The present system made sense fifty years ago, but it no longer does. In the 1960s the Supreme Court employed two related strategies to force the states to bring their criminal justice systems into compliance with the fundamental ideals of equality and fairness guaranteed by the U.S. Constitution. First, it incorporated, one by one, most of the specific constitutional provisions from the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, thus obligating states to honor those provisions in state criminal cases. State defendants could seek relief in the Supreme Court for violations of those incorporated federal rights by applying for a writ of certiorari from their state judgments. The second strategy was to expand the availability and scope of federal habeas review, enlisting the lower federal courts to supplement certiorari review in order to enforce these new constitutional rights.

The Court adopted this approach not because it was the best one but because, in the absence of federal legislative action, the Court had no choice. State judges were resisting enforcement of recently incorporated federal criminal procedure rights, and most states lacked effective postconviction review processes to address nonrecord constitutional violations such as jury selection error and prosecutorial misconduct. Expanding federal habeas review provided an incentive for the states to improve their own postconviction review processes and sent clear notice to defiant state judges that they could not deliberately ignore federal law.

Our current multilayered criminal justice system thus originated from a kind of historical accident, the result of institutional inactivity (by Congress) and institutional constraints (on the Court). Retaining that system might make sense today if the problems that gave rise to it persisted, but they do not. Retaining the current system might also make sense today if it represented an effective and efficient way of enforcing the Constitution’s commands in individual cases, but it does not.

The findings of an empirical study of federal habeas litigation completed in 2007 suggest habeas is an expensive but almost completely ineffectual remedy. For the vast majority of the more than two million people now incarcerated in America, the Great Writ is a pipe dream.

Most state defendants convicted of felony offenses have no practical access to federal habeas review, because habeas is limited to those “in custody” when they file, and prisoners must exhaust their state appeals and postconviction proceedings first. As a result, almost 30% of all noncapital habeas petitions were filed by inmates serving life sentences, even though only 1% of all prison sentences are for life, while only 12% of all noncapital habeas petitions were filed by those serving sentences of five years or less, even though that group represents the majority of those sent to prison.

Moreover, except in capital cases, those inmates who do manage to obtain federal habeas review can expect to lose. At the current rate found by the study, only an estimated sixty-five of the more than 18,000 petitions filed each year by noncapital petitioners will eventually be granted by district courts.

The study cannot tell us whether the incredibly low rate of habeas grants reflects a comparably low frequency of meritorious claims or whether there are many more habeas petitioners who deserve relief but do not obtain it. Yet any theory that the threat of habeas is effectively deterring constitutional error is implausible: Most state criminal defendants are short-termers with no access to federal habeas, a point that cannot possibly be lost on police, lawyers, and judges. And even in those cases where the defendant is likely to be in custody long enough to file a habeas petition and has not waived his rights via a plea bargain, grants of habeas relief are so infrequent, and so delayed, that they will make little if any difference to state actors in noncapital cases. Even a rare grant for procedural error will require only that the state conduct the trial, plea, sentencing, or appeal over again. Finally, any police officer, attorney, or judge responsible for the error, even if not long gone, will suffer no personal consequence if a writ is granted. So if the low grant rate in federal habeas cases actually reflects a correspondingly low number of state constitutional errors that require correcting, it cannot be the result of any significant deterrence produced by federal habeas review. And if the state courts are doing a good job on their own, independent of any habeas deterrence, then habeas is a colossal waste of resources.

Consider now the alternative argument: that the low habeas grant rate reflects the current failure of habeas courts to provide needed relief to deserving state prisoners. The best way to fix habeas, many scholars argue, would be to remove procedural restrictions on habeas relief and provide counsel so that prisoners can more effectively litigate their federal claims in a federal forum. But increasing the amount and slowing the pace of habeas litigation even further would be a political nonstarter without some corresponding benefit to the states. More fundamentally, it would not address the inherent limitations discussed above—that habeas is largely inaccessible to most of those convicted of a crime in this country and that it has virtually no deterrent impact on the particular state actors who are to blame for the violations.

Relying on habeas to enforce the Constitution also ignores another problem inherent in federal habeas: There is no easy way to deter the filing of meritless habeas claims without also discouraging potentially valid claims. The danger that at least some deserving constitutional claims will be swept away by the overwhelming flood of meritless ones is substantial.

Not only is habeas futile, it is expensive for both federal and state taxpayers. One out of every fourteen civil cases filed in federal district court is a habeas challenge by a state prisoner. Most of these cases are not summarily dismissed. Instead, the study found that litigation on procedural issues was commonplace before disposition, and noncapital habeas cases averaged eighteen docket entries per case, representing more than a third of the average number of docket entries in the capital cases included in the study. In most cases the state must write a motion or answer in response to the petition, which the study found included four different claims on average, many of which were amended, requiring a second response from the state. Processing the handwritten pleadings of pro se prisoners is more costly than the efficient electronic filing now required in other cases. Furthermore, half the cases were referred to magistrates for disposition, adding a duplicate layer of opinions and briefing before the case was completed. With more than 18,000 habeas petitions filed each year, states can count on winning almost every one of these cases, but they can also count on a significant expenditure of state dollars to defend them.

***

Any system of justice that expends so much effort to produce so little benefit deserves reconsideration. There is a better approach. We propose first that Congress amend the federal habeas statute so that habeas courts retain jurisdiction over only three categories of constitutional claims raised by state prisoners in custody pursuant to a state criminal judgment.

The first category would provide review of constitutional claims that have been rejected or refused in state court but are accompanied by a compelling showing of innocence. Cases of wrongful conviction justify the expenditure needed to allow habeas courts to provide a last-chance remedy. This category would be limited to cases in which the petitioner is able to bring forward newly discovered evidence to rebut his conviction.

A second category would allow for the postconviction enforcement of new constitutional rules that have been held by the Court to apply retroactively to cases already final on direct appeal. Without access to federal habeas review in such cases, a defendant whose direct appeal had concluded by the time the new constitutional rule was declared would be unable to benefit from the rule if the state courts provided no forum for the claim.

The third category would preserve habeas review in capital cases, allowing for the adjudication of any constitutional objection to the petitioner’s capital sentence. The proper scope of habeas in capital cases should be resolved separately from noncapital cases, given the fundamental differences between the two types of cases. Because the Court is continually changing the Eighth Amendment law regulating state capital cases, parties continue to need access to the lower federal courts in order to to work out the implementation of those limits.

Our proposal would dramatically reduce the amount of noncapital habeas litigation by state prisoners. But the point of reducing wasteful federal habeas litigation is not simply to conserve scarce resources. The point is to enable the reallocation of those resources in support of more effective means of ensuring compliance with constitutional rules. Congress should devote whatever can be saved by cutting back on habeas review—as well as additional funds—to a new federal initiative aimed at helping the states prevent and correct constitutional violations in their own courts.

***

Providing defendants with an effective criminal defense at the trial and appellate levels is a far better means of guaranteeing constitutional rights in criminal cases than post hoc habeas litigation, but state criminal defense systems are in crisis. Case-by-case litigation has failed, and will continue to fail, as a means of ensuring the right to counsel in noncapital cases. As a chorus of commentators has observed, the scant postconviction reversals under Strickland v. Washington¹ have had little or no impact on the pervasive pressures on state and county legislative bodies to limit funding for defense services. Systematic underfunding of criminal defense representation in the state courts persists, resulting in repeated and widespread breakdowns in defense representation in many states. This is a problem that habeas is woefully inadequate to address.

We support the creation of a new Federal Center for Defense Services, along the lines of the one first proposed by the ABA in 1979, that could administer matching grants and other financial incentives for state and local governments to improve their efforts to provide defense representation. Similar federal incentives have been useful in encouraging states to take on other criminal justice reforms, and existing state-level commissions on defense representation have been successful in using matching grants and other financial incentives to encourage meaningful funding increases at the local level. This progress, along with recent successes in some jurisdictions in legislating standards for parity of resources for prosecution and defense attorneys, suggests that the effort can work on a larger scale.

The new federal center would also be well situated to conduct comprehensive empirical research to identify the characteristics of effective defense representation on both a systemic and an individual level and to encourage reform through dissemination of that research. Another goal could include drafting standards for defense representation based on “best practices” research.

To be sure, the proposed shift in the federal role will not succeed if Congress simply cuts the budget of the judicial branch by the amount that it projects to save by limiting federal court habeas jurisdiction and simultaneously offers those dollars to the states with few strings attached. The fiscal tradeoff is but one aspect of the more comprehensive political shift in focus that is required from the back end to the front end of the criminal justice system.

But two features of our proposal make it a realistic possibility. First, our proposal does not require Congress to mandate that every state change its defense representation systems overnight, nor does it mean that Congress should condition the curtailment of habeas review in noncapital cases on a particular state’s current compliance with federal standards for improvement of defense representation. Instead, we propose a voluntary renewable grant program that would allow compliance standards to evolve gradually, as “best practices” develop based on innovations in individual states. Lasting systemic changes in state criminal justice cannot be legislated into existence overnight. Model alternatives could be allowed to emerge in a few states, then evaluated and modified for varying local conditions. At least when it comes to noncapital cases, so little benefit would be lost by cutting back on habeas review, and so much more could be gained by any shift of those resources toward encouraging and supporting improvements in state defense representation, that we need not adopt a quid pro quo arrangement that could pose an unwarranted political barrier to state reform efforts.

Proposing such radical restrictions on federal habeas review could, however, lead a state to curtail its own system of appellate and postconviction review in response, leaving state prisoners with no avenue to pursue relief for constitutional claims. The Due Process Clause would not prevent this, but if this was the state’s response, the Suspension Clause should bar the implementation of the drastic habeas restrictions we propose in that state.

The Suspension Clause, ratified in 1789 as part of the original Constitution, provides, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”² Although the Court has never squarely held that the Clause limits the suspension of federal habeas for state prisoners convicted of a crime, the Fourteenth Amendment, which broadened both the definition of federal citizenship and the reach of federal law, arguably extended the protections of the Clause to those incarcerated after conviction by the states.

Substantive restrictions on the scope of habeas can survive a Suspension Clause challenge only so long as an “adequate substitute” is available. As interpreted in Boumediene v. Bush,³ the Clause requires that any adequate substitute for habeas review must provide the prisoner with, at a minimum, “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law” and must provide the reviewing court with “the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy.”⁴ In Boumediene, the Court struck down the military tribunal system set up for “enemy combatants” but emphasized that where the original detention proceedings themselves are more rigorous—“e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims”⁵—substituting very limited federal review for broader access to habeas might be permissible.

Limiting federal review of noncapital state criminal cases as we propose—to certiorari review by the Supreme Court plus habeas review of claims held retroactive or accompanied by a showing of innocence—will not violate the Suspension Clause so long as the states continue to provide not only an initial Due Process–compliant adjudication of guilt but also reasonable levels of state appellate and postconviction review. Under Boumediene, state judicial proceedings cannot be an adequate substitute for habeas, but those proceedings can provide the necessary context in which even a severely limited federal judicial forum, such as the one we propose, can nevertheless suffice as an adequate substitute for habeas. Conversely, if a particular state were to curtail its own appellate and postconviction review processes substantially, this analysis would lead to the conclusion that our proposed restrictions on habeas would amount to an unconstitutional suspension of the writ.

