Confessions of a Teenage Defendant: Why a New Legal Rule Is Necessary to Guide the Evaluation of Juvenile Confessions – Note by Hannah Brudney

Note | Criminal Law
Confessions of a Teenage Defendant: Why a New Legal Rule
Is Necessary to Guide the Evaluation of Juvenile Confessions

by Hannah Brudney*

From Vol. 92, No. 5 (July 2019)
92 S. Cal. L. Rev. 1235 (2019)

Keywords: Criminal Law, Juvenile Confessions, Civil Rights

The cases of the “Central Park Five” and Brendan Dassey are two of the highest profile criminal cases in the past three decades. Both cases unsurprisingly captured the nation’s attention and became the subjects of several documentaries. Each case forces the public to consider how police officers could mistakenly identify and interrogate an innocent suspect, how an innocent person could feel compelled to falsely confess, and how our legal system could allow the false and coerced confession of a child to be the basis of a criminal conviction. While these two cases made national headlines, they are not unique. False confessions by juveniles are a common and even inevitable occurrence given the impact of the interrogation process on children and the inadequacies of the legal standard that currently exists to protect against juvenile false confessions.

Part I of this Note will discuss the prevalence of false confessions among juvenile suspects, and explain how juveniles’ transient developmental weaknesses make them particularly vulnerable to specific coercive interrogation techniques. Part I will also emphasize the impact that a confession has on the outcome of a defendant’s trial, thereby highlighting the weight that a false confession carries.

Part II of this Note will present the existing law governing the evaluation of the voluntariness of a confession—the procedural safeguards offered by Miranda v. Arizona and the totality of the circumstances test rooted in the concern for due process. Part II will also argue that the totality of the circumstances test is insufficient to protect juveniles because it does not give binding weight to a suspect’s age, but rather considers age among several other characteristics.

Part III of this Note will propose a new legal rule to guide the evaluation of juvenile confessions. The proposed legal rule extends and expands upon the language and holding from J.D.B. v. North Carolina, and requires that age be the primary factor in courts’ evaluations of juvenile confessions. Confessions offered by children during interrogations in which coercive techniques are employed must be presumed involuntary, given the effect that manipulative interrogation techniques have on juveniles’ likelihood to falsely confess. Moreover, given that courts often have no way of knowing the circumstances of an interrogation, confessions by all juveniles should be presumed involuntary until the prosecution can prove that no coercive interrogation techniques were used. Part III also proposes a series of policy reforms that aim to reduce the prevalence of false confessions.

*. Senior Submissions Editor, Southern California Law Review, Volume 92; J.D. 2019, University of Southern California Gould School of Law; B.A. English Literature and Psychology 2014, Columbia University. I would like to thank Professor Dan Simon for his advice and guidance, as well as the members of the Southern California Law Review for their excellent editing.

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An Uneasy Dance with Data: Racial Bias in Criminal Law – Postscript (Comment) by Joseph J. Avery


From Volume 93, Postscript (June 2019)


an uneasy dance with data: racial bias in criminal law

Joseph J. Avery[*]


Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. The founder of the largest hedge fund in the world has argued that nearly everything important going on in an organization should be captured as data.[1] Similar beliefs have permeated medicine. A team of researchers has taken over 100 million data points from more than 1.3 million pediatric cases and trained a machine-learning model that performs nearly as well as experienced pediatricians at diagnosing common childhood diseases.[2]

Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions. This aversion reflects extra-institutional forces, as activists and scholars are militating against the use of predictive analytics in criminal justice.[3] The aversion also reflects prosecutors’ unease with the practice, as many prefer that decisional weight be placed on attorneys’ experience and intuition, even though experience and intuition have contributed to more than a century of criminal justice disparities.

Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.

I.  Prosecutors and Racial Bias

More than 2 million people are incarcerated in the United States, and a disproportionate number of these individuals are African American.[4] Most defendants—approximately 95%—have their cases resolved through plea bargaining.[5] Prosecutors exert tremendous power over the plea bargaining process, as they can drop a case, oppose bail or recommend a certain level of bail, add or remove charges and counts, offer and negotiate plea bargains, and recommend sentences.[6]

When it comes to racial disparity in incarceration rates, much of it can be traced to prosecutorial discretion. Research has found that prosecutors are less likely to offer black defendants a plea bargain, less likely to reduce their charge offers, and more likely to offer them plea bargains that include prison time.[7] Defendants who are black, young, and male fare especially poorly.[8]

One possible reason for suboptimal prosecutorial decisionmaking is a lack of clear baselines. In estimating the final disposition of a case, prosecutors have very little on which to base their estimations. New cases are perpetually commenced, and prosecutors must process these cases quickly and efficiently, all while receiving subpar information; determining what happened and when is a matter of cobbling together reports from victims, witnesses, police officers, and investigators. In addition, prosecutors must rely on their own past experiences, a reliance that runs numerous risks, including that of small sample size bias. Given these cognitive constraints, prosecutors are liable to rely on stereotypes, such as those that attach to African Americans.[9]

II.  Predictive Analytics in Criminal Justice

The use of predictive analytics in the law can be bifurcated into two subsets. One involves policing, where what is being predicted is who will commit future crimes.[10] Embedded in this prediction is the question of where those crimes will occur. In theory, these predictions can be used by police departments to allocate resources more efficiently and to make communities safer.

Dozens of police departments around the United States are employing predictive policing.[11] Since 2011, the Los Angeles Police Department (“LAPD”) has analyzed data from rap sheets in order to determine how best to utilize police resources.[12] Chicago officials have experimented with an algorithm that predicts which individuals in the city are likely to be involved in a shooting—either as the shooter or as the victim.[13]

The second subset primarily involves recidivism. Here, we have bail decisions in which predictions about who will show up to future court dates are made.[14] Embedded in these predictions is the question of who, if released pretrial, will cause harm (or commit additional crimes).[15] This subset also includes sentencing, such that judges may receive predictions regarding a defendant’s likelihood of recidivating.[16]

The Laura and John Arnold Foundation (“Arnold Foundation”) designed its Public Safety Assessment tool (“PSA”) to assess the dangerousness of a given defendant.[17] The tool takes into account defendants’ age and history of criminal convictions, but it elides race and gender and supposed covariates of race and gender, such as employment background, where a defendant lives, and history of criminal arrests.[18] Risk assessments focusing on recidivism are consulted by sentencing courts.[19] These statistical prediction tools make use of a number of features (factors specific to a defendant) to produce a quantitative output: a score that reflects a defendant’s likelihood of engaging in some behavior, such as committing additional crimes or additional violent crimes.[20]

III.  Against Predictive Analytics in Criminal Justice

Statistical algorithms that have been used for risk assessment have been charged with perpetuating racial bias[21] and have been the subject of litigation.[22] A 2016 report by ProPublica alleging that an algorithm used in Florida was biased against black defendants received nationwide attention.[23] The subsequent debate about whether the algorithm actually was biased against black defendants pivoted on different definitions of fairness, with a specific focus on rates of false positives, true negatives, and related concepts.[24] Overall, the fear is that, at best, algorithmic decisionmaking perpetuates historical bias; at worst, it exacerbates bias. As one opponent of the LAPD’s use of predictive analytics said, “[d]ata is a weapon and will always be used to criminalize black, brown and poor people.”[25]

Professor Jessica Eaglin has argued that risk itself is a “malleable and fluid concept”; thus, predictive analytics focused on risk assessment give a spurious stamp of objectivity to a process that is agenda-driven.[26] Furthermore, Professor Eaglin argues that the agenda of these tools is one of increased punishment.

Critics also address the creation of the models. Some argue that the training data is nonrepresentative.[27] Others argue that recidivism is difficult to define[28] and that some jurisdictions are improperly defining it to include arrests, which may be indicative of little beyond police bias.[29] Still others debate which features such models properly should include.[30]

IV.  The Importance of Data for Criminal Justice Fairness

While it is important to question how data is used in criminal justice, the importance of data’s role in diminishing racial disparity in incarceration should not be underestimated. First, without robust data collection, we have no way of knowing when similarly-situated defendants are being treated dissimilarly. If we cannot clearly identify racial bias in the different stages of the criminal justice system, then we cannot fix it. And there is still a ways to go before prosecutorial data is properly organized and digitized.[31]

Second, data is essential for collaborative intelligence, which shows significant potential for improving prosecutorial decisionmaking. Prosecutors’ offices are in possession of information that can be used to form clear and unbiased baselines: hundreds of thousands of closed casefiles. Using advanced statistical and computer science methods, these casefiles can be used as a corpus from which to build a model that, based on an arresting officer’s narrative report and suggested charges, produces a prediction as to how a case would resolve if the defendant were treated race-neutrally. This is a classic machine-learning task: train an algorithm to produce a prediction function that relates case characteristics to case outcomes. This model can then be used to guide prosecutorial decisionmaking to make it more consistent (less variance across attorneys and across time) and less biased.

Algorithms will produce biased outcomes when the training data (the historical record) is biased and the algorithm is designed to maximize predictive accuracy. It should be obvious as to why this is the case: if predictive accuracy is the goal and the data is biased, then bias is a feature of the system, not a bug. In other words, bias must be taken into account if the prediction is to be accurate.

This is the reason why, in my research, I do not optimize prediction. My colleagues and I have different goals. Our models are not predictive models but “suggestive” models. One of our primary goals is to remove suspect bias from the model, bringing its suggestions into closer accord with Constitutional mandates for racially equal treatment of criminal defendants by state actors.

Can this be done? It is no easy feat, but researchers around the country are diligently working to build models that correct for suboptimal historical records.[32] Some of these approaches involve a weak version of disparate treatment in which the protected attribute (for example, race) is accessed during model training but omitted during classification.[33] Such approaches build from the recognition, long established in the scholarly community, that not only does blindness not entail fairness,[34] it often is a poor notion of fairness.[35]

Lastly, such models can themselves be used to identify racism that is endemic to the historical record or which emerges in the construction of the model. One strength of machine learning is that it is able to make connections between inputs and outputs that elude human actors. Social science long ago established that the human mind itself is a black box, and human actors have poor insight into their reasons for acting.[36] The black box of human decisionmaking, however, can be unpacked through careful use of statistics. Local-interpretable-model-agnostic explanations,[37] for instance, can be used to identify the aspects of input data on which a trained model relies as it makes its predictions, which should, in turn, offer insight into historical human reliance.[38]


When it comes to racial disparities, the U.S. criminal justice system is failing, and it has been failing for many years. In addition, charges of racial bias have been leveled against various organizations that are employing predictive analytics in their legal decisions. Scholars are right to question how data is being used. Past discrimination must not become enshrined in our machines. But movement away from data is also movement away from identification of unequal treatment, and it represents abandonment of the most promising path towards criminal justice fairness. While it is tempting for prosecutors’ offices to maintain the status quo and not augment their processes with data science, this would be a mistake. Collaborative intelligence has the potential to render prosecutorial decisionmaking more consistent, fair, and efficient.


[*] *. Joseph J. Avery is a National Defense Science & Engineering Graduate Fellow at Princeton University; Columbia Law School, J.D.; Princeton University, M.A.; New York University, B.A.

 [1].               Ray Dalio, Principles: Life and Work 527 (2017).

 [2]. Huiying Liang et al., Evaluation and Accurate Diagnoses of Pediatric Diseases Using Artificial Intelligence, 25 Nature Med. 433, 433 (2019),

 [3]. Karen Hao, AI is Sending People to Jail—and Getting It Wrong, MIT Tech. Rev. (Jan. 21, 2019),

 [4]. Danielle Kaeble & Mary Cowhig, Correctional Populations in the United States, 2016, Bureau Just. Stat. 1 (Apr. 2018),

 [5].               Lindsey Devers, Plea and Charge Bargaining: Research Summary, Bureau Just. Assistance 1 (Jan. 24, 2011), Plea bargaining is a process wherein a defendant receives less than the maximum charge possible in exchange for an admission of guilt or something functionally equivalent to guilt. See Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 Colum. L. Rev. 1303, 131012 (2018).

 [6]. Scott A. Gilbert & Molly Treadway Johnson, The Federal Judicial Center’s 1996 Survey of Guideline Experience, 9 Fed. Sent’g Rep. 87, 88–89 (1996); Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 Stan. L. Rev. 1211, 1215, 1219–20 (2004); Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 142226 (2008); Besiki Kutateladze et al., Do Race and Ethnicity Matter in Prosecution? A Review of Empirical Studies, Vera Inst. Just., 3–4 (June 2012),

 [7]. See Besiki Kutateladze et al., Cumulative Disadvantage: Examining Racial and Ethnic Disparity in Prosecution and Sentencing, 52 Criminology 514, 518, 527-537 (2014).

 [8]. See Gail Kellough & Scot Wortley, Remand for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions, 42 Brit. J. Criminology 186, 194–201 (2002); Besiki Kutateladze et al., Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?, 33 Just. Q. 398, 410-419 (2016).

 [9]. Decades of research at the nexus of law and psychology have identified stereotypical associations linking blackness with crime, violence, threats, and aggression. See Joshua Correll et al., The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1324-1328 (2002); Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876, 889-891 (2004); Brian Keith Payne, Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. Personality & Soc. Psychol. 181, 190-191 (2001).

 [10]. See Albert Meijer & Martijn Wessels, Predictive Policing: Review of Benefits and Drawbacks, Int’l J. Pub. Admin. 1, 2-4 (2019).

 [11].               Issie Lapowsky, How the LAPD uses Data to Predict Crime, Wired (May 22, 2018, 5:02 PM),

 [12]. Id.

 [13]. Jeff Asher & Rob Arthur, Inside the Algorithm That Tries to Predict Gun Violence in Chicago, N.Y. Times: The Upshot (June 13, 2017),

 [14].               See, e.g., Public Safety Assessment: Risk Factors and Formula, Pub. Safety Assessment [hereinafter Risk Factors and Formula], (last visited June 6, 2019).

 [15]. See Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishment in an Actuarial Age 1 (2007); Jessica M. Eaglin, Constructing Recidivism Risk, 67 Emory L.J. 59, 61 (2017); Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan. L. Rev. 803, 808–18 (2014).

 [16].               Melissa Hamilton, Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law, 47 Ariz. St. L.J. 1, 3 (2015); Anna Maria Barry-Jester et al., The New Science of Sentencing, Marshall Project (Aug. 4, 2015, 7:15 AM),

 [17]. About the PSA, Pub. Safety Assessment, (last visited June 6, 2019).

 [18]. Risk Factors and Formula, supra note 14.

 [19]. Timothy Bakken, The Continued Failure of Modern Law to Create Fairness and Efficiency: The Presentence Investigation Report and Its Effect on Justice, 40 N.Y.L. Sch. L. Rev. 363, 363–64 (1996); Starr, supra note 15, at 803.

 [20]. John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 Va. L. Rev. 391, 405–06 (2006).

 [21]. Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, 104 Calif. L. Rev. 671, 674, 678 (2016); Jessica M. Eaglin, Predictive Analytics’ Punishment Mismatch, 14 I/S: J.L. & Pol’y for Info. Soc’y 87, 102–03 (2017).

 [22]. See State v. Loomis, 881 N.W.2d 749, 75760 (Wis. 2016).

 [23]. Julia Angwin et al., Machine Bias, ProPublica (May 23, 2016),

 [24]. See Anthony W. Flores et al., False Positives, False Negatives, and False Analyses: A Rejoinder to “Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks.”, 80 Fed. Prob., Sept. 2016, at 38; see also Danielle Keats Citron & Frank Pasquale, The Scored Society: Due Process for Automated Predictions, 89 Wash. L. Rev. 1, 6 (2014) (calling for predictions that are consistent with normative concepts of fairness).

 [25]. Cindy Chang, LAPD Officials Defend Predictive Policing as Activists Call for Its End, L.A. Times (July 24, 2018, 8:20 PM),

 [26]. Eaglin, supra note 21, at 105; see also Eaglin, supra note 15, at 64.

 [27]. See Eaglin, supra note 15, at 118.

 [28]. Joan Petersilia, Recidivism, in Encyclopedia of American Prisons 215, 215–16 (Marilyn D. McShane & Frank R. Williams III eds., 1996).

 [29].               See Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 Stan. L. Rev. 523, 528–35 (1993) (arguing against reliance on unadjudicated conduct at sentencing).

 [30]. See Alexandra Chouldechova, Fair Prediction with Disparate Impact: A Study of Bias in Recidivism Prediction Instruments, 5 Big Data 153, 153-162 (2017); Don A. Andrews, Recidivism Is Predictable and Can Be Influenced: Using Risk Assessments to Reduce Recidivism, Correctional Serv. Can. (Mar. 5, 2015),; Jon Kleinberg et al., Inherent Trade-Offs in the Fair Determination of Risk Scores, Proc. of Innovations in Theoretical Computer Sci. (forthcoming 2017).

 [31].               Besiki L. Kutateladze et al., Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, MacArthur Foundation 2 (2018),
news/2018/prosecutorial-attitudes-perspectives-and-priorities-insights-from-the-inside/report-1.pdf; see also Andrew Pantazi, What Makes a Good Prosecutor? A New Study of Melissa Nelson’s Office Hopes to Find Out, Fla. Times Union, (last updated Mar. 12, 2018, 11:18 AM).

 [32]. See Alexander Amini et al., Uncovering and Mitigating Algorithmic Bias through Learned Latent Structure (2019) (unpublished manuscript),
main/AIES-19_paper_220.pdf. For another approach at building a non-discriminatory classifier, see Irene Chen et al., Why Is My Classifier Discriminatory?, in 31 Advances in Neural Info. Processing Systems 1, 3-9 (2018),

 [33]. See Zachary C. Lipton et al., Does Mitigating ML’s Impact Disparity Require Treatment Disparity?, in 31 Advances in Neural Infor. Processing Systems 1, 9 (2018),

 [34]. Cynthia Dwork et al., Fairness through Awareness, in Proceedings 3rd Innovations in Theoretical Computer Sci. Conf. 214, 218 (2012),

 [35]. Moritz Hardt et al., Equality of Opportunity in Supervised Learning 1819 (Oct. 11, 2016) (unpublished manuscript),

 [36]. See Richard E. Nisbett & Timothy DeCamp Wilson, Telling More Than We Can Know: Verbal Reports on Mental Processes, 84 Psychol. Rev. 231, 251-257 (1977).

   [37].               Introduced by Professors Marco Ribeiro, Sameer Singh, and Carlos Guestrin, “local interpretable model-agnostic explanations,” refers to a computer science technique that attempts to explain the predictions of any classifier by learning an interpretable model around the primary prediction. See Marco T. Ribeiro et al., “Why Should I Trust You?”: Explaining the Predictions of Any Classifier, ACM 1 (Aug., 2016),

 [38]. See Michael Chui et al., What AI Can and Can’t Do Yet for Your Business, McKinsey Q., Jan. 2018, at 7,


What’s in a Claim? Challenging Criminal Prosecutions Under the FTAIA’s Domestic Effects Exception – Note by Jay Kemper Simmons

From Volume 92, Number 1 (November 2018)

What’s in a Claim? Challenging Criminal Prosecutions Under the FTAIA’s Domestic Effects Exception

Jay Kemper Simmons[*]



I. Legal Background

A. Historical Foundations of Extraterritoriality
in U.S. Competition Law

1. Extraterritorial Criminal Liability Under the
Sherman Act: Exploring the Shift from
Territoriality to Effects

2. Principles of International Comity and Fairness

B. The FTAIA’s Domestic Effects Exception

C. Hui Hsiung, Motorola Mobility, and Beyond

II. The FTAIA Does Not Authorize Extraterritorial Criminal Prosecutions

A. Textualism Foundationally Supports a Narrow Construction of the Domestic Effects Exception’s
“Claim” Language

B. Narrow Interpretation of the FTAIA Comports with International Comity Principles and Applicable
Canons of Construction

C. Distinct Remedies Reflect Distinct Treatment
of Civil and Criminal Actions Under the FTAIA

III. Implications for an Interconnected Global Political Economy




O be some other name!

What’s in a name? That which we call a rose

By any other word would smell as sweet . . . .

