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...
Criminal Law
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...
The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches...
This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon. By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students. Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and...
In District of Columbia v. Wesby, the Supreme Court determined that a prudent officer had probable cause to arrest attendees at a festive house party for criminal trespass without a warrant. While reactions from scholars of criminal law have begun to emerge, this Piece is the first to conceive of the decision through the lens of property theory. In this regard, the Piece offers two principal claims. First, on interpretive grounds, it contends that,...
Introduction No matter how it begins, a police encounter may end in death, especially when the encounter involves people of color. There is no safe haven. Police-involved shootings happen everywhere—on the street, in a parked car, in a public park, or inside one’s own home. Police violence is a constant, its occurrence so predictable that […]
On any given day, local jails detain nearly half-a-million people who cannot afford bail. Opposition to this status quo, and to monetary conditions of pretrial release more broadly, has reached a fever pitch in recent years. Critics from across the political spectrum decry bail as a wellspring of mass incarceration and acknowledge its profoundly discriminatory effects, particularly within low-income communities of color. Academic studies link bail...
The American criminal justice system is a system of pleas. Few who know it well think it is working. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law—the two most studied bodies of law in the criminal justice system—neither...
Introduction The Constitution protects us from criminal conviction unless the state can prove guilt beyond a reasonable doubt. However, after defining reasonable doubt, many trial courts will then instruct jurors “to search for the truth” of what they think really happened. Defendants have argued that such truth-related language reduces the state’s burden of proof to […]
In the 1932 case Gebardi v. United States, the Supreme Court held that the failure of a statute to punish a party necessary to the commission of the proscribed conduct reflected an affirmative legislative policy to leave such party unpunished. As such, the Court declined to use the conspiracy statute to frustrate Congress’s grant of immunity. In doing so, the Court carved out an exception to the federal conspiracy statute: an exception...