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The Supreme Court’s Ahistorical Reasonableness Approach to the Fourth Amendment

Nikolaus Williams

In recent years, the Supreme Court has increasingly made “reasonableness” the central inquiry of whether a search or seizure is constitutional under the Fourth Amendment. The rise of the reasonableness approach has coincided with originalist scholarship that claims this interpretation is more consistent with the Amendment’s text and history. This Note looks at Framing-era search-and-seizure practice and argues that the Court’s modern reasonableness interpretation is, in fact, ahistorical and inconsistent with Framing-era practice and the Amendment’s original understanding. Not only is there scant evidence that the legality of searches and seizures turned on their reasonableness during the Framing era, but the arguments made in favor of the Court’s modern reasonableness approach are based on flawed historical assumptions. As a result, the Court’s various applications of its reasonableness interpretation are all inconsistent with Framing-era practice and the Amendment’s original understanding.

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).

Not So Legitimate: Why Courts Should Reject an Administrative Approach to the Routine Booking Exception

Julie A. Simeone

The routine booking exception permits police officers and agents to ask certain questions—typically biographical inquiries such as an arrestee’s name, age, and address—in the absence of the Miranda warnings. Since its introduction in Pennsylvania v. Muniz, the exception has been inconsistently defined. This Note addresses the various formulations of the routine booking exception and focuses on the increasingly utilized administrative-centric tests. It concludes that a purely administrative approach to routine booking should be rejected.

Have Interjudge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker

Crystal S. Yang

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. How has greater judicial discretion affected interjudge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering almost 400,000 criminal defendants linked to sentencing judges to undertake the first national empirical analysis of interjudge disparities after Booker.

The results are striking: Interjudge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed post-Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effects of various actors on sentencing disparities, I find that prosecutorial charging is likely a prominent source of disparities. Rather than charging mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of the sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, this Article suggests that recent sentencing proposals calling for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

Batson versus Strickland: Evaluating Ineffective Assistance of Counsel Claims Resulting from the Failure to Object to Race-Based Preemptory Challenges

Ashley C. Harrington

This Note evaluates the convergence of the standards articulated in Batson v. Kentucky and those of Strickland v. Washington. Specifically, how can a defendant demonstrate actual prejudice as a result of defense counsel’s failure to challenge the prosecutor’s discriminatory use of peremptory strikes? Lower courts have differed over whether the test should be outcome-based—a demonstration of actual prejudice in the outcome or verdict of the trial—or composition-based—a showing that the result of the jury selection process would have been different. I argue that the latter test is preferable to the former for several reasons. First, the composition-based test will ensure fuller protection of the rights contemplated in Batson and Strickland. Second, the necessary evaluation under the outcome-based test would dramatically shift the Supreme Court’s current colorblind approach in equal protection jurisprudence. Rather than shifting the current equal protection doctrine, the composition-based test allows for incorporation of the doctrine through the use of the diversity rationale. Third, a properly administered outcome-based test would require the exploration of the impact of race and background on the relevant evidence and on perceptions of the criminal justice system, including its principal setting (the courtroom) and primary actors, as contrasted with the much more concrete—if not necessarily simpler—task of determining only whether the composition of the jury itself would have differed.

Police Indemnification

Joanna C. Schwartz

This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty. In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.

Our Broken Death Penalty

The Honorable William A. Fletcher

Madison Lecture

This lecture is titled Our Broken Death Penalty. But the title is misleading, for it suggests that our death penalty might, at some earlier time, have been something other than broken. It has always been broken. And, as you will hear tonight, it cannot be repaired.

Reviewing Federal Sentencing Policy, One Guideline at a Time

Eleanor L.P. Spottswood

The Federal Sentencing Guidelines are riddled with policy oversights. In United States v. Kimbrough, the Supreme Court permitted district courts to vary from the Guidelines based on categorical policy disagreements. Yet, although district courts often vary from the Guidelines for individualized reasons, the policy variance power has been underutilized. This Note provides a case study of the history of one obscure Guideline, section 2M5.1, as applied to one particular type of case, a nonmilitary-related embargo violation. The case study exposes the United States Sentencing Commission’s systemic oversights in the history of creating Guideline section 2M5.1 and demonstrates how lawyers and judges can rely on that history on a case-by-case basis to expose categorical problems with Guidelines policy. Employing such a categorical policy approach to supplement an individualized approach promotes fairness, transparency, and feedback for future refinement of the Guidelines.

Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States

Justin D. Levinson, Robert J. Smith, Danielle M. Young

Stark racial disparities define America’s relationship with the death penalty. Though commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences, no convincing evidence suggests that any one of these factors consistently accounts for the unjustified racial disparities at play in the administration of capital punishment. We propose that a unifying current running through each of these partial plausible explanations is the notion that the human mind may unwittingly inject bias into the seemingly neutral concepts and processes of death penalty administration.

To test the effects of implicit bias on the death penalty, we conducted a study on 445 jury-eligible citizens in six leading death penalty states. We found that jury-eligible citizens harbored two different kinds of the implicit racial biases we tested: implicit racial stereotypes about Blacks and Whites generally, as well as implicit associations between race and the value of life. We also found that death-qualified jurors—those who expressed a willingness to consider imposing both a life sentence and a death sentence—harbored stronger implicit and self-reported (explicit) racial biases than excluded jurors. The results of the study underscore the potentially powerful role of implicit bias and suggest that racial disparities in the modern death penalty could be linked to the very concepts entrusted to maintain the continued constitutionality of capital punishment: its retributive core, its empowerment of juries to express the cultural consensus of local communities, and the modern regulatory measures that promised to eliminate arbitrary death sentencing.

Defining Gant’s Reach: The Search Incident to Arrest Doctrine After Arizona v. Gant

Anthony M. Ruiz

In the wake of the Supreme Court’s 2009 decision in Arizona v. Gant, lower courts continue to debate whether Gant represents an overhaul of the search incident to arrest doctrine or is instead a minor tweak. This Note argues that the answer lies somewhere in the middle. It proposes that courts conduct a more searching inquiry into whether an arrestee has a reasonable possibility of access to the area searched at the time of the search, rather than apply the more lenient standard that some courts have adopted. This middle ground is more faithful to the policy considerations underpinning the search incident to arrest doctrine, while additionally providing the proper balance between officer safety and defendants’ rights.