                            William Shakespeare, Romeo and Juliet act 2, sc. 2

Americans recently awoke to a startling revelation: “Our country is getting ripped off.”[1] Indeed, the purportedly deleterious effects of international trade on the United States domestic economy have claimed top billing in President Donald Trump’s nascent “America First” agenda.[2] As the White House publicly excoriates international free trade for the first time in recent memory, global trade deals and domestic tariffs are cast in stark relief.[3] China and Mexico, along these lines, are cast as chief culprits in a system of international exchange allegedly designed to subjugate American workers to nefarious foreign interests.[4] Overall, recent politics underscore the practical importance of, and interdependence between, competition and cooperation in international economic regulation.[5]

In the arena of hard-nosed international competition, it’s all fun and games––until somebody starts a trade war.[6] But beyond the scope of trade deals and tariffs, sovereign states’ domestic antitrust laws are also critical regulatory levers. Americans at the Antitrust Division of the Department of Justice and the Federal Trade Commission have the power to influence incentives in markets across the globe. For example, although domestic by nature, U.S. antitrust laws do not exclusively apply to conduct in domestic markets—the Sherman Act may extend far beyond American shores to activities conceived and executed abroad.[7]

Although it is understood that extraterritorial antitrust liability may exist with respect to certain foreign conduct, courts, businesses, and practitioners have struggled to concretely define the contours of this liability in practice.[8] Judicial construction of the Sherman Act’s “charter of freedom”[9] currently permits civil actions and criminal prosecutions against foreign anticompetitive conduct based solely on American domestic law. In the United States, liability may attach to foreign conduct even if the allegedly anticompetitive acts occur entirely beyond the territory over which the United States exerts sovereign control.[10]

Moreover, given its impact on the interests of market participants and sovereign states, extraterritorial application of the Sherman Act remains highly controversial in academic and professional legal circles.[11] In part due to the emergence of modern global supply chains, which often span several sovereign jurisdictions,[12] debate about extraterritoriality in U.S. competition policy has reached a fever pitch.[13]

Enter the Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA” or “the Act”).[14] In 1982, Congress passed the FTAIA, putatively in order to clarify the limits of the Sherman Act in reaching certain foreign and export activities.[15] In early 2015, however, the United States Court of Appeals for the Ninth Circuit upheld the convictions of a Taiwanese electronics-manufacturing firm, AU Optronics, and its executives for criminal price fixing, in part based on the FTAIA’s so-called “domestic effects” exception.[16] In a decision assessing several independent challenges to the defendants’ extraterritorial criminal convictions, the panel ruled that an “effects” theory was independently sufficient to support criminal price-fixing charges under the FTAIA, absent an allegation that any acts in furtherance of the conspiracy occurred in the United States:

The defendants . . . urge that . . . the nexus to United States commerce was insufficient under the Sherman Act as amended by the Foreign Trade Antitrust Improvements Act of 1982 . . . . The defendants’ efforts to place their conduct beyond the reach of United States law and to escape culpability under the rubric of extraterritoriality are unavailing. . . . The verdict may . . . be sustained under the FTAIA’s domestic effects provision because the conduct had a “direct, substantial, and reasonably foreseeable effect on United States commerce.”[17]

From one perspective, the defendants’ foreign collusive activities were fairly traceable to U.S. markets, and thus fully within the purview of American antitrust laws, based on its direct connection to some qualifying “effect” on nonimport domestic commerce.[18] This rationale rendered the defendants in United States v. Hui Hsiung subject to the weight of criminal antitrust penalties under the Sherman Act, although the entirety of the defendants’ underlying conduct occurred overseas. The court suggested that this criminal punishment was only fair, as the defendants’ wholly foreign anticompetitive activities entailed some “direct, substantial, and reasonably foreseeable effect on United States commerce,”[19] which was legally cognizable through overcharges paid by Americans for electronic goods that had incorporated the defendants’ price-fixed LCD-panel component parts.[20]

Regrettably, however, the final panel decision affirmed the defendants’ criminal convictions without substantively evaluating a critical merits inquiry[21]: whether the FTAIA’s “domestic effects” exception even authorizes the underlying extraterritorial criminal prosecution as a “claimunder the Sherman Act.[22] This Note posits, contrary to the Ninth Circuit’s amended decision in Hui Hsiung, that the FTAIA’s domestic effects exception does not authorize American regulators to prosecute wholly foreign conduct under the Sherman Act. In the three years since Hui Hsuing, both the Supreme Court and Congress have failed to meaningfully address how to properly read the FTAIA.[23]

This Note builds on published legal decisions, practitioner resources, and academic commentaries to paint a fuller picture of the FTAIA’s domestic effects exception and, in particular, its proper scope in the context of extraterritorial criminal prosecutions.[24] Part I explores the historical development of extraterritorial antitrust jurisprudence in the United States, the FTAIA’s substantive requirements, and recent cases evaluating extraterritorial enforcement under the Act. Part II evaluates the prevailing approach under Hui Hsiung and makes the case that the FTAIA does not independently authorize extraterritorial criminal antitrust prosecutions. Part III discusses criminal liability implications under Hui Hsiung and related antitrust jurisprudence for international businesses and their agents. In sum, through discussion of the FTAIA’s history, text, and teleological aspects, this Note aims to clarify the proper scope of extraterritorial criminal antitrust actions under the Sherman Act, as amended by the Foreign Trade Antitrust Improvements Act of 1982.[25]

I.  Legal Background

A.  Historical Foundations of Extraterritoriality in U.S. Competition Law

Before diving into the current state of criminal prosecutions under the FTAIA’s domestic effects exception, it is first critical to trace the development of American criminal antitrust prosecutions beyond the territorial borders of the United States. Prior to passage of the FTAIA (and arguably even after its codification),[26] courts—rather than legislators—primarily defined the extraterritorial contours of the Sherman Act. The following sections trace a series of seminal decisions regarding the proper scope of the Sherman Act in international commerce prior to and following the passage of the FTAIA. This historical foundation informs a narrow interpretation of the FTAIA’s domestic effects exception in criminal prosecutions.[27]

1.  Extraterritorial Criminal Liability Under the Sherman Act: Exploring the Shift from Territoriality to Effects[28]

The Sherman Act prohibits monopolization and unlawful restraints on “commerce . . . with foreign nations.”[29] Thus, the statute unambiguously applies to conduct with foreign actors and opens the possibility of government prosecutions for “bad apples” in the high-stakes game of global competition. Historically, however, federal courts hesitated to apply the Sherman Act’s provisions—along with related laws, such as the Clayton Act and the Federal Trade Commission Act—to conduct that occurred beyond the territorial boundaries of the United States.

Traditional notions of sovereignty largely informed the dominant, territorial conception of American courts’ narrow jurisdiction over foreign anticompetitive conduct. The territorial location of the underlying conduct, rather than the site of its fairly traceable effects, served as the relevant standard for determining jurisdiction over foreign anticompetitive conduct. Justice Holmes’ decision in American Banana Co. v. United Fruit Co., for example, reflects the historic presumption against extraterritorial application of the Sherman Act:

Words having universal scope, such as every contract in restraint of trade, every person who shall monopolize, etc., will be taken, as a matter of course, to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch. In the case of the present statute, the improbability of the United States attempting to make acts done in Panama or Costa Rica criminal is obvious, yet the law begins by making criminal the acts for which it gives a right to sue. We think it entirely plain that what the defendant did in Panama or Costa Rica is not within the scope of the statute so far as the present suit is concerned.[30]

Although this prima facie territorial presumption applied seemingly to “all legislation” passed by Congress under Justice Holmes’ view, the jurisprudential tide steadily shifted to embrace the imposition of antitrust liability for conduct conceived or executed beyond U.S. borders.[31] Over time, the Supreme Court came to stray from a strict territoriality standard and adopted a much broader standard that granted courts antitrust jurisdiction over activities with certain “effects on competition in the United States.”[32]

Judge Learned Hand’s approach in United States v. Aluminum Co. of America (“Alcoa”) definitively established that foreign anticompetitive acts involving import commerce could be criminally prosecuted in American courts.[33] A unanimous panel of the United States Court of Appeals for the Second Circuit found a Canadian corporation to be in violation of Sherman Act section based on its agreement with European aluminum producers not to compete in the American market for virgin ingot.[34] The decision marked a notable shift in extraterritorial interpretation of the Sherman Act; Hand’s majority opinion not only served as the final decision in lieu of Supreme Court review,[35] but also significantly expanded the global reach of American antitrust laws to include activities with effects on import commerce.[36]

Rather than territoriality, the touchstone of extraterritorial antitrust liability shifted decidedly toward the tangible effects of foreign anticompetitive conduct on domestic markets. With respect to such effects, Judge Hand candidly noted, “[a]lmost any limitation of the supply of goods in Europe, . . . or in South America, may have repercussions in the United States if there is trade between the two.”[37] Shifting to an effects standard required reasonable limits; otherwise, American courts would adjudicate seemingly every global competition dispute.[38] Although the court in Alcoa embraced an effects test for extraterritorial Sherman Act violations, it also warned, “[w]e should not impute to Congress an intent to punish all whom its courts can catch, for conduct which has no consequences within the United States.”[39] Despite concerning only conduct directly involving import commerce, Alcoa’s non-territorial, effects-centered rationale has been generally incorporated into criminal antitrust precedents after passage of the FTAIA.[40]

Thus, courts historically hesitated to apply domestic law to activity beyond U.S. territorial borders, which traditionally delineated the outer bounds of American sovereignty. After Alcoa, however, courts’ antitrust jurisdiction would expand considerably to encompass criminal penalties for anticompetitive conduct involving direct import trade and commerce.[41]

2.  Principles of International Comity and Fairness

Another judicial innovation concerns the doctrine of international comity.[42] Despite finding sufficient anticompetitive effects targeting domestic commerce to support domestic jurisdiction, courts may nevertheless decline to apply U.S. law to foreign conduct under the judicial constructs of “international comity and fairness.”[43] To determine the propriety of invoking comity to bar an antitrust action, courts widely consider several factors, including: (1) the parties’ nationality, allegiance, or principal locations; (2) the relative importance of domestic and foreign conduct in the allegations; (3) the relative effects on all countries involved; (4) the clarity of foreseeability of a purpose to affect or harm domestic commerce; (5) foreign law or policy and degree of conflict with American policy or law; and (6) compliance issues.[44]

For example, in Timberlane Lumber Co. v. Bank of America, international comity factors suggested that the court “should refuse to exercise jurisdiction,” in part because “[t]he potential for conflict with Honduran economic policy and commercial law [was] great,” and “[t]he effect on the foreign commerce of the United States [was] minimal.”[45] The “jurisdictional rule of reason” embodied in the Timberlane opinion attempted to balance domestic concerns with the interests of foreign states in adjudicating legal disputes. Thus, in American antitrust law, the comity doctrine adds greater nuance to courts’ treatment of the domestic effects that stem from foreign anticompetitive conduct.[46]

The comity doctrine reinforces a norm of reasonableness when applying domestic laws to foreign actors—agents who, in many cases, may not be fair targets for enforcement actions under the Sherman Act. In that vein, the third Restatement on Foreign Relations Law of the United States characterizes comity as a “principle of reasonableness” that applies to a court’s authority to adjudicate disputes and enforce remedies.[47] The comity doctrine has historically empowered federal courts with a measure of discretionary authority over how far domestic authorities can reach abroad to target foreign defendants, as well as how far private plaintiffs can project domestic claims across national borders. These considerations remain critical even after passage of the FTAIA.[48] Without considering fairness and foreign sovereignty in applying domestic laws, U.S. courts would risk dangerously overreaching into the affairs of international partners, as well as upsetting the constitutionally ingrained separation of powers between judicial, legislative, and executive branches of government.[49]

The Timberlane test has been widely embraced by courts in extraterritorial antitrust actions.[50] The Ninth Circuit’s analysis built a compelling case for declining to extend domestic antitrust laws to a foreign transaction in which an American corporation, Bank of America, allegedly manipulated the Honduran national government to prevent its competitor, Timberlane, from exporting lumber into the United States.[51] Beyond the facts of Timberlane, however, Hartford Fire Insurance Co. v. California suggests an alternative approach.[52]

In Hartford Fire, the Supreme Court—without deciding whether federal courts may ever decline to exercise subject matter jurisdiction over Sherman Act claims concerning foreign conduct—determined that principles of international comity are not relevant in the absence of a “true conflict” between domestic and foreign law.[53] The petitioners in Hartford Fire claimed error based on the district court’s failure to decline to exercise antitrust jurisdiction under the principle of international comity.[54] As the petitioners did not allege that British law mandated that they act in violation of the Sherman Act, however, the Court found no direct conflict of law and therefore quickly concluded that there was “no need . . . to address other considerations that might inform a decision to refrain from the exercise of jurisdiction on grounds of international comity.”[55]

The Court further ruled that the plaintiffs’ civil antitrust action could proceed, despite concerns regarding the application of domestic laws to the defendants’ foreign acts, so long as such foreign acts “[were] meant to produce and did in fact produce some substantial effect in the United States.”[56] It remains unclear to what degree the rule in Hartford Fire governs comity decisions in extraterritorial criminal prosecutions under the Sherman Act. In the absence of clear guidance on this aspect of international comity in federal courts, principles of comity and fairness continue to play integral roles in extraterritorial antitrust analysis under either the Hartford Fire or Timberlane standards.

B.  The FTAIA’s Domestic Effects Exception

Although it remains unclear whether the FTAIA “amend[ed] existing law or merely codifie[d] it,”[57] courts have construed the statute to comport with the Sherman Act’s historical scope. The statute operates along with case law concerning how far plaintiffs may extend federal courts’ extraterritorial antitrust jurisdiction.[58] Prior to assessing the efficacy of the prevailing construction of the FTAIA’s “claim” language, however, it is helpful to discuss the language of the domestic effects exception, the intended purposes of the provision, and the early cases that largely ignored the statute in extraterritorial antitrust analysis.

The FTAIA facially excludes most foreign conduct from the scope of the Sherman Act. Two narrow exceptions bring wholly foreign activity back within the scope of domestic antitrust law.[59] Under the FTAIA’s “domestic effects” exception, the Sherman Act “shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations,” unless: (1) “such conduct has a direct, substantial, and reasonably foreseeable effect” on domestic trade or commerce, and that effect (2) “gives rise to a claim” under the Sherman Act.[60] Courts have clarified that conduct involving direct “import trade or import commerce” unambiguously falls within the scope of the Sherman Act under the FTAIA.[61]

In practice, the FTAIA applies when anticompetitive conduct is foreign in nature.[62] Courts have consistently noted since its passage, however, that lawmakers passed the Act primarily to “facilitat[e] the export of domestic goods by exempting export transactions that did not injure the United States economy from the Sherman Act and thereby reliev[e] exporters from a competitive disadvantage in foreign trade.”[63] Ironically, then, the FTAIA aimed to clarify when foreign anticompetitive conduct gives rise to domestic antitrust liability primarily in order to clarify that American firms can behave anticompetitively—so long as they only target foreign markets.[64] The notion that the FTAIA enables criminal prosecutions to remedy competitive harms in U.S. markets is notably absent in congressional findings related to the Act’s purpose, although the legislative history does broadly mention “Department of Justice enforcement.”[65]

The Act was further designed to provide appropriate “legislative clarification” of the antitrust laws, which presented “an unnecessarily complicating factor in a fluid environment” of international exchange, and allegedly caused many “possible transaction[s] [to] die on the drawing board.”[66] Despite endorsing the “situs of effects standard authoritatively articulated in Alcoa, the legislative history uncovers debate concerning the “precise legal standard to be employed” for assessing the requisite “effects” on domestic or import trade or commerce.[67] Lawmakers generally acknowledged, “it has been relatively clear that it is the situs of the effects as opposed to the conduct, that determines whether United States antitrust law applies.”[68] In line with judicial precedents, Congress intended to “enact[] . . . a single, objective test—the ‘direct, substantial, and reasonably foreseeable effect’ test” to clarify precisely which effects trigger extraterritorial antitrust liability for “businessmen, attorneys and judges as well as foreign trading partners.”[69]

The legislative history suggests primary consideration of domestic commercial interests in export markets—interests that were increasingly complicated by the extraterritorial application of the Sherman Act.[70] Yet the statute has by no means proven simple and straightforward for antitrust practitioners. In that vein, prevailing academic commentary strongly suggests that the Act, falling just short of an outright failure worthy of repeal,[71] has demanded more from the federal courts—tribunals that must now apply the complicated statute in tandem with an expansive terrain of Sherman Act precedents.[72]

The Supreme Court first tackled the FTAIA in Hartford Fire. The majority declined to apply the statute in an analysis of civil claims under the Sherman Act.[73] The Court declined to rest its section 1 ruling on the FTAIA’s effects language, and instead relied entirely on Sherman Act precedents.[74] Nevertheless, the effects-centered rationale imbued in the FTAIA’s legislative history and prior precedents carried into decisions rendered after passage of the Act, as in United States v. Nippon Paper Industries and F. Hoffman-La Roche, Limited v. Empagran S.A. Although Hartford Fire only addressed the limited role of the FTAIA in civil antitrust proceedings, these later decisions grappled with the thornier issue of how to interpret the FTAIA and Sherman Act in the context of criminal prosecutions.

The district court in Nippon Paper (Nippon I) reviewed the defendants’ motions to dismiss a criminal antitrust indictment.[75] The indictment targeted a Japanese fax paper manufacturer for participating in meetings, agreements, and monitoring activities that took place entirely in Japan.[76] Notably, the court “disagree[d] with [the U.S. government’s] suggested equating of the Sherman Act’s civil and criminal application” with respect to wholly foreign conduct.[77] Given a “strong presumption against extraterritorial application of federal statutes” in criminal matters, the district court reasoned that “the line of cases permitting extraterritorial reach in civil actions is not controlling” in determining whether the Sherman Act’s criminal provisions can reach wholly foreign conduct.[78]

Citing prior judicial treatment of the language of the Sherman Act, academic commentary on its extraterritorial reach, policies underlying antitrust and criminal law, and relevant legislative history, the court concluded that the “criminal provisions of the Sherman Act do not apply to conspiratorial conduct in which none of the overt acts . . . take place in the United States.”[79] Thus, on first impression, the court in Nippon I differentiated between the requirements of an extraterritorial civil claim and an extraterritorial criminal prosecution under the FTAIA.

The district court’s holding remained intact for 165 days. The United States Court of Appeals for the First Circuit swiftly reversed the judgment, holding in Nippon II that, under Hartford Fire, the defendants could be criminally liable for agreeing to employ retail price maintenance strategies with various firms that distributed paper in the United States (notwithstanding the FTAIA’s terms).[80] The court sidestepped Hartford Fire’s civil posture by emphasizing that “in both criminal and civil cases, the claim that Section One applies extraterritorially is based on the same language in the same section of the same statute.”[81]

Despite pausing to note the “inelegantly phrased” FTAIA, the panel’s decision nevertheless declined to “place any weight on it,” following Hartford Fire.[82] The majority also reasoned that, without meaningful distinction in the Sherman Act’s treatment of civil and criminal liability, “it would be disingenuous . . . to pretend that the words had lost their clarity simply because this is a criminal proceeding.”[83] The decision explained how

Hartford Fire definitively establishe[d] that Section One of the Sherman Act applies to wholly foreign conduct which has an intended and substantial effect in the United States. We are bound to accept that holding. Under settled principles of statutory construction, we also are bound to apply it by interpreting Section One the same way in a criminal case. The combined force of these commitments requires that we accept the government’s . . . argument, reverse the order of the district court, reinstate the indictment, and remand for further proceedings.[84]

In addition, despite ultimately arriving at the same conclusion regarding the applicability of the Sherman Act’s criminal provisions to wholly foreign conduct, the detailed concurrence in Nippon II provided greater historical context for courts’ broad “interpretive responsibility” in adjudicating Sherman Act claims:

The task of construing [the Sherman Act in a criminal context] is not the usual one of determining congressional intent by parsing the language or legislative history of the statute. The broad, general language of the federal antitrust laws and their unilluminating legislative history place a special interpretive responsibility upon the judiciary. The Supreme Court has called the Sherman Act a charter of freedom for the courts, with a generality and adaptability comparable to that found . . . in constitutional provisions.[85]

Thus, by the turn of the century, the FTAIA’s substantive provisions were manifested as mere legislative gloss on prevailing judicial principles. Both the district court and the appellate court in Nippon Paper declined to find the FTAIA dispositive of extraterritorial criminal antitrust prosecutions, instead falling back to traditional conceptions of liability under the Sherman Act.

Nevertheless, the notable contrast in the district court’s and the appellate courts treatments of the Sherman Act’s extraterritorial criminal provisions underscores a key development in extraterritorial antitrust jurisprudence. Although Nippon II stands for the proposition that wholly foreign conduct may give rise to criminal liability under the Sherman Act based on the plain language of the statute and its “common sense” application,[86] reasonable minds differ with respect to the proper extraterritorial limits on the antitrust jurisdiction of federal courts. For example, the district court’s reasoning in Nippon I stands against the dominant, casual assumption that indictments are interchangeable with civil “claims” when anticompetitive conduct occurs beyond U.S. borders, based on reasonable application of similar tools of statutory interpretation as the court in Nippon II. The fact that the appellate panel declined to endorse the district court’s handiwork, and instead crafted its own interpretive edifice with its preferred tools, is by no means dispositive of the merits of the district court’s reasoning.[87]

In 2004, the Supreme Court finally weighed in on the FTAIA’s domestic effects exception in F. Hoffman-La Roch, Ltd. v. Empagran. Two decades after the passage of the Act, the Court reasoned that its “claim” language refers directly to the “plaintiff’s claim, or the claim at issue.”[88] In Empagran, the Court held that foreign purchasers of vitamins could not recover under the FTAIA based merely on allegations that their own foreign harms from international price-fixing activity coincided with some domestic injury.[89] Thus, foreign purchaser plaintiffs in a civil antitrust action must now prove that the alleged anticompetitive effect on domestic trade or commerce itself gives rise directly and proximately to their own foreign injuries.[90] Foreign plaintiffs cannot “piggyback” on an indirect domestic effect to get into American courts on antitrust claims under the FTAIA. Following Empagran, the requisite domestic effect must proximately cause an antitrust plaintiff’s claimed injuries[91]—and it is the plaintiff’s burden of proof and persuasion to demonstrate proximate causation with respect to a domestic effect and his or her “claim.”