The Supreme Court has yet to use its powers under the Suspension Clause in precisely this way. But a speech by Justice Brennan in 1961 foreshadowed this line of reasoning. Justice Brennan articulated two different reasons for expanding federal habeas review for those serving state sentences: (1) defiance by state judges in the face of what they considered an unjustifiable incursion of federal law into the traditional domain of the states and (2) the lack of state postconviction proceedings and remedies adequate to adjudicate defendants’ constitutional claims. If either of these conditions were to recur in a particular state as a consequence of our proposal, the Court should find our proposed habeas restrictions to be a violation of the Suspension Clause as applied to criminal cases from that particular state. This would effectively restore full habeas review in that state.

The initial burden of constitutional challenges to a more restrictive statutory scheme should diminish quickly as the Supreme Court decides whether the review processes in various states provide sufficient judicial review to allow our proposed new habeas restrictions to satisfy the Suspension Clause. After all, the Court expeditiously resolved the Suspension Clause challenges to AEDPA,⁶ allowing the lower federal courts to dispose of such claims summarily. The analysis we propose also comports with the Court’s longstanding practice of exercising control over the scope of the writ, including its frequent adjustments of that scope in response to changing conditions.

Relying upon the Supreme Court as the ultimate authority to decide whether criminal defendants have a reasonable opportunity to litigate the constitutionality of their custody avoids the pitfalls of making statutory restrictions of habeas contingent on the states’ meeting new federal standards for judicial review. If Congress tried to write minimum standards for state appellate and postconviction review, it might overshoot what the Court would mandate under the Clause. Moreover, rather than dealing only with the constitutionality of the habeas statute as applied, courts would also have to determine the meaning of the statutory standards.

Suspension Clause jurisprudence is not well developed. The Supreme Court may not interpret the Clause as suggested here. The Court may conclude that the limits of the Clause do not depend upon variations in state judicial review processes. Or the Court might decide that the Suspension Clause only bars suspensions of the writ for those in federal custody, or that it protects only the post–Civil War statutory version of habeas, but not the expansions that originated with the Warren Court. Should the Court limit its own habeas powers in these ways, Congress should enact the same scaled-back version of habeas but should make the application of the habeas restrictions expressly contingent on a state’s willingness to provide adequate levels of appellate and postconviction review of criminal cases.

***

This Editorial addresses two problems: the federal government’s failure to develop an alternative to wasteful federal habeas review as a way to enforce constitutional criminal procedure rights in state criminal cases and the political and fiscal challenges facing elected state officials in providing adequate defense representation to their citizens. Our proposal goes to the root of each problem, eliminating ineffectual habeas review and presenting a new federal approach that directly addresses both of the challenges that have discouraged state and local efforts to comply with constitutional guarantees.

The proposal also addresses the political realities that make these two problems—the broken remedy and the unfulfilled right—so intractable. Many liberals do not trust state courts to protect individual rights adequately without robust habeas review. Many conservatives view any effort to improve defense representation as “soft on crime,” essentially electoral suicide. Reform stalls; as a result, neither the wastefulness of habeas nor defense underfunding gets addressed.

Our proposal offers a solution that responds to concerns from both sides of the political spectrum. For those who would reject our proposed habeas restriction as a withdrawal of the only hope for state prisoners to escape the oversights and misdeeds of state courts, we cite empirical evidence of the utter futility of habeas review today. For those who would prefer to enhance federal court oversight of state noncapital cases through the Great Writ, we explain why that vision will never be more than a fairy tale. For those who would argue that cutting back habeas would lead to the erosion of state judicial review as well, we map out a Suspension Clause analysis that would ensure that state prisoners continue to receive adequate judicial review of their constitutional claims. For those wary of being associated with any effort to improve indigent defense, we offer a win-win for the states. The proposal allows states to better utilize the funds they would otherwise spend defending noncapital habeas cases in federal court, while providing incentive grants to help them improve defense delivery. The new federal center will identify and promote best practices in indigent defense nationwide but will leave to each state the autonomy to take or leave what the federal center has to offer.

In the end, we envision a transformed three-tiered system of state criminal justice in which (1) the states provide higher-quality trial-level proceedings by improving the quality of defense counsel through the support, encouragement, and financial incentives of the proposed new federal center; (2) the state courts, both on direct appeal and in state postconviction proceedings, continue to fulfill their obligation to provide reasonable levels of review of claims of constitutional error in individual state criminal cases; and (3) the federal courts undertake two subsidiary and supporting roles: (a) the lower habeas courts entertain only the special categories of habeas claims identified above, in which case-by-case federal review would be most valuable; and (b) the Supreme Court, using its authority under the Suspension Clause, ensures that the states do not abdicate their responsibility to provide reasonable levels of judicial review.

What is the best way—the most effective and most efficient way—for the federal government to ensure that federal constitutional rights are observed in state criminal proceedings? In our view, the current system cannot possibly be the right answer. Instead, it is time for a new paradigm, one that relies on state courts to do the heavy lifting of case-by-case judicial review but uses the leadership and financial strength of the federal government to bring about a sea change in state systems of defense representation.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Joseph L. Hoffman is a Professor of Law at Indiana University School of Law.

Nancy J. King is a Professor of Law at Vanderbilt University Law School.

A full-length version of this Editorial was published in the New York University Law Review as Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791 (2009).

This Legal Workshop Editorial is based on the following Law Review Article: Joseph L. Hoffmann   Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791 (2009).

In each of these instances, undercover police engaged in seemingly illegal activity to gather evidence or to maintain their fictitious identities. Yet unless these acts are committed by “rogue cops” not authorized to participate in illegal activity, these activities aren’t considered crimes. Indeed, they are considered a justifiable and sometimes necessary aspect of undercover policing.

This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. What is authorized criminality? I define it as the practice of permitting covert police officers to engage in conduct that would be criminal outside of the context of an investigation. We can then distinguish it from other covert policing tactics, such as passively deceptive surveillance, or the police adoption of the role of a victim rather than that of a fellow criminal.

Despite its widespread use in covert operations, authorized criminality is the subject of little regulation or guidance. The absence of meaningful regulation is all the more remarkable because authorized criminality implicates some of the most fundamental questions regarding the role of police in a democratic society. These issues involve the control of police discretion, transparency in police decision making, and the moral authority of the police. This editorial  discusses these observations in more detail, and then offers proposals that respond to these concerns.

 
I.
Undercover Participation in Crime: An Introduction

Unlike an impulsive or opportunistic crime, some crimes involve secretive, complex, and consensual activities. The manufacture of methamphetamine, the bribery of local officials, food stamp fraud, prostitution, dog-fighting rings, and, at one time, homosexuality, are examples of such offenses, and they are difficult, if not impossible, to investigate if the police must wait for victim complaints, witness statements, or physical evidence. If these crimes are to be prosecuted successfully, then, the police must infiltrate criminal ranks or play willing victims. While undercover operations may sometimes seek merely to observe criminal behavior (surveillance operations) or to prevent crime from occurring (preventative operations), many operations involve the active encouragement of crime commission (facilitative operations), either through emboldening suspects—short of entrapment—or by weakening potential victims.

The need for authorized criminality arises most often in facilitative operations, when police must both maintain their covert identities as well as encourage the commission of crime. To encourage crime, police may pretend to be drug users or illegal gun buyers looking for a willing seller. Or in “reverse stings,” the police may provide the illegal drugs themselves, or the “buy” money to the suspects. In addition, covert police may often find themselves tested by criminals trying to flush out suspected police among their ranks by testing their willingness to engage in crime. Without the police playing their fictitious roles as closely as possible, criminals could easily exclude those suspected of infiltrating their ranks, simply by refusing to tolerate passive behavior.

 
II.
Rules for Breaking Rules

The conditions under which undercover police officers may participate in crime have seldom been the subject of regulatory oversight. Instead, what exists is a patchwork of applicable state and federal constitutional law restraints that loosely regulates undercover operations and generally accepts the notion that undercover police violate the criminal law, but are justified in doing so.

Few, if any, covert police have faced direct criminal prosecution, in part because mental state requirements and the public authority defense are likely to shield the officer from criminal liability. In many instances, an undercover officer who participates in criminal activity will lack the required mental state of an applicable crime, and so risks no criminal liability. For example, an undercover officer pretending to be a drug seller will lack the specific intent to sell or distribute that is an element of many drug possession offenses.

In other cases, the public authority defense provides a justification for authorized criminality. This affirmative defense, recognized in every American jurisdiction, justifies otherwise criminal conduct when the action is taken by a law enforcement official in order to effect an arrest, stop a fleeing criminal, or prevent a crime. Because the defense permits the police to engage in otherwise-illegal conduct for legitimate law enforcement purposes, it certainly should apply to the undercover context. Whatever its conceptual underpinnings, however, the limits of the public authority defense have not been rigorously tested. Instances in which undercover police have used this defense are rare, because they are seldom, if ever, prosecuted.

Internal departmental or agency guidelines provide another source of potential control over authorized criminality in undercover operations. At the federal level, the Department of Justice refers to the Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations.¹ The Guidelines explicitly consider the involvement of FBI agents in illegal activity during the course of an undercover operation, providing approval for certain activities by “undercover employees” that would, under other circumstances, “constitute a violation of Federal, state, or local law if engaged in by a private person acting without authorization.”² In limited circumstances, then, FBI agents may participate in crimes as an official part of their duties. At the state and local level, however, the use of guidelines for undercover operations varies greatly, ranging from departments with rules comparable to the FBI Guidelines to departments that lack any internal rules at all.

 
III.
The Harms of Police Participation in Criminal Activity

While police, prosecutors, and judges may defend authorized criminality on the grounds of its practical necessity, it is a practice that produces three significant harms.

First, police decisions about authorized criminality in undercover operations lack basic accountability because of their largely secretive nature. The simple absence of transparency in police decision making can be destructive, in its potential both to breed police abuse as well as to foment public distrust. There is little available public knowledge about the frequency, nature, and conditions of authorized criminality in undercover work. Yet the practice suggests a normative paradox: here, the state permits the police to act seemingly “above the law,” even as they enforce the law.

Second, few legal restrictions constrain undercover police regarding the scope of their permissible conduct in the case of authorized criminality as a practical matter. Critical questions are left to individual agencies and departments to decide. The police have considerable latitude over undercover operations, which can range from a straightforward “buy and bust” to a deep undercover operation that may last years and require significant psychological and social adjustments for the officers involved. The applicable legal doctrines are invoked so infrequently, let alone successfully, in cases of authorized criminality that as limits they are more theoretical than practical.

Finally, undercover participation in crime generates moral uncertainties. The risks to individual officers are especially serious. Occupational hazards are legion. Not only must the undercover officer present and maintain a credible false identity in a criminal milieu, but often he must also gain the confidence of his criminal associates. Maintaining this dual identity can sometimes lead to corruption, disciplinary problems, substance abuse, and sometimes severe psychological problems. Permitting agents to participate in crimes adds yet another layer of strain to this tangle of conflicting demands and loyalties by heightening role confusion.

 
IV.
Addressing the Challenge of Authorized Criminality

By itself, covert policing raises a host of problems about the optimal mix of effective enforcement tactics and ethical police behavior. The participation in crime by undercover police is a little known and secretive practice that by its very nature challenges core presumptions about democratic policing. When police are permitted to take the additional step of behaving as if they were in fact criminals but for doctrines justifying their conduct, they pose a host of potential harms to themselves, the public trust, and the stability of what it means to enforce the law. 

At least three implications follow from this more complete portrait of authorized criminality. First, we should permit much broader public access than is now available to basic information on undercover work, including the use of authorized criminality. Greater transparency not only encourages public trust of the police, it can also help guide substantive regulation of undercover work by providing practical context. Second, encouraging the use of administrative guidelines can create a system of more guided discretion. Guidelines like those adopted by the FBI provide a useful starting point by providing ex ante guidance to covert police before hard decisions must be made. Third, legal scholars of the police must extend their agendas beyond those concerns identified by the U.S. Supreme Court, thus drawing attention to neglected subjects like authorized criminality. Taking their cues from the Court, legal scholarship has taken up many thorny issues of policing left open, unresolved, or problematic by the Court’s Fourth and Fifth Amendment cases, but at the cost of scholarly attention to areas where the Court has paid very little attention, including undercover policing.

