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In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to investigate and prosecute corporate crimes. This Article examines the use of stringent cooperation requirements and deferred prosecution agreements, pursuant to which corporate internal investigations have become extensions of government enforcement efforts. At the same time, liability has shifted markedly to the employee level: Over one thousand individuals have been indicted and convicted since the July 2002 creation of the Corporate Fraud Task Force, while few corporations have been charged. The convergence of corporate cooperation doctrine with the focus on individual targets results in significant unfairness for employees who are compelled to incriminate themselves in the context of internal investigations that are directed by the government. Because of the awkward partnering of public governmental investigations with private corporate compliance efforts, that normative burden on employees may not be offset by enforcement benefits. This Article suggests that the government’s application of a civil regulatory model to criminal cases creates distortions because individual liberty rather than a financial sanction is at stake, because prosecutors do not engage in negotiated governance, and because judicial oversight at the investigative stage is minimal. This Article also addresses the constitutional implications of outsourcing corporate criminal investigations and argues that employees interviewed by internal investigators pursuant to the terms of a pending deferred prosecution agreement should enjoy immunity analogous to the Garrity shield that protects public employees. Several strands of Fifth Amendment theory are consistent with the argument that economic pressure, such as the threat of job loss, can rise to the level of constitutionally significant coercion. When that pressure is brought to bear pursuant to a deferred prosecution agreement, it is delegated coercion, but may be attributed to the government as state action.

DNA databases enable extremely accurate criminal identification, and a database with appropriate privacy safeguards could be a boon not only for law enforcement but for civil libertarians as well. Unfortunately, current DNA databases lack important precautions and expose DNA donors to serious risks of abuse. The courts that have heard Fourth Amendment challenges to these databases have uniformly upheld them using one of two different rationales. Some courts have held that DNA databases serve a special need, and others have held that the convicted offenders targeted by current statutes have diminished privacy interests in their DNA. However, neither rationale provides a convincing justification for compelling individuals to provide DNA for a database, with or without safeguards. The problem is not with the substantive reasonableness of DNA collection for an ideal database, but with crafting a judicial decision procedure that allows only reasonable databases and not unreasonable ones. The solution proposed by this Note, accordingly, is an alternative decisionmaking procedure that enlists the assistance of the political process. Under the “universality exception” to the warrant requirement proposed by this Note, a search is reasonable if it is authorized by a statute that truly applies equally to every member of the population. The political process leading to the enactment of a universal DNA database, which this exception would require, would ensure that any such database had appropriate safeguards.

Although government searches generally must be supported by warrant and probable cause, the Supreme Court rarely has applied this requirement in penal contexts such as prison, probation, and parole. In order to justify the government’s broad search authority in those contexts, the Court has created a patchwork of categorical rules and skewed balancing tests based on search targets’ diminished expectations of privacy. This Note argues that the Court’s current approach is unsound: Broad government search authority is justified in certain penal settings, but only because those settings create compelling government needs, not because the search targets have diminished privacy interests. Penal searches should therefore be analyzed under the “special needs” doctrine, which was designed for just this type of situation—where the government has compelling interests above and beyond those found in typical law enforcement contexts. A special needs analysis would allow courts to address the government’s unique interests without devaluing the strong privacy interests at stake. Most importantly, it would impose an additional safeguard to cabin discretion and protect against harassment: Warrantless penal searches could be performed only with individualized suspicion of wrongdoing or through a neutral, nondiscretionary plan.

Overbreadth in criminal liability rules, especially in federal law, is abundant and much lamented. Overbreadth is avoidable if it results from normative mistakes about how much conduct to criminalize or from insufficient care to limit open texture in statutes. Social planners cannot so easily avoid overbreadth if they cannot reach behaviors for which criminalization is well justified without also reaching behaviors for which it is not. This mismatch problem is acute if persons engaging in properly criminalized behaviors deliberately alter their conduct to avoid punishment and have resources to devote to avoidance efforts. In response to such efforts, legal actors are apt to expand liability rules further, feeding a cycle of evasion and overbreadth that characterizes important areas of contemporary criminal law. Lawmakers cannot purge the resulting overbreadth from liability rules without producing underbreadth, at significant cost to regulatory objectives. I conclude that, in some areas of expanding substantive criminal law, answers to “overcriminalization” therefore lie not in reducing the scope of conduct rules but in greater reliance on mens rea doctrines, redesign of enforcement institutions, and modification of sentencing practices.

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, the Honorable Michael Wolff offers a new way of thinking about sentencing. Instead of attempting to limit judicial discretion and increase incarceration, states should aim to reduce recidivism in order to make our communities safer. Judge Wolff uses the example of Missouri’s sentencing reforms to argue that states should adopt evidence-based sentencing, in which the effectiveness of different sentences and treatment programs are regularly evaluated. In pre-sentencing investigative reports, probation officers should attempt to quantify—based on historical data—the risk the offender poses to the community and the specific treatment that would be most likely to prevent reoffending. Judges, on their own, lack the resources to implement all of these recommendations; probation officers and others involved in sentencing should receive the same information—risk assessment data—and their recommendations should become more influential as they gain expertise.

