The Double Jeopardy Clause and Successive Prosecutions by Separate Sovereigns for the Same Act

Under the so-called dual sovereignty doctrine (“DSD”), the Fifth Amendment’s Double Jeopardy Clause (“DJC”) is not implicated by successive prosecutions brought by separate sovereigns against the same defendant for the same act. For example, if a defendant is prosecuted first by the federal government for a certain crime, that defendant’s right not “to be twice put in jeopardy of life or limb” for the same offence does not protect him against a subsequent prosecution by a state government for a crime involving the same conduct. As the Court put it in the recent case of Gamble v. United States, “a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”

I argue in this Article that this DSD errs in two respects, one of which has drawn a bit of attention, and one of which has gone entirely unnoticed in the cases and academic literature. First, as suggested by Justices Ginsburg and Gorsuch in their separate Gamble dissents, and as I elaborate, the DSD rests on a mistaken originalist view of how successive prosecutions by separate sovereigns were regarded at common law; consequently, the inference as to how the eighteenth-century English doctrine applies to the United States, which rests on a concept of divided sovereignty alien to the common law, is fundamentally flawed.

Second, the current and longstanding view of the DJC assesses whether that Clause is implicated by focusing on whether the same offense (or conduct) forms the basis for successive prosecutions by separate sovereigns. I offer an entirely different methodology that does not depend (as does this orthodox view) on an unsound originalist analysis. Rather than focusing on what a defendant did or how a sovereign has defined an offense, the better approach to determining whether successive prosecutions by separate sovereigns violate the DJC is to focus on what the jury found. The methodology I propose hones in on the elements of the crime with which a criminal defendant is charged in the initial prosecution because the outcome of that trial will turn on the factfinder’s evaluation of those elements. To my knowledge, nobody has previously proposed this approach to analyzing double jeopardy challenges to successive prosecutions brought by separate sovereigns.

My starting point is the Supreme Court’s recent decision in Gamble, which I summarize in Part I. Next, in Part II, I identify what I refer to as the twin errors that animate the Gamble holding, one entirely historical, and the other primarily analytical. In Part III, I propose a new methodology for examining whether successive prosecutions violate the DJC; I refer to this methodology as an “elements-based approach.” In Part IV, I compare the analytical method outlined in Part III with Gamble itself and illustrate how Gamble would have been decided using an elements-based approach. In Part V, I turn to the principles of issue preclusion and full faith and credit and argue that an elements-based approach to double jeopardy analysis is symmetrical to a similar inquiry in the civil domain. Finally, I conclude by pointing to the DJC-DSD cases the courts have adjudicated over the past two decades, and I ask how consequential the modification I sketch would be on criminal defendants.


Self-Defense Exceptionalism and the Immunization of Private Violence

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly attention. In recent years, most commentary about self-defense has focused on “Stand Your Ground” policies that remove the duty to retreat before using lethal force. But the reaction to Rittenhouse’s case reflects a different, more extreme way that the law governing defensive force is changing. In particular, advocates and legislators say that private citizens like Rittenhouse who exercise self-defense should be entitled to immunity—an exemption from prosecution—giving them an extraordinary procedural benefit not attaching to other defenses that are adjudicated at trial. As this Article reveals, this effort to transform self-defense into something exceptional within criminal law began more than a decade ago in the shadows of Stand Your Ground. One-quarter of U.S. states have already enacted laws providing for self-defense immunity.

This Article examines this fundamental yet understudied shift in self-defense law. It shows how the concept of immunizing defensive force is foreign to the Anglo-American legal tradition as well as settled principles of modern criminal law and procedure, including the exceedingly narrow role of immunities. It tells the story of how self-defense immunity arose not as part of the broader criminal justice reform movement, but rather at the behest of the movement to insulate defensive gun use from liability. And it demonstrates the costs of treating self-defense as an immunity, such as increasing violence, diminishing the institution of the jury, delegitimizing criminal law outcomes, and undermining judicial economy. After exposing the unreasoned rise and inevitable costs of self-defense immunity, this Article concludes that self-defense should remain an affirmative defense to criminal charges rather than immunize a defendant from being prosecuted at all. Self-defense reform should move in lockstep with other criminal law defenses so as to avoid the societal harms that result from immunizing defensive violence.


On August 25, 2020, seventeen-year-old Kyle Rittenhouse traveled to Kenosha, Wisconsin, with an illegally obtained AR-15–style rifle in the wake of the shooting of Jacob Blake by a police officer. Rittenhouse said he went heavily armed to provide medical aid and protect property, albeit strangers’ property, during racial justice protests and unrest following yet another police shooting of a Black man. Instead, he shot three men during altercations, killing two of them. Rittenhouse was charged with crimes including murder, and in his defense he asserted self-defense: he feared that the men would disarm him and use his own rifle against him unless he shot them first.

Rittenhouse’s case was closely watched and controversial, splitting the nation into diametrically opposed camps regarding the appropriateness of his conduct. It also raised difficult factual and legal questions, including whether he provoked the confrontations and thereby negated the lawfulness of his defensive force. At the end of a two-week trial at which dozens of witnesses testified, a jury deliberated for three days and returned a verdict of not guilty. The outcome should have pleased those who supported Rittenhouse’s conduct that summer night. Instead, a common reaction was, as former President Donald Trump put it, that Rittenhouse “shouldn’t have been prosecuted in the first place.”

If that sentiment were simply a feature of modern political rhetoric, it might be undeserving of close scrutiny. Indeed, the politics of self-defense shone brightly after the Rittenhouse trial. U.S. Representative Marjorie Taylor Greene even introduced a bill to award Rittenhouse a civilian’s highest congressional tribute, a Congressional Gold Medal, for his “courageous actions.” Several Republican politicians invited Rittenhouse to intern in their offices. Just days after the verdict, he was welcomed at Trump’s Mar-a-Lago Club in Florida.

But this Article shows how the notion that people “should not fear exposure to criminal prosecution when they use firearms to defend themselves and their homes” is more than rhetoric. Rather, it is the foundation for an effort to grant an exemption from prosecution to those who, like Rittenhouse, claim self-defense in defending against criminal charges. After Rittenhouse’s acquittal, one advocate penned “Kyle’s Law” to cement the exalted status of self-defense. The proposed statute would alter the law in various ways, including effectively immunizing lawful defensive force from prosecution altogether. As it turns out, more than one-fourth of U.S. states have already done just that, and the trend is likely to continue.

In the past decade, legal scholarship has explored “Stand Your Ground,” or the removal of the common law duty to retreat before using lethal defensive force in public. That literature shows how Stand Your Ground interacts with an expansion of gun rights in a way that can lead to more violence and exacerbate existing patterns of discrimination in the criminal justice system. Articles have likewise explored additional features of the intersection of criminal law, self-defense, and gun rights. And legal scholars are starting to explore whether self-defense law might be bolstered in light of changed circumstances—especially the proliferation of gun carry—to limit the unnecessary loss of life.

Yet the notion that self-defense is exceptional and “deserves” to be immunized, as one legislative witness put it, has evaded close scrutiny. Articles about Stand Your Ground have acknowledged what Cynthia Ward termed the “curious beast” of self-defense immunity as well as the “confusion” it invites. However, self-defense immunity warrants a sustained analysis in terms of how it began as an adjunct to the gun rights movement and how it fits within the criminal justice system today. That, in turn, calls for an examination of a more general topic that similarly has received little attention: the procedural treatment of criminal law defenses and why prosecutorial immunities are so few in number. To exempt a category of defendants from the ordinary criminal process is profound, bestowing “a far greater right than any encompassed by an affirmative defense, which may be asserted during trial but cannot stop a trial altogether.” Examining why the criminal law is generally opposed to granting an exemption from prosecution is an important, understudied part of the inquiry.

This Article proceeds in three parts. Part I shows how justifications for otherwise criminal conduct, like self-defense, have traditionally been adjudicated: as affirmative defenses to criminal charges. Some have argued that immunizing self-defense is simply a return to past protections that have been lost in recent times. But those engaging in private violence have always been exposed to criminal prosecution and trial. The argument that self-defense exceptionalism is rooted in tradition is unsupported.

Part I also shows how modern pretrial criminal procedure is consistent with the historical antecedents. The formal process is overwhelmingly structured to bring cases forward to trial, even if few cases get that far. Pretrial screening is largely geared toward questioning the basis for the charged offense, not adjudicating potential defenses. The criminal law makes exceptions for a narrow set of pretrial matters—narrower than in the civil context. The scant prosecutorial immunities and their narrow justifications can be linked to the criminal law’s aims and distinctive character, which are especially protective of public prosecutions. The exceptions that receive prosecutorial immunity tend to be fundamentally different than self-defense in both their scope and purpose. In particular, other criminal law immunities benefit narrow classes of defendants and must be addressed ahead of trial to protect distinctive public interests like maintaining foreign relations or preserving the balance of powers. Self-defense, in contrast, can be invoked by any defendant and, like a multitude of other defenses, can be adjudicated at trial without undermining its role as justifying otherwise unlawful conduct. Moreover, interests served by self-defense law—like maintaining the legitimacy of the legal order—are actually undermined by immunity.

Part II then turns to the next logical question: Why are states now diverging from American legal tradition and standard practices to treat self-defense as something exceptional? The Article traces self-defense immunity from a barely debated and misunderstood change to Colorado law in the 1980s to a primary ambition of gun rights advocates in the 2000s. The resulting legal changes are often characterized as “Stand Your Ground laws,” but that understates the transformation that is afoot. Stand Your Ground relates to just one of many ways that legislators are remaking the law governing defensive force. Indeed, one possible reason why self-defense immunity has escaped close scrutiny is that the typical focus is on the substantive elements establishing what lawful self-defense is, and especially the duty to retreat, while glossing over changes to how self-defense is adjudicated.

Yet while Stand Your Ground has garnered the most attention, advocates—and especially gun rights advocates—have pursued a deeper goal: insulating defensive gun use from legal oversight to the greatest extent possible. It is hard to overstate the degree to which the quick rise of self-defense immunity is due to lobbying by advocates for one deadly weapon (the gun) that is used in a minuscule percentage of self-defense confrontations. The loudest voices advocating for immunizing self-defense tend not to be those seeking criminal justice reform generally but rather those seeking to expand gun rights. A National Rifle Association (“NRA”) lobbyist, for example, drafted and led the campaign to institute self-defense immunity in Florida, which then became a model for states across the nation. The playbook for transforming self-defense into an immunity mirrors the one used to expand gun rights. The overlap between gun rights and self-defense rights advocacy begs the question of whether any principle other than bestowing a benefit on gun users is guiding self-defense’s transformation from an affirmative defense into an immunity. Part II raises several possibilities, but it finds each too thin to justify such an immense procedural departure.

