Criminal Law

23 posts

Guardians as Gatekeepers and Other Issues of the Establishment Clause and Parole

Issues Volume 50, Issue 3

By Daniel W. Sack

The United States is relatively unique compared to other countries in two particular areas: how religious its citizens profess to be and how many of its citizens are incarcerated. This Note examines how these two characteristics interact in the parole context with an emphasis on the role of the chaplaincy in such proceedings. Federal courts have wrestled — relatively inconclusively — with where to draw the line between permissible and coercive consideration of religious attributes in the parole setting. Giving religious factors too much weight could potentially pressure inmates into adopting insincere religious habits in the hopes of obtaining favorable treatment; conversely, too little weight could fail to recognize the secular attributes of religious participation that often lend themselves toward rehabilitation. This Note suggests that limited inquiry by parole boards into the structural- or community-based (as opposed to philosophical- or tenet-based) components of an inmate’s religion may be appropriate. So too may be the parole board’s acceptance of a letter of reference from a prison chaplain. Conversely, this Note argues that prison chaplains overstep their bounds and violate the Establishment Clause when they serve on parole boards by putting a coercive force on inmates to become religious or follow a certain religion. This Note ultimately strives to flesh out the complicated and varied ways in which inmates’ freedoms of and from religion intersect with their attempts to obtain freedom through parole.

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Beyond the Reach of the Constitution: A New Approach to Juvenile Solitary Confinement Reform

Issues Volume 50, Issue 3

By Abigail Q. Cooper

In the last year, the call to reform the practice of solitary confinement has come from all sides. Most of the attention has been on changes at the federal level, despite the fact that the vast majority of inmates in the United States are held at the local and state level. Additionally, the proposed reforms have centered around constitutional arguments that the use of solitary confinement is a violation of the Eighth Amendment. This Note argues that a constitutional ruling in this area is neither necessary nor sufficient to effect change. Solitary confinement is a problem beyond the reach of the Constitution. Rather, it is a byproduct of chronic underfunding, understaffing, and a pervasive culture within prisons that regards solitary confinement as a means of keeping correctional officers safe and maintaining order.

After carefully analyzing the recent settlement in Illinois, as well as a recent lawsuit in New York, this Note argues that reformers should shift their focus to the state level, and, specifically, to the office of the Attorney General. As defense counsel for the state, the Attorney General controls the course of these litigations — including the decision of if, and when, to settle. Yet, an Attorney General is also duty-bound to represent the interests of the People, even when defending the state and its officers in court. Thus, the state Attorney General must always keep an eye towards the plaintiffs — the juveniles themselves — and their interests during these lawsuits and settlement negotiations. Moreover, as the chief legal officer to the state, the Attorney General is uniquely positioned to bring together crucial stakeholders within the government and correctional facilities in order to negotiate a settlement agreement. By examining the filings and transcripts in the New York and Illinois lawsuits, which this Note does for the first time, it becomes clear how crucial state Attorneys General are to ending juvenile solitary confinement.

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Does Brady Have Byte? Adapting Constitutional Disclosure for the Digital Age

Issues Volume 50, Issue 1

By Hilary Oran

Under Brady v. Maryland and its progeny, prosecutors have a constitutional obligation to disclose any material evidence that may be favorable to the defendant. Despite a prosecutor’s best efforts to comply, there are inherent difficulties associated with identifying such documents. For instance, discerning what is “material” requires anticipating, before trial, how all the evidence will come together during trial. Further, finding this evidence may resemble the proverbial search for a “needle in a haystack” when the amount of evidence becomes copious. This search becomes even more daunting in an age of voluminous electronic discovery that spans from digital files to social media to e-mails, potentially amounting to over a million pages of documents.

This category of discovery was foreign to the judicial system at the time of Brady’s 1963 decision. However, despite the transformation of discovery since then, prosecutors’ constitutional disclosure obligations remain unchanged. Accordingly, there is currently no uniform approach to assess potential Brady violations premised on high volume electronic discovery. This Note will explore the current practices for adapting Brady for the digital age. Ultimately, this Note advocates for a new standard that requires prosecutors to adhere to recognized, minimum requirements when divulging a case file, but provides for circumstances in which a defendant’s limited resources require the prosecution to surpass this benchmark in order to fulfill its constitutional obligation.