C.  Hui Hsiung, Motorola Mobility, and Beyond

Recent circuit court judgments in United States v. Hui Hsiung[92] and Motorola Mobility, LLC v. AU Optronics Corp.[93] endorse criminal prosecution of foreign anticompetitive conduct based on the FTAIA’s domestic effects prong. Further, in denying certiorari for these conspiracy cases,[94] the Supreme Court let the final circuit decisions lie undisturbed, even in light of potential analytical deficiencies.[95] Careful consideration of both decisions sets the stage for analysis of the FTAIA’s “claim” language.[96]

Hui Hsiung and Motorola Mobility stem from the same conspiracy to fix prices for liquid crystal display (“LCD”) panels,[97] component parts incorporated into electronics products sold in the United States and elsewhere.[98] Specifically, between 2001 and 2006, “representatives from six leading [LCD] manufacturers,” including defendant AU Optronics, met in Taiwan for a “series of meetings” that “came to be known as the ‘Crystal Meetings.’”[99] The Ninth Circuit explained that after these meetings,

participating companies produced Crystal Meeting Reports. These reports provided pricing targets for TFTLCD sales, which, in turn, were used by retail branches of the companies as price benchmarks for selling panels to wholesale customers. More specifically, [AU Optronics Corporation of America] used the Crystal Meeting Reports that [AU Optronics] provided to negotiate prices for the sale of TFTLCDs to United States customers including HP, Compaq, ViewSonic, Dell, and Apple.[100]

The government alleged that the foreign conspiracy constituted a textbook example of a concerted agreement among direct competitors to restrain trade: “[s]pecifically, the indictment charged that ‘the substantial terms’ of the conspiracy were an agreement ‘to fix the prices of TFTLCDs for use in notebook computers, desktop monitors, and televisions in the United States and elsewhere.’”[101] From 2001 to 2006, the United States constituted “one-third of the global market for personal computers incorporating [LCD panels],” and sales by conspirators into the U.S. market generated “over $600 million in revenue.”[102]

After being indicted in the Northern District of California for price fixing under section 1 of the Sherman Act, the defendants twice unsuccessfully attempted to dismiss the charges before proceeding to trial.[103] The panel suggests that “the reach of the Sherman Act to conduct occurring outside of the United States” marked “a contentious subject” in pretrial proceedings.[104] The district court instructed the jury that it may uphold the charges upon finding that the government proved “beyond a reasonable doubt . . . that the conspiracy had a substantial and intended effect in the United States,” even without a single action taken by a single member of the conspiracy in furtherance of the conspiracy within the United States.[105] The district court also instructed that the jury could uphold the charge separately upon finding that the government proved beyond a reasonable doubt that at least one member of the conspiracy took at least one action in furtherance of the conspiracy within the United States.”[106] Ultimately, the jury convicted the defendants and determined that combined gains derived from the conspiracy were in excess of $500 million.[107] Individual and corporate defendants appealed their convictions, and AU Optronics appealed imposition of a $500 million fine.[108]

On appeal, the Ninth Circuit initially declined to determine whether the government had satisfied its burden to convict based on the domestic effects prong, instead concluding narrowly that “the FTAIA did not bar the prosecution because the government sufficiently proved that the defendants engaged in import trade.”[109] The panel subsequently amended their initial opinion (“amended opinion”) and noted that whenever a case involves nonimport trade with foreign nations, the Sherman Act presumptively does not apply—unless the FTAIA’s domestic effects prong applies.[110]

But the panel’s amended analysis did not stop there. The decision independently sustained the defendants’ convictions based on “domestic effects.”[111] Despite a dearth of meaningful discourse regarding the FTAIA’s “claim” language,[112] the panel independently authorized criminal penalties amounting to $500 million against AU Optronics (matching “the largest fine imposed against a company for violating U.S. antitrust laws”), individual fines totaling $400,000, and a total of six years in federal prison.[113] In this sense, the amended opinion reasoned to the same conclusion as the initial opinion, but with considerably broader precedential scope.

The Ninth Circuit aimed to include within the scope of the Sherman Act only those acts that actually have a direct and proximate “effect” on domestic markets. The panel explains in great length that an effect must be “direct, substantial, and reasonably foreseeable” to trigger Sherman Act jurisdiction on the basis of alleged “domestic effects.”[114] Yet despite noting that the FTAIA presents additional substantive elements for a Sherman Act prosecution involving international commerce with domestic effects,[115] the panel declined to warrant its conclusion that the government proved an essential element of its case beyond a reasonable doubt––that AU Optronics’ conduct “[gave] rise” to the government’s so-called “claim” under the antitrust laws.[116]

A subtle aspect of the Ninth Circuit’s amended opinion underscores an important development in post-FTAIA extraterritorial antitrust jurisprudence: “[t]o allege a nonimport trade claim under the Sherman Act, the claim must encompass the domestic effects elements.”[117] Under the domestic effects exception, the government must now prove the existence of (1) a domestic effect that (2) “gives rise to” a “claim” as substantive elements of a criminal charge. Hui Hsiung reinforces the dominant interpretation of the FTAIA as providing additional substantive requirements of antitrust claims in the extraterritorial context, concomitantly placing additional burdens on all plaintiffs in such actions.[118] Viewing the FTAIA’s elements as substantive, rather than jurisdictional, requires that government plaintiffs’ allegations and, ultimately, direct proof must satisfy each of the “domestic effects” elements in cases not involving direct import commerce.[119]

In Motorola Mobility, the Seventh Circuit reviewed a judgment entered in a suit brought by Motorola, along with “its ten foreign subsidiaries,” which purchased liquid-crystal display panels and incorporated them into cellphones.[120] The panel first briefly explained the nature of the disputed panel sales in the civil action:

[a]bout 1 percent of the panels sold by the defendants to Motorola and its subsidiaries were bought by, and delivered to, Motorola in the United States for assembly here into cellphones; to the extent that the prices of the panels sold to Motorola had been elevated by collusive pricing by the manufacturers, Motorola has a solid claim under section 1 of the Sherman Act. The other 99 percent of the cartelized components, however, were bought and paid for by, and delivered to, foreign subsidiaries (mainly Chinese and Singaporean) of Motorola. Forty-two percent of the panels were bought by the subsidiaries and incorporated by them into cellphones that the subsidiaries then sold to and shipped to Motorola for resale in the United States. Motorola did none of the manufacturing or assembly of these phones. The sale of the panels to these subsidiaries is the focus of this appeal.[121]

Ultimately, the court concluded that Motorola’s “derivative” competitive claims were barred under the indirect-purchaser doctrine.[122] AU Optronics and related conspirators were therefore immunized from civil antitrust liability to indirect customers, like Motorola and its customers, although its subsidiaries could still pursue independent civil claims overseas.

The court stated that under the FTAIA’s “domestic effects” exception “[t]he first requirement, if proved, establishes that there is an antitrust violation; the second determines who may bring a suit based on it.”[123] Implicitly, the panel reasoned that Motorola—a party directly affected on its balance sheet by overcharges from the panel sales, despite integrating these technologies into final consumer products through foreign subsidiaries—was, unlike the United States government, not among the select few “who may bring a suit” involving foreign commerce under the Sherman Act.

The decision concluded by suggesting, “[i]f price fixing by the component manufacturers had the requisite statutory effect on cellphone prices in the United States, the Act would not block the Department of Justice from seeking criminal . . . remedies.”[124] Although this statement stands as non-binding dicta with respect to the FTAIA’s domestic effects prong, its implications are straightforward: federal criminal prosecutions are “claims” under the domestic effects exception and may support a conviction under the antitrust laws if the government can satisfy proof beyond a reasonable doubt. Obtusely, however, the court barred civil recovery for an American corporation harmed directly by the conspiracy, reasoning that Motorola could better pursue such claims through its subsidiaries “direct” claims in foreign jurisdictions.[125]

The final circuit opinions include analytical deficiencies, particularly with respect to the threshold requirements for invoking “domestic effects.”[126] Neither decision identifies a clear reason for concluding that the “domestic effects” test supports criminal prosecutions under the Sherman Act, as both leave untouched the question of whether a criminal action may ever “give rise to” a “claim” under the antitrust laws. In that vein, Part II posits that the FTAIA’s “claim” language should be narrowly interpreted in line with its original meaning, which did not authorize international criminal prosecutions.

II.  The FTAIA Does Not Authorize Extraterritorial Criminal Prosecutions

Congress passed the FTAIA to limit the criminal justice authority of American antitrust authorities over nonimport foreign commerce—not to expand it. Part II argues the case for narrow construction of the FTAIA’s “claim” language with respect to extraterritorial criminal prosecutions. After presenting a case for departure from the approach laid out in Hui Hsiung, Part III considers various implications of the current state of the law on international businesses, multinational corporate executives, and their agents.

A.  Textualism Foundationally Supports a Narrow Construction of the Domestic Effects Exception’s “Claim” Language

Courts frequently begin an assessment of apparent ambiguities in statutory meaning based on “pure textual reliance.”[127] In some cases, American courts divine the “meaning of a statute . . . entirely from the words used in the law under consideration.”[128] The plain statutory language, authoritative definitions of terms in secondary source materials, and the ordinary or common usage of terms or phrases in the statute, as well as related sections of the law, may illuminate statutory meaning in the absence of clear legislative intent.[129] These engrained methods suggest that the FTAIA’s domestic effects prong does not support criminal prosecutions.

The Act ought to be interpreted in line with its unambiguous terms. Fortunately, the words “claim” and “prosecution” are terms with distinct meanings in the legal lexicon. At the outset, it is useful to note that the more general term “action” may encompass civil and criminal redress under the Sherman Act. By contrast, at least in the American legal system, plaintiffs asserting a “claim” under a given statute ordinarily would do so only with respect to the civil aspects of the statute––as where a civil plaintiff alleges “claims” against a civil defendant in adversary legal proceeding. This textual distinction is not accidental; it is reflective of fundamental underlying differences between civil and criminal actions under the FTAIA. The courts should treat it as such.

The Act does not expressly define the term “claim,” however. Thus, legal practitioners and jurists should typically import the plain or ordinary meaning of the term, as defined in secondary source materials. One source commonly relied upon is an authoritative definition in a legal dictionary. According to Black’s Law Dictionary, a claim may entail the “assertion of an existing right,” a “right to payment or to an equitable remedy,” or a “demand for money, property, or a legal remedy to which one asserts a right, esp[ecially] the part of a complaint in a civil action specifying what relief the plaintiff asks for.”[130] By contrast, criminal “prosecutions” ordinarily entail “criminal proceeding[s] in which an accused person is tried.”[131] From a textual standpoint, then, these terms entail distinct proceedings in statutory parlance. This observation strongly suggests that it would be erroneous to casually equate the term “claim” with any “criminal proceeding.”

Moreover, the sharp contrast between authoritative legal definitions of the terms “claim” and “prosecution” is accentuated by ingrained uses for the terms in distinct legal proceedings. In ordinary use, surely, the word “claim” would not be used to describe highly specialized terms in criminal procedure, such as “prosecution,” and “indictment,” and “plea.” Broad usage of “claim” would, in fact, more likely lead to greater confusion than clarity in the course of criminal proceedings. In other words, loosely speaking, the government may allege “claims” against alleged perpetrators in criminal proceedings. However, stretching the term “claim” so far as to encompass the government’s entire “prosecution” against the defendant would appear facially obtuse in most contexts—in large part based on the ordinary usage of the terms in distinct legal settings.

Such judgments about “plain meaning” and “ordinary usage” are naturally disputed. Yet the foregoing discussion rapidly approaches an alternative conclusion from that rendered by the panel in Hui Hsiung: the plain terms of the FTAIA’s domestic effects exception are unambiguous, but they authorize only civil “claims” under the Sherman Act. And, turning beyond the black letter of the statute, ordinary usage of the words “claim” and “prosecution” lends further credence to this view. Thus, claims and prosecutions can and should be understood to entail distinct legal meanings; criminal “prosecutions” do not fall within “claims” based on a textualist analysis of the FTAIA’s domestic effects prong.

To the extent that the Act’s terms are subject to multiple reasonable meanings, however, other interpretive canons suggest that its domestic effects prong does not extend to criminal actions under the Sherman Act where wholly foreign acts are concerned. The remainder of this Part evaluates arguments for and against extending the FTAIA to authorize extraterritorial criminal prosecutions based in non-textual interpretive canons, including: (1) extraterritoriality principles of comity and fairness; (2) applicable canons of statutory construction; and (3) consideration of the varied remedy schemes for criminal and civil Sherman Act violations.

B.  Narrow Interpretation of the FTAIA Comports with International Comity Principles and Applicable Canons of Construction

Extraterritoriality principles further counsel departure from the prevailing interpretation of the FTAIA’s domestic effects prong. Notions of comity and fairness undergird extraterritorial antitrust jurisprudence. These adjudicatory principles also clarify U.S. competition policy for foreign governments and firms, as courts share legal authority with the executive and legislative branches where extraterritorial liability is involved. This discussion reflects that adherence to these principles would be best advanced by interpreting the FTAIA to presumptively prohibit domestic criminal prosecutions of wholly foreign conduct under the domestic effects prong.

The international comity doctrine historically served a central role in limiting the extraterritorial jurisdiction of federal courts. And today, even under the far narrower “direct conflict” standard set forth in Hartford Fire,[132] American courts regularly invoke “reasons of international comity” while describing the FTAIA as limiting “the extraterritorial application of U.S. antitrust law.”[133] Judge Posner’s statement is characteristic:

[A]re we to presume the inadequacy of the antitrust laws of our foreign allies? Would such a presumption be consistent with international comity, or more concretely with good relations with allied nations in a world in turmoil? . . . Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?[134]

Comity similarly counsels courts in criminal matters under the FTAIA. American laws should not presumptively supplant foreign governments’ judgments concerning criminal liability, particularly in an interconnected global marketplace. Application of criminal punishment thus warrants hesitation upon consideration of “good relations with allied nations in a world in turmoil.”[135] The principles of fairness and reasonableness help to outline a doctrinally consistent conception of the FTAIA’s domestic effects prong, as these principles have historically aided federal courts in crafting remedies and resolving international conflicts.[136]

Alternatively, however, comity may counsel in favor of enabling criminal remedies for extraterritorial antitrust violations. For example, leading antitrust commentator Robert Connolly notes, “there is a difference between actions brought by the DOJ and private class action damages,” particularly with respect to the extent to which government and private plaintiffs consider “comity considerations.”[137] Arguing that[n]o nation has objected to the DOJ’s successful prosecution of foreign companies and even citizens of that country in the LCD panel investigation,” and that “the DOJ seriously considers the views of foreign nations before bringing cases,” Connolly, an experienced practitioner with decades of experience at the Antitrust Division of the Department of Justice, projects confidence that past practice makes perfect.[138] This conception of the comity doctrine clearly influenced the court’s decision in Motorola Mobility:

[T]he . . . court should reach a decision that preserves the ability of the DOJ to protect American consumers and continue to lead the way in prosecuting international cartels—including appropriate component cartels. The court could also acknowledge the comity concerns of foreign nations and find application of [the indirect purchaser doctrine] a bar to foreign component civil damage cases.[139]

This view of comity appears highly limited, however, when cast against the principles underlying the doctrine and the weighty penalties associated with criminal antitrust actions under the Sherman Act. Neither the opinion in Motorola Mobility nor Connolly’s commentary acknowledge the limited nature of justifying the extension of American criminal penalties abroad based upon foreign states’ as-of-yet unstated approval of a single case arising from a single foreign conspiracy involving only several nations.

Under this view, to defend extraterritorial prosecutions beyond the Crystal Meetings conspiracy, something affirmative or principled is needed—something more than silence from foreign governments in the face of American action. Although coordination with foreign governments provides prima facie evidence that prosecutors can avoid chafing foreign sovereigns while applying the Sherman Act to wholly foreign conduct, the mere acquiescence of foreign states to such conduct should not temper characterization of American prosecutions as potential overreaching.[140] A more reasonable standard would presumptively limit the criminal domain of American prosecutors to domestic markets. This would encourage enhanced criminal enforcement activity by foreign governments, whose interests and authority are often more directly implicated in cases involving disputed extraterritorial conduct.

Fortunately, this is not a new concept. International comity already reflects an ingrained presumption against extraterritorial prosecutions under the Sherman Act. Generally, criminal law reflects social judgments regarding the proper magnitude of punishment acceptable for given violations in market competition and to consumer welfare. Different sovereign jurisdictions may make different judgments regarding whether to criminalize the same putatively anticompetitive conduct.[141] Moreover, different states punish offenders in different ways for the same crimes.[142] Variation in criminal punishment among developed nations reflects concomitant variation in social judgments regarding individual moral culpability and foundational precepts to systems of criminal justice. In this vein, from one dominant theoretical perspective, criminal liability confers a judgment of community condemnation of moral culpability.[143]

Amidst political uncertainty regarding norms of free trade and global economic cooperation,[144] American competition law should privilege the principles of reason and fairness imbued in the comity doctrine. Fairness lies at the heart of American criminal law––particularly when applied in the extraterritorial and criminal contexts.[145] Historical weighing of domestic and foreign sovereignty, which generally informs courts’ extraterritorial jurisdiction, should be imported into analysis of the FTAIA’s “claim” language in the context of criminal penalties. Certainly, the antitrust laws should not apply extraterritorially in criminal contexts when: (1) the parties are wholly foreign and foreign conduct constitutes the basis for the allegations; (2) direct effects are principally centered abroad; (3) there is a lack of foreseeable purpose to affect or harm domestic commerce; (4) foreign laws and policies conflict with American laws and policies to a high degree; and (5) simultaneous compliance with U.S. and foreign law is impossible.[146] The FTAIA’s “claim” language therefore naturally compliments the historically entrenched comity doctrine by barring criminal enforcement of the Sherman Act against foreign acts with effects on nonimport domestic commerce.[147]

Moreover, the strong presumption against extraterritorial application of federal law clearly applies in the case of criminal actions under the FTAIA. Courts presume that federal statutes do not apply extraterritorially in the absence of express legislative intent to the contrary.[148] To avoid this presumption against extraterritorial application of U.S. law, a plaintiff typically must bring a significant showing before the court of some “clear” expression of legislative intent to invoke the law beyond U.S. sovereign control.[149]

Relatedly, Morrison v. National Australia Bank Ltd. provides that the test of territoriality must look to the “focus” of a federal statute in determining the scope of a law.[150] In Morrison, for example, the Court held the territorial connections related to a statute’s “focus” may overcome the statutory presumption against territoriality.[151] Here, similarly, the focus of the FTAIA should guide federal courts in divining the extraterritorial scope of the statute’s criminal dimensions. Moreover, United States v. Bowman held that ambiguous criminal statutes generally should not apply extraterritorially, at least absent an extraterritorial intent clearly inferred from the nature of the offense itself.[152] Overall, these canons of construction reinforce comity considerations and counsel against interpreting the FTAIA to independently authorize criminal actions.

C.  Distinct Remedies Reflect Distinct Treatment of Civil and Criminal Actions Under the FTAIA

A final consideration concerns the distinct remedies that the overall statutory scheme envisions for civil and criminal antitrust violations. According to regulators’ conception of the Sherman Act and its penalties, violations “may be prosecuted as civil or criminal offenses,” and punishments for civil and criminal offenses vary.[153] For example, available relief under the law encompasses penalties and custodial sentences for criminal offenses, whereas civil plaintiffs may “obtain injunctive and treble damage relief for violations of the Sherman Act.”[154] Regulators also recognize that the law envisions distinct means of enforcing criminal and civil offenses under the Sherman Act. For example, the DOJ retains the “sole responsibility for the criminal enforcement” of criminal offenses and “criminally prosecutes traditional per se offenses of the law.[155] In civil proceedings, private plaintiffs and the federal government may seek equitable relief and treble damage relief for Sherman Act violations.[156]

These recognized remedial distinctions matter when assessing the FTAIA’s meaning. Along with the interpretive argument that the Sherman Act’s various provisions ought to be enforced in a way that is internally consistent, practical assessment of the varied remedies and parties that may pursue such remedies reinforces a narrow conception of the FTAIA’s language. The weighty power to seek imprisonment of offenders critically distinguishes criminal and civil remedies under the Sherman Act. The federal government alone retains such authority, predicated on principles of legality and sovereignty. For many reasons, it remains reasonable to permit civil redress—encompassing the full range of injunctive and damage relief—in extraterritorial proceedings under the Sherman Act. Aggrieved consumers and competitors targeted in American markets by foreign activities can sue for injunctive and treble damage relief under the Sherman Act’s civil provisions. Notably, the FTAIA permits as much by its own terms, at least where substantive elements under the Act are satisfied with respect to the requisite effect on domestic or direct import commerce.

In this sense, American law maintains a strong deterrent to foreign actors through a robust system of civil, as opposed to criminal, redress. Extraterritorial competitive injuries are left to the civil sphere under the FTAIA. Such civil remedies are more than sufficient to advance the objectives of the American competition regime abroad—namely, to prevent through legal means artificial distortions on the price and output of goods and services. American courts play a major role in the adjudication of disputes spanning distinct sovereign jurisdictions; that role is best maintained through established civil remedies. But criminal remedies—being reserved to the sovereign aloneshould not extend extraterritorially. The remedial distinctions under the Sherman Act reflect the aims of criminal and civil competition law—criminally, to vindicate public wrongs, and civilly, to remedy private injuries.

Criminal antitrust remedies are logically limited in the context of foreign sovereign jurisdiction. By contrast, the Sherman Act’s civil remedies provide injunctive and damage relief that may compensate victims despite traditional notions of foreign sovereign authority. Far from one sovereign intervening in the backyard of another, a civil action enables individually aggrieved parties to receive compensation from an antitrust offender. This is an intuitive remedial extension of basic principles of legality and sovereignty. Thus, far from the government’s current position—that the FTAIA’s claim prong empowers prosecutors to independently seek criminal remedies for extraterritorial antitrust offenses—the overall remedy scheme for antitrust offenses reinforces a limited conception of criminal redress, particularly where the FTAIA provides the basis for government action.

The preceding discussion substantiates a narrow interpretation of the FTAIA as cabining the extraterritorial criminal antitrust jurisdiction of federal courts. Based on the factors cited––along with substantial historical evaluation of the Sherman Act and FTAIA––this interpretation is consistent with the plain letter of the Act, engrained legal norms, and applicable canons of construction. The current state of U.S. antitrust law tacitly endorses potential executive overreach into criminal judgments of co-equal sovereigns, which is questionable even under consensual arrangements with such governments.[157] Such sovereigns’ domestic political and legal processes properly decide criminal judgments, absent American influence or legal process. In light of growing economic globalization, Part III briefly considers various implications of the prevailing construction of the FTAIA as independently supporting criminal prosecutions of foreign anticompetitive conduct.

III.  Implications for an Interconnected Global Political Economy

The foregoing analysis makes clear that the FTAIA was never intended to apply to criminal activity. Its drafters did not design the Act to reinforce American hegemony in the political economy of global competition policy. Rather, the statute provides express legislative guidance regarding the extraterritorial limits on criminal liability under the Sherman Act.

To date, the Supreme Court remains notably silent on the issue. In the meantime, Hui Hsiung and Motorola Mobility suggest that international businesses that participate in certain anticompetitive acts anywhere in the world should beware potential criminal redress in American courts. The chief implication of the “Crystal Meetings” cases is that anticompetitive conduct presents a massive criminal liability risk that may attach to commercial transactions that in many ways appear removed from American sovereignty. In particular, firms with foreign headquarters that deal significantly in American domestic commerce while operating abroad should consider the wide range of criminal remedies available to American prosecutors under the FTAIA.