Part III then explores functional and institutional costs of immunizing private violence. Self-defense immunity sends a signal that people can judge for themselves when to deploy violence in the name of self-protection without exposure to prosecution, thereby encouraging unnecessary violence. Meanwhile, by preventing the community, through the jury, from evaluating the lawfulness of defensive force, immunity jettisons the institution best suited for adjudicating self-defense. In addition, immunizing self-defense creates an inefficient process by which courts consider the same witnesses and arguments that will be presented at trial during a separate pretrial hearing, setting up the sort of mini-trial that criminal procedure generally disfavors.

Trials like Rittenhouse’s spark intense disagreement and debate. But such trials are a feature—not a bug—of the American justice system. The Article concludes that policymakers should keep self-defense in its traditional place as an ordinary affirmative defense to criminal charges. Criminal justice reform is desperately needed, but treating private violence as privileged at the behest of gun rights advocates is a perilous path.


       As Carl Sagan famously put it: “You have to know the past to understand the present.” That maxim applies equally well for modern criminal law. This Part thus explores how self-defense was historically implemented in criminal procedure. It shows how the criminal justice system that the United States adopted from England was “trial-centered, in the sense that the legal system sought to resolve most criminal business at trial,” including claims of self-defense. This Part then shows how that treatment continued in modern times until the recent effort to grant pretrial prosecutorial immunity for self-defense. The effort to recharacterize self-defense as an immunity invites a question about how immunities fit within the criminal justice system. This Part closes by addressing that question, showing how and why prosecutorial immunities are few in number and narrowly construed, and how and why their typical rationale does not apply to self-defense.

A.  Historical Procedure

In 1841, in People v. McLeod, a New York court considered a habeas corpus petition for a defendant charged with murder. The defendant sought his “unqualified discharge” on the basis of pretrial evidence that, among other things, he acted in lawful self-defense. The court emphatically rejected the “extraordinary” request, noting the “absurdity of such a proposition in practice, and its consequent repudiation by the English criminal courts” whose law and procedure the United States inherited. Among other things, granting the defendant’s request “would be to trench on the office of the jury.” As the court explained, “[a]n innocent man may be, and sometimes unfortunately is[,] imprisoned. Yet his imprisonment is no less lawful than if he were guilty. He must await his trial before a jury.” That early American understanding of the appropriate time—and the appropriate entity—to adjudicate self-defense was firmly rooted in the English common law tradition.

During the seventeenth and eighteenth centuries in England, after a felony was charged, judges lacked authority to discharge defendants “without further trial.” This was true regardless of whether the defendant was believed to be justified in engaging in the alleged offense conduct. In the 1700s, judges began conducting a “pretrial inquiry” that “increasingly took on the trappings of a public hearing, which would ultimately come to be known as the preliminary hearing.” At such hearings, however, the defense attorney was limited to challenging the prosecution’s case and was not entitled to present the defense’s case.

Classic common law treatises demonstrate how self-defense was just like other defenses in that it was a trial issue, not a pretrial issue. For example, Michael Foster, a judge on the King’s Bench and the author of a widely read treatise published in 1762, observed that the defendant raising self-defense “standeth upon just the same foot that every other Defendant doth: the Matters tending to Justify, Excuse, or Alleviate, must appear in Evidence before He can avail himself of them.” And the opportunity to introduce that evidence was not until trial: “[W]hether the Facts alledged by way of Justification, Excuse, or Alleviation are True, is the proper and only Province of the Jury.”

Several years after Foster’s publication, William Blackstone completed “the preeminent authority on English law for the founding generation,” in which he explained that “it is incumbent upon the prisoner to make out, to the satisfaction of the criminal court and jury,” any “circumstances of justification, excuse, or alleviation.” The jury, Blackstone wrote, is “to decide whether the circumstances alleged [regarding self-defense or other affirmative defenses] be proved to have actually existed”; the judge then decides “how far [the proved circumstances] extend to take away or mitigate the guilt.”

Edward Hyde East, in his influential 1803 treatise, built on Blackstone’s and Foster’s accounts and elaborated on the lack of a pretrial process for asserting self-defense. He wrote that “the jury alone [is] to decide” on “the truth” of the defendant’s allegations of “justification, excuse, or alleviation,” though the judge could consider such defenses when deciding on bail. The McLeod case demonstrates that this current continued in the United States into the nineteenth century. In his 1872 Commentaries on the Law of Criminal Procedure, Joel Prentiss Bishop described how a defendant entering a plea of not guilty at arraignment formally “puts himself upon the country,” or submits to a trial by jury. The jury therefore remained the primary entity to decide disputed fact issues in criminal cases, including regarding self-defense.

Pretrial processes, like the preliminary hearing and the grand jury, generally did not provide a defendant an opportunity to introduce evidence of any particular defense. As the 1918 edition of Francis Wharton’s treatise on criminal procedure observed, “the better opinion is that on a preliminary hearing the magistrate is to hold the defendant for trial” when “there is made out a probable case of guilt.” Similarly, in a proceeding before the grand jury, “it is not the usage to introduce, in matters of confession and avoidance, witnesses for the defense, unless their testimony becomes incidentally necessary to the prosecution.”

The notion that self-defense could be adjudicated by a judge before trial thus has no basis in the common law tradition imported from England and implemented in America. The next Section shows how that basic understanding carried forward to modern times.

B.  Modern Procedure

In 1971, Indiana passed a statute providing that “[n]o person . . . shall be placed in legal jeopardy of any kind whatsoever” after exercising lawful self-defense. Armed with that broad statutory language, one defendant sought a pretrial determination of the lawfulness of his claimed self-defense. In Loza v. State, Indiana’s highest court recognized the novelty of the proposition before reacting much like the New York court did more than a century earlier in McLeod. In particular, in order “to prevent absurdity,” the court held that the new law “neither creates a new remedy nor does it alter our procedure in any respect.” In other words, self-defense remained a trial issue. The Loza court’s understanding was consistent with modern pretrial procedure.

Modern criminal procedure is heavily constitutional, and an overview of the minimalist pretrial constitutional requirements for defenses (like self-defense) is therefore instructive. Under the Fourth Amendment, police officers must have probable cause before making an arrest, and an impartial magistrate must review whether probable cause exists if the arrestee is to remain in custody. The Supreme Court has described probable cause as “a fluid concept” that “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Admittedly, probable cause is “not a high bar.”

Importantly, moreover, probable cause does not require robust consideration of self-defense, if it requires any at all. The Third Circuit has held that “affirmative legal defenses”—like self-defense—“are not a relevant consideration in [a police] officer’s determination of probable cause.” In contrast, the Second Circuit has held that “a police officer’s awareness of the facts supporting a defense can eliminate probable cause.” That said, such evidence must be “conclusive” or first-hand, and once an officer has probable cause to make an arrest, the officer does not constitutionally have “to investigate exculpatory defenses offered by the person being arrested or to assess the credibility of unverified claims of justification.” Self-defense is not singled out for special treatment, but rather is treated like any other defense.

Subsequently, once a prosecutor makes a charging decision, there is “no federal constitutional right to any review” of that decision before trial “apart from the grand jury clause of the Fifth Amendment.” The grand jury, meanwhile, is also guided by the standard of whether there is “probable cause necessary to initiate a prosecution for a serious crime.” In United States v. Williams, the Supreme Court held that, notwithstanding the constitutional obligation to disclose material exculpatory evidence to a defendant before trial, the Constitution does not require prosecutors to disclose substantial exculpatory evidence to the grand jury, including regarding a potential claim of self-defense. Looking back to the common law history, the Court explained that the grand jury is “an accusatory [body],” not “an adjudicatory body,” and its task is “to assess whether there is adequate basis for bringing a criminal charge.” Historically, “it has always been thought sufficient for the grand jury to hear only the prosecutor’s side.”

In some jurisdictions, by either law or internal policy, prosecutors are held to a higher standard than the federal constitutional baseline with respect to grand juries. However, most such departures only require presenting “evidence that is clearly exculpatory” or “that would exonerate the accused or lead the grand jury to refuse to indict.” Given the low bar for indictment—again, probable cause—even these jurisdictions stop far short of adjudicating self-defense before trial.

The Federal Rules of Criminal Procedure, which “almost always reflect the basic position adopted in a substantial number of states,” provide other pretrial procedural steps apart from the grand jury, most notably a preliminary hearing. Yet the preliminary hearing—consistent with historical practices—focuses on the prosecution’s evidence for the charged offense, and not evidence of self-defense or any other affirmative defense. Again, the standard is probable cause: the prosecutor need only show “probable cause to believe an offense has been committed and the defendant committed it.” Moreover, the prosecutor gets to decide whether to have a preliminary hearing at all: if the prosecutor secures an indictment before a grand jury, then the defendant has no right to demand a pretrial hearing.

It thus has remained true under conventional criminal procedure that “[i]f a defendant claims innocence or has a defense,” including self-defense, “the proper body to decide the issue is the petit jury.” Recent reform efforts, however, characterize self-defense not as a “defense” but as an “immunity,” calling to mind exceptions to the general rule—a category of traditional immunities and other matters that are adjudicated pretrial. The next Section addresses such pretrial issues in relation to self-defense.

C.  Immunities from Prosecution

Recent legislation declaring that self-defense is an immunity from prosecution has led judges and commentators to treat self-defense as a “true immunity” comparable to others. This classification invites questions about how other prosecutorial immunities operate, why they exist, and whether they share anything in common with self-defense.

Common immunities from prosecution include diplomatic immunity, judicial immunity, legislative immunity, executive immunity, immunity after compelled testimony, and immunity bestowed on the basis of a plea agreement. These are “defenses” in the sense that they are asserted by a defendant as a way to avoid a conviction. But their essence goes beyond ordinary defenses because immunities operate to exempt a person from the mandate of the criminal law, not to justify otherwise criminal conduct because of the circumstances surrounding that conduct. Black’s Law Dictionary cross-references “impunity” in its definition of “immunity,” which similarly denotes an “[e]xemption from punishment.” The example that Black’s uses to describe impunity relates to diplomatic immunity: “because she was a foreign diplomat, she was able to park illegally with impunity.” Immunity gets asserted early in the criminal process to head off the prosecution of someone possessing such an exemption.

As such, prosecutorial immunities are a remarkable departure from the ordinary criminal process described above; moreover, they are in tension with a basic, distinctive function of criminal law. Criminal law is traditionally viewed as a means to declare “a formal and solemn pronouncement of the moral condemnation of the community.” The community’s role in implementing the criminal law—through a public prosecution and jury trial—is intertwined with that function. It is no coincidence that the prosecutor in a criminal case is called “The People” in many jurisdictions.