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Inadequate Access: Reforming Reproductive Health Care Policies for Women Incarcerated in New York State Correctional Facilities

Issues Volume 50, Issue 1

By Kate Walsh

In February 2015, the Correctional Association of New York released a report studying the quality of and access to reproductive health care for incarcerated women and found that “[o]verall . . . reproductive health care for women in New York State prisons is woefully substandard, with women routinely facing poor-quality care and assaults on their basic human dignity and reproductive rights.” The findings of this and other studies provide concrete evidence of the poor quality of reproductive health care available to incarcerated women and signal to legislatures that these policies should be changed.

Incarcerated women face three issues of particular concern relating to reproductive health care: access to gynecological examinations, sanitary supplies, and contraception. The purpose of this Note is to examine New York State policies addressing reproductive health care for incarcerated women, identify problems with them, and make recommendations for reform. This Note will examine current policies and practices of New York State correctional facilities that address gynecological examinations, sanitary supplies, and contraception, and assess why these policies are problematic from both legal and medical perspectives. Furthermore, it will recommend bringing New York’s policies in line with legal, medical, and international standards as a strategy for reform. Finally, it will advocate for using existing federal and state programs including Title X to provide funding for reproductive care both prior to and after release.

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Embracing Federalism in Special Prosecution Models: An Analysis of Experimentation in the States

Issues Volume 52, Issue 3

By Sabrina Singer

The main project of this Note is to use the example of police officer-involved deaths of unarmed civilians to craft and apply different special prosecution models. In Part II, this Note starts from the proposition that a special prosecutor should supersede the local prosecutor to investigate and prosecute certain cases, such as the police-involved death of unarmed civilians. This Note then identifies and addresses the criticisms made by opponents of special prosecution models.

In Part III, this Note presents and analyzes the existing special prosecution models implemented in states to address cases of police officer-involved deaths of unarmed civilians. Part IV uses the example of New York as an in-depth case study. Then, Part V distills down these complete state models to “dimensions” – areas where the models differ – to provide an analytical structure for readers to use in their own evaluation and design of special prosecution models. The dimensions also provide a structure for Part VI, which proposes and evaluates special prosecution models that seek to address incidents of police officer involved deaths of unarmed civilians. The broader utility of the dimensions will be as a framework for any future special prosecution model that seeks to address any future latent law enforcement gaps.

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Why Ross v. Blake Opens a Door to Federal Courts for Incarcerated Adolescents

Issues Volume 51, Issue 2

By Nika Cohen

The Prison Litigation Reform Act (PLRA), particularly through its exhaustion provision, imposes significant obstacles on whether an incarcerated person may raise claims about conditions of confinement in court. The PLRA, as interpreted, demands proper compliance with a correctional facility’s grievance procedures, no matter how complex those procedures are. Though many struggle to comply, certain groups of the incarcerated population have been unduly prevented from litigating abuses. One such group is incarcerated adolescents, who — despite recent recognition that they should be differentiated from adults in the criminal justice system — remain subject to the same difficult exhaustion standard as incarcerated adults.

This Note argues that the Supreme Court’s most recent interpretation of the PLRA’s exhaustion provision demands a different analysis of attempts by nonordinary incarcerated groups to exhaust. In Ross v. Blake, issued in 2016, the Court clarified that grievance procedures must be “capable of use” or “accessible” for a person to be required to exhaust them; otherwise, there is no available remedy and the claim should not be dismissed for failure to exhaust. This Note uses adolescents incarcerated in adult facilities as an example of a nonordinary group to explain why they lack an available remedy under Ross. In light of recent research establishing that adolescents have significant cognitive and developmental differences from adults and are at a higher risk of victimization, courts should account for their increased difficulty in understanding and complying with adult facilities’ grievances procedures. Without an “accessible” means of obtaining relief, adolescents incarcerated in adult facilities should not be barred from the courts for their failure to exhaust.