Investigative techniques can’t be measured by their ability to secure convictions alone. Covert operations are an important tool of the police, but the unrestrained use of deceptive practices should give us pause. Even the appearance that the police are in some instances above the law is troubling. Over time, we have decided that some police tactics cannot be countenanced in a democratic society, whatever their instrumental value. It may not be possible to eliminate authorized criminality, but we should remain alert to its potential for harm.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Elizabeth E. Joh is a Professor of Law at University of California at Davis School of Law.

This Legal Workshop Editorial is based on the following Article: Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155 2009).

The role habeas corpus is to play in redressing ineligibility violations remains a conspicuously open question.  That question, in turn, implicates some of the most fundamental disagreements over the Supreme Court’s authority over the writ’s function, as well as over the related “actual innocence” laws that often determine the outcome of federal habeas litigation.  Existing ineligibility rules derive largely from actual innocence law applicable to the more familiar concept of “crime innocence”—the idea that, colloquially speaking, the petitioner “wasn’t there, and didn’t do it.”  A death ineligibility challenge, by contrast, does not dispute that the offender committed the murder for which he was convicted; it disputes only the constitutionality of the capital sentence.

The contemporary habeas model’s arc is familiar to habeas scholars.  Modern habeas restrictions are largely responses to three developments during the Warren era: new Fourth, Fifth, and Sixth Amendment procedural rights; their application against states through the Fourteenth Amendment; and the vesting in state prisoners of a federal habeas remedy.  Habeas activity swelled as offenders went to federal court to relitigate procedural claims that they had lost in state proceedings.  Many of the newly cognizable claims had no bearing on the guilt or innocence of the defendant.  These developments provoked landmark critiques by Professor Paul Bator and Judge Henry Friendly, which argued that courts should curtail such litigation dramatically.  Both the Supreme Court and Congress gradually incorporated the ideas appearing in those critiques into habeas law.

Death ineligibility claims disrupt this established model of habeas adjudication.  They are not purely procedural challenges, but they are not challenges to a conviction’s validity.  The number of offenders in which a death ineligibility claim vests has increased dramatically and will only grow as the Court declares new categories of prisoners—probably those exhibiting some sort of diminished capacity—exempt from capital punishment.  In light of important distinctions between death ineligibility challenges and the claims upon which existing law is premised, the Supreme Court should reformulate habeas relief available to categories of offenders that may not be executed under the Eighth Amendment.

 
I.
Innocence in Habeas Law

The writ of habeas corpus is a civil, post-conviction remedy with roots dating back to fourteenth century English common law.  The United States Constitution forbids Congress from suspending the writ except during periods of invasion or rebellion.  Congress statutorily authorized federal courts to issue habeas relief to federal prisoners in 1789, and it made the writ available to state prisoners at the inception of Reconstruction.  Modern habeas rules are a creature of common, statutory, and constitutional law.  The most recent legislation is the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which altered or enacted several key features of current habeas law.  Capital prisoners may use federal habeas proceedings to attack either a conviction or a sentence.

After Brown v. Allen (1953) established definitively that federal habeas jurisdiction included authority to hear challenges to procedurally sound state trials, Professor Paul Bator and Judge Henry Friendly produced landmark scholarship that has shaped the conservative position on habeas for a half-century.  Professor Bator emphasized the epistemic limits of human inquiry and argued that the criminal justice system ensures correctness by proxy of reliable procedure.  Judge Friendly’s central thesis was that innocence should be the touchstone of any decision to disrupt state criminal process.

“Actual innocence” claims appear in two analytic variants.  The first is as a “gateway claim,” which is asserted to overcome a procedural defect in a habeas petition.  Emboldened by theories that habeas relief should be reoriented towards innocence (Judge Friendly) and circumscribed by the epistemic limits of human inquiry (Professor Bator), the Court and Congress began to impose procedural obstacles to relief.  Restrictions apply to claims not properly presented to state courts (“defaulted claims”), claims presented in prior federal petitions (“successive claims”), claims that were not (but could have been) presented in prior federal petitions (“abusive claims”), and claims that do not comply with the federal statute of limitations (“untimely claims”).

Concurrently, the Court developed “gateways”—showings that overcome the procedural restrictions.  Although the gateways’ contents have largely converged, they originally derived from different authority and exhibited different formulations.  All of the gateway formulations, before they were narrowed, would have encompassed death ineligibility claims had such claims been cognizable at that time.

A freestanding innocence claim, the second analytic variant of an actual innocence challenge, alleges a prisoner’s innocence, but not an accompanying constitutional violation.  Whether a freestanding innocence claim is even cognizable on federal habeas review remains an open question.

Under the habeas statute, prisoners may obtain habeas relief only for constitutional violations, and the Court has wrestled with the question of which constitutional provision a freestanding crime innocence claim invokes.  If a freestanding innocence claim states a constitutional violation, then it is cognizable under the habeas statute.  The habeas statute, however, unambiguously imposes all sorts of remedial limits on meritorious claims.  The question of whether a federal court must grant relief naturally arises whenever a routine restriction on the remedy (such as the statute of limitations) is applied to a potentially meritorious innocence claim.

The Court has been unable to resolve whether freestanding crime innocence challenges assert claims that may be characterized as constitutional, having avoided the question in Herrera v. Collins (1993) and on at least three occasions in the last five years.  By contrast, ineligibility claims are anchored uncontroversially in the Eighth Amendment, and courts need not decide the issue of whether habeas review may be used to redress arguably non-constitutional claims.

 
II.
Death Ineligibility

Furman v. Georgia (1972) effectively invalidated almost all existing state capital sentencing schemes.  In the four years after Furman, at least thirty-five states passed new capital sentencing statutes, many of them bifurcating capital trials into guilt and punishment phases.  Every state that retains the death penalty now conducts a separate punishment phase.

Under post-Furman statutes, states will not impose death without proof of statutorily defined aggravating circumstances, and the first death ineligibility litigation grew out of these sentencing requirements.  In Sawyer v. Whitley (1992), the Supreme Court held that evidence offered to disprove the existence of statutory aggravators could satisfy the innocence gateway applicable to procedurally defaulted claims.

I refer to instances where an offender argues that he would not satisfy any statutory aggravators as “paradigm” ineligibility claims for two reasons: First, because Sawyer challenges were, until recently, the most common type of ineligibility claim.  Second, because they invite re-litigation of fact questions resolved by a jury and subject to evidentiary decay, they fit neatly within the familiar critiques of the Warren Court’s habeas jurisprudence.  Because a paradigm ineligibility inquiry is in many respects similar to that conducted for more familiar procedural and crime innocence claims, the controlling ineligibility law became a feature of actual innocence jurisprudence uneventfully.

For my purposes, the most important non-paradigm ineligibility claims are the following: a claim under Atkins v. Virginia (2002) that an offender may not be executed because he is mentally retarded, a claim under Ford v. Wainwright (1986) and Panetti v. Quarterman (2007) that he is not competent to be executed, and a claim under Roper v. Simmons (2005) that he may not be executed because he was a minor when he committed the offense.  Entertaining ineligibility claims does not compromise the traditional interests promoted by post-Bator/Friendly habeas law.

Professor Bator and Judge Friendly both questioned the prudence of allocating scarce institutional resources to redundant federal habeas inquiries.  Non-paradigm ineligibility claims are not well suited to these resource-based critiques.  First, many such challenges cannot be litigated at trial or on direct review.  Second, when the Court recognizes an ineligibility category, many qualifying offenders will already be on death row.  Third, there are structural reasons to believe a crucial assumption of Judge Friendly and Professor Bator—that state process is effective—simply does not hold in the death ineligibility context.  Fourth, most empirical data suggests that procedural bars do not diminish the amount of habeas litigation; all that happens is that courts divert resources to procedural questions.  Finally, choking off habeas review of ineligibility claims could require the Supreme Court to expend valuable resources avoiding unconstitutional executions by scrutinizing claims on its direct review of state collateral proceedings.

Both Professor Bator and Judge Friendly emphasize an interest in the offender’s rehabilitation.  Setting aside the powerful argument that incarceration does not promote rehabilitation generally, rehabilitation cannot logically be a penal objective of a death sentence because that sentence necessarily means the capital offender will not ever return to society.

Judge Friendly and Professor Bator both express concerns about evidence becoming stale over time.  The argument also makes sense for paradigm ineligibility claims, which usually require a court to consider the impact of lay witness testimony on statutory aggravators.  Non-paradigm ineligibility challenges, however, do not generally involve such decaying evidence.  Roper challenges allege that the offender was a juvenile, and the evidence does not degrade.  Atkins challenges assert mental retardation, a clinical diagnosis (perhaps more) easily made at the time of the habeas challenge.  Ford competency challenges seek relief that cannot be adjudicated at trial at all.  Moreover, in all of these contexts, relief does not require a new trial; it only requires a reduction to a life sentence.

 
III.
Failures of State Process

One of the central conceits of modern habeas law is the sufficiency of state process.  If state trials, post-conviction review, and clemency can ensure that states do not execute ineligible offenders, then one might argue that there is no need to worry about how federal habeas law affects these claimants.  Unfortunately, state process is unlikely to adequately protect such offenders’ rights.

First, trials are inherently incapable of protecting the rights of offenders with premature ineligibility claims, such as those involving an offender’s competence to be executed.  Second, the Supreme Court may not have yet recognized the relevant constitutional claim when the state court sentences an offender.  Third, the tests certain states apply to ineligibility claims deviate significantly from the clinical standards used in federal court.  Finally, there are local political pressures in state capital trials that are absent in a federal forum: state judges are generally either appointed by elected governors or are elected themselves, and, in many death penalty jurisdictions, rules against executing certain categories of offenders may be very unpopular.

After a defendant’s conviction becomes final, state prisoners must pursue state post-conviction remedies before seeking federal habeas relief.  Death ineligible offenders are often subject to systemic or idiosyncratic state procedural bars.  There is no federal right to a lawyer during state post-conviction review, which is notoriously complex.  Even if a prisoner does secure counsel, there is no mechanism to ensure that such representation is constitutionally adequate.  The federal statute of limitations is not tolled during the preparation of state post-conviction applications.  Moreover, familiar political pressures undermine post-conviction adjudication.

The most frequently invoked argument for the sufficiency of state corrective process involves the availability of clemency.  Clemency authority includes the power to commute sentences, which is roughly the relief sought by ineligibility claimants.  The power usually vests in a governor, although in some states the governor shares this power with an executive-appointed administrative board.  Unlike judicial process, clemency lacks both formalized procedure and substantive standards.  The absence of red tape means that there are no procedural safeguards, and the lack of substantive standards means that clemency may be denied for any reason.  There is no judicial review of a clemency decision.  There are serious problems with the argument that clemency is a safety valve for failures in ineligibility adjudication.  Because clemency power vests either in a governor or in a board appointed thereby, the decision occurs in the most political climate imaginable.  The calculus necessarily involves a number of factors other than the merit of the constitutional claim: the lawyers’ political affiliations and ambitions, the status of the victim’s family, the proximity to a gubernatorial election, and the perception that a governor is too soft on crime.  Mentally ill and mentally retarded offenders fare particularly poorly in clemency proceedings.