Prosecutorial immunity dilutes the formal power of the public in assessing an alleged crime, and it thus raises special concerns in criminal law that might exist only to a lesser extent in the civil context, where immunity is sometimes granted, for example, primarily to avoid costs. In the criminal context, immunities tend to be justified by a narrower, more compelling rationale. As a general matter, only when avoiding the criminal justice process is a defense’s entire raison d’être is it exempted from prosecution as an “immunity.” Put differently, the public policies underlying the above-mentioned criminal law immunities necessarily require the avoidance of prosecution and trial.

Consider diplomatic immunity. A key reason why we immunize conduct by foreign diplomats in the United States is to protect American diplomats outside the United States from exposure to foreign court systems. There is no way to satisfy that goal through an affirmative defense at trial. Consistent with the purpose of diplomatic immunity, it also does not protect diplomats from sanction upon return to their home countries. Judicial, legislative, and executive immunities are similarly geared to specific policy rationales necessitating avoidance of a trial. Each protects “governmental officials from personal liability arising from their official duties” because of the strong interest in facilitating their ability to serve the public. The Supreme Court has explained how legislative immunity enables “representatives to execute the functions of their office without fear of prosecutions.” An added component of legislative and judicial immunity is to preserve the balance of power between the three branches of government by insulating legislative and judicial officers from prosecutions by the executive branch. Again, interests that these governmental immunities serve cannot be furthered—and indeed would be undermined—if they were treated as defenses to be proved at trial. The remarkable benefit of immunity is thus granted because of strong public policy arguments that inherently entail a bar to prosecution.

How does self-defense relate to immunities? Self-defense is not about trial avoidance but exculpation. Like other justification defenses and unlike immunities, it can be adjudicated in the traditional way—through trial—without undermining its rationale. Moreover, unlike typical immunities, self-defense furthers interests that are in fact undermined by short-circuiting a prosecution and trial.

T. Markus Funk has identified seven values served by self-defense law: protecting the state’s monopoly on force, protecting the individual attacker’s right to life, maintaining the equal standing between people, protecting the defender’s autonomy, ensuring the primacy of the legal process, maintaining the legitimacy of the legal order, and deterring attackers. Immunity arguably advances the interests in protecting a defender’s autonomy or deterring attackers. But it runs roughshod over other values, especially self-defense law’s dual roles of ensuring the primacy of the legal process and maintaining the legitimacy of the legal order. Both roles underlie the idea that “the authority to punish and condemn” remain with “the liberal state,” not with individual citizens. In his discussion of ensuring the primacy of the legal process, Funk notes that “[t]o the extent possible, . . . the justice system must promote the resolution of disputes in the courts.” Immunity, however, dilutes the state’s oversight of defensive violence and, perhaps worse still, undermines the community’s role through the jury to assess the lawfulness of violence—a point addressed in greater depth in Part III. In other words, in contrast to typical immunities, whose purposes areoverall advanced by providing an exemption from prosecution, key values underlying self-defense law are undercut by providing such an exemption.

Immunities, of course, are not the only matters that receive pretrial resolution. Some defenses—like those based on statutes of limitations, double jeopardy, and speedy trial requirements—are also adjudicated in advance of trial. Other issues, like competency to stand trial, also receive pretrial determination. In the effort to implement self-defense immunity, some have analogized self-defense to those other pretrial issues even though they are not technically “immunities.” Yet these issues, like traditional immunities, protect interests that necessarily call for avoiding trial and thus are dissimilar to self-defense. Statutes of limitations affirm the belief that “[a]fter a period of time, a person ought to be allowed to live without fear of prosecution.” Double jeopardy protections are “designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Speedy trial guarantees mandate “the Government [to] move with the dispatch that is appropriate to assure [the defendant] an early and proper disposition of the charges against him.” And resolving competency questions must also happen before a trial since the entire point is to determine the defendant’s “ability to participate meaningfully in the trial.”

In connection with competency hearings, one exception to the general rule of limiting pretrial criminal matters to those that inherently require pretrial determination involves the insanity defense. Courts tend to draw a clear line between the question of competency to stand trial, which is adjudicated in advance of trial, and insanity at the time of the offense, which is a trial issue. As a general matter, therefore, an insanity defense is submitted to the fact finder at trial and is not decided at a pretrial hearing. However, such bifurcation is not universally followed. Pennsylvania law, for example, grants a judge the discretion to “hear evidence on whether the person was criminally responsible for the commission of the crime charged” so long as the judge is already conducting a competency hearing.

In that context, judicial economy might weigh in favor of considering evidence of both competency and insanity at a pretrial hearing. At least one other state—North Carolina—gives courts discretion to hold a pretrial insanity hearing so long as the state consents. That exception is highly limited in that courts and prosecutors can override a defendant’s request for a hearing, making it quite different from self-defense immunity. And in Washington, a defendant may request a pretrial insanity determination, but the statute notes that any acquittal under the statute cannot be used to contest mental health detention—a possibility that distinguishes insanity and self-defense.

This Section has set out the limited nature of criminal law immunities and other pretrial matters and offered a normative explanation, rooted in the criminal law’s distinctive role, for that narrow scope. Below, the Article considers additional arguments for and against expanding immunities to include self-defense. First, however, the Article turns to the story of how self-defense immunity arose in the first place.


In light of the American criminal law tradition of adjudicating self-defense at trial, how did self-defense immunity arise? This Part shows how self-defense immunity emerged out of Colorado in 1986, laid dormant for almost two decades, and then became a central component of gun rights advocacy in the 2000s. The Part then analyzes the thin rationales put forward for treating self-defense as deserving of exceptional treatment through prosecutorial immunity.

A.  Inauspicious Beginning in Colorado

Accounts of recent self-defense reforms tend to begin with Florida’s 2005 Stand Your Ground legislation. Indeed, Florida’s law served as a model that influenced legal changes across the country. But the first example of a self-defense immunity statute was not Florida’s but rather a last-minute compromise bill from Colorado twenty years earlier.

The Colorado law did not, at first, provide for prosecutorial immunity. Rather, the bill initially added a legal presumption to self-defense law to enhance the scope of lawful self-defense against home intruders. To be sure, homeowners already had an expanded right to self-defense through the “Castle Doctrine,” which generally removed a person’s duty to retreat before using lethal defensive force in the home. However, Colorado policymakers wanted to do more, so they borrowed from a California statute that a person confronting a home intruder is legally “presumed” to fear for their life. That presumption would satisfy one requirement of lethal defensive force—that the defender reasonably perceives a threat of death or serious bodily injury—thereby relieving the defendant of the need to produce evidence of such heightened fear.

Prosecutors objected because they “believed that it would be very difficult, if not impossible, to rebut the presumption in favor of the homeowner.” There was little public debate regarding the subsequent compromise that became the nation’s first law providing immunity from prosecution for self-defense. Yet the law appears to have imported a civil immunity provision enacted in Colorado in 1982 into the criminal law.

By way of background, in 1981, a Colorado jury awarded a plaintiff more than $300,000 in damages from a defendant for gunshot injuries incurred while the plaintiff was burglarizing the defendant’s shop. The public outcry was swift and the shop owner’s lawyer helped to draft a bill immunizing people like his client from civil damages. The resulting law barred payouts for personal injuries “sustained during the commission of or during immediate flight from” a felony if the person inflicting the injury reasonably believed that physical force was “reasonable and appropriate” to prevent both injury and the commission of the felony. The wisdom of such civil immunity is beyond the scope of this Article; more important for present purposes is that it did not address immunity from criminal liability. As discussed above, criminal liability is geared toward vindicating public harms in a way that civil liability is not. Nonetheless, the criminal immunity bill that later passed in Colorado in 1986 mirrored the earlier civil immunity law. The law provided that a person “shall be immune from criminal prosecution” if the person used defensive force and four conditions were met relating to an unlawful home intrusion.

The 1986 law’s legislative sponsors and the negotiating prosecutors appeared to have different beliefs about what the new law actually accomplished. The sponsors appreciated that they had achieved “greater protection [for defendants] than a presumption for the homeowner as part of an affirmative defense at trial.” The negotiating prosecutors, in contrast, believed that they gave up nothing. Denver’s district attorney, for example, publicly commented that the “compromise is just a clarification of existing law.”

In that vein, some prosecutors tried to argue in subsequent litigation that the new provision could not possibly grant true immunity for self-defense. Among other things, they pointed out that the provision appears alongside other affirmative defenses in Colorado’s criminal code. When the issue reached the Colorado Supreme Court, however, the justices rejected the prosecutors’ interpretation that self-defense remained an ordinary defense to be proved at trial, noting that “[i]t must be presumed that the legislature has knowledge of the legal import of the words it uses.” The plain meaning of “shall be immune from criminal prosecution” in the statute, they concluded, was “to bar criminal proceedings against a person for the use of force under the circumstances set forth” in the law. In the course of reaching that holding, the justices acknowledged what went unsaid during the legislative hearings: that “the immunity created by [the law] is an extraordinary protection which, so far as we know, has no analogue in Colorado statutory or decisional law.” In fact, immunity for self-defense in criminal cases does not appear to have existed anywhere else in the country.

Perhaps because of its unusualness, or because it was an eleventh-hour deal seemingly unrooted in any principle other than compromise, Colorado’s self-defense immunity law was not immediately enacted elsewhere. In 1987, for example, Oklahoma’s governor vetoed legislation similar to Colorado’s, which subsequently passed after the immunity provision was removed. Nonetheless, Colorado’s immunity provision was on the books, providing a template for future efforts.

B.  Auspicious Effort by Gun Rights Advocates

The Colorado self-defense immunity law was not instituted at the behest of gun rights advocates or other lobbyists, but rather, it arose as a compromise with prosecutors after a locally elected leader perceived a need for expanding self-defense protections against home intruders. In more recent times, however, gun rights advocates and the NRA in particular have led a campaign to expand not only the right to have and carry guns but also to brandish and shoot them when gun owners feel threatened. Most public attention to this campaign has centered around Stand Your Ground, but looking closely at testimony and commentary reveals a deeper ambition: immunizing defensive gun use from prosecution.

The parallels between the NRA’s lobbying for gun rights and its lobbying for self-defense immunity is striking. Gun rights advocates frequently claim that the right to keep and bear arms is being disrespected in the courts and therefore that the Second Amendment needs more protection. The claim with self-defense is similar: as one gun rights advocate put it, self-defenders are “victimized . . . in court.” The executive director of the NRA’s Institute for Legislative Action lamented that “people who defend themselves are more likely to be charged with crimes and, as the old sayings go, be forced to ‘tell it to the judge’ and ‘let the jury sort it out.’ ” That creates a problem, he explained, because “a murder trial puts the defendant at risk of a long prison sentence—or worse.” The NRA lobbyist most directly involved with Florida’s landmark Stand Your Ground bill in 2005 was likewise moved by this notion. A basic problem, in her view, was that people were “being arrested” and “prosecuted . . . for exercising self-defense that was lawful.”