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Time of Desperation: An Examination of Criminal Defendants’ Experiences of Allocuting at Sentencing

Issues Volume 51, Issue 1

By Joshua Burger-Caplan

For criminal defendants, allocution is the last time they may address the court before sentencing is pronounced. For many defendants, whether because they pled guilty or did not testify at trial, it is their only such opportunity. According to a recent survey of federal judges, allocution at sentencing can, for better or worse, significantly affect sentencing decisions. Other researchers have suggested that, beyond such effects, allocution is also important in creating opportunities for defendant expression that go beyond the presentation of mitigating information.

Despite the impact of sentencing, little research has been done into defendants’ perspectives on their own allocutions. This Note draws on interviews to explore the ways in which defendants prepare for and experience their allocutions, and situates their rationales for allocution within the existing literature. Part II provides background information on how allocution has been treated in the courts. Part III discusses the Note’s interview methodology. Parts IV and V respectively examine the humanization and mitigation rationales for allocution from the perspective of defendants, and conclude that it is the mitigation rationale that more accurately reflects the accounts given by defendants.

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Living in the Blast Zone: Sexual Violence Piped onto Native Land by Extractive Industries

Issues Volume 53, Issue 4

By Lily Grisafi

Native American women around the country, and particularly those living near extractive industries, face an epidemic of sexual violence. The high rates of violence against Native women are due in large part to the lack of liability for those most responsible. Flaws in United States and tribal criminal justice systems create de facto jurisdictional gaps that allow perpetrators to commit crimes on tribal land with impunity. In particular, restrictions on tribal sovereignty and criminal jurisdiction, inadequate funding for tribal criminal justice systems, and federal apathy to crimes on tribal land deepen the pre-existing problem of violence against Native women.

This Note elucidates the realities and causes of violence against Native women, in order to find legal solutions for holding perpetrators and extractive companies liable. Part II discusses the facts and legal backdrop of this epidemic of violence. Part III then examines how laws inhibiting tribal sovereignty combined with federal prosecutorial inaction are responsible for this epidemic. Part IV puts forth available legal solutions for holding perpetrators and extractive companies accountable through United States and tribal criminal justice systems. To hold perpetrators accountable, tribes should be legally permitted to exercise enhanced criminal jurisdiction over non-native defendants, and the Federal government should provide tribes with the inter-agency support and federal funding necessary to carry out this enhanced jurisdiction effectively. For their part, extractive corporations should be held responsible through federal regulation and civil action. Federal agencies should regulate extractive companies in the context of and in correlation with their businesses’ impacts on neighboring Native women’s safety. When, despite proper federal regulation, these corporations engage in negligent hiring practices that lead to increased violence against Native women, the corporations should be held civilly liable for public nuisance in state and tribal court.

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Bargaining Life Away: Appellate Rights Waivers and the Death Penalty

Issues Volume 53, Issue 3

By Edmund A. Costikyan

In our criminal justice system, it is now a matter of little note that the vast majority of cases are resolved by guilty plea rather than at trial, without a single fact ever presented to a jury. Since the passage of the Sentencing Reform Act of 1984, it has become common practice for plea agreements to require not only that a defendant waive her right to trial by pleading guilty, but also that she waive her right to ever appeal her conviction or sentence. This Note explores the waiver of appellate rights from both a due process and public policy standpoint, arguing ultimately that when a defendant faces a potential death sentence at any point during the adjudication of her case, her appellate rights cannot be constitutionally waived; additionally, that in both the interest of justice and the public interest, such waivers should not be sought or upheld.

Part II of this Note introduces the relevant background of the plea bargaining system and the use of appellate waivers. Part III discusses the issues raised both when a defendant is asked to waive her appellate rights and by the enforcement of such waivers once effected, before addressing the arguable benefits of such waivers. Finally, Part IV seats these arguments in the context of capital punishment, where, due to the finality of the punishment and its powerful coercive force, the unreviewability of a conviction is at the highest level of concern.

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Diagnostic Trends and Donald DD.: Has the Watershed Case Changed How State Doctors Diagnose Sex Offenders?

