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Over the last fifty years, courts and scholars have debated the utility and reliability of informants—individuals who alert law enforcement to the occurrence of crime, point law enforcement in the direction of potential perpetrators, and help law enforcement prosecute those eventually charged. There are three primary types of criminal justice informants: (1) criminal and confidential informants, (2) anonymous tipsters, and (3) citizen-informants. Judicial examinations and scholarly critiques of informants have focused almost exclusively on the first two categories. These informants are deemed suspect, either because they are so enmeshed in the justice system that they have questionable motives, or because they inculpate others under a veil of anonymity. Meanwhile, the third category of informant—the citizen-informant—has evaded rigorous scrutiny because of the “citizen-informant doctrine,” a premise embraced by the federal courts and many state courts. The citizen-informant doctrine reasons that individuals who witness or fall victim to crime and willingly identify themselves to law enforcement officers are presumptively reliable. This presumption enables law enforcement officers to conduct searches and seizures that would otherwise be unlawful based on uncorroborated reports from untested civilians. The citizen-informant doctrine has major consequences for the robustness of the Fourth Amendment’s protection against unjustified government intrusions, and it has an enormous impact on the integrity of police investigations and criminal prosecutions. Yet this doctrine rests on shaky foundations that have heretofore been insufficiently probed. This Note proposes that courts require law enforcement officers to conduct more exacting inquiries before relying on the word of a so-called citizen-informant.

In 2004, the Supreme Court overhauled the established interpretation of the Confrontation Clause of the Sixth Amendment when it decided Crawford v. Washington. This Note attempts to augment the existing literature by elucidating the Crawford standard in the context of terrorism prosecutions in Article III courts. It details the shifts between Ohio v. Roberts and Crawford, analyzes subsequent federal case law, and tests the new framework on hypothetical terrorism fact patterns. This Note anticipates that for some types of evidence, such as ex parte affidavits and written summaries of testimony, the Crawford test will create significant hurdles for prosecutors in terrorism cases. A viable solution to this problem is for the government to make greater use of witness depositions abroad pursuant to Federal Rule of Criminal Procedure 15(c)(3).

The routine booking exception permits police officers and agents to ask certain questions—typically biographical inquiries such as an arrestee’s name, age, and address—in the absence of the Miranda warnings. Since its introduction in Pennsylvania v. Muniz, the exception has been inconsistently defined. This Note addresses the various formulations of the routine booking exception and focuses on the increasingly utilized administrative-centric tests. It concludes that a purely administrative approach to routine booking should be rejected.

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. How has greater judicial discretion affected interjudge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering almost 400,000 criminal defendants linked to sentencing judges to undertake the first national empirical analysis of interjudge disparities after Booker.

The results are striking: Interjudge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed post-Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effects of various actors on sentencing disparities, I find that prosecutorial charging is likely a prominent source of disparities. Rather than charging mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of the sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, this Article suggests that recent sentencing proposals calling for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

Madison Lecture

This lecture is titled Our Broken Death Penalty. But the title is misleading, for it suggests that our death penalty might, at some earlier time, have been something other than broken. It has always been broken. And, as you will hear tonight, it cannot be repaired.

The Federal Sentencing Guidelines are riddled with policy oversights. In United States v. Kimbrough, the Supreme Court permitted district courts to vary from the Guidelines based on categorical policy disagreements. Yet, although district courts often vary from the Guidelines for individualized reasons, the policy variance power has been underutilized. This Note provides a case study of the history of one obscure Guideline, section 2M5.1, as applied to one particular type of case, a nonmilitary-related embargo violation. The case study exposes the United States Sentencing Commission’s systemic oversights in the history of creating Guideline section 2M5.1 and demonstrates how lawyers and judges can rely on that history on a case-by-case basis to expose categorical problems with Guidelines policy. Employing such a categorical policy approach to supplement an individualized approach promotes fairness, transparency, and feedback for future refinement of the Guidelines.

In the wake of the Supreme Court’s 2009 decision in Arizona v. Gant, lower courts continue to debate whether Gant represents an overhaul of the search incident to arrest doctrine or is instead a minor tweak. This Note argues that the answer lies somewhere in the middle. It proposes that courts conduct a more searching inquiry into whether an arrestee has a reasonable possibility of access to the area searched at the time of the search, rather than apply the more lenient standard that some courts have adopted. This middle ground is more faithful to the policy considerations underpinning the search incident to arrest doctrine, while additionally providing the proper balance between officer safety and defendants’ rights.

Mass incarceration in the United States has led many state governments to hand over the management and construction of prisons to private corporations, which are able to meet demand more quickly and are perceived as more cost-effective. There are approximately 100 private prisons housing about 62,000 inmates today, and this number is expected to increase to 360,000 in the coming decade. Unfortunately, private prisons have failed to effectively address many of the issues pervasive in public prisons—namely recidivism, violence, and poor living conditions. Furthermore, the government-customer has failed to effectively hold private prisons accountable for their failures. As a solution this Note proposes the Private Prisoner Rehabilitation (PPR) credit: a performance-based, refundable tax credit that incentivizes private prisons to address some of the key issues plaguing the criminal justice system.

Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite—that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.

This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for “sex-positive” law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.

This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.