An answer to that feeling of disregard for self-defense was to transform it from an affirmative defense to an immunity. The NRA devised a self-defense immunity law and found legislative sponsors in Florida who agreed with the complaint that, as one put it, “law-abiding citizens” who “protect themselves [are] in a posture that they have to defend themselves from their own government.” The measure passed in 2005 and went even further than Colorado’s, extending prosecutorial immunity to all self-defense—not just self-defense in the context of home invasions. In particular, the law provided that someone using lawful self-defense is “immune from criminal prosecution,” with “criminal prosecution” defined to “include[] arresting, detaining in custody, and charging or prosecuting the defendant.”

After some Florida judges placed the burden on the defendant to prove self-defense at a pretrial hearing, legislators stepped in to strengthen the immunity provision by clarifying that the burden of proof is on the prosecutor to disprove self-defense before trial by clear and convincing evidence. That standard is much higher than the probable cause standard that prosecutors must satisfy to indict, which, as discussed above, is the primary focus of traditional and modern pretrial screening. And there have been efforts to increase the burden even more, such as by requiring the prosecutor to disprove self-defense beyond a reasonable doubt—the same burden borne by the prosecutor at trial.

Unlike Colorado’s law, which failed to attract buy-in elsewhere, Florida’s law was aggressively promoted by the NRA and the conservative American Legislative Exchange Council (“ALEC”), which described the need to “[p]rotect[] citizens from prosecution or liability if they use a firearm in self defense [sic] inside or outside their homes.” Similar laws were introduced in states across the country, and the NRA-promoted sentiment that civilians asserting self-defense should have a path to immunity was frequently invoked. When legislators debated Iowa’s self-defense law, one objected that a person must “spend eternity in prison trying to defend themselves” after being put “in that untenable situation where they have to make that snap decision and defend themselves or another from an aggressor.” In Ohio, a legislative witness inveighed that “[t]he mere fact of acting justly in self-defense should not result in dragging folks who used defensive force in accordance with Ohio law through the mud, costing them valuable time and resources.” In South Carolina, a self-defense bill’s sponsor argued that “the State should have to prove you did something wrong before they can send you to jail” to await trial in homicide cases. And in Utah, an advocate complained that people should not have to “go through the crucible of a self-defense trial.” Ultimately, after the passage of Florida’s law, more than twenty other states passed some sort of self-defense reform, such as Stand Your Ground, with at least thirteen enacting self-defense immunity.

But the fact that people who lawfully defend themselves are sometimes prosecuted and forced to argue self-defense is unexceptional. It is a truism that self-defense sometimes exculpates—that is precisely why it is an available defense to criminal charges. Singling out self-defense for special treatment as an immunity should have a compelling rationale similar to the ones that justify other prosecutorial immunities. The next Section searches for such a rationale in the legislative debates and commentary.

C.  Searching for a Rationale

A common assertion among advocates for self-defense immunity is that awaiting trial is “not giving the right to self-defense the consideration it deserves.” But why not? After all, awaiting trial is the traditional process and the one afforded other defenses. In his systematic analysis, Paul Robinson identifies dozens of other affirmative defenses that bar conviction. What is the basis for treating self-defense differently than these other defenses? Though legislative debates offer no consistent rationale, four can be teased out: restoring procedural protections for self-defense lost to history, stopping politically motivated prosecutions of self-defenders, vindicating the notion that self-defense is a “natural right,” and reducing defense costs for gun owners. None of these is as strong as the rationale for traditional immunities—an inherent need for pretrial adjudication. Moreover, each is unpersuasive on its own terms.

Some advocates argue that prosecutorial immunity restores self-defense to an exalted place from a bygone era. In Florida, for example, a witness testified that making the prosecutor disprove self-defense before trial “recover[s] a right that we as citizens lost to defend ourselves from criminals.” In Utah, a witness testified that “Utah used to have a robust preliminary hearing procedure” as it relates to self-defense, and that immunity “restores some much-needed balance.”

A related move has been to couple self-defense immunity with Stand Your Ground and then defend both on the basis of Stand Your Ground history. For example, the NRA has said that Stand Your Ground laws, such as Florida’s (which includes an immunity provision), “focus on the narrow issue of whether and to what extent a person who would otherwise have a right to self-defense forfeits that right by not first attempting to flee the confrontation.” With omnibus bills like Florida’s so purportedly reduced, the NRA then asserted that removing the duty to retreat has “a pedigree in American law dating back over 150 years.” Other advocates have similarly ignored everything in recent self-defense legislation other than Stand Your Ground and then defended the entirety on the basis of Stand Your Ground history.

Nostalgia is a staple of gun rights advocacy, so it is unsurprising to see appeals to history when it comes to self-defense immunity. Yet, as shown in Section I.A, there is no basis in Anglo-American legal tradition for immunizing private defensive violence. Treating self-defense as exceptional through immunity is a thoroughly modern innovation.

An alternative rationale is that people exercising lawful self-defense are targeted for “political” prosecutions. Prosecutors have vigorously rejected that narrative, and advocates for immunizing self-defense have failed to offer convincing evidence of political prosecutions, let alone the sort of systemic abuses that would justify a radical change to self-defense law. Advocates for both of the first immunity statutes—in Colorado (1986) and Florida (2005)—could not point to a single example of an improper prosecution. Rather, the chief NRA lobbyist for the Florida law ultimately contended that whether bad prosecutions have been brought is “not relevant.”

In subsequent efforts to immunize self-defense, advocates have invoked the prosecutions of George Zimmerman for the shooting death of Trayvon Martin and Rittenhouse for the Kenosha incident as exemplars of political prosecutions justifying self-defense immunity. Looking to Zimmerman’s prosecution is somewhat ironic given that it took place in Florida after Florida adopted its 2005 immunity provision and Zimmerman opted not to have a pretrial immunity hearing. Furthermore, in both cases the juries reached verdicts only after extensive deliberation. The lead homicide investigator in the Zimmerman case recommended charges but was initially overruled. Many perceived the declination of charges as reflecting racial bias, as Martin was an unarmed Black teenager. A special prosecutor ultimately brought charges and a trial was held. The law considered by Zimmerman’s jury did not include how initial aggressors have a limited right to self-defense, since the judge declined to instruct the jury on the initial aggressor doctrine; perhaps that would have made a difference in the verdict. Others have argued that prosecutors in both cases made strategic errors that may have affected the outcomes. In the Zimmerman trial, half of the jurors reportedly wanted to convict but changed their minds.Deliberations in both cases extended over multiple days before the jurors returned not guilty verdicts.

Of course, in an ideal world, prosecutors would have perfect clarity into guilt and innocence, and prosecutions that result in acquittals after trial would never be brought. That, of course, is not realistic and is the reason why affirmative defenses and trials exist. Moreover, in light of the radical nature of the change wrought by singling out self-defense for immunity, if political prosecutions are the justification, then advocates should put forth more and better examples.

Another rationale that advocates raise is that self-defense is philosophically or morally distinct as a natural or human right. The Republican Party platform refers to the right of self-defense as “God-given.” And the argument that self-defense is a justification and not an excuse is often explained by referencing moral philosophy. But these understandings of self-defense as a natural, divine, or human right have long existed in harmony with adjudication at trial. Blackstone, for example, referred to self-defense as a natural right, but he believed, as described above, that self-defense is squarely a jury question. Saying that self-defense is a natural right does not rationalize treating it as an immunity any more than it rationalizes erasing the common law elements of necessity and proportionality that have long guided self-defense decision-making.

That leaves the fourth explanation, which perhaps arises most often: that gun owners should not have to pay typical criminal defense costs if they have a claim of self-defense. The NRA’s former executive director noted that “the legal fees . . . can easily top $50,000.” A representative of a gun rights advocacy group in Wyoming expressed a similar view: “We don’t want to have a gun owner bankrupted by the criminal process just because he had to use a firearm in self-defense.” And in Utah, an advocate said, “I have people calling me all the time [and saying] I’m afraid it will ruin me if I have to defend myself.” The legislative sponsor of the Utah bill recounted how a person leaving a gun carry class remarked, “I would rather die than financially ruin my family” by using a gun in self-defense.

The cost of criminal defense is a concern for all defendants, not just those asserting that violent conduct was justified as self-defense, and cost typically is not a sufficient rationale for prosecutorial—as opposed to civil—immunity. If self-defense, alone among affirmative criminal law defenses, is to be immunized, it warrants a much stronger rationale than cost saving for gun owners. This is especially true in light of the costs incurred as a result of self-defense immunity that are discussed in the next Part.


The previous Section showed how the usual arguments put forth to support self-defense immunity are thin. It also is important to consider whether immunizing private violence has costs that further undercut exceptional treatment of defensive force. This Part contends that it does: immunizing self-defense can lead to more unlawful violence with less legal oversight; diminish the jury, thereby inviting less accurate and less legitimate outcomes; and introduce inefficiency into the criminal justice process.

A.  More Unlawful Violence (and Increased Impunity)

The message that self-defense immunity sends is troubling: that people can engage in defensive violence that they believe is lawful with less legal oversight. Both logic and data suggest that this message could bring about more assaults and homicides because of the impunity it signals—and in fact provides. Frederick Schauer has observed that “[q]uite often, officials who are immune for one reason or another from formal legal sanctions violate the law with some frequency.” One can expect the same result from self-defense immunity, except for a much larger swath of the population; relatively few people receive official immunity, but everyone is entitled to assert self-defense when defending against criminal charges.

Rafi Reznik has recently argued that the modern understanding of self-defense as a justification, not an excuse, can signal societal acceptance of the alleged offense conduct in a way that promotes more violence; immunity sends an even more powerful signal. As Reznik describes, in the dominant view, a justification indicates that “the wrongfulness of the act is negated.” Excuses, on the other hand, do not negate the wrongfulness of the conduct but “negate the blameworthiness of the actor.” The upshot is that “[j]ustifying self-defense,” as opposed to excusing it, “can . . . amount to an encouragement and it can even amount to an imperative.” Reznik argues that self-defense should be considered an excuse, which it was under English common law. On the ground, however, the trend is going in the opposite direction: jurisdictions are granting immunity to self-defenders, which goes even further down the path toward encouraging the use of violence than considering self-defense a justification.