Issues Volume 53, Issue 3

By Maximilian J. Auerbach

Twenty states currently have laws providing for the civil management of sex offenders through involuntary confinement or outpatient supervision. These “SVP statutes” unanimously require a finding of a “mental abnormality,” a legal standard that has generated significant debate since the Supreme Court affirmed the standard’s constitutionality in Kansas v. Hendricks. Proving the existence of a mental abnormality requires psychiatrists to diagnose sex offenders, and much of the aforementioned criticism focuses on the reliability of these predicate diagnoses. The New York Court of Appeals, in State v. Donald DD., interpreted these cases to mean a sole diagnosis of antisocial personality disorder is insufficient to find a mental abnormality.

This Note investigates whether, and to what extent, the Donald DD. decision has affected New York’s ability to civilly manage sex offenders and changed the diagnoses used in those civil management proceedings. Part II explores the constitutional requirements for SVP statutes established by the Supreme Court in Kansas v. Hendricks and Kansas v. Crane. Part III details the civil commitment scheme in New York, with particular focus on the diagnostic stages of a case. Part IV summarizes a review of civil management cases in New York since 2007 in order to determine whether Donald DD.’s holding affected New York’s ability to civilly manage sex offenders, or the diagnoses offered by state experts when seeking civil management. This review includes analyses of whether Donald DD. has changed how frequently New York recommends sex offenders for civil management, and how frequently the State succeeds at trial. This Note observes that, while the case may have had some effect on referral, it has not affected trial success rates. Additionally, this Note finds some evidence that Donald DD. may have led to increased psychopathy diagnoses, unspecified and other specified paraphilic disorder diagnoses, and the number of diagnoses assigned to individual respondents.

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The Sentencing Judge’s Role in Safeguarding the Parental Rights of Incarcerated Individuals

Issues Volume 53, Issue 1

By Anna Iskikian

Incarcerated parents face a disproportionate risk of having their parental rights terminated. According to a recent analysis of three million child-welfare cases nationwide, parents whose children have been placed in foster care due to their incarceration, but who have not been accused of child abuse, endangerment, or drug use, are more likely to lose their parental rights than parents who have physically or sexually assaulted their children. A dramatic rise in the prison population and the passage of the Adoption and Safe Families Act (ASFA) have driven the increase in the loss of parental rights among incarcerated parents. Furthermore, sentencing guidelines and mandatory minimums constrain a judge’s ability to adequately consider a defendant’s parenthood at sentencing.

This Note examines the sentencing judge’s role in preventing the termination of parental rights of incarcerated parents and proposes the establishment of a judicial recommendation against termination proceedings while a parent is incarcerated. Part II of this Note examines the history of criminal sentencing and the historical practice of granting a judicial recommendation against deportation (JRAD) to noncitizen defendants. Part III analyzes the disproportionate rate at which incarcerated parents lose their parental rights as compared to nonincarcerated parents. Part IV argues for amending the ASFA to implement the JRAD’s analog in the parental rights context and concludes that accounting for loss of parental rights at sentencing serves retributive, deterrent, and rehabilitative aims.

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Lenity Before Kisor: Due Process, Agency Deference, and the Interpretation of Ambiguous Penal Regulations

Issues Volume 54, Issue 4

By Thomas Z. Horton

When interpreting ambiguous punitive regulations, lower courts face a choice: either follow the Supreme Court’s instruction in Kisor v. Wilkie and defer to the enforcing agency’s typically more severe interpretation, or rely on the venerable rule of lenity — also endorsed by the Supreme Court — and adopt a less severe interpretation. This choice need not be made. Kisor deference and lenity do not clash when properly applied because these two doctrines operate at different levels of ambiguity. Lenity tips in favor of a defendant when a regulation’s meaning is subject to “reasonable doubt,” whereas agency deference applies only when a regulation is “genuinely ambiguous” — a more searching standard. Lenity, therefore, must apply before agency deference. This order of operations makes sense of both the doctrines and their justifications. Lenity’s constitutional underpinnings — in particular, the due process requirements of “fair notice” and conviction “beyond a reasonable doubt” — take precedence over the lower-order policy rationales behind agency deference.

