This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which...
Criminal Law
For the past several decades, the Supreme Court has repeatedly sought to reinterpret the meaning of “property” within federal fraud statutes to limit the degree to which federal prosecutors can regulate state official misconduct. While the Court’s renewed interest in the federal fraud statutes has drawn varying degrees of praise and criticism from different sides of the legal community, this Note seeks to assess—in an apolitical, value-neutral...
A crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary...
In June 2022 the Supreme Court decided two unrelated cases, Dobbs v. Jackson Women’s Health Organization and Ruan v. United States, each with significant implications for the criminal regulation of doctors. Dobbs removed abortion’s constitutional protection; in its wake, many states passed criminal statutes banning the procedure except in medical emergencies. The vagueness of those emergency exceptions, however, has...
This Comment examines the collateral order doctrine, a narrow exception to the otherwise general rule that appeals from interlocutory orders are generally disallowed in the federal court system. It does so in the context of fugitive disentitlement orders. This Comment focuses on a recent Second Circuit decision, United States v. Bescond, analyzing its consequences for interlocutory challenges by foreign defendants who live and conducted...
America’s mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of “nonincarceration mass incarceration”: the widespread use of supervision conditions that separate people on parole, probation,...
The federal criminal code provides enhanced penalties for offenses that qualify as crimes of violence. This Note concerns a basic question: What qualifies as a crime of violence? The code offers two seemingly clear definitions, classifying as violent any crime that either (1) includes the use of physical force against the person or property of another as an element of the crime or (2) by its nature involves a substantial risk of the use of physical...
In Oregon v. Kennedy, the Supreme Court held that the Double Jeopardy Clause does not bar the reprosecution of a defendant in cases in which prosecutorial misconduct causes the defendant to move for a mistrial. The Court established only one exception to this rule: If the prosecutor’s misconduct was intended to provoke the defendant into moving for a mistrial, the Double Jeopardy Clause bars the retrial of the defendant. The Kennedy...
In Kelly v. United States, the Supreme Court vacated the federal corruption convictions of the three government officials behind “Bridgegate.” In the process of doing so, the Court flagged an interesting tool that states have in their anticorruption toolkits that might’ve applied to the conduct before the Court: official misconduct statutes. These dynamic statutes are on the books in twenty-three states and territories, and another...
A defendant’s right to confront the witnesses against him is a cornerstone of our adversarial system of criminal justice. Or is it? Under current law, defendants can invoke their confrontation right only by going to trial. But trials account for about five percent of criminal convictions. That means that the overwhelming majority of defendants convicted in the United States never get to exercise their constitutional right to confront the government’s...