 
IV.
Configuring Ineligibility Doctrine

The salient ineligibility question involves how courts and Congress may limit habeas as a remedy for state violations.  Habeas law is, after all, replete with rules that frustrate relief for meritorious claims.  I submit that the Court is unlikely to actually constitutionalize entitlement to the habeas remedy for a variety of reasons beyond the scope of this shortened Editorial, but that it may nonetheless avoid unconstitutional executions by interpreting habeas rules in favor of ineligible claimants whose challenges appear in procedurally defective petitions.  The license to engage in such interpretation is well established, as the Court has historically ignored restrictive statutory wording and has emphasized its common law authority to shape the writ’s function.

Section 2244(b)(1) states that all successive claims shall be dismissed.  Section 2244(b)(2) provides for roughly similar treatment of abusive claims, but with an exception for clear and convincing proof that an offender is not guilty.  On first blush, AEDPA therefore appears to have eliminated relief for any successive claim and winnowed the abusive claim gateway down to a pure crime innocence inquiry.  In order to avoid the Suspension Clause and procedural due process issues, however, courts may nonetheless construe AEDPA to allow merits consideration of ineligibility claims in successive petitions.

The Supreme Court has a rich history of ignoring potentially restrictive wording when interpreting the habeas statute’s limits on abusive and successive claims.  For example, in 1966 Congress eliminated any statutory reference in § 2244(b) to “the ends of justice,” but Kuhlmann v. Wilson (1986) continued to apply that exception to successive claims.  Nor have federal courts been bashful about interpreting AEDPA’s facially severe limits in favor of petitioners.  Even the Supreme Court has highlighted the absurdity of applying § 2244(b) to a Ford claim in a prior petition that was dismissed as premature.

Section 2244(d)(1) specifies the “trigger dates” for the one-year limitations period on filing federal habeas petitions.  Section 2244(d)(2) tolls the limitations period during state post-conviction proceedings.  Whereas § 2244(b)’s successive petition limits have common law antecedents, the statute of limitations does not.  There is no statutory exception either for crime innocence or for death ineligibility.  Because Atkins has forced the issue, the ineligibility question is only now percolating in appeals courts.

Although the Supreme Court has never formally affirmed the idea, every appeals court to consider the issue has recognized that events not specified in the statute may equitably toll the statute of limitations—usually upon a showing of due diligence and extraordinary circumstances.  The circuits divide on the question of whether a showing of crime innocence equitably tolls the statute of limitations, with several suggesting that the rule applies in order to avert Suspension Clause problems.

In the death ineligibility context, questions of equitable tolling most frequently arise in connection with Atkins and Ford claims.  Several circuits equitably toll the statute of limitations once a prisoner shows that he is not competent to be executed, and others toll the statute only once the petitioner shows a causal connection between his mental condition and his failure to file a timely petition.  The result of such confused treatment in the appeals courts, and of particularly harsh treatment in the Fifth Circuit (which includes the Texas capital docket), is that many offenders with legitimate ineligibility challenges will not have the merits of their claims entertained in federal court.  Future litigants may persuade courts to apply equitable tolling to avoid Suspension Clause issues—perhaps automatically upon a colorable showing of ineligibility.  In Suspension Clause and equitable tolling jurisprudence, courts have the two concepts they would need to undertake constitutional avoidance: a constitutional provision that undermines a literalist statutory interpretation and a plausible alternative construction.

Our existing habeas corpus regime is largely informed by critiques of Warren era litigation, which are not well suited to ineligibility adjudication.  Under the prevailing habeas model, offenders with meritorious ineligibility claims may be executed because the petition containing their claim is procedurally defective.  By invoking the Suspension Clause, equitable principles, and the canon of constitutional avoidance, federal courts may nonetheless be able to avert state executions that the Eighth Amendment categorically forbids.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

I would like to thank Susan Bandes, John Blevins, David Dow, Brandon Garrett, Jim Marcus, Stephen Schulhofer, David Shapiro, Jordan Steiker, Jared Tyler, and Larry Yackle for various forms of input during the drafting process. I would also like to thank participants in the NYU School of Law Lawyering Colloquium for their feedback on several versions of this manuscript. Finally, I am grateful to Mary Kathryn Martin and Kirstin O’Connor for their research assistance. In fairness to the reader, I should disclose that I represent or represented several of the mentally retarded claimants involved in eligibility cases discussed herein.

Lee Kovarsky is Acting Assistant Professor at New York University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 CORNELL L. REV. 329 (2010).

 
I.
The Problem: Forcing Police Departments to Reform is Too Expensive

Everyone has heard or seen stories of police misconduct. Throughout the nation, police officers sometimes violate the law and subject individuals to abuse. The problem is not simply the product of a few bad officers or the occasional mistake resulting from the difficult job officers do. Instead, police misconduct is a systemic problem, which arises from deficiencies in police departments that lead officers to break the rules. When a police department resists public feedback, provides inadequate training and policy guidance to officers, or disciplines laxly those who violate the law, it facilitates—even encourages—law breaking. Countering the systemic causes of police misconduct requires doing more than punishing individual officers. It requires structurally changing police departments that permit misconduct in order to create accountability for officers and supervisors and foster norms of professional integrity.

Congress passed 42 U.S.C. § 14141 in 1994 to help address the absence of effective legal tools for promoting departmental reform. Police departments often resist structural change. While federal law has long prohibited some kinds of police misconduct, the traditional federal legal means of regulating police officer conduct–the exclusionary rule, civil suits, and criminal prosecutions–have proved inadequate to force change in problematic departments.  Likewise, structural reform litigation, which has compelled reform in public institutions in other civil rights arenas, has been largely unavailable for suing police departments due to federal court decisions. Section 14141 changed that landscape. It authorizes the Justice Department to bring suits for equitable and declaratory relief against police departments that engage in a pattern or practice of unconstitutional police misconduct.

Legal scholars initially saw § 14141 as having enormous potential to improve police departments and protect civil rights.  The Civil Rights Division of the Justice Department has now been enforcing § 14141 for 15 years, however, and that that early enthusiasm has waned. The Justice Department has focused its § 14141 efforts on a few key kinds of misconduct, including racial profiling, the use of excessive force, false arrests, and illegal stops and searches.  And it has used the statute to urge a core set of promising reforms on problematic departments, including early intervention systems that identify misconduct-prone officers; refined formal policies, especially on the use of force; strengthened citizen complaint procedures; and improved officer training.  But it has apparently brought only thirty-three full investigations of police departments since 1994.¹ In only fourteen of those investigations, has the Justice Department entered into a formal settlement with the police department mandating changes. In twelve more departments, the Justice Department recommended changes designed to reduce misconduct. The other seven investigations did not result in any public action. In many cities, the problem of systemic misconduct appears to continue.  The Justice Department’s efforts have been too limited to achieve widespread reform.

The Obama Administration represents new hope for those interested in policing reform. Political commitment and resources devoted to enforcing § 14141 are both likely to increase under the new Administration. However, if the Justice Department uses those new resources merely to bring more suits, this Administration is likely to be only marginally more effective in enforcing § 14141 than its predecessors. If more than a few departments require significant reform, the Justice Department cannot bring enough investigations and suits to reform the nation’s most problematic police departments, even with additional resources. Investigating and suing a police department for violating § 14141 is labor intensive and costly. As a result, even if the Justice Department’s budget devoted to § 14141 were doubled or tripled, the Department simply cannot solve the problem of police misconduct by investigating and suing one department after another.

 
II.
The Solution: Incentivizing Proactive Reform

To have more influence on police misconduct nationwide, the Obama Administration must improve as well as enlarge the government’s efforts to reduce systemic misconduct. It cannot try to bring change to problematic police departments merely by suing them directly. Instead, it must leverage the limited resources available for § 14141 enforcement in order to influence not only those departments it investigates and sues, but also those it does not. The Justice Department must use § 14141 to induce reform indirectly by incentivizing proactive institutional change in departments that have not been sued.

In order to promote this end, the Justice Department should adopt a new approach to § 14141 enforcement. The Justice Department can induce reform in police departments that are engaged in substantial misconduct, even if it does not sue them, by making the net expected cost of reform less than the net expected cost of misconduct for those departments. The Justice Department can change the calculus of police departments in three ways: (1) it can raise the expected cost of a § 14141 suit for a department by raising the probability that the department will be sued, (2) it can increase the benefits of proactive reform for a department, and (3) it can lower the costs of adopting proactive reform. To achieve these ends for departments that most need reform, the Justice Department should adopt a three-pronged § 14141 enforcement policy.

The first prong requires the Justice Department to adopt a “worst first” policy that prioritizes suing the worst departments. Such a policy requires a radical change in how the Justice Department approaches enforcing § 14141. Instead of deciding which departments to target under § 14141 simply by reacting to complaints, the Justice Department itself must be proactive: it must identify the worst departments and pursue them.

Identifying the worst departments requires that the Justice Department have sufficient information to estimate the relative amounts of misconduct in different police departments. Towards this end, Congress should grant the Justice Department authority to issue regulations requiring police departments to collect and report essential data in a uniform manner. This data would allow the Justice Department to formulate a worst list, a list of departments with the most significant indicia of key kinds of misconduct. Once the Justice Department has formulated that list, it should investigate departments on the list in order and sue those departments in which the investigation confirms serious systemic misconduct.

By creating a worst list and following a worst-first litigation strategy, the Justice Department can concentrate resources on fewer departments, but induce more to reform. Police departments on the worst list would know that they might be sued soon. This threat of suit would raise the expected costs of § 14141 for these problematic departments. Raising the expected cost of § 14141 for these departments would increase their incentive to adopt reforms that will prevent misconduct and therefore lead to the department’s removal from the list.

The second prong requires the Justice Department to announce a “safe harbor” policy of not investigating or suing any department that officially commits itself to adopting proactively a set of reforms designed by the Justice Department and then makes substantial, verifiable progress towards implementing those reforms. A police department that receives the safe harbor would avoid the litigation costs associated with a § 14141 suit. In addition, the set of reforms that a department would be required to adopt in order to receive the safe harbor, though still beneficial, would be less extensive and costly than the reforms imposed as a result of a suit. Though a safe harbor mechanism must have an effective monitoring scheme, monitoring would not be very costly.  The safe harbor policy should therefore make adopting reforms proactively more valuable for police departments.

In addition to increasing the benefits of reform, a safe harbor mechanism would amplify the positive effects of the worst-first strategy by creating a cascade of reform. A worst-first enforcement strategy incentivizes police departments slowly because departments move off the worst list only when they are sued or successfully eliminate indicia of misconduct. A safe harbor provision changes that. The Justice Department will remove a department from the worst list as soon as it satisfies the requirements of the safe harbor. Although this process would not be instantaneous, a police department should be able to earn safe harbor status more quickly than the department could eliminate indicia of misconduct or than the Justice Department could investigate and sue. As a result, there would be additional movement off the worst list (bringing more departments onto the list) as police departments near the top earn safe harbor.

Because departments on the list cannot know how fast a department above them may earn safe harbor, they would have an incentive to begin minimizing misconduct or working towards a safe harbor as soon as they appear on the worst list. As these departments adopt reforms, the Justice Department would remove them from the list and replace them with other departments. This dynamic would result in a cascade of reform, as departments on the list adopt reforms to avail themselves of the safe harbor and new departments replace them on the worst first list.

The third prong of the proactive litigation strategy I advocate requires using Justice Department resources to refine and disseminate information about uncovering institutional deficiencies that breed police misconduct and implementing  remedial measures that reduce misconduct. This effort will require that the Justice Department carry out or facilitate research and training on reducing police misconduct and publish materials to aid police departments in their reform efforts. This technical assistance program would make reform more cost effective for police departments by lowering the information costs of detecting and remedying departmental deficiencies that cause misconduct.