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Ill-Advised, Ill-Prescribed: A Remedy for the Alarming Usage of Psychotropic Drugs Among Migrant Children Held in U.S. Detention Facilities

Issues Volume 54, Issue 3

By Ilana Gomez

In recent years, many U.S. detention facilities have faced intense scrutiny for failing to comply with the 1997 Flores Settlement Agreement — a binding agreement that outlines national standards for the detention and release of migrant minors. Among other Flores Settlement violations, a 2018 class-action lawsuit revealed that a detention facility in Texas was unlawfully administering psychotropic medications to migrant minors under its supervision. The class members in Flores v. Sessions alleged receiving psychotropic drugs without parental or legally authorized consent, in addition to experiencing abusive medical practices. In response, the U.S. District Court in Flores v. Sessions ordered that the detention facility follow Texas child welfare laws and regulations when administering psychotropic medications to detained minors.

After the Flores v. Sessions order, detention facilities across the country have looked to their respective state child welfare laws and policies for instruction on how to authorize psychotropic medications to detained migrant minors. At present, state laws and policies governing consent and assent to psychotropic treatment vary across jurisdictions and are not tailored to the needs of migrant minors detained separately from their families. Of concern is the lack of guidance on who should consent for a migrant minor when their parent or legal guardian is not available; and the lack of procedure on how and when to obtain consent and assent from migrant youth. To address these outstanding issues, this Note proposes a national consent and assent framework for minors undergoing psychotropic treatments at U.S. detention facilities. By incorporating Loretta Kopelman’s “Best Interests Standard,” this framework will help facilitate the administration of psychotropic drugs in a manner that respects the health, safety, and rights of migrant youth.

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Bend and Snap: Adding Flexibility to the Carpenter Inquiry

Issues Volume 54, Issue 1

By Sherwin Nam

The Supreme Court’s decision in Carpenter v. United States, which requires law enforcement to obtain warrants to access historical cell-site location information, raises new questions about the application of the Fourth Amendment to biometric technologies, such as facial recognition technology (FRT) and voice recognition technology (VRT). While “no single rubric definitively resolves which expectations of privacy are entitled to protection,” this Note seeks to demonstrate that current applications of the rubric offered in Carpenter — considering voluntariness, invasiveness, comprehensiveness, ease of data collection, and retrospectivity — are inadequately flexible. To safeguard the private and intimate details that ongoing “seismic shifts in digital technology” continue to reveal, the courts need a bolder, more robust framework for Fourth Amendment protection. Using FRT and VRT as illustrative examples, this Note argues that analyses of reasonable expectations of privacy involving biometric technologies should recognize the right to anonymity as an integral part of the Carpenter inquiry.

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Decency Comes Full Circle: The Constitutional Demand to End Permanent Solitary Confinement on Death Row

Issues Volume 55, Issue 4

By Brandon Vines

Many of the two thousand Americans living under a sentence of death spend twenty-three hours a day in a concrete box the size of a parking space. Often the only human touch they feel is being handcuffed and the only natural light comes from a small grill at the top of an exercise cell. However, change is at hand. The Supreme Court has emphasized that the Eighth Amendment’s prohibition of cruel and unusual punishments draws its meaning from the evolving standards of decency that mark the progress of a maturing society. To date, there has been a dearth of information available regarding the historical and modern conditions on death row.

This Note addresses this gap. Part I provides, for the first time, a complete historical narrative of the development of the American death row from the Colonial Era to the Twenty-First Century. Part II reviews the findings of a survey of every jurisdiction with capital punishment to capture a national snapshot of conditions on America’s death rows. The findings in both Parts suggest that the system of permanent solitary confinement on death row has neither the weight of history nor the support of the majority in either contemporary practice or social values. Indeed, there is an accelerating trend away from the practice. Part III places this evidence in constitutional context and argues that the twelve states that retain permanent solitary death rows are out of pace with America’s evolving standards of decency and violate the Eighth Amendment.

