizing the extent to
which the Canadian legal system has failed to account for the unique needs, experiences,
and circumstances of Aboriginal offenders, the
Gladue approach mandates
an individualized and contextualized approach to sentencing, one which prioritizes
community-based alternatives to incarceration and emphasizes restorative justice.
This Note proposes two legal pathways by which to transplant the
Gladue
approach to the American criminal justice system. In so doing, it offers the first
comprehensive analysis of the normative and constitutional implications of
applying the
Gladue approach to the sentencing of Native peoples within the
United States. While the approach has challenges and shortcomings, it is nevertheless
a powerful tool by which the American criminal justice system can begin to
reckon with its colonial past and present.

Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights

Elizabeth Bays

One of the things courts across the nation struggled with throughout the COVID-19
pandemic was the conflict between preserving defendants’ rights under the
Confrontation Clause of the Sixth Amendment and implementing the safest public
health measures. Measures like masking or virtual testimony recommended by
public health officials threatened to abridge defendants’ rights. This Note has two
primary contentions. First, it will argue that the wide variation in the ways courts
chose to resolve this tension revealed a fundamental issue in our Confrontation
Clause jurisprudence: Courts have never actually defined the underlying right. In
fact, this Note will argue, that the “confrontation right” is more appropriately
understood as a bundle of distinct rights which must be carefully prioritized.
Second, this Note will argue that the standards used to adopt these modifications
were insufficiently rigorous. It proposes, therefore, that it is time for the legislature
to intervene as they have in other situations involving modified confrontation, and
to provide courts with a structured procedure for authorizing modified witness testimony
during times of emergency.

A Unified Theory of Knowing Exposure: Reconciling Katz and Carpenter

Luiza M. Leão

The search doctrine has long been in a state of disarray. Fragmented into different sub-doctrines, Fourth Amendment standards of constitutional protection vary based on how the government acquires the information in question and on how courts define the search that occurred. As trespass-based searches, reasonable expectation of privacy searches, consent-based searches, third-party searches, and private searches each trigger different levels of protection, the doctrine has become what more than one Justice has termed a “crazy quilt.” This Note argues that unriddling the Fourth Amendment is easier than it might appear with the aid of the concept of knowing exposure, first discussed in Katz v. United States. An undercurrent across different strands of the search doctrine, the knowing exposure principle holds that what one “knowingly exposes to the public” is beyond the scope of Fourth Amendment protection. As the Court grapples with the search doc- trine in an age of unprecedented exposure to third parties, most recently in Carpenter v. United States, it should seek to unify the standard for searches around the foundational question of what renders one’s exposure “knowing.” Turning to Carpenter’s modifications to the third-party doctrine, this Note suggests a unified theory of knowing exposure that can apply across different kinds of searches, centering on whether the exposure is (1) knowing, (2) voluntary, and (3) reasonable.

Reasonable Moral Doubt

Emad H. Atiq

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it in Kansas v. Carr. According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context, and moral questions—“Are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

Lawless Surveillance

Barry Friedman

Policing agencies in the United States are engaging in mass collection of personal data, building a vast architecture of surveillance. License plate readers collect our location information. Mobile forensics data terminals suck in the contents of cell phones during traffic stops. CCTV maps our movements. Cheap storage means most of this is kept for long periods of time—sometimes into perpetuity. Artificial intelligence makes searching and mining the data a snap. For most of us whose data is collected, stored, and mined, there is no suspicion whatsoever of wrongdoing.

This growing network of surveillance is almost entirely unregulated. It is, in short, lawless. The Fourth Amendment touches almost none of it, either because what is captured occurs in public, and so is supposedly “knowingly exposed,” or because of the doctrine that shields information collected from third parties. It is unregulated by statutes because legislative bodies—when they even know about these surveillance systems—see little profit in taking on the police.

In the face of growing concern over such surveillance, this Article argues there is a constitutional solution sitting in plain view. In virtually every other instance in which personal information is collected by the government, courts require that a sound regulatory scheme be in place before information collection occurs. The rulings on the mandatory nature of regulation are remarkably similar, no matter under which clause of the Constitution collection is challenged.

This Article excavates this enormous body of precedent and applies it to the problem of government mass data collection. It argues that before the government can engage in such surveillance, there must be a regulatory scheme in place. And by changing the default rule from allowing police to collect absent legislative prohibition, to banning collection until there is legislative action, legislatures will be compelled to act (or there will be no surveillance). The Article defines what a minimally acceptable regulatory scheme for mass data collection must include and shows how it can be grounded in the Constitution.

Justice for Emerging Adults After Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older

Francis X. Shen, Fenella McLuskie, Erin Shortell, Mariah Bellamoroso, Elizabeth Escalante, Brenna Evans, Ian Hayes, Clarissa Kimmey, Sarah Lagan, Madeleine Muller, Jennifer Near, Kailey Nicholson, Job Okeri, Ifeoma Okoli, Emily Rehmet, Nancy Gertner, Robert Kinscherff

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

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