Together, the worst first, safe harbor, and technical assistance policies would raise the probability of suit and lower the costs and increase the benefits of reform for the worst of the nation’s police departments. Because it is less expensive for the Justice Department to induce police departments to adopt reforms through the worst-first and safe harbor policies; to verify their reform efforts; and to provide technical assistance than it is to investigate, sue, and monitor a department, the Justice Department can induce more reform than it can force using the same resources. In this way, the § 14141 enforcement strategy advanced here would improve upon existing enforcement efforts.

Misconduct is often discussed solely as a wrong that can never be accepted, as a crime that needs to be punished. This rhetoric has lead to a court-centered, reactive approach to civil rights violations, even with respect to forward-looking remedies, like equitable relief. Perhaps for this reason, § 14141 has been treated by both scholars and the Justice Department as a means of reforming police departments one at a time as misconduct comes to light. This approach is reactive in two ways: the Justice Department reacts to complaints and referrals before it looks for a pattern of misconduct, and police departments react to Justice Department suits by engaging in reform. I treat police misconduct instead as a regulatory problem. Police departments play a crucial role in our society: they protect the public and enforce the law. But some means of achieving these ends result in significant social harm in the form of police misconduct. Because resources to reform police departments and prevent that harm are limited, we should use them to reduce misconduct as efficiently as possible. Section 14141 is one important tool for the federal regulation of police misconduct, and it is best utilized by a doubly proactive approach: the Justice Department must assess misconduct nationally and choose its § 14141 targets to most reduce it, and then the Justice Department must use the statute to maximize the incentives for police departments to engage in reform before they are sued. Even if the Justice Department has resources sufficient to sue only five departments each year, it can use those resources to create a § 14141 policy that provides sufficient incentives for many more departments to reform. In this way, by regulating rather than litigating to reduce misconduct, the federal government can better promote policing reform and civil rights nationwide.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Rachel Harmon is an Associate Professor of Law at University of Virginia School of Law.

This Legal Workshop Editorial is based on the following Article: Rachel Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 STAN. L. REV. 1 (2009).

The precedential effect of Santos is unclear, but what is clear is that the law regarding money laundering is now in disarray.  Justice Scalia and Justice Stevens openly disagree about the precedent that the case sets down.  Justice Stevens’s holding rests on the narrowest ground and, under the rule of Marks v. United States, is therefore controlling.  He writes that he believes the meaning of the terms “proceeds” can vary based on the underlying predicate offense.  As Justice Scalia points out, however, Justice Stevens’s conclusion is inconsistent with the Court’s holding in Clark v. Martinez—that the meaning of a term in a statute cannot change with the statute’s application.  Even the dissenting opinion authored by Justice Alito voices discomfort with Justice Stevens’s view that the meaning of the term “proceeds” can alter based on the predicate offense.

The precedential effect of Santos is more complicated where the predicate offense for the money-laundering prosecution relates to drugs and organized crime.  Justice Stevens and the four dissenting justices all indicate that when the predicate offense for money laundering relates to drug trafficking or the operation of organized crime syndicates related to those sales, they would read “proceeds” as indicating receipts rather than profits.  Both Justice Stevens and Justice Alito agree that the legislative history of § 1956 clearly indicates that Congress intended a receipts definition for the term “proceeds” when the predicate offense relates to either drug trafficking or the activities of organized crime related to the sale of drugs.  Justice Alito points out that five justices agree on the stare decisis effect of the case.

The Money Laundering Control Act began as an integral portion of the Regan administration’s War on Drugs.  Money laundering is often referred to as the “life blood” of organized crime and drug trafficking.  These activities generate income largely in the form of cash, and to carry on these enterprises, criminals must find a way to convert their funds into legitimate sources of currency.  Criminal organizations have proved adept at creating a nearly infinite spectrum of complicated schemes designed to conceal the fruits of their illegal transactions.  The Bank Secrecy Act of 1970 (“BSA”) was the original legislation designed to deal with money laundering, and it established reporting requirements for certain transactions that amounted to more than $10,000.  Criminal organizations proved more than adept at evading the BSA’s requirements.  Congress designed the Money Laundering Control Act to stem the tide of money laundering by drug traffickers and organized crime and to be a powerful charge for federal prosecutors.  However, prosecutors implemented the Act and the Sentencing Guidelines for money laundering without a great deal of study or experience, and problems such as the “merger” issue and sentencing disparities discussed in Santos soon emerged.

Three disparate approaches to the Santos case appear to be emerging in the lower courts.  The first adopts Justice Scalia’s approach.  Several courts have read Santos to require “proceeds” to mean profits regardless of the predicate offense.  The second approach adopts  Justice Stevens’ reasoning and allows the meaning of  “proceeds” to vary with the underlying offense.  This approach has proved less popular as it is difficult to resolve its conflict with Martinez.  The third approach simply limits Santos’s holding to money-laundering offenses where the predicate offense is illegal gambling.  No approach has yet become dominant, and due to the number of predicate offenses for money laundering and the disparate approaches emerging among the lower courts, troubling fairness issues are likely to arise.

This Editorial argues that the best solution for the problem would be for Congress to rewrite the money-laundering statute to define explicitly the meaning of the term “proceeds,” to adopt explicitly a “receipts” definition, and to revise the Sentencing Guidelines for money laundering to correct the “merger” issue.  This approach would provide a single definition and therefore greater uniformity among the lower courts.  It also preserves much of the power of the charge for federal prosecutors, and it remains true to what five justices believe to be Congress’s overriding concern about money-laundering activity by drug traffickers and organized crime related to the sale of drugs.  An adjustment to the Sentencing Guidelines would also address the very real fairness concerns raised by Justice Scalia and Justice Stevens.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Evan Ennis Is a J.D. Candidate at Cornell Law School, Class of 2010.

This Legal Workshop Editorial is based on Mr. Ennis’s Student Note: Evan Ennis, Note, An Uncertain Precedent: United States v. Santos and the Possibility of a Legislative Remedy, 95 CORNELL L. REV. ___ (2009).

The Court is right to be attentive. Whether a rule is jurisdictional or not affects both litigants and the courts in important ways, and we ought to strive for a workable and sensible methodology for answering that question.²

But the jurisdictional inquiry implicates another question that has received less attention and thought: what does the determination that a rule is jurisdictional or not mean? For a jurisdictional rule, the answer usually is easy. For a nonjurisdictional rule, however, the answer is more complicated and far less studied. Too often, courts and commentators simply assume that nonjurisdictional rules have all of the inverse effects of jurisdictional rules, without any meaningful discussion of what attributes the nonjurisdictional rule in question should have as an analytical, institutional, or normative matter. As I will explain, that assumption is a false dichotomy that obscures a wealth of rule types that can be used to better understand and categorize difficult statutory rules and judicial doctrines.

 
I.
Understanding Nonjurisdictional Rules

Jurisdictional rules (usually) have clear and well-settled effects.³ A jurisdictional rule can be raised by any party at any time, including for the first time on appeal; it obligates the court to police compliance sua sponte; and it is not subject to principles of equity, waiver, forfeiture, consent, or estoppel.

By contrast, nonjurisdictional rules do not have the same rigid effects. Nevertheless, courts and commentators have tended to express nonjurisdictional rules as having the inverse effects of jurisdictional rules.⁴ Their assumption is that a jurisdictional characterization has one set of effects and a nonjurisdictional characterization has a wholly different set of effects.

This is a false dichotomy. Nothing prohibits nonjurisdictional rules from exhibiting attributes of jurisdictionality, and, in practice, many in fact do.⁵

Adherence to the dichotomy has at least two consequences. First, it obscures a rich swath of rule types that may provide the right characterization for the rule in question. Second, judicial adherence to the false dichotomy risks either overdeciding or underdeciding the case.

Take, as an example of these problems, the Supreme Court’s recent decision in Bowles v. Russell.⁶ There, Keith Bowles petitioned for a federal writ of habeas corpus, which was denied. After the deadline to appeal had passed, Bowles moved to reopen the time to appeal. The district court granted Bowles’ motion to reopen the time for appeal and gave Bowles seventeen days to file his notice of appeal. Bowles filed his notice of appeal sixteen days later. However, the statute that authorizes reopening of the appellate deadline limits a reopened time period to fourteen days.⁷ Thus, Bowles’ notice of appeal was timely under the district court’s order but untimely under the statute.

The state moved to dismiss Bowles’ appeal, arguing that the notice of appeal was untimely and that the Court of Appeals therefore lacked jurisdiction to hear the appeal. Bowles responded that the deadline was not jurisdictional and that his noncompliance with the statutory deadline should be excused for equitable reliance on the district court’s order.

The Supreme Court agreed with the state and affirmed the dismissal. The Court held the rule to be jurisdictional and, therefore, not susceptible to the equitable excuse proffered by Bowles.⁸ In so holding, the Court overdecided the case. The issue in Bowles, in its narrowest sense, was whether the district court had the power to extend the time to file the notice of appeal beyond the deadline for equitable reasons not recognized in the statute. By instead finding the deadline jurisdictional, the Court resolved a host of issues that, though neither presented by the facts nor addressed by the Court, necessarily follow from a jurisdictional characterization: that the deadline must be policed by the courts sua sponte, that the deadline is unsusceptible to waiver, forfeiture, or consent, and that noncompliance may be raised at any time by any party—including the party who missed the deadline in the first place.

For what it is worth, the dissent in Bowles would have underdecided the case. The dissent would have held the deadline nonjurisdictional and, therefore, amenable to the equitable excuse presented in the case.⁹ But a nonjurisdictional characterization, rather than leading to that result, merely begs it. Not all nonjurisdictional rules are amenable to equitable excuses, and there are good reasons why the deadline to file a notice of appeal is one of those that is not.¹⁰

Bowles therefore illustrates the two perverse effects that the false dichotomy engenders. First, the dichotomy focused the Court’s inquiry on a question whose answer was either broader than necessary (the majority’s jurisdictional characterization) or narrower than needed (the dissent’s nonjurisdictional characterization) to resolve the case. And, second, it hid from the Court a critical piece of the puzzle: the possibility that the rule might fall in the middle by being nonjurisdictional yet immune to the kind of equitable exception proffered by Bowles.

 
II.
A Role for Mandatory Rules

These hybrid rules, found between the two boxes in the false dichotomy, have a role to play. Jurisdictional attributes can be combined in various ways to create different species of hybrid rules, so let me discuss the one relevant to the rule at issue in Bowles, what I have called “mandatory rules.”

A mandatory rule is nonjurisdictional but nevertheless has the jurisdictional attribute of being unsusceptible to equitable excuses for noncompliance.¹¹ Thus, a mandatory rule has the nonjurisdictional attributes of being waivable, forfeitable, and consentable, and a court has no obligation to monitor it sua sponte. However, if the rule is properly invoked by the party for whose benefit it lies, a court has no discretion to excuse noncompliance.

The benefits of such a rule are numerous. Waiver, consent, and forfeiture allow the parties to designate which issues require court decision and which are of such relative unimportance to the parties that they would rather forgo the costs of litigating them. They promote finality by ensuring that a relatively unimportant rule that is waived and quickly forgotten will not rise later on its own to unravel months or years worth of litigation and the settled expectations and choices of the parties. And, they reduce the unfairness of allowing the noncomplying party to raise her own default as a basis for overturning an adverse result. In sum, mandatory rules further efficiency and economy, encourage settlement, maintain finality, and promote fairness, all while preserving litigant autonomy and the adversarial process.