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The Role of the Excessive Fines Clause in Ending the Criminalization of Homelessness

Issues Volume 55, Issue 4

By Siobhan Allen

Over the last decade, the United States has seen a dramatic increase in both homelessness and the laws that criminalize it. This Note contends that the Eighth Amendment’s Excessive Fines Clause is a powerful but underutilized tool available to end the criminalization of homelessness.

Part I reviews the history of civil and criminal punishment of homelessness in the United States and of the Excessive Fines Clause. Part II explores the weaknesses of other Eighth Amendment doctrines in their application to people experiencing homelessness. Part III explores the Excessive Fines Clause as a constitutional protection against civil punishment for people experiencing homelessness. This Part also evaluates what constitutes “excessive” and “fine” within the meaning of the Clause, and how proportionality between perpetrator, action, and the amount of a fine factors into the “excessiveness” analysis. Finally, Part IV discusses the benefits and drawbacks of applying the Excessive Fines Clause in conjunction with other Eighth Amendment doctrines as a constitutional framework for people experiencing homelessness. The Note concludes by arguing that the Excessive Fines Clause should be used as a tool to stop the criminalization of homelessness.

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Resuscitating the Entrapment Defense: A Statutory Approach

Issues Volume 55, Issue 1

By Gage Hodgen

The entrapment defense has existed in American criminal law since the early twentieth century and remains relevant today. As the evolution of technology has enhanced the ability of the police to monitor and engage with potential criminals, sting operations by police have become increasingly commonplace in the investigation (or manufacture) of terrorism, drug, and sex crimes. Consequently, targets of sting operations are often placed in situations in which there is a risk of improper government inducement to commit criminal acts. Despite the increased complexity and frequency of sting operations, however, claims of entrapment by defendants based on the traditional theoretical formulations of the defense are nearly always unsuccessful when raised, and, in many appropriate cases, defendants do not raise entrapment claims at all.

This Note proposes a statutory resuscitation of the entrapment defense to make the defense more suitable to the modern policing system. Part I examines the traditional variants of the entrapment defense as it developed in the common law of the United States as either a subjective test of the predisposition of the defendant or an objective test of the government’s conduct. Part II interrogates the stated purposes of the subjective and objective approaches. Part III explores why the entrapment defense so often fails in situations in which factors suggesting entrapment are present and demonstrates that the entrapment defense today does not serve its foundational purposes. Part IV argues that the underlying rationales of both formulations of the entrapment defense militate in favor of reformulating the defense as a set of statutory rights against certain police behaviors.

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License & Registration: Addressing New York’s Police Misconduct

Issues Volume 55, Issue 1

By Matthew Hanner

In the wake of the police killing of George Floyd, protesters flooded the streets demanding reform. States across the country responded with legislative action. Within weeks, New York State repealed Civil Rights Law § 50-a, which shielded disclosures of police misconduct records. The subsequent release of records showed the profound lack of accountability of police officers in the state. This Note argues that New York should enact a police licensing requirement to curb misconduct through uniform behavioral standards for all law enforcement officers, which would pull disciplinary power away from local departments, and prevent fired officers from regaining employment at other departments—problems that the existing remedies like internal affairs actions, civil suits, and criminal prosecutions fail to address.

Licensing creates stronger accountability because an independent state licensing commission would have the power to suspend or revoke licenses for violating professional standards. Currently, all states certify that officers meet certain standards prior to employment, and 46 states allow for revocation of these certifications. Certification boards vary state-to-state, however, in their scope of authority and permitted grounds for decertification. New York State only permits decertification of officers who are first fired from their departments. This process suffers from reliance on local department action. Examining the NYPD demonstrates how even the most well-resourced departments fail to adequately address officer misconduct when disciplinary decisions are made at the local level. Police licensing shifts authority to the state, following many other professions that already require licensing (lawyers, doctors, barbers, taxi drivers, etc.).