In that vein, contractual agreements among segments of global supply chain networks should be drafted to avoid traditional areas of American criminal antitrust enforcement, such as price-fixing and bid rigging, territorial allocation mechanisms, and other naked collusive activities. Given thatat least in recent timesU.S. criminal enforcement actions are far more likely to stem from agreements between firms, rather than agreements enacted within a single entity, international businesses should factor antitrust enforcement concerns into assessing the relative risk of commercial dealings with partners. Owning subsidiaries, rather than dealing with others, may be a preferable alternative.[158]

Although vertical integration may shield firms from horizontal liabilities under section 1 of the Sherman Act, section 2 proscribes certain single-firm activities. Section 2 prohibitions include bans on attempted monopolization and the illegal maintenance or acquisition of monopoly power.[159] There are tensions inherent between self-dealing and dealing with others under U.S. antitrust law. Ironically, foreign firms may feel paralyzed by the vast scope of American antitrust law under courts’ expansive reading of the FTAIA in the criminal context—thus the Act may in fact fuel the type of commercial chilling effect bemoaned by legislators before its passage.[160]

Whereas the petitioners in Hui Hsiung failed to raise challenges to the criminal application of the domestic effects prong based on the FTAIA’s plain language and related arguments, future businesses and individuals targeted by criminal indictments should put the government to the test.[161] Multinational businesses play a major role in addressing the current conception of the FTAIA’s criminal dimensionsmost notably by challenging the U.S. government to prove the Act should apply to extraterritorial criminal acts. The plain text of the statute should give new life to extraterritoriality jurisprudence by reasonably limiting the domain of American authorities. This development is only possible, however, if foreign defendants raise facial challenges to the Act’s extraterritorial criminal application.

In the meantime, beyond reflecting the risk of criminal antitrust liability in international business transactions, multinational businesses should consider the panoply of behavioral and structural remedies available to federal prosecutors. In particular, behavioral remedies encompass fines, penalties, and potential prison time, as well as long-term monitoring and compliance regimes.[162] Foreign firms like AU Optronics, if caught in the crosshairs of a criminal prosecution, could lose control of certain areas of corporate governance altogether, in order to ensure such firms continuing compliance with American law.[163]

The range of behavioral remedies available to American competition authorities underscores the importance of avoiding criminal liability altogether by embracing a culture of prospective caution regarding potentially collusive conduct.[164] Foreign executives intending to maintain full control of corporate affairs and eschew long-term compliance monitors should craft deals as though American competition law operates globally, or otherwise entirely avoid collusive activities that could reasonably wash up on American shores.[165] Given the depth of consumer demand in American markets, caution appears to be the best policy at present for the vast majority of major global businesses.


The foregoing discussion indicates that domestic antitrust laws play a major role in modern global trade regulation. Arguably more than any time since the passage of the FTAIA, today the international dimensions of competition policy warrant careful consideration by lawmakers, businesses, and legal practitioners. Markets are increasingly global, and the application of domestic competition law to international business has necessarily become more complex.

Although global trade can unlock market efficiencies and enhance consumer welfare, it must be managed diligently among co-equal sovereign collaborators.[166] The FTAIA clarifies that U.S. antitrust law plays a limited role in managing foreign anticompetitive activities. Moving forward, the FTAIA’s effects exception should therefore not be permitted to independently support extraterritorial criminal prosecutions under the Sherman Act. The plain language of the FTAIA, in tandem with other traditional tools of statutory interpretation, suggests a limited range of legal redress for competitive harms stemming from wholly foreign acts. Such activities are cabined to the domain of civil redress and should not be subject to criminal prosecution under the FTAIA.

An interpretation of the FTAIA that would reduce reliance on American criminal law enforcement in favor of civil redress and enhanced criminal action by foreign governments in the competition sphere would be preferable, as this approach would reduce the risk of impolitic prosecutorial overreach. Spirited arguments can be made for rigorous domestic criminal enforcement where Americans face competitive injuries, but these arguments become less clearcut in the global marketplace. Yet one thing is clear: The FTAIA—a pronouncement designed by Congress to clarify the limited range of extraterritorial claims under the Sherman Act—did not speak clearly enough for federal courts. Absent judicial action, Congress should enunciate that criminal penalties are in fact authorized by the FTAIA’s plain terms.

In the meantime, American competition authorities are prepared to exercise every ounce of extraterritorial authority meted out by the federal judiciary.[167] This portends potential conflict where rigorous international competition is involved. Although the litigants in Hui Hsiung failed to fully raise arguments challenging a Sherman Act criminal prosecution under the FTAIA, the decision remains instructive. Criminal penalties under the Sherman Act are currently available to American prosecutors under a domestic effects theory.[168] Sherman Act remedies are structural and behavioral. Thus, international businesses and their agents may face U.S. competition remedies that directly interfere with corporate governance structures, including, but not limited to, compliance monitors, deferred-prosecution agreements, and non-prosecution agreements.[169]

This portends trouble in a world already plagued by political uncertainty surrounding global trade.[170] Businesses and individuals facing the current legal regime should challenge criminal enforcement of the Sherman Act under the FTAIA’s domestic effects exception. Given a lack of a clear controlling precedent, a domestic effects theory should not permit U.S. authorities to pursue criminal sanctions against wholly foreign activities, which fall more reasonably within the domain of foreign governments’ competition authorities.[171] By challenging the law in this way, businesses might topple the edifice of judicial inference that has resulted in uniform treatment of civil claims and criminal actions under the Sherman Act’s extraterritorial dimensions.

Given the proliferation of domestic competition laws worldwide in recent decades,[172] in particular, the Sherman Act should not be elevated to the status of global doctrine.[173] Nor should American jurists desire it to be treated as such.[174] The application of domestic criminal law to foreign activities demands propriety, which, in the immediate context, is best achieved by presumptively tempering domestic executive authority. To the extent short-term underdeterrence follows from respecting foreign governments’ criminal antitrust regimes, American law offers a robust range of civil redress.[175]

Trade talk has shifted from an overall cooperative tenor to a chorus of conflict.[176] The amended panel decisions will stand as good law for the time being. However, presumptive equivocal treatment of the civil and criminal provisions of the Sherman Act after the FTAIA demands meaningful justification from U.S. courts in the immediate future. For although American antitrust laws play a significant role in the contemporaneous global political economy, words matter: A rose by any other name may smell as sweet,[177] but an indictment does not a claim make.

[*] *.. Executive Senior Editor, Southern California Law Review, Volume 92; J.D. Candidate 2019, University of Southern California Gould School of Law; B.S., summa cum laude, Political Science and Economics 2016, Bradley University. I thank my mother, Barbara J. Simmons, for her steadfast support and dedication to the memory of my father, Brian S. Simmons. I also thank USC Professors Brian Peck and Jonathan Barnett for sparking my interest in transnational competition law. Lastly, I thank the Law Review staff and editors for their thoughtful work. All errors are my own.

 [1]. See Jason Margolis, Trump’s Trade Policies Worry Economists, USA Today (July 25, 2016, 10:57 AM),
mexico/87521852. In one of many regrettable juxtapositions in American history since June 16, 2015—the day Donald Trump announced his presidential candidacy—Mr. Margolis’s article portended calamitous results relatively well. See also David J. Lynch et al., U.S. Levies Tariffs on $34 Billion Worth of Chinese Imports, Wash. Post (July 6, 2018), (“The conflict over U.S.-China trade has been brewing for years but has intensified rapidly in 2018. On April 3, the United States released a list of targets for proposed tariffs on $50 billion worth of Chinese imports, taking aim at high-tech and industrial goods. On April 4, China fired back.”). Entering October 2018, the United States and China, two leading jurisdictions in terms of the international sale of goods, have engaged in a disturbing series of retributory tariffs. Anna Fifield, China Thinks the Trade War Isn’t Really About Trade, Wash. Post (Sept. 24, 2018), (reporting, in wake of announcement that China will “retaliate with tariffs on $60 billion of U.S. goods” in response to U.S. decision to “slap tariffs on an additional $200 billion worth of Chinese goods,” that Chinese officials view combative trade policy as part of a larger geopolitical threat from the United States); see also Robyn Dixon, China Accuses the U.S. of Holding a Knife to Its Neck and Rules Out New Talks to Resolve the Trade War, L.A. Times (Sept. 25, 2018), (reporting Chinese officials considered “U.S. tariffs on $200 billion in Chinese goods . . . so massive that it made trade talks impossible”); Donald J. Trump (@realDonaldTrump), Twitter (Jul. 24, 2018, 8:29 AM), (“Tariffs are the greatest! Either a country which has treated the United States unfairly on Trade negotiates a fair deal, or it gets hit with Tariffs. It’s as simple as that – and everybody’s talking! Remember, [the United States is] the ‘piggy bank’ that’s being robbed. All will be Great!”).

 [2]. Margolis, supra note 1; see also Dixon, supra note 1. See generally Issues: Foreign Policy,, (last visited Nov. 28, 2018) (“The promise of a better future will come in part from reasserting American sovereignty and the right of all nations to determine their own futures.”).

 [3]. Remarks by President Trump to the World Economic Forum, (Jan. 26, 2018), (“We cannot have free and open trade if some countries exploit the system at the expense of others. We support free trade, but it needs to be fair and it needs to be reciprocal. Because, in the end, unfair trade undermines us all.”); see also Donald J. Trump (@realDonaldTrump), Twitter (Mar. 4, 2018, 4:10 PM), (“We are on the losing side of almost all trade deals. Our friends and enemies have taken advantage of the U.S. for many years. Our . . . industries are dead. Sorry, it’s time for a change!”); Donald J. Trump (@realDonaldTrump), Twitter (Mar. 2, 2018, 2:50 AM),
/status/969525362580484098 (suggesting, in light of U.S. trade deficit of billions of dollars, “trade wars are good, and easy to win” (emphasis added)).

 [4]. See Margolis, supra note 1 (“Trump’s major policy positions [on trade] are primarily focused on two countries: China and Mexico.”); see also Phil Levy, Dumping, Cheating and Illegality: Trump Misleads the Public on Steel Tariffs, Forbes (Mar. 12, 2018, 2:59 PM),
/sites/phillevy/2018/03/12/dumping-cheating-and-illegality-trump-misleads-the-public-on-steel-tariffs; accord Donald J. Trump (@realDonaldTrump), Twitter (Jun. 10, 2018, 6:17 PM),
/realDonaldTrump/status/1005982266496094209 (“Why should [the United States] allow countries to continue to make Massive Trade Surpluses, as they have for decades, while our Farmers, Workers & Taxpayers have such a big and unfair price to pay? Not fair to the PEOPLE of America!”); Donald J. Trump (@realDonaldTrump), Twitter (Jun. 2, 2018, 2:23 PM),
/status/1003024268756733952 (“The U.S. has been ripped off by other countries for years on Trade, time to get smart!”); Donald J. Trump (@realDonaldTrump), Twitter (Mar. 5, 2018, 7:47 AM), (“We have large trade deficits with Mexico and Canada.”).

 [5]. Pankaj Ghemawat, Globalization in the Age of Trump, Harv. Bus. Rev., July–Aug. 2017, (“The myth of a borderless world has come crashing down. Traditional pillars of open markets—the United States and the UK—are wobbling, and China is positioning itself as globalization’s staunchest defender.”); see also Josh Zumbrun & Bob Davis, Trade Tensions Intensify as Allies Rebuke U.S., Testing Trump Ahead of G-7, Wall St. J. (June 3, 2018, 8:02 PM),; cf. Gao Shangquan, U.N. Comm. for Dev. Policy, U.N. Doc. ST/ESA/2000/CDP/1, Economic Globalization: Trends, Risks, and Risk Prevention 1–4 (2000),
/development/desa/policy/cdp/cdp_background_papers/bp2000_1.pdf (asserting economic globalization trends are “irreversible,” and forecasting developmental risks posed by economic globalization).

 [6]. Lynch et al., supra note 1; cf. Donald J. Trump (@realDonaldTrump), Twitter (June 2, 2018, 2:23 PM), (“When you’re almost 800 Billion Dollars a year down on Trade, you can’t lose a Trade War!”).

 [7]. See Sherman Antitrust Act, 15 U.S.C. §§ 1–7 (2018); see also Ian Simmons et al., Where to Draw the Line: Should the FTAIA’s Domestic Effects Test Apply in Criminal Prosecutions?, 29 Antitrust 42, 42–46 (2015) (evaluating debate over extraterritorial contours of Sherman Act in criminal context).

 [8]. See, e.g., Melinda F. Levitt & Howard W. Fogt, International Trade and Antitrust: Clarity Put on Hold as FTAIA Conflict/Confusion Continues, Foley (July 30, 2015),
/international-trade-and-antitrust–clarity-put-on-hold-as-ftaiaconflictconfusion-continues (“Maybe the ball is back in Congress’s court. . . . However, given the present level of functionality with the United States Congress, I don’t think we are going to see that in the near future, unfortunately. And so, anybody who treads in these waters needs to continue to be very careful and monitor the situation as we go forward.”) (Melinda F. Levitt, at 1:01:12–1:01:48). But see Simmons et al., supra note 7, at 46 (suggesting plain language and clear legislative intent permit only civil liability for foreign actors under the FTAIA’s “domestic effects” exception).

 [9]. Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359–60 (1933) (“As a charter of freedom, the act has a generality and adaptability comparable to that found to be desirable in constitutional provisions.”); see also Directorate for Fin. & Enter. Affairs Competition Com., Roundtable on the Extraterritorial Reach of Competition Remedies – Note by the United States 3–4 (Dec. 4–5, 2017), (“[The Antitrust Division and DOJ] require relief sufficient to eliminate identified anticompetitive harm that has the requisite connection to U.S. commerce and consumers, even if this means reaching assets or conduct in a foreign jurisdiction.” (footnote omitted)).

 [10]. See, e.g., United States v. Hui Hsiung, 778 F.3d 738, 758–59 (9th Cir. 2015), cert. denied, 135 S. Ct. 2837 (2015) (upholding criminal sentence under FTAIA for foreign price-fixing conspiracy with “effect” on United States).

 [11]. Cf. Levitt & Fogt, supra note 8 (detailing ongoing debate over extraterritoriality in American antitrust jurisprudence after FTAIA).

 [12]. Concerns surrounding extraterritoriality in U.S. competition policy are heightened in light of businesses’ widespread embrace of lean methodology and global supply-chain management strategies, which increasingly distribute goods and services throughout a single firm’s transnational network to maximize profit and minimize waste. See generally Michael H. Hugos, Essentials of Supply Chain Management (3d ed. 2011). Specifically, the emergence of global supply chain networks has unleashed a variety of associated complications with respect to commercial regulations. Cf. U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Guidelines for International Enforcement and Cooperation 16–25 (2017), [hereinafter International Guidelines] (describing agencies’ extraterritorial prerogatives under the FTAIA); Joseph P. Bauer, The Foreign Trade Antitrust Improvements Act: Do We Really Want to Return to American Banana?, 65 Me. L. Rev. 3, 5 (2012).

While there is extensive disagreement about the specifics with respect to what behavior and structure the antitrust laws should seek to prohibit or permit, there is broad, general consensus on the goals of the antitrust laws. . . . [E]nhancement of consumer welfare, the promotion of competition, and compensation of the victims of antitrust violations. . . . [T]he FTAIA has significantly undermined the achievement of these goals.

Bauer, supra, at 5.

 [13]. Phillip Areeda et al., Antitrust Analysis: Problems, Text, and Cases ¶¶ 168–69 (7th ed. 2013) (“With ever-expanding globalization, instances of conflicting—as well of complementary—interests among jurisdictions involving multinational business activity will become increasingly frequent. . . . [I]n many individual cases an anticompetitive practice may well benefit some jurisdictions . . . [however,] the reciprocal nature of foreign trade suggests the existence of opportunities for mutual gain.”); see also Jennifer B. Patterson & Terri A. Mazur, Kaye Scholer, Recent Developments in the Extraterritorial Reach of the U.S. Antitrust Laws (2014),
_pattersonmazurinsidecounselarticleaugust132014pdf; Levitt & Fogt, supra note 8.

 [14]. Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a (2018). The statute’s language is overly formalistic and consequently complicated. Accord United States v. Nippon Paper Indus. (Nippon II), 109 F.3d 1, 4 (1st Cir. 1997) (describing the FTAIA as “inelegantly phrased”). In effect, its terms cabin the Sherman Act’s scope to activity beyond U.S. borders, providing that such conduct gives rise to domestic antitrust liability only if it: (1) involves “import commerce;” or (2) has a “direct, substantial, and reasonably foreseeable effect” on domestic trade or commerce, which “gives rise to a claim” under the Sherman Act. See 15 U.S.C. § 6a (emphasis added).

 [15]. F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (“[T]he FTAIA’s language and history suggest that Congress designed the FTAIA to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act’s scope as applied to foreign commerce.”).

 [16]. See United States v. Hui Hsiung, 778 F.3d 738, 738, 756–60 (9th Cir. 2015).

 [17]. Id. at 743 (quoting 15 U.S.C. § 6a).

 [18]. See id.

 [19]. Id. at 743, 748, 750–53, 756–60 (providing the required test under the first prong of the “domestic effects” exception, as articulated under the FTAIA).

 [20]. See, e.g., id. at 743 (“Crystal Meeting participants stood to make enormous profits from TFT–LCD sales to United States technology retailers. . . . [T]he United States comprised approximately one-third of the global market for personal computers incorporating TFT–LCDs, and sales . . . generated over $600 million in revenue.”). For example, the conspiracy targeted commercial electronics retailers, like Motorola and Apple, which incorporated the price-fixed panel technologies in overseas production processes earlier in the supply chain. See id.

 [21]. See id. at 751–53 (“The FTAIA . . . provides substantive elements under the Sherman Act in cases involving nonimport trade with foreign nations.” (emphasis added)). See generally 15 U.S.C. § 6a(2) (“[S]uch effect gives rise to a claim under the provisions of [the Sherman Act] . . . .” (emphasis added)).

 [22]. The court’s final analysis lacks any substantive discussion of whether a criminal indictment may give rise to a domestic antitrust “claim” within the meaning of the FTAIA’s domestic effects prong, while concluding that the question of “what conduct [the FTAIA] prohibits is a merits question, not a jurisdictional one.” Hui Hsiung, 778 F.3d at 752 (internal quotation marks omitted). Colorable arguments exist to support a broad interpretation of the FTAIA as authorizing both civil and criminal “claims” if wholly foreign conduct has a “direct, substantial, and reasonably foreseeable” effect on nonimport domestic commerce, see, for example, infra text accompanying notes 6772, but the panel decision offers none. See, e.g., Simmons et al., supra note 7, at 42 (“[T]he amended opinion upheld the convictions . . . without any significant discussion of whether [the “domestic effects” prong] can independently support a criminal prosecution [under the Sherman Act].”). At the very least, the panel owed the public a legal justification for its implicit ruling that a criminal indictment constitutes a “claim” under the “domestic effects” exception. In reality, a more efficacious reading of the FTAIA’s exception would limit the reach of the Sherman Act to only civil claims, at least where nonimport “domestic effects” form the basis of an extraterritorial competition “claim.” See, e.g., infra Part II (arguing that the FTAIA facially prohibits extraterritorial criminal prosecutions on the independent “domestic effects” theory, in part because neither prosecutions nor indictments actually amount to “claims” within the plain meaning of the “domestic effects” exception).

 [23]. Accord Levitt & Fogt, supra note 8.

 [24]. See generally supra notes 723 (reviewing FTAIA’s “domestic effects” exception and Hui Hsiung).

 [25]. Moreover, in light of the proliferation of highly integrated global supply chain networks, see generally Hugos, supra note 12, as well as the emergence of a tense global political economy surrounding free trade and international competition, see supra notes 15, this subject appears increasingly relevant to federal courts, legal practitioners, and the tens of thousands of firms doing business in America.

 [26]. See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796 n.23 (1993) (noting disagreement regarding whether the FTAIA’s “direct, substantial, and reasonably foreseeable effect” standard amends existing law or merely codifies it, but declining to take up the issue).

 [27]. See infra Part II.

 [28]. For rich academic discussion of foreign commerce and the complex relationships forged between foreign commerce and domestic antitrust laws, see generally Wilbur L. Fugate & Lee H. Simowitz, Foreign Commerce and the Antitrust Laws (5th ed. 1996 & Supp. 2018). Sections I.A.1–2 are designed to provide useful historical context for the FTAIA’s substantive provisions and recent judicial decisions; they are not intended to provide exhaustive review of the Sherman Act in international commerce.

 [29]. 15 U.S.C. §§ 1–2 (2018) (criminal antitrust violations). See also Areeda et al., supra note 13, ¶ 168 n.101 (discussing definitions of “commerce” and the extraterritorial reach of various antitrust provisions, including sections 1, 2, and 7 of the Sherman Act, as well as the Clayton Act, and the Federal Trade Commission Act).

 [30]. Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) (Holmes, J.) (holding the Sherman Act does not apply to acts taken in Panama and Costa Rica, which fall beyond territorial borders of United States); see also Edward D. Cavanagh, The FTAIA and Claims by Foreign Plaintiffs Under State Law, 26 Antitrust L.J. 43, 43–44 (2011) [hereinafter Cavanagh, The FTAIA]; Edward D. Cavanagh, The FTAIA and Subject Matter Jurisdiction over Foreign Transactions Under the Antitrust Laws: The New Frontier in Antitrust Litigation, 56 SMU L. Rev. 2151, 2153–56 (2003) [hereinafter Cavanagh, The New Frontier].

 [31]. See United States v. Aluminum Co. of Am. (Alcoa), 148 F.2d 416, 440–45 (2d Cir. 1945) (Hand, J.) (“[A]ny state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.”); Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 705 (1962) (approving of the Second Circuit decision in Alcoa and finding jurisdiction where foreign defendants’ conduct abroad had an “impact within the United States and upon its foreign trade”).

 [32]. Bauer, supra note 12, at 8.