This trend is especially problematic because people are often wrong about the lawfulness of defensive force. One study found, for example, that a majority of self-reported defensive gun uses are likely illegal. People “view [a] hostile encounter from their own perspective; in any mutual combat both participants may believe that the other side is the aggressor and that they themselves are acting in self-defense.” A particular incident from the summer of the Rittenhouse shooting is exemplary.

Two months before the Rittenhouse shooting, Mark and Patricia McCloskey stood outside their St. Louis, Missouri, mansion as racial justice protesters marched nearby. Both were captured on video screaming angrily and wielding firearms: Mr. McCloskey, an AR-15–style rifle, and Ms. McCloskey, a handgun that she pointed at one protester after another. In Missouri, it is a crime to “exhibit[], in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” A local prosecutor charged the couple with violating that statute. In their defense, the couple asserted that their conduct was justified to protect themselves and their property.

Speaking at the 2020 Republican National Convention (the McCloskeys, like Rittenhouse, became celebrities on the political right for their gun use), Mr. McCloskey, a lawyer, expressed outrage that the prosecutor “actually charged [them] with felonies for daring to protect [their] home.” Then, in a remarkable move, Missouri’s attorney general urged dismissal of the local charges on the basis of the sentiment underlying immunity: “Missourians should not fear exposure to criminal prosecution when they use firearms to defend themselves and their homes from threatening intruders.” In the end, however, the couple effectively conceded that they were not lawfully defending themselves when they pled guilty to the crimes of assault and harassment, thereby waiving any claim for self-defense. In other words, despite their confident assertions that they were legally justified in their actions, they ultimately admitted that they had no legal justification for their conduct.

Unlawful defensive force imposes an especially troubling risk to Black men and women, like many of those marching in front of the McCloskey house, who are mistaken as threats all too frequently. Data has consistently shown that Black people are more likely to be misperceived as a threat than white people. According to L. Song Richardson and Phillip Atiba Goff, this is in part because Black people “serve as our mental prototype (i.e., stereotype) for the violent street criminal.” A prosecution and trial can separate out biased and unreasonable threat perceptions from unbiased and reasonable ones better than any individual can in the moment. And getting it right is important for ensuring a fair and just implementation of criminal law.

Well-intentioned people can have flawed perceptions of lawfulness, but encouraging restraint for defensive violence through the threat of prosecution and punishment is even more important for those who are ill-intentioned. For some people, “genuine and sanction-independent obedience [to the law] is rare.” In that circumstance, “coercion through the threat of sanctions emerges as the principal mechanism for securing the obedience that turns out to be so often necessary.” Immunity lessens the law’s constraining force and risks that someone prone to violence will construe immunity as a license to commit violence.

In this regard, it is notable that a study of the effects of Colorado’s 1986 immunity law found that those invoking immunity “used force (sometimes deadly force) as much out of anger as self-defense.” Moreover, the legal change primarily benefited defendants other than the intended beneficiaries—homeowners confronting stranger intruders. In the years immediately following the enactment, the only “strangers” who intruded into homes and faced defensive force triggering immunity were police officers.

Unfortunately, more recent empirical studies on the impact of changes to self-defense law do not distinguish between the effect of various simultaneous changes, such as Stand Your Ground, presumptions, and immunity. Several such studies have shown that self-defense reforms that include an immunity provision correlate with more violent crime. One study found that in the decade following Florida’s 2005 legislation, “monthly rates of homicide increased by 24.4% and monthly rates of homicide by firearm by 31.6%.” Another found that the law was associated with a 44.6% increase in adolescent firearm homicides. In February 2020, the U.S. Commission on Civil Rights released a report finding no evidence of crime deterrence and an increase in homicide rates in states that adopted such laws. A commissioner recommended rejecting self-defense immunity because it “remove[s] incentives to mitigate or reduce the use of deadly force by protecting the claimant regardless of the collateral consequences.” Yet, as noted, the power of these studies as regards the impact of self-defense immunity is limited and, hopefully, future empirical studies will seek to isolate the effect of self-defense immunity.

A corollary to the signals sent by self-defense immunity is that sometimes immunity can in fact hinder or prevent a conviction of someone who engages in unlawful violence. The analysis of cases soon after Colorado passed its self-defense immunity law in 1986 found that the statute likely led to an acquittal in one case that would otherwise have been a probable conviction, as well as decisions not to prosecute in others. The district attorney for a single county in Kansas has reported “declin[ing] to file charges against thirty-three people based on self-defense immunity,” thirty of which were deemed homicides by the coroner. Three additional cases were charged by the district attorney but dismissed on self-defense immunity grounds by a judge.

Those arguing in support of self-defense immunity do not contest, and implicitly concede, much of this analysis. They acknowledge that the risk of having to defend against a prosecution causes gun owners to hesitate before deploying lethal force, and they seek to reduce such hesitation. However, a cost of immunizing self-defense is to transform the signals sent by conventional self-defense law in a way that likely leads to more unlawful, and at times discriminatory, violence. Furthermore, immunizing self-defense erects an obstacle to achieving a basic goal of the criminal justice system: punishing those who commit crimes of violence.

B.  Fewer Juries in Matters of Community Importance

Another consequence of granting a defendant immunity is to disempower a jury from deciding facts surrounding a properly charged crime. The institution of the jury has long played a central role in self-defense cases. The jury is well-equipped to resolve disputes about the lawfulness of violence. Moreover, and importantly in the context of self-defense, the community’s involvement through the jury legitimates the law and promotes acceptance of outcomes as well as community healing.

Today, the jury is most often discussed solely in the context of defendants’ rights, but the jury’s importance to society is actually far deeper. At the nation’s founding, Anti-Federalists were adamant about protecting the institution of the jury because, even more than protecting the defendant, the jury integrated “the people in the administration of government.” As Laura I. Appleman has put it, “the right of the jury trial” is about “the participation of the citizenry in [the] rule of law.” This feature of the jury—as a key means of community involvement in the law’s implementation—is reflected in the fact that a defendant has no federal constitutional right to waive a jury trial, even if a defendant can demand one. Prosecutors and courts generally can demand jury trials even over the defendant’s objection. Today, as in the past, there is a “strong preference for jury trials on all elements of a criminal case.”

Accuracy is one important interest served by this longstanding commitment to juries, because “[j]uries . . . are considered the best deciders of fact.” This is in no small part because juries “are more representative of their communities than judges . . . . They better represent various races, socio-economic classes, various levels of formal education, differing religions, and a broader spectrum of political engagement than do judges.” This is especially true when the task is assessing “matters reflecting their communities’ values,” like self-defense.

Self-defense is inherently fact-based, calling for answering difficult questions about the reasonableness of a defendant’s perception of—and violent response to—a threat. Evaluating the lawfulness of self-defense calls for an assessment of whether defensive force was reasonably necessary and proportionate to a reasonably perceived threat. Criminal law scholars devise complex classifications in an attempt to capture the permutations of defensive confrontations and how they intersect with the law of self-defense, but it is impossible to resolve self-defense claims through any sort of rote analysis. It is necessary to apply community values and experiences to assess reasonableness, and judges, unlike juries, are often removed from both. Simply because a jury is comprised of a cross-section of the community, the jury will incorporate perspectives and experiences that lead to a fair resolution of disputed facts more so than a single judge who is likely insulated from the circumstances that gave rise to the violence.

Moreover, importantly, community resolution of the difficult factual questions that go into self-defense can legitimate the law and promote acceptance of outcomes. Precisely because “juries have the power to incorporate societal norms and values into their decisions . . . citizens can view these determinations as legitimate and as not influenced by the political leanings of government-employed judges.” That sense of legitimacy, in turn, can help a community accept a case’s outcome and move past the trauma of community violence.

For example, after the killing of Trayvon Martin, the quick decision not to prosecute George Zimmerman led to mass protests across the country. Many thought that the declination of charges suggested that “the criminal justice system was indifferent to Trayvon Martin’s death and was disinclined to try to provide justice.” The fact that Martin was a Black teenager triggered speculation that race was part of the reason for not immediately prosecuting Zimmerman. When a special prosecutor subsequently charged Zimmerman, the move brought great relief. Martin’s mother commented that “[w]e simply wanted arrest, nothing more, nothing less, and we got it.” Although many people who wanted a prosecution may have been disappointed by the jury verdict of not guilty, that the process was followed, and that the decision was rendered by a jury certainly lowered the temperature of the earlier protests.

Conversely, a prosecution’s dismissal because of immunity sends a very different signal to the community. Victims and family members can never know how a jury of their peers would decide on the legality of defensive force. Indeed, a homicide case in Utah elicited the opposite reaction after the defendant was discharged because of self-defense immunity. A family member of the victim of the alleged homicide exclaimed in court: “We all feel the justice system has no doubt failed us.” Another said: “This has forever changed my outlook on the system and the faith that I once had that justice would prevail.” Similarly, in Kansas, after a prosecutor declined to bring homicide charges against juvenile detention officers citing a self-defense immunity law, the victim’s family viewed the decision as “yet another instance of an unarmed Black teenager killed by law enforcement with impunity” and without “even an ounce of accountability.” Likewise, a community partnership expressed “outrage[]” at the declination of charges, viewing it as a “blatant disregard for the life” of the victim.

The denouncements above demonstrate that self-defense immunity can not only prevent a community from healing, but can also undermine the rule of law and faith in the judiciary. In this regard, it is notable that the criticism in such cases is not at the legislature for passing a self-defense immunity bill, or at the governor for signing it, but rather at the “justice system” that “no doubt failed.” Moreover, under the law of self-defense, the harm caused by defensive violence is supposed to “remain[] a legally recognized harm which is to be avoided whenever possible,” and the conduct underlying self-defense is supposed to “remain[] generally condemned and prohibited.” Immunity dilutes the force of such legal values and erodes trust that the judicial system will enforce them.

C.  Inefficient Mini-Trials

One counterargument to concerns about self-defense immunity is that it will only weed out rare, egregious prosecutions. In some places where self-defense immunity is already enacted, the defendant has the burden of proving self-defense at an immunity hearing, or, in the alternative, the prosecutor must only show probable cause that self-defense did not justify the defendant’s violence. In those places, most self-defense cases might still proceed to trial. This, however, raises a question about judicial economy.

To be sure, the likely trajectory for self-defense immunity is for legislators to strengthen it, similar to how Florida recently placed the burden on prosecutors to disprove self-defense by clear and convincing evidence at a pretrial hearing. Since Florida has led the way for NRA-backed initiatives to be subsequently passed elsewhere, it is no surprise that when Utah passed its self-defense immunity law in spring 2021, a legislative sponsor said the law “basically copie[d] and paste[d]” the clear and convincing evidence standard “from Florida[’s] statute.” Furthermore, even in jurisdictions with lesser prosecutorial immunity standards currently, immunity still sends troubling signals that could increase violence.