One of the tools the Department of Justice has used in the War on Terror is 18 U.S.C. § 2339B, which makes it a crime to donate material support knowingly to Foreign Terrorist Organizations. The statute has raised several constitutional questions, including whether it violates the Due Process Clause’s principle of “personal guilt”—a principle the Supreme Court announced nearly fifty years ago in Scales v. United States—because it does not require the government to prove a defendant’s specific intent. Thus far, there has been little analysis of this due process question; this Note aims to help fill that gap. First, this Note argues that although issues of personal guilt are similar to those found in First Amendment expressive association cases, the due process test is an independent analysis. Yet, cleaving the due process and First Amendment questions leaves a problem: how to give content to the Scales principle of personal guilt. Second, this Note argues that courts should look to extant substantive criminal law—in particular, the doctrines of conspiracy and complicity—for analogies that shed light on just how Scales bears on § 2339B.

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human rights enforcement. Institutional constraints often make it impractical or highly costly for international courts to issue remedies for the violations they recognize. Inflexible remedial rules raise the collateral costs of providing remedies and often drive courts to circumvent those costs by narrowing their substantive interpretations of rights, raising the prejudice threshold required to trigger a remedy or erecting procedural hurdles that allow them to avoid considering the claim at all. This Article illustrates these “remedial deterrence” effects primarily with examples from the procedural rights case law of the International Criminal Tribunals for Rwanda and for the former Yugoslavia—two courts that face particularly stark remedial costs. It then argues that similar dynamics are likely at other international courts, though their degree, form, and consequences will vary based on each court’s particular objectives and constraints.

Although some degree of remedial deterrence is inevitable and legitimate, extreme remedial-cost pressures—like those often present in international criminal proceedings—result in severe doctrinal distortions that subvert the purpose of international courts’ strong remedial rules. Because victims cannot be granted lesser remedies, they often receive no remedy at all. This overkill effect is magnified because the doctrinal distortions spill over to other cases lacking similar remedial costs and to domestic courts and other actors that follow international judicial precedent, even though they do not share the same institutional constraints. To mitigate these consequences, this Article makes two sets of recommendations. First, international courts’ structures and procedures should be designed to avoid excessive remedial deterrence pressures. This Article offers specific proposals for international criminal tribunals. Second, international courts should modify their approach to the effective remedy requirement, allowing some degree of equitable balancing of interests. Such an approach would promote judicial candor and enable courts to avoid untenable remedial costs without unduly distorting other doctrines.

This Note identifies ethical issues raised when criminal defense lawyers write non- fiction books about their clients, and it proposes new ethical rules that shift the balance of interests to weigh more heavily in favor of the client. Two principal ethical considerations arise for lawyers who write books about their clients. First, lawyer-authored publications may cause the attorney-client privilege to be waived and may result in adverse legal consequences for the client. Even where legal consequences do not inure, however, publication may violate the lawyer’s duty of confidentiality, principles of client dignity and autonomy, or both. Second, the lawyer- author’s interest in the commercial viability of the client’s story may conflict with the defendant-client’s interests. This Note offers revisions to the American Bar Association (ABA) Model Rules of Professional Conduct that would impose a substantial waiting period before defense counsel may publish stories about their clients. The revisions strike a balance between the client’s interest in effective representation, the lawyer’s interest in self-promotion, and the public’s interest in a transparent criminal justice system.

The indefinite detention of prisoners at Guanta ́namo Bay Naval Base raises serious concerns about what rights those detainees are entitled to and whether detainees will have the power to exercise them. How, for instance, could a detainee pursue a meaningful appeal of a decision of the Combatant Status Review Tribunal without effective assistance of counsel? How could a detainee challenge his detention when the U.S. government renders that detainee to foreign custody? The All Writs Act, a broad and historic statute originally codified in the Judiciary Act of 1789, provides that “courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act grants the courts equitable power to issue injunctions that ensure that litigants’ substantive rights are not frustrated by interstices in the applicable law. It is in this Act that district courts exercising habeas corpus jurisdiction found detainees’ rights to effective assistance of counsel and thirty days’ notice prior to transfer to foreign custody. While the Military Commissions Act stripped the courts of habeas jurisdiction with respect to alien enemy combatants, the equitable power granted by the All Writs Act can attach to any jurisdiction, including the appellate power given to the D.C. Circuit Court of Appeals to review determinations made at Guanta ́namo Bay. This Note provides a roadmap that courts should apply when considering whether to issue an All Writs Act injunction, and concludes that such injunctions are not only permissible but also an appropriate and important exercise of the courts’ power.

A new approach to national interpretations of international law suggests that, to be successful, national courts must engage in flexible, culturally conscious translations of international norms. Transitional justice projects, however, pose a challenge to this approach. This Note proposes that when criminal prosecutions function as truth-seeking processes, the ability of domestic groups to influence how national courts interpret international law is heightened. In these instances, nonstate actors understandably attempt to capitalize on courts’ awareness of the critical role legal judgments play in engendering national reconciliation in order to secure favorable legal outcomes. Accordingly, courts have the challenge of adjudicating egregious human rights violations while also complying with the strict limitations of international criminal law. This Note suggests that the exigencies of transitional justice may lead national courts to issue interpretations that deviate from the existing body of international law. It examines this thesis through the lens of recent criminal prosecutions in Argentina for massive human rights violations during the Dirty War, in which a federal court greatly expanded the legal definition of genocide, contradicting long-standing international jurisprudence.