 [33]. Alcoa, 148 F.2d at 443–44. The panel noted, “[b]oth agreements would clearly have been unlawful, had they been made within the United States; and it follows from what we have just said that both were unlawful, though made abroad, if they were intended to affect imports and did affect them.” Id. at 444. Although the case is famous for its domestic implications and market share analysis, the decision also marks a key moment in extraterritorial antitrust jurisprudence. Under the panel’s view, criminal liability under the antitrust laws historically attached to wholly foreign conduct involving imports; foreign conduct that affected nonimport domestic commerce was historically only subject to civil liability, not criminal prosecution. Alcoa therefore provides only limited authority for extraterritorial criminal liability in nonimport contexts, as when foreign actors are prosecuted on the basis of downstream effects on domestic commerce.

 [34]. Id. at 443–44.

 [35]. An interesting aspect of the Alcoa case was simply its procedural posture. In 1944, the Supreme Court announced that it would not have a quorum to hear the case. Congress subsequently designated the case to the Second Circuit through a special act that stands to this day. See generally Act of June 9, 1944, 28 U.S.C. § 2109 (2018).

 [36]. See, e.g., Areeda et al., supra note 13, ¶ 168.

 [37]. Alcoa, 148 F.2d at 443.

 [38]. Cf. id. This inference appears reasonable given federal courts’ position as legal custodians in the United States, one of the foremost consumer markets in the developed world. Cf. United States v. Hui Hsiung, 778 F.3d 738, 743 (9th Cir. 2015) (noting “Crystal Meetings” conspiracy targeted leading firms in American consumer electronics market); Shangquan, supra note 5.

 [39]. Alcoa, 148 F.2d at 443 (emphasis added).

 [40]. See, e.g., United States v. Nippon Paper Indus., 109 F.3d 1, 2, 4–5 (1st Cir. 1997). Indeed, this widely-adopted standard for extraterritorial antitrust analysis has been referred to as the “effects doctrine” or “effects test” in civil and criminal actions. See John W. Head, Global Business Law: Principles and Practice of International Commerce and Investment 643 (3d ed. 2012); Developments in the Law: Extraterritoriality, 124 Harv. L. Rev. 1226, 1269–74 (2011).

 [41]. See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796 (1993) (adopting Alcoa effects test following passage of FTAIA where it could be shown that conduct “was meant to produce and did in fact produce some substantial effect in the United States”); accord Filetech S.A. v. Fr. Telecom, S.A., 157 F.3d 922, 931 (2d Cir. 1998) (following Hartford Fire’s construction of the prevailing Alcoa effects test).

 [42]. See generally Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 Am. J. Int’l L. 280 (1982) (describing role of the comity doctrine in extraterritorial application of domestic laws). The Supreme Court recently clarified the doctrine of “international comity” with respect to a foreign government’s official statement concerning the meaning of its own domestic law. See generally Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018), vacating and remanding In re Vitamin C Antitrust Litig., 837 F.3d 175 (2d Cir. 2016). The Court suggested American courts are “not bound to accord conclusive effect to the foreign government’s statements,” in such instances, but declined to undertake the analysis itself and instead remanded the case for further consideration consistent with its opinion. Animal Science, 138 S. Ct. at 1869, 1875 (“The correct interpretation of Chinese law is not before this Court, and we take no position on it.”).

 [43]. See, e.g., Timberlane Lumber Co. v. Bank of Am. N.T. & S.A., 549 F.2d 597, 613 (9th Cir. 1977) (court may refrain from asserting “extraterritorial authority,” despite finding of some actual or intended effect, upon presence of factors implicating international comity concerns in rendering judgment), superseded by statute, 15 U.S.C. § 6a (2018), as recognized in McGlinchy v. Shell Chem. Co., 845 F. 2d 802, 813 n.8 (9th Cir. 1988).

 [44]. Areeda et al., supra note 13, ¶ 168(b) (citing Timberlane Lumber Co. v. Bank of Am. N.T. & S.A., 749 F.2d 1378 (9th Cir. 1984), cert. denied, 472 U.S. 1032 (1985)). The Timberlane court ultimately dismissed the plaintiff’s claim based on the legitimacy of the defendant’s foreign acts under Honduran law, as well as the meager effects on competition within the United States. Timberlane, 749 F.2d at 1384–86.

 [45]. Timberlane, 749 F.2d at 1386.

 [46]. Cavanagh, The New Frontier, supra note 30, at 2154. But see id. (“While one cannot fault these courts for attempting to develop comprehensive jurisdictional standards, it is undeniable that infusing the issue of comity into the jurisdictional analysis has generated more confusion than certainty and has created significant unpredictability in the law.” (emphasis added)).

 [47]. Restatement (Third) on Foreign Relations Law of the United States §§ 402–03, § 403 cmt. a (Am. Law Inst. 1987) [hereinafter Restatement].

 [48]. See, e.g., F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165–69 (2004) (discussing prescriptive comity considerations in connection with FTAIA’s domestic effects exception and concluding that the Act did not apply given Congress’s adherence to principles of comity in international commercial relations).

 [49]. See Joel R. Paul, The Transformation of International Comity, 71 Law & Contemp. Probs. 19, 36, 38 (2008) (noting that courts’ application of comity doctrine reflects concerns for separation of powers, historical experience, and respect for foreign sovereignty in context of extraterritorial antitrust disputes).

 [50]. See McGlinchy v. Shell Chem. Co., 845 F.2d 802, 813 n.8 (9th Cir. 1988) (adopting Timberlane standard and noting that the FTAIA “did not change the ability of courts to exercise principles of international comity” in antitrust actions); see also Mannington Mills v. Congoleum Corp., 595 F.2d 1287, 1297–98 (3d Cir. 1979) (affirming Timberlane and listing ten comity factors relevant to “balancing process”); Pillar Corp. v. Enercon Indus. Corp., 694 F. Supp. 1353, 1360–61 (E.D. Wis. 1988) (discussing “concerns raised” by Mannington Mills and Timberlane courts); Dominicus Americana Bohio v. Gulf & W. Indus., 473 F. Supp. 680, 687 (S.D.N.Y. 1979) (following Mannington Mills analysis of ten factors relevant to comity analysis). But see Hartford Fire, Ins. Co. v. California, 509 U.S. 764, 796–99 (1993) (principles of international comity are only raised upon a “true conflict” between U.S. and foreign law).

 [51]. Timberlane v. Bank of Am. N.T.& S.A., 749 F.2d 1378, 1384–86 (9th Cir. 1984).

 [52]. Hartford Fire, 509 U.S. at 796–99.

 [53]. Id. at 798–99.

 [54]. Id. at 797.

 [55]. Id. at 799.

 [56]. Id. at 796.

 [57]. See id. at 796 n.23.

 [58]. However, it is essential to note at the onset of this discussion that, despite judicial treatment of the Act’s thornier components, compelling commentary has called for repeal of the FTAIA altogether. See generally Robert E. Connolly, Repeal the FTAIA! (Or at Least Consider It as Coextensive with Hartford Fire), CPI Antitrust Chron. (Sept. 2014), [hereinafter Connolly, Repeal the FTAIA!] (noting “[a] primary motivation behind the FTAIA was to give immunity to American exporters to engage in anticompetitive conduct—as long as it negatively affected only foreign consumers,” and arguing the FTAIA should not govern the extraterritorial reach of the Sherman Act). Connolly reiterates and extends portions of his argument in a companion article. Robert E. Connolly, Motorola Mobility and the FTAIA, CartelCapers (Sept. 30, 2014),

 [59]. See 15 U.S.C. § 6a (2018).

 [60]. Id. (emphasis added).

 [61]. See id.; accord United States v. Hui Hsiung, 778 F.3d 738, 750–51 (9th Cir. 2015); Carpet Grp. Int’l v. Oriental Rug Imps. Ass’n, 227 F.3d 62, 71 (3d Cir. 2000) (citing Eskofot A/S v. E.I. Du Pont Nemours & Co., 872 F. Supp. 81, 85 (S.D.N.Y. 1995)) (noting the implication that the Sherman Act applies to “import trade and import commerce is unmistakable”). The import commerce prong likely applies where a defendant sells a finished product directly to American consumers in the United States. See Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 855 (7th Cir. 2012) (en banc), cert. denied, 570 U.S. 935 (2013).

 [62]. F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 163 (2004).

 [63]. See Carpet Grp. Int’l, 227 F.3d at 71.

 [64]. See Connolly, Repeal the FTAIA!, supra note 58.

 [65]. H.R. Rep. No. 97–686, at 2–3 (1982), as reprinted in 1982 U.S.C.C.A.N. 2487, 2491; see also 15 U.S.C. § 4001 (2018) (“It is the purpose of this chapter to increase United States exports of products and services by encouraging more efficient provision of export trade services to United States producers and suppliers, in particular by . . . modifying the application of antitrust laws to certain export trade.”).

 [66]. H.R. Rep. No. 97–686, at 6 (1982).

 [67]. Id. at 5.

 [68]. Id. (emphasis added) (citing Cont’l Ore Co. v. Union Carbide, 370 U.S. 690, 704–05 (1962) and Steele v. Bulova Watch Co., 344 U.S. 280, 286 (1952)).

 [69]. H.R. Rep. No. 97–686, at 2–3 (1982).

 [70]. Of critical importance to subsequent analysis in this Note—an unstated desire to protect U.S. commercial interests also pervades modern judicial interpretations of the FTAIA, at least with respect to civil actions. See, e.g., Bauer, supra note 12, at 24 (“Arguably, the courts are seeking to protect the interests of American companies doing business abroad and of foreign companies doing business in the United States, with the unstated assumption that somehow this will result in a net benefit to the American economy.”).

 [71]. See, e.g., Connolly, Repeal the FTAIA!, supra note 58 (proposing outright repeal of the Act).

 [72]. See, e.g., Cavanagh, The New Frontier, supra note 30, at 2159 (“It has therefore fallen to the courts to determine the precise meaning and scope of the FTAIA.”). Indeed, given prolonged legislative inaction on the subject, federal courts arguably must define the scope of the FTAIA to yield some measure of clarity for litigants. See Levitt & Fogt, supra note 8 (suggesting legislative revision of FTAIA is unlikely but may be necessary).

 [73]. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796–97, 796 n.23 (1993); see also supra Section I.A.2 (discussing comity concerns in Hartford Fire).

 [74]. Hartford Fire, 509 U.S. at 796–97.

 [75]. United States v. Nippon Paper Indus. (Nippon I), 944 F. Supp. 55, 57–58 (D. Mass. 1996) (dismissing criminal antitrust indictment for lack of jurisdiction under Sherman Act).

 [76]. See id. at 58. The thrilling basis for the government’s prosecution stemmed from Nippon Paper Industries’ corporate predecessor, “Jujo Paper,” allegedly agreeing with unnamed Japanese firms to “fix prices of jumbo roll thermal facsimile paper (‘fax paper’) sold in the United States,” in violation of section 1 of the Sherman Act. Id.

 [77]. Id. at 64.

 [78]. Id. at 65 (emphasis added) (construing United States v. Bowman, 260 U.S. 94, 97–98 (1922) as holding the presumption against extraterritorial application of federal law “carries even more weight when applied to criminal statutes”).

 [79]. See id. at 64–66.

 [80]. United States v. Nippon Paper Indus. (Nippon II), 109 F.3d 1, 2–3 (1st Cir. 1997) (detailing the essential “Fax” underlying the panel’s decision); Raymond Krauze & John Mulcahy, Antitrust Violations, 40 Am. Crim. L. Rev. 241, 278–79 (2003) (“[T]he First Circuit reinstated the indictment of a foreign-based defendant for conduct occurring wholly outside of the United States, and the case looks to be a harbinger of the Antitrust Division’s growing ability to combat international price-fixing.”); see also 15 U.S.C. §§ 1–2 (2018) (criminal antitrust violations for horizontal restraints of trade and monopolization practices).

 [81]. Nippon II, 109 F.3d at 5 (emphasis added).

 [82]. Id. at 4.

 [83]. Id. at 6. The panel further noted that although Nippon and its expert witnesses argued that this was “the first criminal case in which the United States endeavor[ed] to extend Section One to wholly foreign conduct,” an “absence of earlier criminal actions is probably more a demonstration of the increasingly global nature of our economy than proof that Section One cannot cover wholly foreign conduct in the criminal milieu.” Id. In the court’s view, the mere lack of precedent imposing criminal liability to wholly foreign conduct did not bar prosecutors from bringing charges under section 1. Id. Critically, in the view of the court, the language of the FTAIA itself also did not impact the ability of U.S. authorities to bring criminal prosecutions against solely extraterritorial conduct. See id. at 4–6.

 [84]. Id. at 9 (emphasis added).

 [85]. Id. at 9 (Lynch, J., concurring) (emphasis added) (quoting Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359–60 (1933)).

 [86]. Id. at 4–6.

 [87]. Rather, along with the language and history of the FTAIA, Nippon I provides a helpful interpretive model for understanding the boundaries of U.S. law in the extraterritorial criminal context. In many ways, Nippon I challenges convention, as many courts have inferred substantially similar treatment of the Sherman Act’s criminal and civil provisions after Hartford Fire—a case in which only civil antitrust claims were at issue.

 [88]. F. Hoffman-La Roche, Ltd. v. Empagran S.A., 542 U.S. 155, 174–75 (2004) (internal quotation marks omitted) (quoting 15 U.S.C. § 6a(2) (2018)).

 [89]. Id.

 [90]. Id. at 173–75 (“Respondents concede that this claim is not their own claim; it is someone else’s claim. . . . “[T]hat is, the conduct’s domestic effects did not help to bring about that foreign injury.”); see also Empagran S.A. v. F. Hoffman-La Roche, Ltd., 417 F.3d 1267, 1270–71 (D.C. Cir. 2005) (noting on remand that the FTAIA codifies a proximate cause standard for Sherman Act claims involving foreign trade or commerce).

 [91]. See Empagran, 417 F.3d at 1270–71.

 [92]. United States v. Hui Hsiung, 778 F.3d 738, 750–51 (9th Cir. 2015).

 [93]. Motorola Mobility, LLC v. AU Optronics Corp., 775 F.3d 816, 824 (7th Cir. 2014), cert. denied, 135 S. Ct. 2837 (2015).

 [94]. Motorola Mobility, 135 S. Ct. at 2837 (denying petitions for certiorari in Motorola Mobility and Hui Hsiung). However, independent state-law actions have proceeded parallel to federal litigation surrounding the “Crystal Meeting” conspiracy. For example, consumer plaintiffs in the State of Washington will receive a total of $41.1 million in “overcharge” damages stemming from the conspiracy’s agreement to manipulate the supply of LCD panels to artificially increase prices. See Press Release, Wash. State Office of the Attorney Gen., More Than $41M Headed to Consumers in AG Ferguson’s LCD Price-Fixing Case (Sept. 14, 2017),

 [95]. But see Robert E. Connolly, Why the Supreme Court Refused to Hear the FTAIA Appeals, Law360 (June 16, 2015, 10:22 AM), (arguing that Hui Hsiung and Motorola Mobility were correctly decided and that the cases were sufficiently factually dissimilar to avoid facial contradiction between the final Circuit opinions).

 [96]. See infra Part II.

 [97]. LCD panels sold above competitive prices were incorporated in laptops, desktops, and television screens purchased by American consumers. See Brandon Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations 235–36 (2014) (describing “Crystal Meetings” conspiracy, harms to American consumers, and federal prosecution). One definition of “LCD” describes the technology as “an electronic display (as of the time in a digital watch) that consists of segments of a liquid crystal whose reflectivity varies according to the voltage applied to them.” LCD, Merriam-Webster’s Collegiate Dictionary (11th ed. 2017). LCD panels are increasingly incorporated into handheld technologies, such as smartphones, watches, telephonic displays, as well as computer screens and televisions, among many other products. See generally Joseph A. Castellano, Liquid Gold: The Story of Liquid Crystal Displays and the Creation of an Industry (2005) (tracing history of LCD panel technology and modern applications of technology).

 [98]. See Hui Hsiung, 778 F.3d at 743 (outlining “Crystal Meetings” conspiracy). The final judgment notes that affected panels were purchased by market leaders, including “Dell, Hewlett Packard (‘HP’), Compaq, Apple, and Motorola for use in consumer electronics.” Id.

 [99]. Id.

 [100]. Id.; accord Brent Snyder, U.S. Dep’t of Justice, Antitrust Div. Individual Accountability for Antitrust Crimes 6 (2016),
/download (“High-level executives were also prosecuted in the . . . LCD investigations, including two chairmen/CEOs, four presidents, more than 20 vice presidents, and a number of managers and directors. Among these were the president and executive vice president of the third largest LCD maker in the world. . . . [A] jury convicted these two, and they are currently serving 36-month jail terms—the longest sentences ever imposed on foreign-national defendants for antitrust offenses.”); Dep’t of Justice, Antitrust Div., Antitrust Primer for Federal Law Enforcement Personnel 4 (2018) [hereinafter Antitrust Primer], (discussing LCD-panel price-fixing conspiracy proceedings in U.S. federal courts).

 [101]. Hui Hsiung, 778 F.3d at 757.

 [102]. Id. at 743.

 [103]. Id. at 744.

 [104]. Id.

 [105]. Id.

 [106]. Id.

 [107]. Id. at 745; accord Snyder, supra note 100, at 6; Antitrust Primer, supra note 100, at 4 (noting final fines in the LCD antitrust investigation and prosecutions “led to criminal fines totaling more than $1.39 billion and charges against 22 executives,” the majority of whom pleaded guilty or were convicted at trial before U.S. tribunals).

 [108]. H              ui Hsiung, 778 F.3d at 745.

 [109]. United States v. Hui Hsiung, 758 F.3d 1074, 1095 (9th Cir. 2014), amended by United States v. Hui Hsiung, 778 F.3d 738 (2015).

 [110]. Hui Hsiung, 778 F.3d at 743, 751, 756.

 [111]. Id. at 743, 751, 760.

 [112]. See, e.g., supra notes 2122.

 [113]. Press Release No. 12-1140, Dep’t of Justice Office of Pub. Affairs, Antitrust Div., Taiwan-Based AU Optronics Corp. Sentenced to Pay $500 Million Criminal Fine for Role in LCD Price-Fixing Conspiracy (Sept. 20, 2012), In total, the Department of Justice (“DOJ”) reported that “eight companies have been convicted of charges arising out of the . . . ongoing investigation” into the LCD-panel price-fixing conspiracy, which “have been sentenced to pay criminal fines totaling $1.39 billion.” Id. (emphasis added). As of September 2012, the DOJ boasted that twenty-two executives had been charged in the foreign conspiracy; twelve had been convicted and “sentenced to serve a combined total of 4,871 days in prison” in the United States. Id. (emphasis added). These weighty penalties associated with criminal antitrust prosecutions particularly warrant heightened judicial scrutiny of the FTAIA’s language, purpose, and scope in the criminal context. Accord Antitrust Primer, supra note 100, at 3–4 (summarizing total fines and penalties in LCD-panel cases).

 [114]. Hui Hsiung, 778 F.3d at 758–60 (evaluating defendants’ sufficiency of evidence challenges to government’s alleged “direct, substantial, and reasonably foreseeable” effect on U.S. nonimport trade or commerce).

 [115]. Id. at 752–53.

 [116]. See id. at 756–60. The court notes that “even disregarding the domestic effects exception, the evidence that the defendants engaged in import trade was overwhelming” and demonstrated that the defendants participated in direct import commerce under 15 U.S.C. § 6a, and that this “import trade theory alone was sufficient to convict the defendants of price-fixing.” Id. at 760. However, the court’s discussion notably lacks any analysis of the second substantive element of the FTAIA’s domestic effects prong. See id. at 756–60.

 [117]. Id. at 757.

 [118]. See Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 851–52 (7th Cir. 2012); see also Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 466–69 (3d Cir. 2011). The dilemma of whether the FTAIA presents additional merits or jurisdictional elements for extraterritorial Sherman Act claims is contentious, with different lower courts adopting different rules since the 1990s. See Hui Hsiung, 778 F.3d at 751–52, 752 n.7, 753 (holding that the FTAIA is “not a subject-matter jurisdiction limitation on the power of the federal courts but a component of the merits of a Sherman Act claim involving nonimport trade or commerce with foreign nations,” and reviewing cases adopting and rejecting this rule); see also Edward Valdespino, Note, Shifting Viewpoints: The Foreign Trade Antitrust Improvements Act, a Substantive or Jurisdictional Approach, 45 Tex. Int’l L.J. 457, 457 (2009) (noting a shift from jurisdictional to substantive view). The source of contention is the burden-shifting effect of viewing the FTAIA’s terms as substantive elements: the “[e]xpense and shifting burdens of proof greatly increases settlement pressure.” Levitt & Fogt, supra note 8. Rather than being challengeable on the pleadings through a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), a merits question requires courts to evaluate evidence and legal arguments, see Levitt & Fogt, supra note 8. Thus, viewing the FTAIA as a matter of “substantive liability” requires “resolution through motion[s] for summary judgment after . . . discovery or trial,” which may be extremely expensive in the context of extraterritorial antitrust actions. Levitt & Fogt, supra note 8. With that in mind, the trend in recent years is decidedly in favor of viewing the FTAIA as additional substantive elements. See id.

 [119]. See Hui Hsiung, 778 F.3d at 752.

 [120]. Motorola Mobility, LLC v. AU Optronics Corp., 775 F.3d 816, 817–18 (7th Cir. 2014) (describing procedural posture and factual basis of case). The panel decision, penned by economist and now-retired Judge Richard Posner, noted the criminal convictions entered in Hui Hsiung at the onset of its analysis. Id. (“We’ll drop ‘allegedly’ and ‘alleged,’ for simplicity, and assume that the panels were indeed price-fixed—a plausible assumption since defendant AU Optronics has been convicted of participating in a criminal conspiracy to fix the price of panel components of the cellphones manufactured by Motorola’s foreign subsidiaries.”).

 [121]. Id. (emphasis added).

