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The Supreme Court has recognized a proportionality principle under the Eighth Amendment’s prohibition against “cruel and unusual punishments.” The proportionality principle governs both capital and noncapital sentences, yet the Court does not apply the principle equally. In the capital context, the Court has created a robust methodology for determining when the death penalty is disproportionate and has forbidden its use in a number of contexts. In contrast, the Court has virtually renounced proportionality review in the noncapital context. This Note focuses on three points of difference between the capital and noncapital contexts that the Court has identified as justifying its fractured proportionality doctrines: the inherent subjectivity in distinguishing among noncapital sentences; the resultant inadministrability of engaging in robust noncapital proportionality review; and the infringement upon penological decisions made by state legislatures that searching noncapital review would require. It then responds to the Court’s articulated concerns by surveying the noncapital proportionality jurisprudence of the fifty states, which illustrates that there are principled, administrable, and legislatively deferential ways to police noncapital sentences. This Note suggests that the Court adopt a modified strand of states’ jurisprudence in order to craft a more rigorous noncapital proportionality doctrine at the federal level.

Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny provide the federal standard for the admissibility of all expert evidence, including forensic evidence, that is proffered in criminal trials. The standard measures the validity of expert evidence through a flexible four-factor inquiry. Unfortunately, in the criminal context, Daubert fails to promote the goals of trial outcome accuracy and consistency, resulting in tragically unfair outcomes for criminal defendants. This Note proposes a doctrinal tweak that shifts the costs of admitting forensic evidence to the prosecution and promotes criminal justice goals. First, there should be a high presumption against the admission of forensic evidence that must be rebutted with a clear and convincing showing of its validity. Second, the Daubert validity inquiry needs to be reformulated so that the forensic methodology’s “error rate” factor is the primary (and if possible, only) factor the court considers. Third, the error rate should be defined as the lab-specific error rate. The Note ends by considering further possible ways to specify the definition of “error rate” to better promote criminal justice goals.

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute’s recent amendment to the Model Penal Code’s “purposes” provision—the only amendment to the Model Code in the forty-eight years since its promulgation—adopts desert as the primary distributive principle for criminal liability and punishment.

That shift to desert has prompted concerns by two groups that, ironically, have been traditionally opposed to each other. The first group—those concerned with what they see as the over-punitiveness of current criminal law—worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps making things worse. The second group—those concerned with ensuring effective crime control—worries that a shift to desert will create many missed crime-control opportunities and will increase avoidable crime.

The first group’s concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which it disapproves are a reflection of the community’s naturally punitive intuitions of justice. However, as Study 1 makes clear, today’s popular crime-control doctrines in fact seriously conflict with people’s intuitions of justice by exaggerating the punishment deserved.

The second group’s concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half-century that ignoring justice in pursuit of crime control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost-free. However, Studies 2 and 3 suggest that doing injustice has real crime-control costs. Deviating from the community’s shared principles of justice undermines the system’s moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.

The studies reported here provide assurance to both groups. A shift to desert is not likely either to undermine the criminal justice system’s crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system’s punitiveness, and indeed may reduce it.

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.