Setting aside these concerns and focusing narrowly on the argument that immunity will have little impact on prosecutions outside of rare cases, a question arises: Why undertake an expensive immunity hearing that will mirror the eventual trial at all? Two goals of the rules governing criminal procedure are to “secure simplicity of procedure” and “to eliminate unjustifiable expense.” Self-defense immunity runs counter to those goals.

In this regard, it is helpful to contrast self-defense with other pretrial issues discussed above, which generally implicate evidence that is both clear-cut and distinct from proof of guilt or innocence. Whether too much time has passed between criminal conduct and a prosecution so as to violate a statute of limitations, for example, may call only for simple arithmetic unrelated to the alleged offense conduct. The same could be said for speedy trial issues. Determining whether a pending prosecution is substantially the same as an earlier one, thereby violating double jeopardy protections, calls for a comparison of the two prosecutions. And determining whether diplomatic immunity attaches often only requires inquiring into the defendant’s status as a diplomat and whether the sending state has waived the immunity.

Yet proving or disproving whether self-defense exculpates requires consideration of the same witnesses and evidence that will be introduced at trial to prove the charged crime. Indeed, this is implicit in affirmative defenses (like self-defense), which contend that something happening at the time of the alleged offense justified or excused the underlying conduct. Resolving the lawfulness of self-defense ahead of trial would call for delving into the circumstances surrounding the charged offense and receiving testimony from the same witnesses of the alleged crime who will testify at trial. Self-defense immunity hearings, when they do not result in a dismissal, involve “mini-trials of the evidence in advance of the actual trial” that criminal procedure typically seeks to avoid.

To be sure, adding costs and inefficiencies is not always inappropriate. Many scholars agree that grand juries are ineffective at eliminating bad prosecutions and that the plea bargain system that is used to resolve the vast majority of criminal prosecutions creates injustices. Some scholars and advocates have thus suggested reforms that would be costly, like enhancing internal prosecutorial screening or devising something akin to summary judgment for criminal procedure. But self-defense immunity is extrinsic to that broader conversation, which is about how to improve the pretrial process for all issues bearing on guilt and innocence, and for all defendants. Self-defense immunity grants a benefit for one defense championed by powerful lobbyists. That may explain why self-defense immunity is passing in legislatures, but it hardly rationalizes the costs.


A central goal of this Article is to show that the exceptionalism reflected in self-defense immunity laws is not rooted in history, tradition, or longstanding priorities of criminal law and procedure. Self-defense has always been an affirmative defense, embedded in a system of defenses and vindicated through the same criminal justice process as other defenses. Those pursuing self-defense immunity have thus far failed to put forward a compelling rationale for a radical departure from legal tradition. Self-defense should remain unexceptional within the system of criminal law defenses to avoid the unwarranted harms that can come from immunizing private violence.

96 S. Cal. L. Rev. 509


* Associate Professor, SMU Dedman School of Law; Fellow, Brennan Center for Justice at N.Y.U. School of Law. Many thanks to Hillel Bavli, Joseph Blocher, Jake Charles, Guillermo Jose Garcia Sanchez, Chris Jenks, Cynthia Lee, Pamela Metzger, Darrell A. H. Miller, Adam Sopko, Jenia Iontcheva Turner, and Cynthia Ward, as well as participants in the U.C. Davis Law Review’s 2021 symposium, for helpful comments and suggestions. Tiereney Bowman, Robert Larkin, Maggie Gianvecchio, Darby O’Grady, Meredith Palmer, and Nick Salinaro provided excellent research assistance.

Overturning Override: Why Executing a Person Sentenced to Death By Judicial Override Violates the Eighth Amendment


Judicial override is a practice by which a judge overrules a sentence decided by a jury. Perhaps the most alarming, infamous, and controversial form of judicial override occurs when a judge overrules a jury’s recommendation for life imprisonment and replaces it with the death penalty. The use of judicial override in capital punishment cases has only ever been allowed in four states: Alabama, Delaware, Florida, and Indiana.[1] As of 2017, all four of these states have officially abandoned the practice. However, thirty-five individuals who were sentenced to death via judicial override remain on death row awaiting execution.[2] Today, their lives hang in the balance as the following constitutional question remains: Does the execution of a person sentenced to death by judicial override violate the Eighth Amendment of the United States Constitution?

This Note argues that executing these thirty-five individuals who were sentenced to death by judicial override would, in fact, be a “cruel and unusual” punishment under the Eighth Amendment and thus unconstitutional. Importantly, this Note is not arguing that the death penalty itself is unconstitutional; rather, the Note’s argument is centered around the specific constitutional issue of execution as the direct result of the pre-2017 practice of judicial override.

This Note’s argument proceeds in the following stages. Part I provides background information regarding the history of judicial override in four different states, a summary of relevant United States Supreme Court precedent, an overview of the Eighth Amendment to the United States Constitution, and the Court’s previous interpretations of the meaning of “cruel and unusual punishments.” Part II asserts that a punishment of death by judicial override is more objectionable than the death penalty itself, emphasizes the importance of jury sentencing, and calls attention to the presence of racial bias in judicial override. Additionally, Part II argues that the execution of a person sentenced to death by judicial override violates the Eighth Amendment under multiple constitutional theories, including living constitutionalism, the moral reading of the Constitution, and originalism. Part III briefly addresses counterarguments concerning adherence to Supreme Court precedent and federalism, and Part V concludes this Note by suggesting two potential solutions to the issue at bar.

          [1].      Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011 Mich. St. L. Rev. 793, 794 (2011); Petition for Writ of Certiorari at 5, McMillan v. Alabama, 141 S. Ct. 876 (2020) (No. 20-193).

          [2].      Petition for Writ of Certiorari, supra note 1, at 6.

* Executive Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2022, University of Southern California Gould School of Law; B.A. Political Science 2018, University of California, Los Angeles. Thank you to Gonzo for your unwavering support throughout my law school journey. I am also grateful to Professor Rebecca Brown for her guidance during this Note’s development. Finally, thank you to all of the Southern California Law Review editors for spending countless hours on the publication process.


Crack Taxes and The Dangers of Insidious Regulatory Taxes

An unheralded weapon in the War on Drugs can be found in state tax codes: many states impose targeted taxes on individuals for the possession and sale of controlled substances. These “crack taxes” provide state officials with a powerful means of sanctioning individuals without providing those individuals the protections of the criminal law. Further, these taxes largely escape public scrutiny, which can contribute to overregulation and uneven enforcement.

The controlled substance taxes highlight the allure to lawmakers of using tax law to regulate behavior, but also the potential dangers of doing so. Surprisingly, the judiciary has an underappreciated role in creating the allure of regulatory taxes. Because courts apply less scrutiny to taxes than to other types of laws, regulatory taxes get a blank check when challenged, incentivizing their use. Courts must reconfigure the way they approach regulatory taxes to remove the judicially created incentive for insidious regulatory taxes like controlled substance taxes.


“ ‘It was going through the mail and the mail lady smelled it and called the police . . . . I’m not ever gonna get out from underneath this, ever, not unless I win the lottery and become a millionaire’ . . . .”[1] The North Carolina woman offering these statements was troubled not by her arrest and charge of attempted drug trafficking, but by the twenty-thousand-dollar tax assessment she received for possessing controlled substances (that is, illegal drugs). North Carolina brings in millions of dollars from its so-called “crack tax”[2] or “Al Capone law”[3] each year,[4] and several other states use similar taxes on the possession and sale of controlled substances to further regulate already criminalized activities.[5]

The idea of taxes as a weapon in the War on Drugs may seem surprising, but perhaps it is predictable that lawmakers wanting to look tough on drugs would co-opt tax law in this way. More surprising though is the underappreciated role courts have in incentivizing lawmakers to enact controlled substance taxes and other regulatory taxes to achieve their goals.

How do courts incentivize the enactment of regulatory taxes? At its core, the answer to this question is a story of veiled consequences of elevating form over substance. Courts have habitually treated tax laws with the utmost respect,[6] resulting in a privileged regime of relaxed judicial scrutiny for taxes.[7] Governments must raise revenue, and taxation is a powerful tool to raise that revenue from whatever members of society lawmakers see fit. Unelected judges, the line of thinking goes, should be hesitant to upset these fundamentally political decisions.[8] This hesitancy has pushed courts to be exceedingly cautious when examining laws labeled “taxes.”

In addition to their revenue-raising role, taxes have also long been recognized as legitimate and powerful tools to regulate behavior.[9] One might expect courts to heighten their scrutiny of taxes with intentional regulatory goals (as opposed to mere revenue-raising taxes) to ensure that the interests of regulated individuals are appropriately considered. However, this is rarely the case, even when the taxes’ revenue goals are insignificant compared with their regulatory goals.[10]

In short, as critics of “tax exceptionalism”—the idea that tax law is categorically different from other areas of law and should be treated so—have long observed and frequently lamented, courts often employ a unique approach to analyzing tax laws.[11] Once a court determines that laws are tax laws, those laws become privileged before the judiciary, even when the laws have intentional regulatory effects.[12] This subtle elevation of form (tax law) over substance (regulatory effects) results in the judicially created incentive for lawmakers to pursue their regulatory goals through taxation rather than through direct regulation: taxes will not face as much scrutiny from courts.[13]

Lawmakers have noticed and responded, using taxes to achieve regulatory goals where other laws might receive more scrutiny from courts.[14] Though this phenomenon may appear benign, it can generate serious harms for individuals, as controlled substance taxes illustrate.[15] By adopting the taxes rather than increasing existing criminal sanctions, lawmakers impose punishment on those possessing and selling controlled substances without running up against legal protections for criminal defendants.[16] Even those people who would be acquitted under the criminal law can still be sanctioned for their behavior through these insidious regulatory taxes.[17] Thus, controlled substance taxes are a potentially powerful and unchecked weapon in the War on Drugs. Given the biased manner in which the War on Drugs has been carried out,[18] skirting protections for individuals is particularly concerning, as tax law becomes a tool of state oppression of overpoliced communities.[19]

The harms of these taxes do not stop with those cavalierly imposed on individuals. Regulatory taxes like controlled substance taxes also impose stealth costs on society because they are less effective than their direct regulation alternatives.[20] For example, controlled substance taxes are often burdensome laws for tax authorities to administer, making the taxes a costly alternative to laws directly regulating controlled substances, which are enforced by those more familiar with the substances.[21] Further highlighting the insidious nature of these taxes, they also obscure the total amount of regulation that an activity is subject to by remaining out of public view, leading to harmful overregulation that is difficult to address.[22]

Despite the dangers of regulatory taxes like controlled substance taxes, these insidious taxes have gone largely unnoticed in the tax literature. Rather, tax scholars have focused on the relative substantive strengths of taxation versus direct regulation when analyzing the best options for achieving regulatory goals.[23] Literature regarding the related phenomena of fines and civil forfeiture laws has not considered the unique situation of tax laws before the courts.[24] In short, the role of judicial deference regimes in tilting the scales toward regulatory taxes and the resulting consequences for individuals and society are underappreciated. This Article is the first to home in on these issues,[25] analyzing them and demonstrating how courts should take them into account to correct for the inadvertent judicial incentive for lawmakers to enact insidious regulatory taxes.