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Misappropriation vs. Alteration: Post-Kelly Efforts to Criminalize Fraud Targeting Confidential Government Information

Issues Volume 56, Issue 1

By Luke Urbanczyk

The federal wire and mail fraud statutes criminalize “any scheme or artifice to defraud” that uses interstate wires or mailings to obtain “money or property by means of false or fraudulent pretenses, representations, or promises.” But what exactly counts as property, triggering the statutes’ criminal penalties? In Carpenter v. United States, the Supreme Court held that confidential business information is property for purposes of the fraud statutes. In Cleveland v. United States and Kelly v. United States, the Court established that a scheme to alter a regulatory choice—which implicates the government’s role as a sovereign—does not deprive the government of property. The Court has left unclear, however, whether confidential government information can satisfy the fraud statutes’ property requirement.

After highlighting the uncertain status of the law governing schemes that misappropriate confidential government information, this Note argues that as a matter of property theory, the government has a property interest in its confidential information because it has the right to exclude others from this information and that Kelly represents a mere application of Cleveland’s narrow exception to this rule. Finally, this Note proposes a test to distinguish schemes that target government property from those that implicate the government’s sovereign capacity: when fraudulent schemes seek to misappropriate confidential government information they target property, but when they seek to alter a governmental decision, they do not.

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Re-Examining the “McDonnell Problem”: Federal Prosecutors’ Ample Room to Prosecute State and Local Government Corruption

Issues Volume 56, Issue 1

By Ourania S. Yancopoulos

Historically, states have relied on the federal government to prosecute corruption involving their public officials and employees. In McDonnell v. United States, however, the Supreme Court purported to limit the definition of “official act” as used in the federal bribery, honest services fraud, and Hobbs Act extortion statutes—three of the Government’s most potent tools against public corruption. Many observers concluded that the ruling would obstruct or all but end the federal prosecution of government corruption at the state and local levels. To test this claim, this Note presents and analyzes a novel dataset of hundreds of prosecutions in five federal districts in the six years before and after McDonnell. The data show that federal prosecutors in these districts have neither stopped charging nor convicting state and local government corruption. Together with an assessment of post-McDonnell case law, this Note concludes that claims of the so-called “McDonnell Problem” are overstated.

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Dissociated Decision-Making: Contract Competency Evaluations of Individuals with Dissociative Identity Disorder

Issues Volume 56, Issue 2

By Andrea Ashburn

Dissociative Identity Disorder (DID) is a mental disorder in which the impacted individual develops multiple independent personality states. The existence of DID calls into question countless existing legal concepts, but the vast majority of existing legal scholarship addressing DID primarily discusses criminal issues. Just as it is to the general population, the ability to enter into enforceable contracts is important to the DID community. Without a legal framework that adequately addresses the unique needs of those with DID, these individuals risk losing their right to contract entirely.

This Note seeks to further expand the discussion of DID to non-criminal issues by (1) presenting background information on DID as a disorder, (2) examining New York mental health contract law doctrine and its standards governing the competency to enter into a contract, and (3) suggesting that an alternative standard apply to individuals with DID.

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Actualizing Justice: Private Prosecution Regimes for Modern Social Movements

Issues Volume 56, Issue 4

By Caroline L. Ferguson

The modern state enjoys a near monopoly over the prosecutorial system. Public officials, including local district attorneys, state attorneys general, and career prosecutors, enjoy enormous discretionary powers to decide who to charge, to determine what charges to bring, to make particular bail recommendations, to set the terms of plea bargains, and more. Rather than examining the broad discretion of the public prosecutor, this Note instead examines lesser-known private prosecution systems, where individuals, groups, and corporations bring criminal accusations.

This Note surveys the practice of private prosecution outside the United States. It then turns to look within the United States at the differing legal regimes that regulate private prosecution in the various jurisdictions that permit the practice. Ultimately, this Note asks what role private prosecution may have within modern social movements.

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Lethal Paralytics and the Censorship of Suffering

Issues Volume 57, Issue 1

By Drew S. Brazer

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons.  This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart).  The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die.

This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech.  State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech.  The state’s interest in requiring the paralytic—to censor the violence of the condemned person’s death—is neither legitimate nor compelling.  As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment.

Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States.  It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically.  Part II examines the constitutional rights of incarcerated persons and considers whether an individual’s decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test.  Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic.  Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review.  Part III explores the policy implications of recognizing a condemned person’s right to refuse lethal paralytics.  Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.

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