In addition, a mandatory but nonjurisdictional characterization relieves the court of the burden to police the rule sua sponte, an obligation that can impose significant costs on a court. Thus, mandatory rules further accuracy and conserve judicial resources by ensuring that the courts need only resolve the issue when the parties have raised and briefed it.

Inflexibility—even in the face of equity—also has its virtues. Precluding equitable excuses incentivizes compliance, maintains finality and reliance interests, constrains judicial discretion and thus promotes fairness and equity across cases, furthers the rule of law, and conserves judicial resources by avoiding the need to litigate a host of potential equitable issues. The primary detraction is that the preclusion of equitable excuses might be harsh and unfair in specific cases. But, at least in theory, some situations call for a rule that values inflexibility over equity.

Neither a jurisdictional rule nor a nonjurisdictional, nonmandatory rule can boast of all of these benefits. That is not to say that a mandatory characterization is warranted in every situation. To the contrary, other situations may call for a jurisdictional rule, or perhaps for a nonjurisdictional rule that must be policed sua sponte by the courts. But my point is that we ought to break from the dichotomy to explore the various combinations available in the middle of the road that ought also, at least in theory, to occupy beneficial niches. Mandatory rules are just the one I have chosen to illustrate here.

 
III.
Mandatory Sovereign Immunity

In the Article, I make the case for a mandatory characterization of the deadline to file a notice of appeal. Though powerful, it is a relatively ordinary case of statutory interpretation. To demonstrate the value of a broader appreciation for mandatory rules and other hybrid rules, I want to show here how they might resolve a nonstatutory rule: the complex doctrine of state sovereign immunity, which, simply stated, is the prerogative of a nonconsenting sovereign not to be sued.

State sovereign immunity is a good example because it has fallen victim to the false dichotomy. Sovereign immunity is inherent in the nature of sovereignty and, as such, ought to be important enough to exhibit jurisdictional features. Yet it can be waived and consented to, which undermines its jurisdictional status, thereby defying both boxes in the false dichotomy. As a result, the Supreme Court has struggled to characterize it definitively, instead adding confusing gloss such as stating that immunity “partakes of the nature of a jurisdictional bar.”¹²

The answer may very well be to break away from the false dichotomy and look for hybrid possibilities, and a mandatory characterization may be just the ticket. To make the case, I will discuss each feature of a mandatory rule and explain how it fits with state sovereign immunity.

 
A.     Waiver and Consent

Waiver and consent have been part and parcel of state sovereign immunity since the beginning of its long historical acceptance.¹³ They advance the primary function of immunity, which is to protect the dignity of the state,¹⁴ by putting control of the immunity right in the hands of the right holder. And, they give the state the opportunity to strike a balance between the importance of redressability for wrongs and important policy considerations involving the state and its fisc. These are powerful reasons why waiver and consent should be features of state sovereign immunity.

 
B.     Sua Sponte Requirement

The existence of sovereign immunity as a bar to suit should not have to be raised by the court sua sponte if no party raises it. There is little reason for the court to take an independent interest in immunity, particularly when the entity in the best position to assert or waive it—the state—is a party defendant. That is not to say that a court may never raise the issue on its own. There may be compelling reasons to do so in individual cases. For example, if it is unclear whether an entity is an arm of the state entitled to assert immunity or not, and the court cannot determine if the entity is consenting to suit or merely does not realize that it may be able to assert immunity, then a court may wish to raise the issue to determine whether or not the entity is truly consenting to suit. But these situations are more likely to come up on a case-by-case basis and should not require a blanket requirement. Far better, and more consonant with the underlying policies, to allow courts discretion to raise the issue when the need arises. In sum, courts should not be required to raise the immunity issue sua sponte.

 
C.     Forfeitability

There are good reasons why immunity should be forfeitable like any other affirmative defense. Requiring the defense to be asserted in a timely fashion, such as in the answer, allows the issue to be litigated at the outset, potentially avoiding the waste of judicial and litigant resources if it is asserted late in litigation or for the first time on appeal. Also, requiring a timely assertion prevents the state from intentionally delaying the assertion for some tactical advantage. In addition, it promotes clarity, consistency, and fairness in the litigation. And, finally, if immunity exists in substantial part to protect states from the burdens of suit, it makes logical sense to require the defense to be raised as early in the litigation as possible.

If immunity were difficult to determine, I might rethink forfeiture. After all, state sovereign immunity is designed to ensure respect for the states, and a rule that requires a decision whether or not to assert immunity at an early stage in the litigation when that decision cannot yet be made does not show much respect for the states and the doctrine of immunity. But the availability of immunity should be, in the vast majority of instances, readily apparent at the outset. Even if the availability of immunity is unclear, an entity usually can—and will have ample incentive to—assert the defense early anyway.¹⁵

There are two practical arguments against forfeiture, but they strike me as fairly weak. The first is that a no-forfeiture rule would protect those state entities that erroneously believed that they were not entitled to assert immunity but suddenly realized their mistake before the litigation ended but after the forfeiture deadline had expired. A no-forfeiture rule for those cases might enable a court to resolve whether the state entities had consented to suit voluntarily. But, as I mentioned above, these cases strike me as very rare indeed, and, to the extent they arise, defendants already have the opportunity to amend their answers to assert affirmative defenses previously omitted if justice so requires.¹⁶ The risk that a nonconsenting state entity will unknowingly forfeit an available immunity defense and be unable to assert it, particularly with the opportunity of a court to raise the issue sua sponte, seems extremely low and provides very little support for a no-forfeiture rule of state sovereign immunity.

The second practical argument is that states may need time to consider carefully whether to waive immunity or not in specific cases, a decision that may not be able to be made without information from the discovery process. Respect for the states and their prerogative to invoke or waive immunity counsels against a strict and early forfeiture rule in these circumstances. However, it is not clear to me, as an empirical matter, whether such situations come up often enough to justify it. Even if so, there is an easy solution: a state should assert the immunity defense in its answer but decline to move to dismiss the case before discovery and, instead, after discovery has closed, either waive immunity or move for summary judgment. The point is that the state can preserve its immunity against forfeiture by asserting it in a timely fashion without seeking dismissal on the basis of immunity until it is ready to do so.

 
D.     Equity

The final attribute to consider is the availability of equity to prevent an assertion of the immunity bar. In other words, might there be equitable reasons why a court could hear a claim against an unconsenting state despite its otherwise proper invocation of immunity? Two reasons suggest that the answer is no. First, the Court’s stringent waiver rules indicate that anything outside of a clear and voluntary waiver or declaration of consent will not deprive a state of its immunity right. These rules suggest that equitable estoppel, to the extent that it is a kind of implied waiver or consent, should not be available to prevent a state from asserting immunity. Second, immunity is inherent in sovereignty, and, as a result, is of a mandatory and inflexible nature subject only to the prerogative of the sovereign. The sovereign interests served by state sovereign immunity—deference to state dignity and protection of the state fisc—transcend individualized notions of fairness that arise in the context of a specific litigation. Indeed, the whole point is to prevent an injured citizen from recovering for unlawful state conduct. They ought not be subject to the whim of circumstances or the parties’ actions, save where those actions manifest a valid waiver or consent by the state.

 
Conclusion

In sum, I believe that a good argument can be made that state sovereign immunity might best be characterized as a nonjurisdictional, mandatory rule. But if I am wrong, then I happily revert to my broader point—regardless of the specific balance struck here, we need a more nuanced lexicon to deal with doctrines like state sovereign immunity. Regardless of whether a mandatory rule or some other characterization ultimately carries the day, we have found our way out of the false dichotomy and toward a better way to conceptualize and understand the doctrine.

At bottom, this article is not so much about arguing for a specific characterization of state sovereign immunity or the statute at issues in Bowles. Rather, the broader goal is to develop more creative thinking about these difficult characterization issues, to open our minds to the myriad of possibilities that exist for them, and to resolve them with both honesty and principle.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Scott Dodson is Assistant Professor of Law at University of Arkansas School of Law.

This Legal Workshop Editorial is based on the following Article:   Scott Dodson, Mandatory Rules, 61 STAN. L. REV. 1 (2008).

A substantial body of psychological evidence suggests that there is no strong link between money and happiness.¹ For example, one longitudinal study tracked people over a period of nine years, comparing the happiness of those who lost at least half a standard deviation of their annual income to those whose incomes increased or stayed constant.² Not only was the former group not unhappier, it was actually happier (although not statistically significantly so).³ Taking a criminal’s money via a monetary fine therefore is likely to inflict less harm than would be the case absent people’s ability to adapt to such changed financial circumstances.  Moreover, because such adaptation is not anticipated,⁴ fines presumably inflict less harm than is expected by either criminals or policymakers.  Increasing the amount of a fine thus may not meaningfully increase the degree of harm imposed.

The effects of adaptation on imprisonment are more complicated.  Inmates do adapt to being in prison in much the same way that people adapt to disabilities,⁵ so lengthening a prison term does not increase the harm imposed by as large an amount as is expected.⁶ However, spending any time in prison has negative effects on life after prison that are not similarly mitigated by adaptation.  Released inmates are more likely to be unemployed than they were before going to prison,⁷ are more likely to lose social ties to family and friends,⁸ and are more likely to contract a number of serious, chronic diseases.⁹ Unlike monetary losses and incarceration itself, unemployment and loss of social ties create persistent decreases in happiness that are not adaptable.¹⁰ Even a short prison term, therefore, has severe negative effects on happiness that may persist long after the inmate has been released.

These findings curtail our ability to make a punishment more or less severe by adjusting the size of a fine or the length of a prison term.  Larger fines may well fail to inflict a meaningfully larger degree of harm than do smaller fines.  And although longer prison sentences are presumably worse for the offender than shorter ones, they seem not to be as much worse as is believed: our capacity to adapt to some things but not to others makes being in prison less bad, and being released from prison less good, than we expect.

The penal system relies principally on adjustments in the size of fines and the length of prison sentences to tailor punishments to crimes.  And all major theories of criminal punishment consider some sort of proportional tailoring to be necessary.  A standard utilitarian approach, for example, is to impose the least amount of punishment necessary to achieve a desired level of deterrence.¹¹ Imposing greater punishment than that would decrease utility both by harming the criminal more and by passing along to taxpayers the cost of, for example, keeping an inmate incarcerated.  In addition, if prison is less painful than expected but post-prison life is worse, the punitive distinction between varying sentence lengths begins to diminish: a ten-year sentence is not even close to five times worse than a two-year sentence.  This can greatly complicate efforts to achieve marginal deterrence by punishing worse crimes more harshly than minor crimes.  More generally, if our primary means of adjusting the severity of punishment is less effective than it is thought to be, that restricts our ability to meet the goals of utilitarian punishment theory.

Retributive punishment theory also relies on proportionality.  It demands that only the guilty may be punished, that excessive punishment of the guilty is tantamount to punishment of the innocent, and that more serious crimes deserve and require more severe punishments than less serious crimes.¹² These demands, like the goals of utilitarian theories, are rendered more difficult to meet if we are less capable than expected of adjusting the severity of punishments by the traditional means of changing the size of fines and the length of incarcerations.

The foregoing discussion has associated the severity of punishment with the amount of harm imposed on an offender.¹³ Although harm is not the only way to measure the severity of a punishment, it is at the very least an important consideration.  If we were insensitive to the harm imposed on offenders, then we would be less troubled by torture or by punishments whose severity seems radically out of step with that of the crime (for example, life imprisonment for loitering).  So long as we do care about the suffering visited upon offenders by punishment, we must take account of the unanticipated effects on that suffering of hedonic adaptation.

