It is time for Congress to end its fifty-year experiment in post hoc federal court enforcement of constitutional criminal procedure. By clinging to ineffectual federal habeas review of state criminal cases, Congress is pouring tax dollars down the drain and overlooking a more effective way to enforce the Constitution: helping… Read More »
Covert policing necessarily involves deception, which in turn often leads to participation in activity that appears to be criminal. In undercover operations, the police have introduced drugs into prison, undertaken assignments from Latin American drug cartels to launder money, established fencing businesses that paid cash for stolen goods and for… Read More »
The Supreme Court has recently declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically ineligible for capital punishment under the Eighth Amendment. If these “death ineligible” offenders nonetheless sit on death row with procedurally defective habeas corpus petitions, can the writ be used to… Read More »
Preventing police misconduct often requires changing the department in which it arises, but police departments have proved largely resistant to legal efforts to reform them. A promising federal law, 42 U.S.C. § 14141, permits the Justice Department to sue police departments that are engaged in a “pattern or practice” of… Read More »
In 2008 in United States v. Santos, the Supreme Court addressed the meaning of the term “proceeds” as used in 18 U.S.C. § 1956, part of the Money Laundering Control Act. Efrain Santos and a co-defendant were charged with operating an illegal lottery, which involved payments to runners, collectors, and… Read More »
How does one determine whether a particular rule is jurisdictional or not? Over the last few years, the Court has focused on this question, most recently in a decision holding that the six-year statute of limitations in the Tucker Act is a quasi-jurisdictional bar to suit.
The Court is right to… Read More »
New findings in hedonic psychology have implications for punishment theory. Specifically, these findings suggest that criminals adapt surprisingly well to fines and even to incarceration, but that incarceration negatively affects post-prison life in ways that tend to be unadaptable. These results increase the difficulty of using adjustments in the size… Read More »
Until very recently, Second Amendment scholarship has focused almost exclusively on the question of whether the amendment protects an “individual” right to bear arms unrelated to any militia service. In District of Columbia v. Heller, the Supreme Court answered this question in the affirmative for the first time. But operationalizing that… Read More »
This Editorial is a response to an editorial—and accompanying article—by two of my colleagues at Cornell, Valerie Hans and Ted Eisenberg. Their editorial persuasively argues that the admissibility of a defendant’s prior criminal record has several consistent effects: (1) it deters defendants with a record from taking the stand in… Read More »
The evidentiary treatment of a defendant’s prior criminal record is a critically important issue for the criminal justice system and for the day-to-day conduct of criminal cases. Every year, prosecutors and police are undoubtedly influenced by the existence of prior records in charging and arrest decisions. At trial, judges exercise… Read More »