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The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice—and thereby creates incentives for officers not to notice—despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-a`-vis society’s prisoners.

Under the forfeiture-by-wrongdoing rule, a criminal defendant loses his Sixth Amendment right to confront a government witness when he intentionally prevents that witness from testifying at trial. As the rule currently operates, any and all prior statements by the missing witness can be admitted as substantive evidence against the defendant, regardless of whether they have been subjected to any of the procedural elements of confrontation. In this Note, I argue against such a “complete forfeiture” rule and propose a more “limited” rule in its stead. I argue, contrary to most courts and scholars, that forfeiture-by-wrongdoing cannot be justified by its punitive rhetoric, rendering its sweeping “complete forfeiture” result vulnerable to criticisms based on the primary lessons of Crawford v. Washington.

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.

This Note contends that the Supreme Court has systematically used the doctrine of
judicial notice to portray the nation’s schools as rife with crisis. Ignoring the record
before it, the Court has relied on the “crisis” it has manufactured to curtail students’
Fourth Amendment rights. Critiquing this practice and likening it to the Court’s
invocation of “emergency” in the context of war and natural disaster, this Note
concludes that the Court ought to be held more accountable for the “facts” that it
judicially notices.

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.

The last decade has seen a noted increase in the amount of traffic-stop data available for researchers hoping to analyze racial profiling on America’s highways. A group of economic scholars—Knowles, Todd, and Persico—proposed a bright-line statistical test that asks whether different racial groups have the same hit rate, or to put it differently, are searches of individuals equally efficacious, regardless of their race? Accepting this conception of racial profiling as a minimum floor, I apply the test to a superior and newly-compiled data set of nine million Illinois traffic stops. The Illinois police fail the bright-line test and show signs of discrimination against Hispanic, Asian, and Black motorists. I then examine whether Seventh Circuit equal protection precedent would permit an Equal Protection claim based on that statistical disparity alone, concluding that additional evidence is needed to satisfy the discriminatory intent prong.

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.

Dataveillance, a method of surveillance that collects and analyzes massive amounts of data about individuals, poses a threat to information privacy because it allows companies to uncover intimate personal information that individuals never consented to disclose. No comprehensive legal framework currently exists to regulate dataveillance. A potential remedy lies in the common law torts designed to protect privacy. However, the most applicable of these privacy torts, the tort of intrusion upon seclusion, faces several doctrinal hurdles in regulating dataveillance because courts and commentators consider the initial collection of data to be the only potential privacy intrusion from dataveillance. This Note proposes that the tort of intrusion upon seclusion could be updated to effectively regulate dataveillance if courts recognize that dataveillance’s observation of new personal information constitutes its own privacy intrusion, distinct from the intrusion at the data collection stage. This doctrinal shift would overcome the doctrinal barriers to applying the intrusion upon seclusion tort to dataveillance.

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.

In Padilla v. Kentucky, the Supreme Court declared that defense attorneys must give advice to noncitizen defendants regarding the risk of deportation in order to meet the constitutional standard for effective assistance of counsel. Acknowledging the confusing nature of immigration law, the Court stated that when the law is not straightforward, a criminal defense attorney need do no more than advise a noncitizen client that a conviction may carry a risk of adverse immigration consequences. However, when the deportation consequence is clear, the attorney must give similarly clear advice. Some lower courts have chipped away at Padilla’s holding, allowing vague advice—either from the defense attorney or from other sources—to be deemed effective even in cases where Padilla would seem to require more specific advice. In treating vague defense attorney advice as reasonable, or allowing generic warnings from the court or arresting officers to “cure” a lack of immigration advice from defense attorneys, courts are circumventing Padilla’s demand for specific advice in situations where the consequences of a guilty plea are clear, and thus undermining the underlying concerns of the Supreme Court’s reasoning. Especially in cases where deportation is virtually mandatory, receiving general advice that there is a “risk” of deportation leaves a client with the impression that there is a chance to stay in the country. This impression could have a serious effect on the defendant’s ultimate decision to plead guilty or go to trial. Furthermore, these courts’ approach gives little incentive for defense attorneys to look into the immigration consequences of their clients’ convictions. This Note argues that courts should not allow generalized and unclear advice to meet the standard for effective assistance of counsel when the immigration consequences are actually clear-cut, because doing so undercuts the purpose of the Padilla decision and is unhelpful to noncitizen clients.