Acknowledgments:

Copyright © 2009 The University of Chicago Law Review.

John Bronsteen is Associate Professor at Loyola University Chicago School of Law.
Christopher Buccafusco is Assistant Professor at Chicago-Kent College of Law.
Jonathan Masur is Assistant Professor at The University of Chicago Law School.

This is Legal Workshop Editorial is based on the following full-length Article: John Bronsteen, Christopher Buccafusco, & Jonathan Masur, Happiness and Punishment, 76 U Chi L Rev 1037 (2009).

I.
Categoricalism and Balancing

The two major modes of constitutional construction at work in the majority and dissenting opinions in Heller can be fairly described as categoricalism (embraced by Justice Scalia’s majority opinion)² and balancing (endorsed in Justice Breyer’s dissent).³ The difference between these two modes, which largely tracks the distinction between “rules” and “standards,” has long been of interest to constitutional scholars.  Balancing approaches, like standards, require a judge to weigh the interests of a rights-holder against the interests of a would-be regulator, attach appropriate weights based on the context (such as deference to the legislature or a fear of chilling speech), and determine which side is heavier.  Categoricalism, on the other hand, is rule-like.  It prohibits judges from engaging in this kind of interest-weighing.  Instead, categoricalism asks only whether the case falls inside or outside of certain preexisting, outcome-determinative categories.

Although this difference may appear stark, the relationship between categoricalism and balancing is complicated and subtle.  Some categories are simply “outcome-determinative” balancing tests where the weights on one side are so heavy that the balance always tips in their direction.  Other “calcified” categories are the results of prior balancing tests.  For example, if a court has determined in ninety-nine consecutive cases that the government’s interest in banning a particular activity outweighs an individual’s interest in engaging in that activity, then in the hundredth case, the court may simply decide that the activity is categorically unprotected and that no further balancing is needed.  Finally, there is a kind of “whole cloth” categoricalism—often based on a textualist or originalist interpretivism—under which a court simply creates a new category without any prior balancing in individual cases.  Heller employed this “whole cloth” categoricalism.

II.
The Relevance of First Amendment Categoricalism

Although Heller would eventually throw the distinction between categoricalism and balancing into particularly sharp relief, the tension between them is nothing new.  Fifty years ago, Justice Frankfurter, a great proponent of balancing, and Justice Black, who was famously absolutist, waged a pitched battle over whether categories or balancing would form the basis of free speech doctrine.  By and large, Frankfurter prevailed.  But First Amendment doctrine does contain some elements of categoricalism:  categorical exclusions, such as obscenity and libel; subcategories, such as expressive conduct and commercial speech; and a few absolute rules, such as the flat ban on viewpoint discrimination.  Significantly, the placement, protection, and contours of these categories seem to be justified by their proximity to core First Amendment values such as the protection of political viewpoints.  Thus, obscenity and fighting words are too far removed from that core value to be protected by it; commercial speech is not too far to be protected but is not entitled to the same insulation as political speech; and political viewpoints are given absolute protection because they are at the very core of the Amendment’s purpose.  The principled categoricalism of First Amendment doctrine thus appears to track—at least roughly—the same core values that inform the Amendment’s balancing tests.

The connection between categoricalism and constitutional values in the context of free speech has special relevance for the Second Amendment because, rightly or (often) wrongly, the First and Second Amendments have often been considered close cousins.  This presumed relationship has proven especially attractive for those who support broad “individual” Second Amendment rights, as opposed to “collective” (that is, militia-related) rights.  Now that Heller has given a clear victory to the “individual” rights view, some argue that Second Amendment rights should be protected by the same kind of strict scrutiny that applies in some areas of the First and Fourteenth Amendments.⁴ Thus, free speech doctrine, including its mix of balancing and categorical approaches, will almost certainly play an important role (justifiably or not) in the evolution of Second Amendment doctrine.

III.
Categoricalism and Balancing in Heller

Given this background, it is unsurprising that the Heller litigation drew heavily on First Amendment doctrine, including its mix of categories and balancing.  The D.C. Circuit opinion striking down the District of Columbia’s gun regulations embraced the “individual” right interpretation of the Second Amendment and created a categorical approach to govern that right.⁵ Although this categorical approach went mostly unnoticed in the Heller commentary—which focused almost exclusively on the individual rights issue—it was deeply significant for the future of the Amendment.  Indeed, the appellate court’s apparent categoricalism led the U.S. Solicitor General to file an amicus brief opposing the Circuit Court’s decision, while supporting the Court’s conclusion that the Second Amendment protects an individual right disconnected from militia or military service.⁶

Tracking this division, the Justices disagreed sharply about both the “individual” nature of the Second Amendment right and the standard of review (or lack thereof) for future Second Amendment cases.  The debate between categoricalism and balancing, which had long been central to the evolution of First Amendment doctrine, again took center stage, this time with regard to the Second Amendment.  In Heller, however, the categorizers prevailed over the balancers.  In dissent, Justice Breyer took for granted the “individual” nature of the Second Amendment right, but criticized Scalia’s majority opinion for failing to justify, or even identify, a standard of review to govern it.⁷ To fill the void, Justice Breyer proposed a Frankfurter-style balancing test.  “The ultimate question” under Breyer’s approach would be “whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate.”⁸

The majority was having none of this.  Justice Scalia responded:  “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.”⁹ The majority instead embraced a categorical approach that explicitly and emphatically rejected any balancing of individual and government interests.¹⁰ And yet, much as Justice Black had done fifty years ago, the majority created categorical carve-outs to its categorical rule.  In a passage that comes closer than anything else in Heller to being a roadmap for future gun regulation, the majority clarified that:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.¹¹

In addition to these three carve-outs, the majority also denied Second Amendment coverage to “dangerous and unusual” weapons and weapons with no military purpose.¹² Thus, the majority created at least five carve-out categories:  the mentally ill, felons, sensitive places, dangerous and unusual weapons, and weapons with no military purpose.  Each of these categories could arguably be justified under Justice Breyer’s interest-balancing approach, since for each, the government could likely provide sufficiently weighty reasons for limiting them.  But it is far from clear how they can be justified under the majority’s purported originalist-categoricalist approach.

IV.
Heller’s Categoricalism Fails to Identify Core Second Amendment Values

What is most troubling about the majority’s carve-outs is not their existence or even their content, but the fact that they cannot be justified by reference to any possible core Second Amendment purpose or value.  As noted, the remnants of categoricalism in free speech doctrine seem rooted in general understandings of the core values of the First Amendment.  Thus, the government is strictly barred from directly discriminating against unpopular political viewpoints (the right to dissent being perhaps the core value of the Amendment), whereas non-political obscenity is completely unprotected, since it is too far removed from that core value.  Heller’s categorical rules have no such value-based justification.

There are three major candidates for the core value of the Second Amendment:  (1) protecting state militias from federal interference,¹³ (2) checking federal tyranny through a populace of armed citizens,¹⁴ and (3) enabling private self-defense against criminals and other threats to personal safety.¹⁵

The first of these candidates is the issue at the heart of the debate between the individual and militia-related views of the Amendment.  Although the militia-based right view arguably prevailed in law and scholarship for nearly two centuries, the Heller Court flatly rejected it, and thus it cannot form a proper basis for any future Second Amendment categoricalism.  At various points in its opinion, the majority did, however, endorse both of the two other possible candidates:  the value of checking government tyranny¹⁶ and the value of armed, individual self-defense.¹⁷ But the majority did not choose between these two views of the core value of the Second Amendment, which lead to very different categorical results.  Indeed, it is impossible to justify the majority’s categorical carve-outs under either view of the Amendment’s core values.

If the underlying purpose of the Second Amendment is the prevention of governmental tyranny, either by individually armed citizens or by organized militias, then it makes very little sense to hold—as the majority did—that the Second Amendment does not extend to “sensitive places” like government buildings.  Indeed, arms-bearing in a government building would perhaps be the prototypical method of stopping government tyranny, like praying in a house of worship might be for the Free Exercise Clause.  Nor, under the tyranny-prevention model, would it make sense to exclude from Second Amendment protection “dangerous and unusual” weapons like rocket launchers and grenades.  Indeed, those would be precisely the kinds of “Arms” one would need in order to fight off or deter the U.S. military.  The majority, seemingly aware of this tension, noted that “it may be true that no amount of small arms could be useful against modern-day bombers and tanks.  But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”¹⁸ But of course it is not generalized “modern developments” that have limited citizens’ ability to bear devastatingly powerful arms against their government, but rather laws against owning such weapons.  Those laws, under a categoricalist anti-tyranny view of the Amendment, would be almost self-evidently unconstitutional.

Nor can the majority’s categories be justified under a self-defense reading of the Amendment.  If personal self-defense is the core value of the Second Amendment, then it makes little sense to exclude from coverage, as the majority does, weapons with no military utility.  Indeed, the military utility of a weapon should be completely irrelevant to a right whose purpose is personal self-defense.  Nor does it make sense to categorically bar the mentally ill and felons from invoking a right to armed self-defense, as the majority does.  While these two groups are subject to some legal restrictions, both groups presumably have a right to bodily integrity, have some rights under other Amendments (including the First), and—at least until Heller—had a common law right to self-defense, even armed self-defense.  A balancer might well determine that the government’s legitimate interest in preventing felons and the mentally ill from possessing guns outweighs any right they have to armed self-defense, but this kind of interest-balancing approach is off limits to the originalist-categoricalist.

The self-defense reading seems to be the majority’s preferred approach.  But even holding aside the impossibility of reconciling the self-defense view and the majority’s categorical carve-outs, it is difficult to identify exactly what right of self-defense the majority means to categorically protect.  After all, the common law has long recognized self-defense as a defense to civil and criminal liability.  Does the Second Amendment constitutionalize this common law right?  Or does it constitutionalize a right to armed self-defense, while leaving other forms of self-defense covered by the common law exception?  The majority implies the latter, suggesting the odd conclusion that a person has a constitutional right to shoot an intruder, but not to stab him.

More to the point, what kinds of laws are vulnerable to constitutional challenge under the self-defense reading?  Undoubtedly, Heller’s most widely recognized holding was the Court’s invalidation of the District’s ban on handguns, but the Court also struck down the District’s safe storage requirement, which required guns to be kept “unloaded and dissembled or bound by a trigger lock or similar device.”¹⁹ Undoubtedly, this law effectively burdened an individual’s right to use a gun in self-defense, since a legally stored gun would have to be unlocked and loaded before use.  But instead of focusing on this cost (which the District argued was justified by its benefits, such as limiting unauthorized gun use by children), the majority struck down the trigger lock requirement because it did not contain an explicit self-defense exception.  The District—joined by the Solicitor General on this point²⁰—argued that the law should be read, like any generally applicable law, as containing an implicit common law self-defense exception.  The majority rejected this argument, saying that the trigger lock requirement “ma[de] it impossible for citizens to use [guns] for the core lawful purpose of self-defense and [was] hence unconstitutional.”²¹ Nor was the majority swayed by the existence of various Founding-era laws which, like the trigger lock requirement, effectively burdened the right to armed self-defense (for example, by requiring safe storage of gun powder) and which contained no explicit self-defense exception.  The majority found that these laws either would not deter the use of weapons in self-defense, or would not be enforced against those who did use weapons for such purposes.²² The District of Columbia’s law enforcement officials, however, apparently could not be so trusted.²³

Conclusion

Despite their relatively bright lines, Heller’s categories create more questions than they answer.  Most fundamentally, they raise the question of what the core values of the Second Amendment are.  Because the majority opinion in Heller neither reflects nor enables a clear view of these constitutional values, its categoricalism is deeply problematic.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Joseph Blocher is Assistant Professor of Law at Duke University School of Law.