Courts can remove this incentive and head off future insidious regulatory taxes by recognizing the potential for these taxes to exist and placing such taxes under more scrutiny when exposed.[26] This Article builds on scholarly developments in modern tax expenditure analysis—which explores the role of taxes as a tool for achieving regulatory goals[27]—to propose an analytical framework for uncovering insidious regulatory taxes. A comparatively weak tax law passed to take advantage of the privileged judicial scrutiny regime for taxes is an insidious regulatory tax, and, once that tax is uncovered through the proposed analysis, a court should scrutinize the tax as it would a similar direct regulation.

Controlled substance taxes offer a prime example of insidious regulatory taxes and their dangers, but not all regulatory taxes are insidious. Regulatory taxes like carbon taxes that are more effective than their direct regulation counterparts are substantively justified and do not raise the concerns associated with insidious regulatory taxes.[28] However, as regulatory taxes continue to become more prevalent,[29] the proposed framework will become more crucial to aid courts in separating the insidious regulatory taxes in need of heightened scrutiny from the unobjectionable ones.

The Article proceeds in three parts. Part I provides background on controlled substance taxes and the judicial privilege granted to all types of taxes. The resulting allure of regulatory taxes can be too much for lawmakers to ignore, resulting in the enactment of insidious regulatory taxes like controlled substance taxes. Part II then details the dangers of insidious regulatory taxes in more depth, exposing the problems created by the judiciary’s current approach to taxes. Finally, Part III fleshes out the proposed framework for analyzing tax laws to remove the judicially created incentive for insidious regulatory taxes, using the controlled substance taxes as a case study to illustrate the framework’s operation.

          [1].      Michael Hennessey, Inside the North Carolina Law Requiring Drug Dealers to Pay Taxes, (May 10, 2019, 10:21 AM), [].

          [2].      See Jeremy M. Vaida, The Altered State of American Drug Taxes, 68 Tax Law. 761, 787 (2015).

          [3].      See Anne Barnard, In Taxing Illegal Drugs, the Trouble Comes in Collecting, N.Y. Times (Jan. 24, 2008), [
7] (quoting an associate of the Federation of Tax Administrators describing the taxes as hearkening to “the Al Capone model”); Christopher Paul Sorrow, The New Al Capone Laws and the Double Jeopardy Implications of Taxing Illegal Drugs, 4 S. Cal. Interdisc. L.J. 323, 323 (1995); Christina Joyce, Expanding the War Against Drugs: Taxing Marijuana and Controlled Substances, 12 Hamline J. Pub. L. & Pol’y 231, 239 (1991).

          [4].      See N.C. Dep’t of Revenue, Statistical Abstract of North Carolina Taxes 2019 tbl. 15 (2019) (showing tax revenues ranging from approximately $6.5 million to approximately $11.5 million for fiscal years 2005 through 2019 from the state’s controlled substance tax, which includes taxes on illicit liquors in addition to illicit drugs).

          [5].      See infra note 34.

          [6].      See infra Section I.B.

          [7].      See, e.g., Eric Kades, Drawing the Line Between Taxes and Takings: The Continuous Burdens Principle, and Its Broader Application, 97 Nw. U. L. Rev. 189, 192 (2002) (“At times, judges and legal commentators have declared that Congress’ power to tax is beyond constitutional review.”).

          [8].      See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 531-32 (2012) (“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”). As Justice Felix Frankfurter articulated,

[Governments] need the amplest scope for energy and individuality in dealing with the myriad problems created by our complex industrial civilization. They need wide latitude in devising ways and means for paying the bills of society and in using taxation as an instrument of social policy. Taxation is never palatable, and its exercise should not be subjected to finicky or pedantic arguments based on abstractions.

Felix Frankfurter, The Public and Its Government 48-49 (1930).

          [9].      See infra note 30.

        [10].      See infra Section I.B.

        [11].      See, e.g., Alice G. Abreu & Richard K. Greenstein, Tax: Different, Not Exceptional, 71 Admin. L. Rev. 663, 663-64 (2019) (surveying tax exceptionalism scholarship and arguing that tax is not different in kind from other types of law and should not be analyzed as though it were); Paul L. Caron, Tax Myopia, or Mamas Don’t Let Your Babies Grow Up to Be Tax Lawyers, 13 Va. Tax Rev. 517, 518-31 (1994) (highlighting and criticizing the perception that tax law is different from other areas of law).

        [12].      See, e.g., Gillian E. Metzger, To Tax, to Spend, to Regulate, 126 Harv. L. Rev. 83, 90 (2012). Part of the opinion from Department of Revenue of Montana v. Kurth Ranch illuminates this claim. While observing that taxes are subject to constitutional constraints, as are criminal fines and civil penalties, the Court notes demanding constraints for criminal sanctions and relatively trivial constraints for taxes, even if those taxes fall on the same criminal activities as the criminal sanctions do. Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778 (1994).

        [13].      See infra Section I.B.

        [14].      See Michael S. Kirsch, Alternative Sanctions and the Federal Tax Law: Symbols, Shaming, and Social Norm Management as a Substitute for Effective Tax Policy, 89 Iowa L. Rev. 863, 865–66 (2004) (describing how federal tax laws are used for regulatory goals); Stanley S. Surrey & Paul R. McDaniel, The Tax Expenditure Concept: Current Developments and Emerging Issues, 20 B.C. L. Rev. 225, 247 (1979) (describing how taxes have been used when direct regulations might be unconstitutional or difficult to enact). See generally R.A. Lee, A History of Regulatory Taxation (1973). Lee examines a number of federal taxes with regulatory effects in his work. In describing the historical context and creation of each tax, Lee uncovers the statements of many members of Congress demonstrating their understanding that they could achieve their goals in a less constitutionally suspect manner by using the taxes instead of direct regulations. For example, in detailing a proposed federal tax on grain futures in 1921, Lee describes a discussion in which Congressman Marvin Jones opined that “if that approach [of direct regulation] were used . . . ‘a constitutional question might arise’ but the Supreme Court had ‘allowed us to go a long ways in the taxing power,’ so he believed this was the ‘wiser method.’ ” Id. at 73. In a later passage, Lee describes a 1937 House Ways and Means Committee Report as finding that “ ‘the law is well settled’ that a regulatory tax, although controlling a subject reserved to state jurisdiction, would be valid ‘if it appears on its face to be a revenue measure.’ ” Id. at 182.

        [15].      See infra Part II.

        [16].      See infra notes 117-22 and accompanying text.

        [17].      See, e.g., Barnard, supra note 3 (reporting comments of a tax administrator recognizing the potential for the taxes to impose punishment when criminal sanctions cannot); Robert E. Tomasson, 21 States Imposing Drug Tax and Then Fining the Evaders, N.Y. Times (Dec. 23, 1990), https://www. [https://per] (reporting on controlled substance taxes as effective tools in combatting illegal drug sales because of their ability to avoid the protections afforded to criminal defendants).

        [18].      See authorities cited infra note 125.

        [19].      Indeed, the taxes are often enforced only against individuals charged with violations of criminal controlled substance laws. See authorities cited infra note 57.

        [20].      See infra Section II.B.

        [21].      See infra Section III.A.2.

        [22].      See infra Section II.C.

        [23].      See, e.g., Stanley S. Surrey, Pathways to Tax Reform: The Concept of Tax Expenditures 148-54 (1973) (discussing tax expenditures and the choice between taxation and spending programs); Surrey & McDaniel, supra note 14, at 227-28 (same); David A. Weisbach & Jacob Nussim, The Integration of Tax and Spending Programs, 113 Yale L.J. 955, 959-64 (2004) (same); Eric J. Toder, Tax Cuts or Spending—Does It Make a Difference?, 53 Nat’l Tax J. 361, 361-63 (2000) (same); Edward A. Zelinsky, James Madison and Public Choice at Gucci Gulch: A Procedural Defense of Tax Expenditures and Tax Institutions, 102 Yale L.J. 1165, 1165-67 (1993) (same); Eric M. Zolt, Deterrence Via Taxation: A Critical Analysis of Tax Penalty Provisions, 37 UCLA L. Rev. 343, 348 (1989) (same).

        [24].      See, e.g., Ariel Jurow Kleiman, Nonmarket Criminal Justice Fees, 72 Hastings L.J. 517, 520 (2021) (detailing similar issues surrounding criminal fees); Beth A. Colgan, Fines, Fees, and Forfeitures, 18 Criminology, Crim. Just., L. & Soc’y 22, 28 (2017) (detailing the use of fines, fees, and forfeitures as sanctions for criminalized activities); Suellen M. Wolfe, Recovery from Halper: The Pain from Additions to Tax Is Not the Sting of Punishment, 25 Hofstra L. Rev. 161, 197 (1996) (detailing similar issues surrounding civil forfeiture laws); Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L.J. 1795, 1799-1800, 1802, 1870 (1992) (observing the harms of failing to provide protections for individuals subject to civil state sanctions); Marc B. Stahl, Asset Forfeiture, Burdens of Proof and the War on Drugs, 83 J. Crim. L. & Criminology 274, 274-79 (1992) (critiquing civil forfeiture laws).

        [25].      As far back as 1979, Stanley Surrey, former Assistant Secretary of the Treasury for Tax Policy, predicted that “Congress, by inserting spending programs in the tax law, essentially has forced the courts to apply to tax law the legal provisions hitherto imposed on direct spending.” Stanley S. Surrey, Tax Expenditure Analysis: The Concept and Its Uses, 1 Can. Tax’n 3, 9 (1979) [hereinafter Surrey, Tax Expenditure Analysis]; see also Surrey, supra note 23, at 46-47; Surrey & McDaniel, supra note 14, at 246. Though this prediction seemed based on Surrey’s conclusion that “tax expenditures”—the normatively unnecessary provisions of tax law designed to achieve regulatory results—should not be entitled to the privilege given to revenue-raising tax provisions, Surrey and others since have not fully analyzed the issue of judicial scrutiny of regulatory taxes and its implications. This Article fills that void.