 [122]. Id. at 821–25. Under the indirect-purchaser doctrine, only direct purchasers harmed by overcharging have cognizable antitrust claims under federal law. See Ill. Brick Co. v. Illinois, 431 U.S. 720, 723–26 (1977). Thus, the panel noted, “Motorola’s subsidiaries were the direct purchasers of the price-fixed LCD panels” whereas “Motorola and its customers [were the] indirect purchasers of the panels.” Motorola Mobility, 775 F.3d at 821 (emphasis added).

 [123]. Id. at 818 (emphasis added).

 [124]. Id. at 825 (emphasis added). Interestingly, the Seventh Circuit’s final opinion noted that the FTAIA has historically been interpreted to limit the extraterritorial application of domestic antitrust laws, in line with considerations of international comity, id. at 818, yet impliedly concluded that the Act’s “claim” language should be broadly construed to encompass civil claims and criminal indictments, see id. at 825.

 [125]. Id. at 824–25 (“The foreign subsidiaries can sue under foreign law—are we to presume the inadequacy of the antitrust laws of our foreign allies? Would such a presumption be consistent with international comity, or more concretely with good relations with allied nations in a world in turmoil?”). In response to Judge Posner—it seems readily discernible that American antitrust law does in fact presume the inadequacy of the competition laws of foreign collaborators, at least insofar as American prosecutors increasingly pursue criminal enforcement prosecutions involving foreign commerce. Moreover, in the wider array of international transactional regulation, the United States frequently dispatches with consideration of “good relations with allied nations” in pursuit of national economic objectives. See generally Head, supra note 40 (broadly surveying the role of U.S. law in regulation of international trade and investment).

 [126]. Notably, here, no petitioner raised this “claim” of error in Hui Hsiung or Motorola Mobility. Nevertheless, particularly if the FTAIA is to be construed as a series of additional substantive, non-jurisdictional requirements for Sherman Act claims, a full analysis of both parts of the two-part conjunctive domestic effects test is certainly warranted.

 [127]. Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971, 1971 (2013) (citing Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 339 (2005)). For authoritative discussions of the interaction between textualism and other recognized statutory interpretive methodologies in American judicial opinions, see generally Cross, supra and Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992). Part II begins from a textualist foundation and in subsequent sections, see infra Sections II.B–D, also considers alternative rationales for strictly interpreting the domestic effects exception to not authorize extraterritorial criminal prosecutions. Cross briefly notes that “[d]escriptive statistics reveal that textualism and legislative intent are [the] most common [interpretive methodologies], but all the approaches find material use in Court opinions.” See Cross, supra, at 1972; cf. id. at 1973–74 (“Textualism is broadly accepted as an interpretive methodology, the controversy is over its exclusivism. . . . Critics argue that there are many cases in which the plain meaning of the text does not offer a clear resolution and these difficult cases are . . . most likely to be taken by the . . . Supreme Court.” (citing Breyer, supra, at 862)).

 [128]. Cross, supra note 127, at 1972 (citing John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 434 (2005)).

 [129]. See id. at 1972–74.

 [130]. Claim, Black’s Law Dictionary (10th ed. 2014).

 [131]. Prosecution, Black’s Law Dictionary (10th ed. 2014).

 [132]. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 799 (1993).

 [133]. See, e.g., Motorola Mobility, LLC v. AU Optronics Corp., 775 F.3d 816, 818 (7th Cir. 2014) (citing Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application 273(c)(2) (3d ed. 2006)).

 [134]. Id. at 825 (quoting F. Hoffman-La Roche, Ltd. v. Empagran, S.A., 542 U.S. 155, 165 (2004)). Of course, the court in Motorola Mobility dealt with civil claims. Comity holds the same, if not greater, weight in criminal prosecutions, where judgments of community condemnation and moral culpability are implicated to far greater degrees than in civil actions. Accord International Guidelines, supra note 12, at 49–51 (highlighting “Special Considerations” in connection with criminal investigations and prosecutions undertaken against international price-fixing cartels).

 [135]. Motorola Mobility, 775 F.3d at 825 (emphasis added).

 [136]. See Restatement, supra note 47 §§ 402–03, § 403 cmt. a.

 [137]. Connolly, Repeal the FTAIA!, supra note 58, at 3. Connolly seems to suggest that American federal prosecutors will always have a greater concern for international relations, foreign sovereignty concerns, and other attendant comity considerations, than will civil plaintiffs. See id.

 [138]. See id. at 4.

 [139]. Id. at 7. Notably, Judge Posner cited Connolly’s article at length in the final opinion, including the relevant portion cited herein. See Motorola Mobility, 775 F.3d at 826–27 (citing Connolly, Repeal the FTAIA!, supra note 58). This suggests that Connolly’s colorable conception of comity had at least a persuasive impact on the panel’s reasoning with respect to the domestic effects prong.

 [140]. Connolly relies in part on the fact that, as DOJ prosecutors noted in their Motorola Mobility briefs, before commencing with a case, the DOJ contemplates the views of foreign nations, whereas, in his view, “the comity considerations with private plaintiffs are quite different.” Connolly, Repeal the FTAIA!, supra note 58, at 4. For example, Connolly contends that private individuals seeking civil damage remedies may fail to exercise the “degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by the U.S. Government.” Id. at 4–5 (emphasis added) (citing F. Hoffman-La Roche, Ltd. v. Empagran S.A., 542 U.S. 155, 171 (2004)). In defense of Connolly and the Court in Empagran, this praise of “self-restraint” and “consideration of foreign government sensibilities” in the American executive branch came prior to January 2017.

 [141]. In fact, “substantial differences . . . exist among various countries in respect of competition laws.” Head, supra note 40, at 643–45; see also id. at 634–54 (outlining American, Japanese, and EU competition regimes, multilateral competition policy efforts, and bilateral and regional competition policy efforts). In sharp contrast to imposition of criminal penalties for violations of competition policy, most countries of the world do agree on near-universal condemnation of “core international crimes,” such as “war crimes, crimes against the peace or aggression, crimes against humanity, and genocide.” Beth Van Schaack & Ronald C. Slye, International Criminal Law and Its Enforcement 205 (3rd ed. 2015). See id. at 205–581 (describing internationally recognized mechanisms for condemnation of war crimes, crimes against the peace, crimes against humanity, genocide).

 [142]. For instance, recent research suggests that criminal punishment in the United States is increasingly “harsh,” relative to peer nations. See generally James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (2003).

 [143]. See Paul H. Robinson, The Criminal-Civil Distinction and Dangerous Blameless Offenders, 83 J. Crim. L. & Criminology 693, 693–95, 698–710 (1993) (discussing interdependence between civil and criminal law, contrasting reasons for civil and criminal commitment, and arguing that “the distinctiveness of criminal law is its focus on moral blameworthiness”); Robert Cooter & Thomas Ulen, An Economic Theory of Crime and Punishment, in Law and Economics 454–84 (6th ed. 2016) (contrasting “traditional,” retributivist justifications for criminal punishment with utility-based “economic” approaches). Robinson traces first principles surrounding civil and criminal commitment to provide a robust take on the association between community values and the type of culpability associated with criminal condemnation. See Robinson, supra, at 693–95. Ultimately Robinson arrives at the conclusion that “it would be better to expand civil commitment to include seriously dangerous offenders who are excluded from criminal liability as blameless for any reason,” in part because American laws frequently set high standards for criminal commitment based upon offenders’ mental states and associated blameworthiness, as opposed to dangerousness. Id. at 716–17.

 [144]. See supra notes 16 and accompanying text (discussing the currently fractious political economy of international trade and international economic cooperation).

 [145]. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

 [146]. Cf. Timberlane Lumber Co. v. Bank of Am. N.T. & S.A., 749 F.2d 1378, 1384–86 (9th Cir. 1984) (noting international comity factors traditionally applied by federal courts to assess propriety of exercising jurisdiction). But see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798–99 (1993) (suggesting comity factors only relevant in assessing jurisdiction upon finding of “direct” conflict between American law and foreign law).

 [147]. See Hilton v. Guyot, 159 U.S. 113, 164 (1895) (noting comity reflects “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation”).

 [148]. See Arabian Am. Oil Co., 499 U.S. at 248, 252 (“We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. . . . [U]nless there is ‘the affirmative intention of the Congress clearly expressed,’ we must presume it ‘is primarily concerned with domestic conditions.’” (citations omitted)); see also Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 255 (2010) (quoting Arabian Am. Oil Co., 499 U.S. at 248) (“It is a ‘longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” (citations omitted)); Small v. United States, 544 U.S. 385, 388–89 (2005) (noting the “legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application” (emphasis added)); Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173 (1993); Smith v. United States, 507 U.S. 197, 203 (1993); cf. The Antelope, 23 U.S. 66, 123 (1825) (“The Courts of no country execute the penal laws of another.”); United States v. Ballestas, 795 F.3d 138, 143–44 (D.C. Cir. 2015) (quoting Morrison, 561 U.S. at 255).

 [149]. See Labor Union of Pico Korea, Ltd. v. Pico Prods., Inc., 968 F.2d 191, 194 (2d Cir. 1992), cert. denied, 506 U.S. 985 (1992) (suggesting burden of overcoming presumption against extraterritorial application of U.S. law lies with the party asserting application of U.S. law to events that occurred abroad); United States v. Gatlin, 216 F.3d 207, 211–12 (2d Cir. 2000) (discussing burden on party seeking extraterritorial application vis-à-vis legislative intent). But see United States v. Bowman, 260 U.S. 94, 101–03 (1922) (suggesting there is no presumption against extraterritoriality when dealing with statutes prohibiting crimes against the U.S. government); Kollias v. D & G Marine Maint., 29 F.3d 67, 71 (2d Cir. 1994), cert. denied, 513 U.S. 1146 (1995) (holding Bowman should be read narrowly to only apply to “criminal statutes . . . and . . . only those relating to the government’s power to prosecute wrongs committed against it” and exempt such actions “from the presumption [against extraterritoriality]”).

 [150]. See Morrison, 561 U.S. at 266–67 (citing Arabian Am. Oil Co., 499 U.S. at 255 and Foley Bros. v. Filardo, 336 U.S. 281, 283, 285–86 (1949)) (suggesting the mode of analysis the Court applied concerned the “‘focus’ of congressional concern”).

 [151]. Id. at 266–67 (holding that the “focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States,” so section 10(b) of the Exchange Act only regulates “domestic transactions in other securities”); cf. Zachary D. Clopton, Bowman Lives: The Extraterritorial Application of U.S. Criminal Law After Morrison v. National Australia Bank, 67 N.Y.U. Ann. Surv. of Am. L. 137, 159–60 (2011) (noting, in the civil context, “cases like [Arabian Am. Oil Co.] have made it harder to overcome the presumption,” and “Morrison seems to have made it harder to avoid the presumption with claims of territoriality”).

 [152]. Bowman, 260 U.S. at 97–98; see also Clopton, supra note 151, at 161 (“Bowman and its progeny do not question the power of Congress to enact extraterritorial criminal laws. Instead, these cases ask whether a court should apply an ambiguous criminal statute extraterritorially. For centuries, the answer . . . was flatly ‘no.’” (emphasis added)). But see Clopton, supra note 151, at 166 (suggesting lower courts have interpreted Bowman as “merely restat[ing] the American Banana rule that statutes are presumed to apply territorially unless Congress has indicated otherwise,” while other courts have “suggested that Bowman created a limited exception to the presumption” (footnotes omitted)).

 [153]. International Guidelines, supra note 12, at 5.

 [154]. Id.

 [155]. Id.

 [156]. Id.

 [157]. There is a wide divergence in the “substance and enforcement” of competition law among leading jurisdictions—including the United States, Japan, and the European Union (“EU”). See Head, supra note 40, at 648–49. Leading commentary suggests that the values undergirding competition policy in the EU and United States “differ significantly,” in that the EU does not follow the United States’ unilateral “focus on ensuring competitive markets through limitations on abusive business practices.” Jerold A. Friedland, Understanding International Business and Financial Transactions 295–96 (4th ed. 2014). Moreover, Japanese law “does not begin with the premise of U.S. law that private agreements to regulate trade are injurious,” and, for many decades “cartels of the largest Japanese businesses were encouraged to stabilize the economy through practices that prevented unemployment and focused private economic activity on public goals.” Id. at 296.

 [158]. Nevertheless, the DOJ may maintain a focus on “individual accountability” in criminal antitrust enforcement, even in extraterritorial cases. Snyder, supra note 100, at 3–5.

 [159]. See 15 U.S.C. § 2 (2018).

 [160]. See, e.g., H.R. Rep. No. 97–686, at 6 (1982) (noting how extraterritorial application of the Sherman Act prior to the FTAIA caused many international business transactions to “die on the drawing board”).

 [161]. The government’s emphasis on “individual accountability” is underscored in the LCD investigation and eventual prosecutions. See Snyder, supra note 100, at 3–5; Antitrust Primer, supra note 100, at 4.

 [162]. Snyder, supra note 100, at 6 (“AU Optronics . . . pa[id] a then-record fine of $500 million and accept[ed] a compliance monitor, after the same jury convicted it.”). The former Deputy Assistant Attorney General’s remarks reinforce the importance of compliance monitors to maintain a long-term culture of antitrust enforcement—even cases involving foreign companies and extraterritorial application of criminal antitrust law. Id.

Corporate accountability is important as well because it incentivizes compliance with our laws. The Antitrust Division emphasizes that compliance with antitrust laws must be ingrained in a corporation’s culture—one that is established from the top down. And we insist on probation and corporate monitors in criminal resolutions, where corporate offenders fail to demonstrate serious compliance efforts.

Id. at 1–2.

 [163]. Id. at 6.

 [164]. See generally id. The fact that leaders among the DOJ antitrust enforcement community view compliance monitors and cultures of corporate compliance as essential to the U.S. criminal antitrust regime generally reinforces this point.

 [165]. Regrettably, this response arguably both reflects and reinforces American hegemony in competition policy.

 [166]. At least at present, the prospects for a truly global competition regime appear scant. See Head, supra note 40, at 641­–54 (discussing regimes regulating anticompetitive conduct beyond domestic laws). Since the 1990s, nearly 150 sovereign states have enacted competition regimes; these are predominately molded from American common law principles. See Levitt & Fogt, supra note 8. States, rather than intergovernmental organizations or non-governmental actors, simply retain principal authority over this aspect of international trade policy. Thus, efforts toward effective transnational regulatory frameworks should proceed from principles of collaborative management between coequal sovereigns. Accord id.

 [167]. See, e.g., International Guidelines, supra note 12, at 16–19 (broadly interpreting domestic effects standard based on cited precedents).

 [168]. Although in both cases the courts applied the direct import commerce prong as an independent basis for their respective decisions, each also noted that the domestic effects prong—if independently relied upon—would support the same outcome. These results are just as analytically problematic, albeit in a more attenuated sense, as a decision rendered solely upon application of the domestic effects prong.

 [169]. For example, in the case of AU Optronics, a criminal remedy included a long-term compliance monitor, on site at the company, to tackle a perceived culture of criminal corruption at the firm. See Antitrust Sanctions 2.0 – Evolving Views on Behavioral Remedies, Allen & Overy LLP, (last visited Dec. 4, 2018). Behavioral obligations for foreign individuals may be the next phase of the Antitrust Division’s shift toward behavioral remedies, as at least one major international law firm currently advises. Id. Given remedies available to prosecutors, foreign individual defendants may be more inclined to settle with U.S. authorities directly, in order to craft personally tailored monitoring remedies in lieu of more punitive mechanisms, such as a custodial sentence in the federal prison system. Id.

 [170]. See, e.g., supra notes 18, 12.

 [171]. Notably, Judge Posner substantively agreed with this observation in Motorola Mobility, drawing upon the seminal Empagran decision to suggest that it would be highly improper for courts to “presume the inadequacy of the antitrust laws of our foreign allies” and that doing so may constitute “unjustified interference with the right of foreign nations to regulate their own economies.” Motorola Mobility, LLC v. AU Optronics Corp., 775 F.3d 816, 824–25 (7th Cir. 2014) (citing F. Hoffmann-La Roche, Ltd. v. Empagran, S.A., 542 U.S. 155, 165 (2004)). Certainly, this logic should be imported into the criminal antitrust analysis to prevent interference with the rights of foreign sovereigns.

 [172]. International Guidelines, supra note 12, at 28 (“[M]ore jurisdictions have adopted and enforce antitrust laws that are compatible with those of the United States . . . .”).

 [173]. But see Developments in the Law: Extraterritoriality, supra note 40, at 1279. In the alternative, extensive criminal enforcement under the Sherman Act may be viewed as a positive, given

[t]he decrease in civil jurisdiction and the increase in criminal prosecution do more than cancel out each other’s downsides: the beneficial synergies between them can further the purposes of antitrust law. When viewed as a single trend instead of two, this shift involves the courts’ deferring to institutional competence and disengaging from foreign relations, more optimal deterrence attained by encouraging the preferred types of enforcement, and more international cooperation achieved without damaging reciprocity-based trade and foreign relations interests. . . . [I]t may represent a more coherent development in the law.

Id. Yet this proposed interpretation ignores the facial incongruence in “cutting back on protections afforded by the antitrust laws” in the civil context, see, for example, Bauer, supra note 12, at 26, while casually endorsing enhanced extraterritorial criminal enforcement under the FTAIA, see Developments in the Law: Extraterritoriality, supra note 40, at 1274–78 (describing increased criminal prosecutions of extraterritorial conduct under the Sherman Act in recent years).

 [174]. International Guidelines, supra note 12, at 16–19 (broadly interpreting domestic effects standard based on cited precedents) (citations omitted).

 [175]. As previously outlined, criminal laws and remedies canonically apply to delinquency that, within a given community, is adjudged morally deserving of condemnation. Cf. Robinson, supra note 143 (discussing justifications for punishment). This is not the case with respect to competition violations, at least in most instances.

 [176]. See, e.g., supra notes 17.

 [177]. William Shakespeare, Romeo and Juliet act 2, sc. 2.

An Impossible Standard: The California Parole Board Process for Inmates with Cognitive Impairments – Note by Amber Heron

From Volume 91, Number 5 (July 2018)

An Impossible Standard: The California Parole Board Process for Inmates with Cognitive Impairments

Amber Heron[*]




A. Background Information

B. Determinate and Indeterminate Sentences

C. Parole Suitability

D. Information Examined Prior to a Parole Hearing

E. Parole Hearing

F. Appeal of Parole Decision

G. California’s Parole Laws Disadvantage Inmates
with Cognitive Impairments


A. Statistics Concerning Inmates with Disabilities

B. CDCR’s Definition of a Developmental Disability

C. The Americans with Disabilities Act

1. Armstrong v. Wilson

2. Armstrong v. Schwarzenegger

3. Clark v. California


A. Factors Considered in Parole Suitability Hearings

1. Comprehensive Risk Assessment

2. Rule Violations

3. Programming

4. Insight

5. The Board’s Discretion

B. Additional External Factors Affecting Parole
Suitability Hearings

1. CDCR’s Narrow Definition of a Developmental Disability

2. Learning Disorders

3. TABE Assessment

4. Unconstitutional Denial of Liberty Without Due Process


A. Expanded Definition of Developmentally Disabled

B. Increased Commissioner and Correctional Officer

C. Less Emphasis on Insight

D. Providing Psychological Evaluations and
Psychologist Testimony at Parole Proceedings

E. Amending Rule Violation Write-Ups

F. Fair Weight Given to TABE Scores




How can one be expected to demonstrate something they are incapable of, and what if that something meant the difference between freedom and remaining in prison? Thousands of inmates in California face this issue, and many are kept incarcerated for life without any recognition of their cognitive capabilities.

Take Maria’s story,[1] for example; she is a client I became familiar with as a student working in the University of Southern California Gould School of Law’s (“USC”) Post-Conviction Justice Project (“PCJP”).[2] Maria had extensive cognitive impairments that went undiscovered while incarcerated in a California prison for nearly three decades. Because of this, Maria was denied parole an astounding six times with the parole board citing lack of insight each time. Maria’s continued denials persisted despite state-issued psychological evaluations concluding that her intellectual functioning was minimal.

Unfortunately, Maria’s predicament is not uncommon. There are several similarly situated inmates who are unable to effectively advocate for themselves due to their cognitive impairments, yet they are not provided with necessary accommodations. As a result, individuals are denied parole even though they do not pose a current danger to society. This culminates in the gravest deprivation of liberty without due process—denial of their freedom. [3]

In 2015, only 17% of California inmates were found suitable for parole.[4] In 2016, it dropped slightly to 16%.[5] The chances of release are even less for incarcerated individuals with cognitive impairments. This Note will provide an outline of the California parole process and explore the ways by which people with cognitive impairments[6] are disadvantaged by the current system.

First, this Note will explain the basic process of parole hearings in California and how an inmate may be found suitable for parole. Next, I will outline the current requirements that must be met for a person to be considered disabled in California’s prisons and discuss some of the groundbreaking California cases regarding inmates with disabilities. In order to provide proper context, I discuss the disabled population in prison, however, the primary focus of this Note is on the portion of California inmates that are not encompassed under the California Department of Corrections and Rehabilitation’s (“CDCR”) definition of developmentally disabled (“DD”).

Ultimately, this Note argues that California’s current parole system is legally impermissible due to the overlooked disadvantages it creates for inmates with cognitive impairments who do not fall within CDCR’s definition of disabled. As a result of CDCR’s exclusionary and limiting definition of a cognitive disability, numerous inmates are left with no access to accommodations that could help mitigate the unfairness their impairments present. Among the impairments inmates face are processing disorders, low cognitive functioning, and minimal formal education. Individuals who face impairments form a large population of potentially non-violent individuals who could be found suitable for parole, but because they have some cognitive limitation(s) that inhibit them from reaching the parole board’s specific standard, they cannot, and likely may never, meet the rigid suitability standards.