This Legal Workshop Editorial is based on the following full-length Article:   Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. REV 375 (2009).

In this Editorial, I want to consider a different (and surprising) fact that emerges from the data: juries do not appear to count prior convictions as “evidence” supporting the likelihood of a defendant’s guilt.  That is, although juries are more likely to convict a defendant with a prior record, they nonetheless suggest (in rating the strength of the evidence) that the proof against the defendant is apparently no stronger in such cases than in prior-record-excluded cases in which juries acquit.  That juries would not count a prior conviction as evidence of a defendant’s guilt of the crime charged is important (and surprising) in two respects.

First, a major reason that prior convictions are ordinarily thought to pose a risk of unfair prejudice against a criminal defendant is the fear that, regardless of instructions to the contrary, a jury is likely to draw the following inference: the defendant committed crimes in the past and is therefore more likely to have committed the crime for which he is currently being prosecuted.  If Hans and Eisenberg are correctly interpreting the data (and my review of their article suggests that they are), then this fear is not well founded: juries apparently do not fall into the trap of considering prior bad acts in deciding the likelihood of a particular bad act.  Juries understand, in other words, that a person’s apparent inclination to commit robbery does not tell us very much about whether it was he or some third party who robbed a particular bank three months ago.  This suggests a level of sophistication on the part of the jury about which the evidence law has often been quite dubious.

On the other hand, the second important (and surprising) aspect of juries” ability to discern the relatively low relevance of prior convictions to guilt and innocence in a particular case is that we are left to conclude that the jury is unable (or unwilling) to apply the standard of “guilt beyond a reasonable doubt” to defendants who have a prior record.  The jury, in other words, is not confused by the evidence; it is instead repelled—in the case of prior felons—by the demanding standard of proof.  If this is true, then juries appear far more willing than we might have thought to take the law into their own hands.  For an ordinary criminal defendant, it is acceptable to allow ten (or a hundred or a thousand . . . ) guilty people go free rather than incarcerate (or execute) one innocent person.  But for a habitual criminal, perhaps, this permissive approach to what we might call “wrongful acquittals” is harder for juries to swallow.  The stakes may simply feel too great.  To put this differently, the downside of a wrongful acquittal, in the case of a defendant with a record, is that a habitual offender is free to offend again, while the downside of a wrongful conviction is that a habitual offender who happens not to have committed the particular crime charged spends time behind bars.

If this is the cost/benefit analysis in play, then the jury is rejecting the fundamental structure of a criminal trial as an assessment of guilt or innocence of a specified act (rather than the suitability of a particular person for preventive detention).  This brings to mind the “war on terror” theory of detention with which we have lately become very familiar and which may pose a far greater threat to criminal justice than the comparatively benign (but apparently not-so-tempting) inference that a prior offense sheds light on the odds of a presently charged crime.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University Law School.

This Legal Workshop Editorial is a response to the following Legal Workshop Post:   Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, LEGAL WORKSHOP (Sept. 14, 2009), based on 94 CORNELL L. REV. __ (forthcoming 2009).

All United States jurisdictions allow the use of some criminal convictions to impeach the credibility of a witness.¹ Indeed, the impeachment of witnesses with their prior records was permitted at common law as early as the seventeenth century.  Before then, defendants who were convicted felons were prohibited from taking the stand because their testimony was seen as having no credibility.  The existence of felony (and some other) convictions led to the inference that the witness was highly likely to lie under oath.  Over time, jurisdictions eventually eased the prohibition to permit defendants with records to testify, yet simultaneously allow the impeachment of defendants with their prior convictions.

The evidentiary topic of when to permit the fact-finder to learn of a prior criminal record is important because a prior record is thought understandably to promote convictions.  Evidentiary rules try to balance a defendant’s interest in testifying and the prejudicial effect of impeaching the defendant’s testimony using prior convictions.  For example, Federal Rule of Evidence 609(a)(1) allows impeachment by prior convictions “if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused . . . .”  The judges’ balancing of evidence’s probative value versus possible prejudice should consider the best possible information about the impact of criminal records.  More importantly, a prior criminal record’s obvious prejudicial effect may contribute to the increasingly visible problem of erroneous convictions.

Previous research conducted largely with mock juries suggests several theoretical avenues by which a defendant’s criminal record might bias the fact-finder’s decision to convict or acquit.  It might function as the legal rules governing its use suggest it usually should, by affecting the credibility of the defendant as a witness in the proceedings.  Second, a decision maker might use a defendant’s criminal record to categorize the defendant as a bad person, a person of poor character, creating a negative halo effect.  Third, the weight and significance of the evidence may change; evidence that seems inconclusive against a defendant with no record of wrongdoing may appear to be more damning when jurors learn of the defendant’s criminal past.  Finally, the threshold for conviction, or the subjective burden of proof, may differ for defendants with and without criminal records.  Jurors may be willing to convict on less evidence when the defendant has a criminal past.

Limited empirical analysis exists of the defendant’s decision to testify or of the effect of a prior criminal record on trial outcomes in real jury trials.  Our study uses a unique data set gathered by the National Center for State Courts (NCSC) under a grant from the National Institute of Justice (NIJ) to explore when criminal defendants testify and the effect of that testimony on jury verdicts.² The data set includes extensive case information and questionnaire responses from trial judges and jurors in 382 felony jury trials in four U.S. jurisdictions.  This data set is especially useful for our purposes because it includes verdict information as well as information about the defendant’s criminal record and whether he or she took the stand.  In addition, both judges and jurors in the felony trials provided their perceptions of the defendant and their estimates of the strength of the evidence in the case.

 
Findings

Our analyses confirm that defendants with and without criminal records testify at different rates; furthermore, the likelihood of learning about a defendant’s criminal record is strongly linked to whether the defendant takes the stand.  In the felony jury trials in the NCSC data set, 60% of defendants without criminal records testified compared to 45% with criminal records.  For testifying defendants with criminal records, juries learned of those records in about half the cases.  Juries rarely learned about criminal records unless defendants testified.  Statistically significant associations exist (1) between the presence of a criminal record and the decision to testify at trial, and (2) between the defendant testifying at trial and the jury learning about the defendant’s prior record.

We also find that the fact-finder’s knowledge of a defendant’s criminal record is linked to conviction rates in weak (but not strong) cases.  Regression analyses that controlled for a variety of relevant factors show that in cases with strong evidence against defendants, learning of criminal records is not associated with conviction rates.  Instead, juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction.  In weak cases, those with evidence less than or equal to 3.5 on a rating scale in which 1 represents very weak and 7 represents very strong evidence, the dominant tendency is not to convict.  But, in the strongest of weak cases, the existence of a prior criminal record can prompt a jury to convict.  The prior record effectively leverages the existing evidence over the threshold needed to support conviction.  The effect in otherwise weak cases is substantial and can increase the probability of conviction to over 50% when the probability of conviction in similar cases without criminal records is less than 20%.

As for whether a prior record changes the weight or meaning of evidence, we hypothesized based on mock jury research that knowledge of criminal history could directly affect the jurors’ perceptions of evidentiary strength.  Yet its impact might be difficult to detect because, if it operates as hypothesized, it would already be part of jurors’ perceptions of the strength of the case.  With that as a cautionary comment, the relation between evidentiary strength and knowledge of a criminal record seems more consistent with the threshold theory.  Cases in which jurors learned of criminal records tend to have slightly lower perceived evidentiary strength than cases in which jurors lacked knowledge of criminal records.  Perhaps prosecutors viewed existence of prior convictions as warranting prosecution of otherwise weaker cases.

In addition to the lower conviction threshold, we also find some evidence of a negative halo effect.  Jurors rated their sympathy for the defendant on a seven-point scale.  In a regression model of the degree of sympathy as a function of knowledge of a criminal record, there was a statistically significant negative association between sympathy and record.  But adding the degree of sympathy as an explanatory variable for verdicts in close cases does not yield a statistically significant coefficient for jurors’ perceptions of defendant sympathy.  Jurors may feel more negatively about defendants with criminal records, but that reduced sympathy does not help explain the conviction pattern in close cases.

With respect to the effect of prior record on credibility, we do not find evidence that criminal records affect defendant credibility.  Jurors were asked to rate the believability of the defendant’s evidence on a seven-point scale.  In cases in which defendants testified, criminal record was not significantly associated with the degree of believability.  This non-effect may of course be attributable to defendants being selective about cases in which they testified.  In cases in which testifying would be most damaging to credibility, defendants may simply decline to testify.  However, it is worth noting the convergence of this finding with experimental research.  In mock-jury experiments, researchers have not typically found strong links between the presence of a criminal record and changes in the defendant’s credibility.

 
Discussion

Let us consider the results in light of theoretical reasons suggesting why a prior record is important.  Subject to the limitations of a non-experimental design, our findings most directly support the explanation that the conviction threshold appears to differ for defendants with and without criminal records.  The regression models suggest that jurors appear willing to convict on weaker evidence when the defendant has a criminal past.  A prior record plays little role in cases with strong evidence.  Nor does prior criminal record often play an outcome determinative role in cases with extremely weak evidence.  But for cases with evidentiary strength close to, but below, the threshold, a prior criminal record can lead to conviction.  One could view the prior record as “making up” for evidentiary deficiencies.  Or, one might view the prior record as evidence tending to suggest guilt.  Under either view, the prior record makes a difference.  The fact that the record effect occurs primarily in cases where the evidence is not overwhelming converges with the classic finding in judge-jury disagreement studies that extralegal factors operate to cause disagreement primarily in close as opposed to clear cases.

The absence of an association between criminal record and credibility is deeply troubling given the theory underlying allowing impeachment based on a defendant’s criminal record.  In most instances, the justification for allowing the use of prior criminal record is to facilitate assessing the defendant’s credibility.  If, as our results and experimental results suggest, prior record affects case outcomes, but not credibility, the historical justification for allowing use of criminal records is unfounded.

 
Conclusion

Experimental and real-world data, as confirmed by this study, uniformly indicate that knowledge of a defendant’s prior record promotes conviction in close cases, those where one should be most concerned about erroneous conviction.  The criminal record effect could be even stronger than we have found in these analyses; the experimental work suggests that having a record for a similar offense creates the most bias, and we only had information about the presence of a defendant’s criminal record, not its type.  Together, our results and experimental results indicate that the historical basis for allowing prior record evidence—to challenge the defendant’s credibility—has little empirical support.

The enhanced conviction probability that prior record evidence supplies in close cases may well contribute to erroneous convictions.  As of this writing, over 300 post-conviction exonerations have been documented.³ A recent analysis of DNA exonerations suggests that many erroneously convicted defendants refrain from testifying because they fear the negative consequences of having their criminal records made known to the jury; at the same time, juries who learn of the criminal records of innocent defendants who do testify are likely biased by the record information.⁴ This suggests the value of exploring the development of legal rules that encourage defendants, even those with criminal records, to testify.  While eliminating all testimony about prior criminal records is unrealistic, prosecutors making charging decisions and judges considering the prejudicial effect of prior records should take into account the dramatic effect that knowledge of a criminal record appears to have in close cases.  Similarly, criminal defense attorneys should think long and hard about having clients testify in what they believe juries might regard as close cases.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Theodore Eisenberg is Henry Allen Mark Professor of Law at Cornell University Law School.

Valerie P. Hans is Professor of Law at Cornell University Law School.

This Legal Workshop Editorial is based on the following full-length Article:   Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, 94 CORNELL L. REV. ___ (2009).

The full Article provides documentation and details of the statistical analyses.