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Prohibition of alcohol from 1919 to 1933 is a paradigmatic case of sumptuary legislation gone awry. Instead of removing alcohol from the market, Prohibition increased alcohol’s potency and decreased its quality, resulting in a spike in drunkenness and accidental deaths while black market corruption and violence abounded. The same criticisms are often leveled at the War on Drugs. However, this Note explores the most important difference between the two, namely, that in spite of their symmetrical failures, Prohibition was met with a decisive backlash and repeal while the War on Drugs retains popular support despite having created incomparably greater violence. This is dramatically illustrated by the war in Mexico, which is currently the most violent conflict in the world. The causes and implications of this divergence in public choice are explored below.

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is almost entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework—including a workable standard of proof—currently exists for determining sufficiency of the evidence in such a case. This Article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. I suggest as a starting point—citing recent juror studies and the need for uniformity and systemic legitimacy—that the threshold should be no less favorable to the defendant than a 99.9% source probability.

Criminal law generally assumes that all defendants are alike. Social science research, however, has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacities—a difference with profound effects on their blameworthiness. The law acknowledges these differences in a few limited areas, most notably in the Supreme Court’s recent decision excluding defendants with mental retardation from death penalty eligibility. But while that decision arguably has begun to percolate into the rest of criminal law, consideration of the unique circumstances facing defendants with mental retardation has not yet reached the law of statutory rape.

When framed as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. This exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized strict liability but have ignored its increased injustice when applied to defendants with mental retardation.

A close analysis of statutory rape law reveals several assumptions which are thought to justify departing from a mens rea requirement for such a significant offense: Would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Further, punishing persons with mental retardation without regard to their awareness of the law, social cues, and the nature of their conduct may also run afoul of constitutional due process and proportionate sentencing principles.

This Article therefore argues that legislators, prosecutors, and judges should modify the ways that defendants with mental retardation may be prosecuted for statutory rape. In particular, the government should have to prove that a defendant with mental retardation had the appropriate mens rea. This Article also recommends formalizing the existing ways of addressing differences in culpability of defendants with mental retardation through charging and sentencing.

This Article adds to the burgeoning literature that explores the various collateral consequences that attach to criminal convictions in the United States. These consequences include ineligibility for public and government-assisted housing, public benefits, and various forms of employment, as well as civic exclusions such as ineligibility for jury service and disenfranchisement. This Article argues that decisionmakers in the United States failed to foresee the collective impact of these consequences when they expanded them dramatically in the 1980s and 1990s. They also failed to account for the disproportionate impact these consequences would have on individuals and communities of color. To provide a broader context for studying the United States’ imposition of collateral consequences and the extent to which these consequences are rooted in race, this Article looks to England, Canada, and South Africa. These countries, which have criminal justice systems similar to the United States’ and have similar histories of disproportionately incarcerating people of color, have in recent years adopted criminal justice practices similar to those of the United States and have turned to increasingly punitive punishment schemes. This Article is the first to offer a detailed comparative examination of collateral consequences and finds that the consequences in the United States are harsher and more pervasive than the consequences in these other countries. It also shows that Canada and South Africa have articulated broad protections for the dignity interests of incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, this Article offers steps the United States should take to ease the legal burdens placed on individuals with criminal records, as well as to lessen the disproportionate impact these post-sentence consequences have on individual and communities of color.

For over a century, noncitizens in the United States have faced adverse immigration
consequences if convicted of certain types of offenses in criminal court. Many criminal
convictions carry severe immigration penalties, including deportation, detention,
and the denial of statuses like asylum and U.S. citizenship. The Supreme
Court recently recognized that these penalties are so intimately tied to criminal
court adjudications that criminal defense attorneys have a duty to advise noncitizen
defendants of the immigration consequences of a conviction before the entry of a
guilty plea in criminal court. Yet there is little clarity about how to determine
whether a particular conviction triggers an immigration penalty. Historically, courts
and immigration officials have applied a categorical analysis to assess the immigration
consequences of a criminal conviction. Under a categorical analysis, a court or
immigration official determines the penalties based on an examination of the statutory
definition of the offense, not the factual circumstances of the crime. However,
several recent Supreme Court, federal court, and agency decisions have ignored this
longstanding analysis and have instead examined these issues through the lens of
Taylor v. United States, a criminal sentencing case that adopts a categorical analysis
in a different context. Distinguishing Taylor and its criminal sentencing rationales,
these decisions have invented a new approach to assessing past criminal
convictions in the immigration context. That approach now permits a circumstance-specific inquiry into facts beyond the criminal court’s findings in some immigration
cases. Under these recent decisions, the immigration consequences of a criminal
conviction no longer turn on the criminal court adjudication alone, but may also be
determined by facts that were not proven or pleaded in the criminal court proceeding.
This Article argues that this shift in approach is based on a fundamental
misunderstanding of the origins of categorical analysis in immigration law and its
independent rationales, including its promotion of notice and an opportunity to be
heard, uniformity, predictability, efficiency, and judicial review in the administrative
agency context. This Article further argues that, because of this flaw in the
current debate, courts have failed to consider the negative impact of the erosion of
categorical analysis on the functioning of the current immigration and criminal justice
systems. The rationales for categorical analysis apply with even greater force
today than they did when categorical analysis was first articulated nearly a century
ago. Rather than erode categorical analysis, courts and the agency should require
its robust application in light of its longstanding rationales and modern-day
implications.