This Note argues that reform must come from re-envisioning the manner in which the parole process is administered and by applying a truly individualized approach. To be clear, the legal standard of current dangerousness is not at issue; it is the process by which the parole board determines a given inmate’s current danger that needs reform. Although many have evaluated the intersection between the DD population and the criminal justice system—including, for example, the often-unfair treatment and lack of opportunities at parole hearings for DD inmates[7]—few have studied inmates that fall into a “grey area.” That is, individuals who do not fall within the DD classification, but who cannot successfully meet the requirements of parole without a more personalized assessment.

I will advocate for a system that better identifies inmates that may not qualify as DD by the CDCR standard but still have limitations that preclude them from effectively self-advocating. For individuals who are identified, I argue that reasonable accommodations must be provided. In addition, I recommend the following changes: (1) increasing commissioner and correctional officer training for CDCR staff; (2) placing less emphasis on insight during a parole hearing; (3) providing a psychologist who can testify at each inmate’s parole proceeding; and (4) giving greater weight to an inmate’s score on their test for basic adult education (“TABE”). Although the parole board is required to assess each inmate’s suitability for parole on a “case-by-case”[8] basis, this current system does not adequately account for an individual’s cognitive impairments.

In sum, to remedy this impermissible system that results in discriminatory parole denials because of an individual’s cognitive impairment, inmates must be assessed at their ability-level and the formal, rigid standards currently in place must be changed.


A.  Background Information

CDCR is the entity responsible for operating the California state prison and parole systems.[9] Upon completion of a prison sentence—either from the expiration of a determinate sentence or as a result of a parole suitability finding—an individual is “released to either state supervised parole or county-level supervision” pursuant to the California Penal Code.[10] Typically, individuals who commit more serious or violent crimes are released into state parole custody, and the less violent offenders receive county supervision.[11] As of January 31, 2018, CDCR had 129,557 individuals in its custody.[12] Of that number, 117,427 were housed and living in institutions.[13]

B.  Determinate and Indeterminate Sentences

In California, most offenders are sentenced to a specified amount of time under the Determinate Sentencing Law (“DSL”).[14] This means that after an individual serves the imposed timefor example, seven yearshe or she is released from prison on parole. Sometimes, an individual with a determinate sentence will become eligible for a parole suitability hearing prior to their scheduled release date.[15]

If an individual does not receive a determinate sentence, they are likely to receive an indeterminate sentence pursuant to the Indeterminate Sentencing Law (“ISL”).[16] An indeterminate sentence will be a term of life, with the possibility of parole, such as fifteen-years-to-life or twenty-five-years-to-life. These individuals are more commonly referred to as “lifers.” An individual serving a life term with the possibility of parole cannot be released from prison until the Board of Parole Hearings (“BPH”) determines they are ready to be reintegrated back into society.[17]

This Note primarily focuses on inmates serving indeterminate sentences because inmates with determinate sentences rarely face a parole board. In 2013, there were approximately 32,000 inmates in California serving life sentences with the possibility of parole and an additional 3,200 inmates sentenced to life without the possibility of parole.[18] As of April 2013, California had more than “three times as many lifers” as any other state.[19]

C.  Parole Suitability

A life-term inmate must serve a certain statutory period before becoming eligible for a parole suitability hearing.[20] When an inmate becomes eligible for parole, BPH administers a parole hearing.[21] BPH then makes a legal determination concerning whether an inmate poses a “current, unreasonable risk of danger to the public.”[22] The language of California Penal Code section 3041 is unambiguous when it states that the parole board, or panel, “shall grant parole to an inmate unless . . . consideration of the public safety requires a more lengthy period of incarceration.”[23] This mandatory language is what creates a “constitutionally protected liberty interest” in parole.[24] Despite this “statutory mandate,” an indeterminately sentenced California inmate is granted parole “less than 1 percent” of the time at their initial suitability hearing and “roughly 18 percent” overall.[25]

A panel consisting of two individuals—a presiding commissioner and a deputy commissioner (collectively, “the Board”)[26]—will together consider “[a]ll relevant, reliable information” to make a parole suitability determination.[27] Commissioners are appointed to three year terms by the governor of California, subject to confirmation by the state senate.[28] California has fourteen Governor appointed commissioners.

Title 15 of the California Code of Regulations (“CCR”) sets out a list of factors to be considered in determining an inmate’s suitability for release on parole, although it is not exhaustive.[29] The Board is tasked with balancing these suitability and unsuitability factors.

There are nine enumerated factors that indicate circumstances tending to show suitability: (1) no juvenile record; (2) stable social history; (3) signs of remorse; (4) motivation for crime; (5) battered woman syndrome; (6) lack of criminal history; (7) age; (8) ability to understand and plan for the future; and (9) institutional behavior.[30] Additionally, and with much significance, the California Supreme Court held that “insight bears more immediately on the . . . present risk to public safety” of an inmate, in comparison to other suitability factors considered.[31]

Factors weighing toward unsuitability are: (1) the commitment offenseparticularly if the prisoner committed the offense in an especially heinous, atrocious or cruel manner;[32] (2) previous record of violence; (3) unstable social history; (4) sadistic sexual offense; (5) psychological factors; and (6) poor institutional behavior.[33]

These factors, taken in their entirety, determine the outcome of a parole hearing. Further, the California Supreme Court held, with regard to parole decisions, that whether an inmate is found suitable and thus released on parole, or instead given a threetofifteenyear set-off depends on the Board’s nearly unlimited discretion.[34] Given this wide range of discretion, coupled with virtually unlimited unsuitability factors, the possibility of being released on parole is slim.[35]

For individuals with cognitive impairments, moreover, the odds of being granted parole are even worse.[36] For example, inmates with cognitive impairments can face particular difficulties with demonstrating insight because insight-based questions often require the articulation of abstract ideas, an ability that inmates with developmental disabilities may not possess. In addition, certain cognitive disabilities significantly affect subjective emotional cues, making expressions of remorse more challenging.

Ultimately, being found suitable for parole is not only dependent on how effectively an inmate can verbally communicate and articulately respond to multi-faceted questions at an actual hearing, but also on their behavior in prison and even their record prior to incarceration.[37]

D.  Information Examined Prior to a Parole Hearing

Before a parole hearing, the Board receives an inmate’s central file (“C-File”), results of the inmate’s Comprehensive Risk Assessment (commonly referred to as psych evals), all rule violations in prison, vocational and educational certificates, letters supporting and opposing parole, and victim-impact statements.[38] In addition to written statements, the victims and victims’ families are permitted to attend and speak at the parole hearing.[39]

Marsy’s law is responsible for a wide expansion of victims’ rights.[40] In particular, Marsy’s law allows victims or representatives of victims to make statements at an inmate’s parole hearing, in which they “reasonably express their views concerning the prisoner, including . . . the effect of the crimes on the victim’s family, and the prisoner’s suitability for parole.”[41] Some argue that the presence of victims at parole hearings increases the chance of receiving a denial.[42]

E.  Parole Hearing

The parole hearing itself is normally several hours long, occurs onsite where the individual prisoner is incarcerated, and is typically administered by the Board asking the inmate several questions.[43]

Parole hearings traditionally follow a similar structure, in which the inmate is asked about his or her life in chronological order.[44] The inmate’s childhood, adolescence and, if applicable, adulthood are discussed. After that, the commitment offense is discussed, often at great length. The commitment offense, a static factor that cannot be changed despite the passage of time, can prove challenging for inmates, especially those with heinous or violent crimes.[45] Thereafter, the inmate’s time while incarcerated is discussed, including both negative factors, such as rule violations, and positive factors, such as programming and certificates that document good behavior.[46] Lastly, parole and relapse prevention plans are discussed.

All inmates are entitled to legal counsel at their parole hearing.[47] California is required to provide counsel for inmates who want representation, but otherwise do not have an attorney. The state, however, only compensates parole-appointed attorneys a “maximum $400 per case.”[48]

In addition to the two commissioners, the inmate, and his or her attorney (if the inmate elected to have one present), a District Attorney from the prosecuting county of the controlling offense can be present to ask clarifying questions as well as to make a statement about the inmate’s suitability for parole.[49] Almost always, the District Attorney opposes the inmates release on parole.

After an hourslong hearing is conducted, the commissioner and deputy commissioner privately deliberate to make a parole determination.[50] In rare cases, a hearing may be continued, but almost always an inmate will either be found suitable for parole, known as receiving a grant, or the inmate will be denied parole.[51] If the inmate is found unsuitable for parole, the Board “shall schedule the next hearing . . . [f]ifteen years after,” unless “clear and convincing” evidence exists to schedule the next hearing in either ten, seven or three years.[52] Thus, the default denial of parole in California results in a fifteen year set-off, which itself indicates the gravity of parole hearings.[53] Prior to the passage of Marsy’s Law in 2008,[54] the governing statute presumed a set-off of only one year and allowed commissioners to set a maximum denial of five years.[55]

After the Board issues its decision on the day of the hearing, BPH has 120 days to review and finalize the decision.[56] Once the Board’s decision has been finalized, the presiding California governor has thirty days to review the decision.[57] For homicide offenses, the governor may “affirm, modify, or reverse” the Board based on the same factors the Board considers.[58] In every other case, the Governor is “limited to remanding the case back to the Board for reconsideration.”[59]

F.  Appeal of Parole Decision

In the event of a denial or grant reversal by the Governor, an inmate may file a habeas corpus petition in a California state court to challenge the denial.[60] As determined by the California Supreme Court, the decision to grant or deny parole is “subject to a limited judicial review to determine only whether the decision is supported by ‘some evidence.’”[61]

The “some evidence” standard has been widely contested but consistently reaffirmed by California courts.[62] In accordance with California’s Constitution and statutes, the executive branch is vested with the decision to grant parole to an inmate in CDCR’s custody.[63] The California Supreme Court stated in In re Shaputis that “[i]t is the job of a reviewing court” to apply the “deferential ‘some evidence’” standard to the parole determination.”[64] Justice Corrigan acknowledged that the court may be skeptical of the stated reasons of the Board for a parole denial; however, “considerations of judicial restraint and comity between the executive and judicial branches counsel against including mere suspicions in the court’s opinion.”[65] As a result of this deferential standard, parole denials are commonly upheld.

G.   California’s Parole Laws Disadvantage Inmates with Cognitive Impairments

The stringent requirements of the California parole board process disadvantage inmates with cognitive impairments both prior to and during their parole hearings. As it currently stands, the parole process demands certain abilities. A parole hearing moves quickly with several abstract, complicated questions asked in an unforgiving manner. Processing disorders, minimal education, and the inability to retain or recite information can each jeopardize an inmate’s possibility of being found suitable for parole. Because of the inflexible structure and immutable demands placed on inmates at parole hearings, it ultimately amounts to a process that systematically disadvantages inmates with cognitive impairments.


A.  Statistics Concerning Inmates with Disabilities

The Bureau of Justice’s statistics state that “1 in 5 prison inmates have a serious mental illness.”[66] In addition, the Bureau states that individuals in federal prisons are almost three times as likely to report having a disability as the nonincarcerated population.[67] Among the most common inmate-reported impairments are Down syndrome, autism, dementia, intellectual disabilities, and learning disorders . . . .”[68] The most commonly reported impairments nationwide were impairments with learning, with 23% of all state inmates saying that they struggled with learning.[69] Improper testing for disabilities and a lack of self-reporting also affects these statistics.[70] These statistics indicate that individuals in prison are more likely to be suffering from some sort of mental disorder than the non-incarcerated population.[71] In addition, further distortion of these numbers occurs due to a lack of self-reporting and when, in most instances, the [developmentally disabled] inmate is not identified, and so is mainstreamed with the general . . . prison population.”[72]

In addition, the statistics are influenced because inmates may be hesitant to admit to having a cognitive impairment, fearing the stigmatization that comes with such an admission. Given the choice, many inmates would prefer to avoid being labeled as disabled, or seen as different, even if it means sacrificing the possibility of being successful at a future parole hearing. This is especially true for inmates who do not formally meet CDCR’s DD definition. In such cases, an inmate who admitted having an impairment may face stigmatization, yet, under current law, no additional assistance would be provided to this inmate.

B.  CDCR’s Definition of a Developmental Disability

As defined by CDCR, an individual is considered to have a DD if the disability “originates before an individual attains the age of 18, continuesor can be expected to continue­—indefinitely, and constitutes a substantial handicap for that individual.”[73] The disabilities noted include cerebral palsy, epilepsy, and autism. In addition, an individual is considered to have a developmental disability if they have “disabling conditions found to be closely related to mental retardation . . . .[74]

The Clark Remedial Plan[75] states that criteria for inclusion in the Developmental Disability Program (“DDP”) are: (1) [l]ow cognitive functioning (usually IQ of 75 or below); and (2) [c]oncurrent deficits or impairments in adaptive functioning.”[76] Both elements must be met to qualify as a DD individual under CDCR’s standard.[77] Being classified for inclusion in the DDP is pertinent to whether a person has access to the treatment and accommodations that may be necessary for an eventual parole suitability finding.

During intake, CDCR assesses all inmates for potential inclusion in the DDP.[78] Certain characteristics that may present in an individual with developmental disabilities include concrete reasoning, limited or below agelevel communication skills, a short attention span, and difficulty retaining information. In addition, people with developmental disabilities may exhibit noncompliant behavior and struggle to understand the consequences of their actions.[79]

C.  The Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) was signed into law on July 26, 1990 with the intent to protect the rights of individuals with disabilities from pervasive discrimination.[80] The rights afforded in the ADA extend to state prisoners.[81] In accordance with the ADA, along with the Rehabilitation Act of 1973, an institutional staff member is required to meet with an inmate to identify “any disability-related accommodations needed for the [parole] proceeding.”[82] The findings and requests by the inmate are memorialized in BPH’s 1073 form, which is titled a “Notice and Request for Assistance at Parole Proceeding.”[83]

Despite the mechanisms currently in place to help account for an individual’s disability, CDCR and BPH have faced notable class action suits challenging the notion that proper accommodations exist and are enforced.[84] The most note-worthy cases of this kind are Armstrong v. Wilson,[85] Armstrong v. Schwarzenegger[86], and Clark v. California.[87] These cases are discussed in further detail in the Sections that follow.[88]

1.  Armstrong v. Wilson

In Armstrong v. Wilson, the court stated that the ADA does apply to state correctional facilities.[89] The ADA plainly states: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.”[90] Thus, California prisons must abide by the provisions in the ADA.[91] Two years after the decision in Armstrong v. Wilson, the Supreme Court ended ongoing circuit splits on this issue by holding in Pennsylvania Department of Corrections v. Yeskey that “the plain text of Title II of the ADA unambiguously extends to state prison inmates.”[92]

2.  Armstrong v. Schwarzenegger

On June 29, 1994, inmates with disabilities filed suit against CDCR and the Board of Prison Terms (“BPT”),[93] alleging that they were being deprived of their required accommodations due to their disabilities.[94] Initially, this class action suit did not include individuals with developmental disabilities, but was amended in January 1999 to include them.[95] The parties agreed to bifurcate the proceedings into two separate litigations—one involving CDCR and another with BPT. CDCR entered into a settlement agreement premised on a finding of the Armstrong court that the ADA and Rehabilitation Act of 1973 extend to prisons—as noted above, the court ruled in Armstrong v. Wilson that both statutes apply to state prisons.[96]

The claims against BPT were litigated in a bench trial beginning in April 1999.[97] Included in the plaintiffs’ evidence were stories about a deaf prisoner being “unable to communicate with a sign language interpreter because he was shackled” and a “blind inmate left without assistance to read complicated written materials.”[98] In March 2001, the court issued a permanent injunction ordering California to comply with the ADA and the Rehabilitation Act of 1973.

After an appeal by the State in November 2001, the court entered a Revised Permanent Injunction on February 11, 2002.[99] The injunction required the State to:

create and maintain a system for tracking prisoners and parolees with disabilities, take reasonable steps to identify prisoners and parolees with disabilities prior to parole proceedings, and provide reasonable accommodations to prisoners and parolees with disabilities at all parole proceedings, including parole revocations and revocation extensions, life prisoner hearings, mentally disordered offender proceedings, and sexually violent predator proceedings.[100]

After failing to comply fully with the injunction, the plaintiffs sought and were awarded an enforcement motion against BPT on May 30, 2006.[101]

In January 2007, a separate injunction was issued after a finding that “despite extensive monitoring of CDCR Institutions,” the state of California was “continuing to severely violate the rights of prisoners with disabilities.”[102]

3.  Clark v. California

On April 22, 1996, two inmates incarcerated in California with developmental disabilities filed a class action lawsuit citing discrimination due to their disabilities.[103] In 1998, prior to the start of trial, the two parties negotiated an interim agreement.[104] As a result of this negotiation, the Clark Remedial Plan (“CRP”) was issued on March 1, 2002.[105] This plan details the DDP in California prisons.[106] It includes policies pertaining to the “identification, appropriate classification, housing, protection and nondiscrimination of inmates/parolees with developmental disabilities.”[107]

In July 2009, the defendants—the state of California, California Governor, CDCR, and prison officials—filed a motion to “terminate the Settlement Agreement & Order,” known as the CRP, arguing that continued relief was no longer necessary.[108] The court denied the State’s motion for relief and granted, in part, the prisoners’ motion for further relief.[109]


In California, there exists only one mechanism—a parole hearing—for an inmate to demonstrate that they no longer pose a current danger to society and thus should be granted parole.[110] This current system for determining if parole should be granted or denied is dependent not only on whether an inmate possesses the necessary factors supporting parole, but also on their ability to clearly articulate these factors.[111] Given many inmates low cognitive abilitieswhether labeled as disabled by CDCR standards or notit is much more difficult for these individuals to clearly interpret and process questions asked at their Comprehensive Risk Assessment and their parole hearing and to articulate answers to questions about insight and remorse. From the parole hearing structure, to a lack of accommodations, to sub-par training for commissioners and correctional officers, the current California parole system is impermissible and ultimately unconstitutional for individuals with cognitive impairments.[112]

There are numerous studies which indicate that inmates who are developmentally disabled will be “unlikely to be able to follow general prison rules, participate in work or treatment programs,” and face “a higher risk of victimization than higher-functioning inmates.”[113] Further, “[t]heir failure to comply with the prison routine” and difficulty or inability “to read and to understand prison rules and to advocate effectively for themselves, contributes to them more often being denied parole.”[114] In fact, research demonstrates that “inmates with mental retardation tend to serve longer sentences because of their higher frequency of infractions in prison and have greater difficulty securing parole.”[115]

From these research results about inmates who are recognized as DD, we can infer that individuals with cognitive impairments that are undiagnosed are just as likely to experience these issues, ultimately resulting in a parole denial. Because the Board does not adjust its suitability standard for inmates with cognitive impairments, individuals with cognitive impairments may end up staying in prison for far longer, resulting in arguably unconstitutional sentences. To remedy this, commissioners at parole hearings should not only be required to consider an inmate’s level of cognitive functioning, but also be mandated to run parole hearings in accordance with the inmate’s ability-level.[116]

A.  Factors Considered in Parole Suitability Hearings

Below is a list of factors, though not exhaustive, that are considered during a parole suitability hearing. These statutorily mandated factors tend to disadvantage individuals with cognitive impairments because each of them requires some level of advanced processing and communication ability.

1.  Comprehensive Risk Assessment

Prior to a parole suitability hearing, the Forensic Assessment Division of BPH issues a Comprehensive Risk Assessment to all inmates.[117] The purpose of the risk assessment is to help identify an inmate’s “potential for future violence and protective factors that could minimize his or her risk if  released to the community.”[118] When performing the evaluation on the inmate, the assessment may include inquiries into the inmate’s “commitment offense, institutional programming, past and present mental state, and analysis of static and dynamic risk factors” as well as “emotions and attitudes, and perceptions and attributions.”[119] The inmate can receive a “final risk ratings of low, moderate, or high risk for violence . . . .”[120] Assessments are administered every five years.[121] For a realistic chance at parole, an inmate should receive a “low” score on their risk assessment. Anything higher gives the Board greater discretion to deny parole.[122]

Pursuant to CDCR’s rules, an inmate is unable to appeal the results of their Comprehensive Risk Assessment.[123] The inmate, along with his or her attorney, can, however, contest the findings of the assessment at their parole hearing.[124] The hearing panel, at its discretion, will determine how heavily to weigh the Comprehensive Risk Assessment.[125] In practice, the commissioners often place substantial weight on the findings contained within the Comprehensive Risk Assessment.

The susceptibilities of the Comprehensive Risk Assessments should be examined more closely, given how heavily the Board relies upon such assessments. The atmosphere, pressure, nervousness, and potential confusion of questions being asked can lead an inmate to present poorly. It is administered in prison, and the inmate goes into the assessment with an acute awareness of the implications of the score they receive. Thus, before the assessment even begins, there is heightened pressure on the inmate. These external factors can be especially damaging to those who have undiagnosed cognitive impairments.

2.  Rule Violations

For the primary purpose of safety—for the correctional officers, other employees, and fellow inmates—prison policies are very strict.[126] The majority of inmate rule violations occur and are documented as either a custodial counseling chrono, also known as a “128,” or a more serious rule violation report, referred to as a “115.”[127]

Violations that constitute a 128 include: “[p]ossession of contraband other than controlled substances,” “[m]isuse of food,” “[o]ut-of-bounds presenting no threat to facility security,” “[m]isuse of telephone privileges,” “[m]ail or visiting violations,” “[f]ailure to meet work or program expectations,” “[l]ate for or absent without authorization from a work or program assignment,” “[u]se of vulgar or obscene language,” and “[f]ailure to comply with departmental grooming standards.”[128]

An inmate may receive a 115, a more serious write-up, for “[t]he use or threat of force or violence against another person,” “[a] breach of or hazard to facility security, “serious disruption of facility operations,” “introduction, use, or possession of controlled substances or alcohol,” “[p]ossession of dangerous contraband,” and “[a]ny felony offense.”[129] The high demands placed on inmates may make it very difficult to avoid receiving disciplinary citations despite an inmate’s best effort to do so.

The extensive list of rules inmates must follow at all times while incarcerated exists for purposes of efficiency, management, and promoting safety.[130] For inmates with cognitive impairments, non-adherence to obscure and sometimes unknown rules that result in rule violation write-ups can be exceptionally detrimental at a parole hearing. Navigating the prison system requires a level of savviness that many DD inmates simply do not possess.