                   As an aside, Surrey’s prediction may have come true in some cases regarding special tax breaks offered in lieu of direct spending. See, e.g., Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2260-61 (2020) (holding tax credits for education to the same level of scrutiny under the Free Exercise Clause as direct spending measures); Mueller v. Allen, 463 U.S. 388, 393-404 (1983) (holding tax breaks to the same level of scrutiny under the Establishment Clause as direct spending measures). However, surely Surrey would be surprised to find that his prediction has largely failed to materialize in the case of tax laws used in lieu of direct regulations. Rather, courts have continued to privilege tax laws regardless of the regulatory effects those taxes might have.

        [26].      See infra Section III.A.4.

        [27].      See generally Weisbach & Nussim, supra note 23 (laying the foundation for modern tax expenditure analysis, which focuses on the comparative institutional competencies of taxes and direct spending measures); see also infra notes 151-62 and accompanying text.

        [28].      See generally Shi-Ling Hsu, The Case for a Carbon Tax: Getting past Our Hang-Ups to Effective Climate Policy (2011) (comparing economic, social, administrative, and political merits of carbon taxes versus direct regulations and concluding that a tax would be the most effective policy); Reuven S. Avi-Yonah & David M. Uhlmann, Combating Global Climate Change: Why a Carbon Tax Is a Better Response to Global Warming than Cap and Trade, 28 Stan. Envtl. L.J. 3, 6-8 (2009) (similar).

        [29].      See, e.g., Lucy Dadayan, Tax Pol’y Ctr., Are States Betting on Sin? The Murky Future of State Taxation 3-4 (2019), [] (reporting upward trends in the imposition of “sin taxes” on unwanted behaviors); Rachelle Holmes Perkins, Salience and Sin: Designing Taxes in the New Sin Era, 2014 BYU L. Rev. 143, 145 (2014) (describing increasing use of sin taxes).

*      Associate Professor, University of Richmond School of Law. For their helpful thoughts and comments, I would like to thank my outstanding colleagues at the University of Richmond and the participants in the 2019 Junior Tax Scholars Workshop, the 2019 Junior Faculty Forum, and the 2021 AALS New Voices in Taxation program. I owe specific thanks to Aravind Boddupalli, Beth Colgan, Erin Collins, Jim Gibson, Ari Glogower, Mary Heen, Dick Kaplan, Ariel Jurow Kleiman, Corinna Lain, Sarah Lawsky, Ruth Mason, Lukely Norris, Tracey Roberts, Erin Scharff, and Allison Tait. I am indebted to Chris Marple, Tyler Moses, and Whitney Nelson for their excellent assistance with research.     

Civil vs. Criminal Legal Aid

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear why there is such a sharp distinction between civil and criminal legal aid. This Article re-examines longstanding assumptions about the civil-criminal legal aid divide and highlights some underexamined explanations: the legal profession’s historical implication in this division; courts’ unwillingness to use their inherent powers to appoint counsel; and courts’ enduringly narrow understandings of when poor people should be provided with lawyers. These insights prompt alternative reflections on how to best deliver legal services to poor people.

*                Presidential Assistant Professor of Law, University of Pennsylvania Law School. J.D., University of California, Berkeley, School of Law; Ph.D., University of California, Berkeley; M.L.A., University of Pennsylvania; B.S. Northwestern University. This Article benefitted from feedback and conversations with Guy-Uriel Charles, Scott Cummings, Anne Fleming, Trevor Gardner, Myriam Gilles, Helen Hershkoff, Olati Johnson, Steve Koh, Seth Kreimer, Serena Mayeri, K-Sue Park, Clare Pastore, Portia Pedro, Dave Pozen, Dan Richman, Louis Rulli, Kathryn Sabbeth, Matt Shapiro, Emily Stolzenberg, and Catherine Struve. Special thanks to Megan Russo and Madeline Verniero for editorial support and Alexa Nakamura, Amy Lutfi, and the Southern California Law Review staff for their overall assistance with the Article. All errors are mine.

Prosecutors and Mass Incarceration by

Article | Criminal Law
Prosecutors and Mass Incarceration
by Shima Baradaran Baughman* & Megan S. Wright†

From Vol. 94, No. 5 (2020)
94 S. Cal. L. Rev. 1123 (2020)

Keywords: Prosecutor Discretion, Charging


It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of the prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings per arrest. Why? This Article presents quantitative and qualitative data from the first randomized controlled experiment studying how prosecutors nationally decide whether to charge a defendant. We find rampant variation and multiple charges for a single crime along with the lowest rates of declination in a national study. Crosscutting this empirical analysis is an exploration of Supreme Court and prosecutor standards that help guide prosecutorial decisions. This novel approach makes important discoveries about prosecutorial charging that are critical to understanding mass incarceration.



          *     Associate Dean of Faculty Research and Development, Presidential Scholar and Professor of Law, University of Utah College of Law. We thank the Yale University Institution for Social and Policy Studies for their support of this project (Yale ISPS ID P20-001). Christopher Robertson was critical to the underlying empirical work discussed in this Article. We appreciate the feedback received at the Annual Center for Empirical Legal Studies Conference hosted at the University of Michigan. Special thanks to John Rappaport, Sonja Starr, Rachel Barkow, Carissa Hessick, Darryl Brown, Sim Gill, Andrew Ferguson, Jeffrey Bellin, L. Song Richardson, Cathy Hwang, Andy Hessick, Christopher Griffin, Ron Wright, and John Pfaff. We appreciate the comments of the Rocky Mountain Junior Conference, and the University of Utah faculty research grant for making this research possible. I am grateful for research assistance from Jacqueline Rosen, Alyssa Campbell, Amylia Brown, Carley Herrick, Tyler Hubbard, Emily Mabey, Olivia Ortiz, Haden Gobel, Hope Collins, Rebekah Watts, Melissa Bernstein, Alicia Brillon, Kerry Lohmeier and Ross McPhail. I am grateful for the careful editing from the Southern California Law Review staff and editors, especially Caleb Downs, Tia Kerkhof, Mindy Vo, and Samuel Clark-Clough. I am especially thankful for empirical support from Jessica Morrill. We are thankful to all of the prosecutors who nationally participated in this experiment. IRB 69654 (University of Utah).

   †        Assistant Professor of Law, Medicine, and Sociology, Penn State Law and Penn State College of Medicine; Adjunct Assistant Professor of Medical Ethics in Medicine at Weill Cornell Medical College. Thanks to Laureen O’Brien, Ellen Hill, Leann Jones, Danielle Curtin, and Joseph Radochonski for research assistance during data collection. Thanks to Veronica Rosenberger for assistance with qualitative data analysis.



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A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic by Itay Ravid, Jordan M. Hyatt, and Steven L. Chanenson

Postscript | Government
A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 Pandemic
by Itay Ravid*, Jordan M. Hyatt†, and Steven L. Chanenson‡

Vol. 95, Postscript (September 2021)
95 S. Cal. L. Rev. Postscript 1 (2021)

Keywords: Criminal Law, Public Health, Government

Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution plans that, broadly speaking, deprioritized incarcerated populations and in some cases correctional staff as well. While vaccinations are now much more widespread, things were dramatically different not too long ago. The first goal of this Essay is to ensure we memorialize how society, once again, failed to protect our incarcerated communities when they needed it the most. To illustrate this, we offer a data-driven analysis of the early state-level policies regarding vaccinations of people who live and work in prisons. Our findings show that vaccination policies tended to systematically ignore or disadvantage incarcerated individuals. We argue that by adopting such policies, states have neglected to comply with their legal obligations, grounded in existing and emerging Eighth Amendment jurisprudence and long-standing ethical responsibilities to proactively vaccinate this population. This is particularly true given that prisons are among the high-risk “congregate settings” that are widely recognized by health experts, and often by the states themselves, as deserving of immediate distribution of vaccines. Based on these obligations, and given recent new virus outbreaks and the realization that some form of COVID-19 is here to stay (and other pandemics may be around the corner), this Essay concludes with recommendations for the future.


*. Assistant Professor of Law, Villanova University Charles Widger School of Law.
†. Associate Professor of Criminology and Justice Studies, Director, Center for Public Policy,

Drexel University.
‡. Professor of Law, Villanova University Charles Widger School of Law. The authors would

like to thank Kristi Arty and Michael Slights for their terrific research assistance, and the SCLR editorial team for their careful and diligent work. Research for this Article was conducted with support provided to Dr. Hyatt (Drexel University) by Arnold Ventures. The views expressed in this Article are those of the authors and do not necessarily reflect those of the funder or any of the authors’ respective academic institutions.



A Criminal Law Based on Harm Alone: The Story Of California Criminal Justice Reform by Joshua Kleinfeld & Thomas Hoyt

Article | Criminal Law
A Criminal Law Based On Harm Alone: The Story of California Criminal Justice Reform

by Joshua Kleinfeld* & Thomas Hoyt

From Vol. 94, No. 1
94 S. Cal. L. Rev. 35 (2020)

Keywords: Criminal Law, California Law, State Law


For many criminal justice reformers, the Holy Grail of change would be a criminal system that ends the war on drugs; punishes minor property and public order offenses without incarceration (or does not handle them criminally at all); and reserves prison mainly for violent offenders. What few appreciate is that California over the last nine years has done exactly that, and the results are breathtaking in their magnitude and suddenness: from 2011 to 2019, California released 55,000 people convicted mostly of nonviolent offenses (a quarter to a third of all California prisoners) and has been declining imprisonment—which often means declining arrest and prosecution altogether—for tens of thousands more who likely would have been imprisoned a decade ago. The changes happened piecemeal; this Article is the first to put the whole picture together. But we are now in a position to describe and evaluate the whole.

We come to three conclusions. First, California criminal justice reform reduced incarceration without increasing violence, but in so doing increased property crime, public drug use, street-level disorder, and likely homelessness to such an extent as to change the texture of everyday life in some California cities, including Los Angeles and San Francisco. Second, these changes alter the relationship between individual and state substantially enough to constitute a new social contract: California has gone farther than any other American state toward a society based on John Stuart Mill’s harm principle.

Third, this array of costs and benefits is complex and nuanced enough that it is not irrational or otherwise normatively illegitimate for someone to think them either justice-enhancing or -diminishing, good for human welfare or bad for it. But what unequivocally redeems California’s new policies for California are their democratic credentials: they were accomplished through a series of elections over multiple years at multiple levels of government with a high degree of public deliberation. Criminal justice democratizers and strong proponents of federalism should endorse what California has done as a matter of political self-determination. But they might rationally not want the same thing for their own states.

*. Professor of Law and (by courtesy) Philosophy, Northwestern University. †. JD Candidate, Northwestern University Pritzker School of Law.


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