Because punishable guilt requires that bad thoughts accompany bad acts, the
Model Penal Code (MPC) typically requires that jurors infer the mental state of a
criminal defendant at the time the crime was committed. Specifically, jurors must
sort the defendant’s mental state into one of four specific categories—purposeful,
knowing, reckless, or negligent—which will in turn define both the nature of the
crime and the degree of the punishment. The MPC therefore assumes that ordinary
people naturally sort mental states into these four categories with a high degree of
accuracy, or at least that they can reliably do so when properly instructed. It also
assumes that ordinary people will order these categories of mental state, by
increasing amount of punishment, in the same severity hierarchy that the MPC
prescribes.
The MPC, now turning fifty years old, has previously escaped the scrutiny of comprehensive
empirical research on these assumptions underlying its culpability architecture.
Our new empirical studies, reported here, find that most of the mens rea
assumptions embedded in the MPC are reasonably accurate as a behavioral matter.
Even without the aid of the MPC definitions, subjects were able to distinguish regularly
and accurately among purposeful, negligent, and blameless conduct.
However, our subjects failed to distinguish reliably between knowing and reckless conduct. This failure can have significant sentencing consequences for certain
crimes, especially homicide.

With the rapid growth of the Internet, Congress and the United States Sentencing
Commission have expressed concern over the increasing opportunities for sex
predators to target children online. This concern has resulted in the creation of a
complex sentencing regime for such sex offenders. The provision of the Guidelines
that determines the sentence for persons convicted of attempted statutory rape
includes an enhancement for exerting undue influence over the victim. Federal
courts had struggled with whether this enhancement could be applied to those
caught in undercover law enforcement stings in which no real “victim” existed. The
Sentencing Commission intervened in 2009 to specify that the Undue Influence
Enhancement was inapplicable to such undercover operations.
This Note explores the circuit split that prompted the Commission’s clarification
and examines the appropriateness of applying the Undue Influence Enhancement
in undercover Internet stings. In particular, it analyzes the enhancement in light of
entrapment and sentencing entrapment principles and ultimately concludes that
these concerns do not compel a blanket prohibition on utilizing the enhancement in
undercover operations.

As a result of the War on Drugs, women are disproportionately impacted by the civil sanctions resulting from felony drug convictions. While legislation imposing collateral consequences of felony drug convictions does not explicitly discriminate against women, these laws reflect sex-based institutional biases and are thereby unequal in effect. While some statutes permit a disparate impact theory of sex discrimination, there exists no statutory protection for women in the context of collateral consequences. And because the Equal Protection Clause of the Fourteenth Amendment does not adequately protect against gender-neutral legislation that adversely affects women, raising a constitutional claim is not a viable alternative to statutory protection. In response, this Note sets forth two separate—constitutionally sound—proposals for legislative reform. First, I suggest that in light of historic sex discrimination, a remedial sex-based exemption from penalties imposed by collateral consequences is in order. In recognition of the Court’s distaste for sex-based legislation, however, I alternatively recommend that Congress exempt from collateral penalties ex-offenders who serve as the primary caretakers of their children.

In the Eighteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Stuart Rabner, Chief Justice of the New Jersey Supreme Court, discusses the court’s recent decision in State v. Henderson. In Henderson, the court revised the longstanding legal framework for testing the reliability of eyewitness identifications. Justice Rabner discusses the case law underlying the traditional framework, the social science that prompted the court’s decision, and the revised framework now in place. He concludes by emphasizing the importance of eyewitness identification in our criminal justice system and calling for continued judicial attention to accepted scientific evidence on eyewitness reliability.

This Article examines the enforcement of racialized gender norms through the regulation of dress in prisons. Dress, including hair and clothing, is central to the ways government and other institutions enforce hierarchical social norms. These norms are based on the intersection of race and gender, as well as religion, sexuality, class, age, and disability. For many people, dress is a way to express identity, exercise autonomy, practice religion, participate politically, experience pleasure, preserve health, or avoid violence. My review of prison dress regulations shows that prison systems commonly impose penalties including solitary confinement for deviations from dominant social norms. Examples of these deviations include wearing hair in an Afro, covering hair with a headscarf, or having long hair if incarcerated as a man. I situate prison rules in the historical context of dress regulation and prison evolution in the United States. The justifications—such as repression of homosexuality and group affiliation, prevention of attacks and escapes, and promotion of hygiene and rehabilitation—that prison officials offer for these rules raise normative and instrumental concerns. Nonetheless, courts frequently diminish individual and community interests in dress while deferring to prison regulations that lack complete or credible justifications. In furtherance of the goal of prison abolition, I propose an integrated approach for change through policy amendments, doctrinal shifts, and broader grassroots efforts for social transformation.