At a parole hearing, any rule violation received while incarcerated will be discussed.[131] In addition, the Board will critically assess more recent rule violations and write-ups from the year leading up to the hearing—so these can be especially damaging.[132] Rule violations are heavily relied upon as a basis for denying parole.[133]

For inmates classified as having a developmental disability or a documented mental health disorder, a slightly modified procedure is followed.[134] If, at the time of a citation “the inmates behavior was so strongly influenced by symptoms of mental illness or developmental disability/cognitive or adaptive functioning deficits,” the mental health staff can recommend that the rule violation be documented in an “alternate manner.”[135] After review by the correctional officer captain, he or she can choose to ignore the recommendation and still give a write-up or can decide to place a memorandum in the inmate’s file documenting the reason not to issue the 128 or 115.[136] Ultimately, however, a record will exist discussing the incident and may be inquired into at a parole suitability hearing.

Despite this specific regulation aimed to help the DD prisoner population better navigate the system and prevent unfair violations, the inmate must still be able to discuss the rule violations they receive, along with any similar incidents, in an articulate and insightful manner at a parole hearing. Not only must the prisoner admit to their improper conduct, but they must also explain the motivations behind such behavior. People with cognitive impairments are expected to answer these questions despite the fact that their ability to process and communicate is often compromised as defined by their disability.[137]

3.  Programming

During an individual’s parole suitability hearing, a part of the hearing is dedicated to assessing the programming they have engaged in while incarcerated.[138] The Board will look for programming relevant to a problem an inmate may have had prior to incarceration, especially if the inmate’s commitment offense was related to the problem. For example, if an inmate’s offense was gang-related, the inmate will almost certainly need to have programmed with Criminal Gangs Anonymous (“CGA”) or a similar gang-prevention program. In addition, inmates with addiction issues will likely need programming with Narcotics Anonymous (“NA”) or Alcoholics Anonymous (“AA”). Inmates will often be asked to recite the twelve-steps at their hearing and discuss how each step has helped with their sobriety.[139] The ability to retain and recite the steps and to explain how each step impacted an inmate’s sobriety may simply be beyond the ability-level of inmates with certain cognitive impairments. Therefore, recognizing an inmate’s limitations is essential for purposes of a fair proceeding.

In addition, access to programs can be limitedespecially for males at higher-level security prisons—and knowing which programs to take can be hard—especially for someone with cognitive impairments. Even if an inmate successfully participates in programs, they must also be able to precisely detail what they learned and how it changed their internal thinking. For an inmate who functions at a lower cognitive level, this specific type of articulation may be unachievable. The Board, however, does not account for that inability.

4.  Insight

Insight is defined as “the power or act of seeing into a situation,[140] or “[t]he capacity to gain an accurate and deep understanding of someone or something.”[141] The concept of “insight” has increasingly influenced California jurisprudence concerning prisoners’ parole hearings.

For example, in 2008, the California Supreme Court issued its opinion in In re Lawrence, which affirmed a California Court of Appeal’s finding that the Governor’s reversal of a parole grant was improper. In its decision, the Court relied heavily on the inmate’s insight, stating that upon incarceration she “lacked emotional insight;” however, over time, she gained “substantial insight” in relation to “both the behavior that led to the murder and her own responsibility for the crime.[142] Since then, the Board has focused immensely on insight at parole hearings.[143] A lack of insight is one of the most common reasons cited supporting the Board’s denial of parole.[144] As predicted, a denial or reversal by the Governor due to “lack of insight” has been substantially litigated.[145] The success of these petitions, however, has been limited given the “some evidence” standard used by courts to challenge Board denials.[146]

As stated by the California Supreme Court, expressions of insight and remorse will vary from prisoner to prisoner and . . . there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior.”[147] Lack of insight supports a parole denial when it is rationally indicative of the central issue of an inmate’s current dangerousness when considered in light of the full record.[148]

Courts have recognized the obstacles faced by inmates accused of a lack of insight, since the assertion of a lack of insight can be “shorthand for subjective perceptions based on intuition or undefined criteria that are impossible to refute.”[149] There is also the concern that insight has become the “new talisman” for denying parole.[150] When an inmate is denied his or her constitutional right for parole based on a lack of insight, the Board must find a “factually identifiable deficiency in perception and understanding” of the criminal conduct or its causes that is probative of current dangerousness.[151]

When . . . undisputed evidence shows that the inmate has acknowledged the material aspects of his or her conduct and offense, shown an understanding of its causes, and demonstrated remorse, the Governor’s [or Board’s] mere refusal to accept such evidence is not itself a rational or sufficient basis upon which to conclude that the inmate lacks insight, let alone that he or she remains currently dangerous.[152]

For example, in In re Denham, petitioner was denied parole based on a lack of insight because the Board speculated that he played a larger part in the commitment offense than he testified to.[153] The court concluded that “the Board cite[d] no evidence establishing that Denham’s participation in the crime was anything other than what he described at the 2010 parole hearing.”[154] Thus, the Court concluded that the Board reached its conclusion through improper speculation.[155]

The Court also held in In re Twinn that the Governor’s parole reversal violated due process because the Governor failed to establish a rational nexus between the prisoner’s alleged lack of insight and his current dangerousness.[156] Twinn was imprisoned after being convicted of second-degree murder.[157] Twinn had consistently denied his intention to kill the victim and clearly expressed remorse and accepted responsibility for his actions.[158] The Court reversed the governor’s denial, stating there was no “rational nexus” between Twinn’s description of his role in the murder and current danger to public safetyespecially when taking into account Twinn’s remorse, acceptance of responsibility, and good behavior.[159]

Though California courts, in some cases, have recognized that a “lack of insight” has become a prevalent reason for denying parole,[160] the courts’ very deferential “some evidence” standard for review of Board (and Governor) decisions leaves courts with limited ability to address any issues stemming from the Board using this reason.[161] Extensive focus geared towards the “proper” demonstration of insight poses particular issues for inmates with certain cognitive disorders. Further, this heightened emphasis on insight is particularly odd given that “insight” is not even listed as either a suitability or unsuitability factor in the statute.[162] Courts nonetheless have “accepted the presence or absence of insight as a relevant factor within the Board’s authority,” even going as far as to qualify it as a “significant factor.[163] This immense focus on an advanced concept like insight proves to be particularly damaging to individuals who cannot function or think at a highly abstract level.

5.  The Board’s Discretion

Further, and perhaps most significant, is the power granted to commissioners to make parole suitability determinations.[164] The law, both statutorily and as interpreted by courts, affords commissioners extensive discretion to grant or deny parole.[165] The Board is tasked with assessing an inmate’s suitability on a case-by-case basis attempting to “balance . . . the interests of the inmate and of the public.”[166] With this broad discretion, commissioners are equipped with numerous bases on which to deny parole. For individuals who cannot conform to the Board’s precise expectations, a parole denial is a hearing’s most likely result.

An individual’s cognitive abilities are essential to processing and communicating information.[167] Therefore, prior to and during a parole hearing, an individual with impaired cognition will have a harder time than an individual without a cognitive disability to follow prison rules, excel in recommended or required programming, and communicate insight to the Board, thus, resulting in a higher likelihood of parole denial.[168]

B.  Additional External Factors Affecting Parole Suitability Hearings

There are several external factors that, although not often captured during a parole proceeding, have significant implications for receiving a grant. Many of these factors begin far before an individual enters CDCR’s custody. They can start as early as birth, or during childhood, when an individual with a disability is improperly diagnosed or not diagnosed at all. In addition, impairments can develop or worsen if an individual is granted limited access to education. In CDCR custody, cognitive impairments that were not addressed prior to a prisoner’s incarceration may continue to go unacknowledged, leading to challenges in prison that are similar to those the individual experienced outside of prison. Ultimately, this lowers that individual’s chance at parole.

1.  CDCR’s Narrow Definition of a Developmental Disability

CDCR’s determination of whether an individual falls within the DDP has far reaching implications. As currently written, CDCR’s narrow definition of a DD fails to encompass many inmates affected with impairments.

The Center for Disease Control (“CDC”) defines developmental disabilities as “a group of conditions due to an impairment in physical, learning, language, or behavior areas. These conditions begin during the developmental period, may impact day-to-day functioning, and usually last throughout a person’s lifetime.”[169] CDCR has a similar, but arguably stricter, definition.[170] Although there are still claims made by inmates with recognized developmental disabilities regarding unmet necessary accommodations, the arguably more difficult challenge lies with the thousands of inmates who do not fall within CDCR’s strict definition of DD, but have cognitive processing disorders or other intellectual impairments.

CDCR has several regulations designed to assist inmates who are included in the DDP.[171] For example, at a parole hearing of a person who falls within the DDP, staff assistance will be provided.[172] The assistance is usually a DDP counselor who does not provide legal advice, but can assist an inmate in understanding and participating in the parole hearing process.[173] However, inmates who have impairments but do not fall within CDCR’s DDP, such as an individual with a learning disorder, do not receive extra assistance at their parole hearing.[174]

Understandably, CDCR does not want to differentiate between inmates in the non-disabled group. For efficiency purposes, as well as cost concerns, treating all non-disabled inmates alike is alluring to prison officials. The problem, however, is that this practice is unjust and unreasonable. For example, cognitive impairments that preclude an inmate from effective, abstract thinking do not necessarily make them a current danger (the legal standard), yet time and again, an inmate in this position will be denied parole for “lack of insight.”[175]

At the crux of my argument lies a fundamental concept that the disability community commonly tries to convey—impairments, challenges, and disabilities are on a spectrum and cannot be defined or captured in a single definition easily.[176] The convenience of a bright-line definition for who qualifies as DD is understandably appealing to CDCR, but those who fall outside the bright-line definition, yet still possess cognitive impairments, must be provided a way in which their limitations will be identified, acknowledged, and considered during incarceration and at their parole hearing.

2.  Learning Disorders

An example of the impact of CDCR’s limiting definition of a DD individual is demonstrated through its treatment of people with learning disorders. CDCR defines a learning disorder as “a cognitive disorder that affects the ability of persons with normal intellect to learn academic and social information.”[177] Examples of learning disorders include dyslexia and dyscalculia. CDCR does not test for learning disorders, but instead, an inmate may be considered to have one if they have a TABE score that is under 4.0.[178]

At a parole hearing for an inmate with a learning disorder, the only advocate is the inmate’s lawyer (inmates are entitled to have a lawyer present). No other assistance is provided to help mitigate the struggles that this individual could face.[179] CDCR states in all caps on their website that, “THE ATTORNEY IS THE BEST ACCOMODATION” for inmates with cognitive impairments.[180] Lawyers, however, are not professionally trained to best accommodate individuals with impairments and, as such, likely do not possess the required skills to properly address these unique challenges.

3.  TABE Assessment

Another factor that is not statutorily mandated to be considered, and thus is often overlooked, is an inmate’s TABE score. Pursuant to the California Penal Code, all individuals housed in CDCR custody are issued a TABE after being placed in state custody.[181] The TABE is a diagnostic assessment that helps to determine an individual’s ability in English, math, and reading.[182] The TABE is used by CDCR, as well as other public service agencies, to help guide its determinations for what educational programs are needed for a given individual.[183]

CDCR divides its adult basic education (“ABE”) classes into three levels: ABE I classes are for individuals who score between zero and 3.9 on the reading portion, ABE II is for inmates who fall between 4.0 and 6.9 on the reading portion, and ABE III is for inmates who score between 7.0 and 8.9 in reading.[184] The California Penal Code states that the “department shall offer academic programming throughout an inmate’s incarceration that shall focus on increasing the reading ability of an inmate to at least a 9th grade level.”[185]

4.  Unconstitutional Denial of Liberty Without Due Process

There are several problems with CDCR’s approach to the segment of inmate population that does not qualify as developmentally disabled, but nonetheless has impairments. For one, a lawyer, though required by law to represent their client to the best of their ability,[186] may be simply unfamiliar with the inmate’s impairments and not able to best accommodate them. Further, a parole hearing is not an official judicial proceeding, and thus, inmates are not afforded the same rights they would have in a court of law.[187] Inmates are expected and required to speak on their own behalf with little intervention from their attorneys.[188] Individuals who have cognitive impairments may not be able to adequately respond or engage at a parole hearing. As a result, a large segment of the prison population may be in need of supplemental resources even though they are not classified as DD.

Because there exists a wide array of cognitive impairments that inmates face and often those impairments are not formally acknowledged, many inmates who do not pose a current danger to society will remain in prison after attaining parole eligibility. This is a denies the inmates their due process rights.


People with cognitive impairments, especially those that are undiagnosed or not properly and thoroughly addressed, get in trouble more often in prison and have higher Comprehensive Risk Assessment scores. They also do not articulate insight and remorse as eloquently as non-disabled individuals. Because of this, and because the Board does not adjust its suitability standard for inmates with cognitive impairments, those individuals who no longer pose a danger to society may end up staying in prison for longer, ultimately resulting in unconstitutional sentences.[189]

A.  Expanded Definition of Developmentally Disabled

CDCR’s current definition of developmentally disabled is extremely limiting.[190] I recommend expanding the definition to include those individuals who have cognitive impairments and are currently excluded. The DD population by its nature is extremely diverse. A more inclusive definition could help certain individuals receive the accommodations they require. While I respect the need to have a bright-line definition for administrative purposes, I think a more encompassing definition will capture some of the currently excluded inmates with little increase in administrative burden.

B.  Increased Commissioner and Correctional Officer Training

Though CDCR, by definition, is a department that is supposed to focus on corrections and rehabilitation, its correctional officers and commissioners are inadequately trained to serve and promote the prisons’ rehabilitative functions. Currently, all of the commissioners and deputy commissioners that conduct parole hearings must, “[w]ithin 60 days of appointment and annually thereafter undergo a minimum of 40 hours of training in . . . educational, vocational, mental health, medical, substance abuse, psychotherapeutic counseling, and sex offender treatment programs.”[191] Although the training includes a portion on mental health, it does not focus specifically on developmental disabilities or the many nuances of the DD population. Further, forty hours of training per year is woefully inadequate to cover the numerous topics that are particularly pertinent to the prison population.

Similar to parole commissioners, the “corrections staff usually have little training on disability issues.”[192] The lack of professional training for correctional officers is arguably more damaging than the lack of training for commissioners because an inmate must first succeed in rehabilitating while incarcerated before having an opportunity to be successful at their parole hearing.

“California falls far behind some other states” in regard to rehabilitation.[193] In a study conducted by the University of California, Irvine that focused on the MR/DD population in prison, researchers found “virtually no specialized rehabilitation or substance abuse programs . . . in jail, or in prison[,] [that could] meet the unique needs of offenders with retardation.”[194] In the few jurisdictions that have special corrections programs for the DD, they have been shown to lead to “increased social functioning and reduced recidivism rates, while at the same time reducing corrections costs.”[195]

There needs to be more training of both correctional officers and commissioners, especially in the realm of cognitive impairments, because it affects a large segment of the prison population. The trainings need to increase knowledge and sensitivity to these issues as well as provide instruction on how to best interact, encourage, and rehabilitate individuals struggling with cognitive impairments. This would give inmates a fair chance to rehabilitate and demonstrate to the commissioners at their parole hearings that they are no longer a current danger to society. It is essential to expand awareness and give training tools to commissioners and CDCR employees.

C.  Less Emphasis on Insight

After In re Lawrence, the Board’s focus on insight has increased substantially and has become one of the most important factors used to determine if parole will be granted.[196] Because insight is not a statutorily mandated factor and because it requires the ability to process ideas abstractly—in a way certain inmates are incapable of doing—the Board should focus less on insight, or at a minimum, be willing to accept a wider range of ways in which it can be demonstrated.

D.  Providing Psychological Evaluations and Psychologist Testimony at Parole Proceedings

Another remedy that may improve California’s current parole system is to allow testimony of a mental health professional at all parole hearings. As of now, the inmates Comprehensive Risk Assessment is the only documentation that addresses this. However, the ultimate goal of the psychologist who administers the risk assessment is not identifying disabilities; rather, it is to determine how much of a public safety risk the inmate poses. Thus, the assessment likely underrepresents, or does not address at all, an inmate’s disabilities. Having a mental health professional attend all parole hearings could provide the commissioners with information on an inmate’s cognitive ability and add a necessary safeguard that the system is currently lacking.

E.  Amending Rule Violation Write-Ups

Furthermore, I propose extending the amended procedure for administrating rule violations for inmates in the DDP to inmates who have cognitive impairments, but do not fall within CDCR’s stringent definition of a having a disability. This would allow individuals who function at a low cognitive level, or who have processing disorders, to explain their actions more fully. If someone, for example, cannot understand a rule, they should not be punished for it.[197]

F.  Fair Weight Given to TABE Scores

Further, more weight and analysis should be given to an inmate’s TABE score at their parole hearing. This could better inform the commissioners of an inmate’s cognitive ability level. More importantly, there should be different rules for the hearing based on how the inmate scored on the TABE. If an inmate has a TABE score of under 4.0, the commissioners should be required to ask different questions and run the parole hearing in a different way than when interacting with an inmate whose score is above 9.0. Expecting an individual to perform beyond their ability results in an unfair parole proceeding.


Ultimately, the way the California parole board treats people with cognitive impairments is arguably illegal. Though the Clark Remedial Plan was intended to prevent some of the criminal justice system’s abuses against people with cognitive disabilities, it has failed on a multitude of fronts.

CDCR’s rigid and narrow definition of a developmental disability is too limiting. As a result, it excludes the large segment of the incarcerated population with cognitive impairments. This disadvantages that specific population both prior to and during their parole hearings because they are unable to meet the requirements of parole suitability. This system is impermissible and must be changed as it results in the continued incarceration of people who do not pose a current danger to society.



[*] *. Senior Submissions Editor, Southern California Law Review, Volume 91; J.D. 2018, University of Southern California Gould School of Law; B.A. Political Science 2011, University of Washington, Seattle. I would like to thank Professor Heidi Rummel for valuable guidance and feedback on earlier drafts of this note. In addition, I would like to thank the staff and editors of the Southern California Law Review for their excellent work.

 [1]. Maria’s name and some facts have been changed to protect her identity and maintain confidentiality. Maria is the inspiration behind my note.

 [2]. PCJP is a clinical program that represents male and female prisoners incarcerated in California state prisons. Among its clients, PCJP represents parole-eligible inmates serving indeterminate life sentences and juveniles sentenced to life without the possibility of parole.

 [3]. See U.S. Const. amends. V, XIV.

 [4]. See Cal. Dep’t of Corr. and Rehab., Parole Suitability Hearings 1 (2015), (“In 2015, the Board held 5,300 parole suitability hearings and granted parole to 906 inmates.”).

 [5]. Jazmine Ulloa, More California Inmates Are Getting a Second Chance as Parole Board Enters New Era of Discretion, L.A. Times (July 27, 2017), These statistics indicate that the likelihood of being found suitable for parole in California still remains quite low; however, it is significantly better than the past. In 2007, “less than 2%” of inmates were found suitable for parole. Id.

 [6]. For purposes of this Note, I use the language “cognitive impairments” to differentiate between individuals who are formally identified as developmentally disabled in California prisons and those individuals who are not encompassed within that bright-line definition. The Center for Disease Control (“CDC”) defines an individual with a “cognitive impairment” as “a person [who] has trouble remembering, learning new things, concentrating, or making decisions that affect their everyday life.” Ctr. for Disease Control, A Cognitive Impairment: A Call for Action, Now! 1 (2011), Much thought was given to the sensitivity surrounding the usage of the word “impairments,” and the term is intended only to be construed as the actual definition from the CDC.

 [7]. See generally Joan Petersilia, Doing Justice? The Criminal Justice System and Offenders with Developmental Disabilities (2000) (discussing the “frequent victimiz[ation]” of inmates with developmental disabilities in the California parole process).

 [8]. In re Powell, 755 P.2d 881, 886 (Cal. 1988).

 [9]. See generally Cal. Dep’t of Corrections and Rehabilitation, CA.Gov, (last visited Aug. 20, 2018).

 [10]. Sentencing, Incarceration, & Parole of Offenders, Cal. Dep’t of Corrections and Rehabilitation, (last visited Aug. 20, 2018).

 [11]. Id.

 [12]. Cal. Dep’t of Corr. and Rehab: Div. of Internal Oversight and Research, Monthly Report of Population as of Midnight January 31, 2018, 1 (2018),

 [13]. Id.

 [14]. See Sentencing, Incarceration, & Parole of Offenders, supra note 10.

 [15]. Id.

 [16]. Id.

 [17]. Id.

 [18]. Keith Wattley, Insight into California’s Life Sentences, 25 Fed. Sent’g Rep. 271, 271 (2013).

 [19]. Id.

 [20]. Lifer Parole Process, Cal. Bd. of Parole Hearings,
/lifer_parole_process.html (last visited Aug. 20, 2018).

 [21]. Parole Suitability Hearings, supra note 4.

 [22]. Lifer Parole Process, supra note 20.

 [23]. Cal. Penal Code § 3041(b)(1) (West 2018) (emphasis added).

 [24]. See Board of Pardons v. Allen, 482 U.S. 369, 374 (1987). See also Swarthout v. Cooke, 562 U.S. 216, 218 (2011).

 [25]. Wattley, supra note 18, at 272.

 [26]. Lifer Parole Process, supra note 20.

 [27]. Cal. Code Regs. tit. 15, § 2281 (West 2018).

 [28]. Cal. Gov’t Code § 12838.4 (West 2018).

 [29]. Cal. Code Regs. tit. 15, § 2402 (West 2018).

 [30]. Id.

 [31]. In re Shaputis, 265 P.3d 253, 271 (Cal. 2011).

 [32]. Cal. Code Regs. tit. 15, § 2402 (West 2018). This can be a particularly challenging factor for individuals who have committed violent crimes. Many have argued and litigated that a murder, for example, may always be considered “heinous” or “atrocious” and thus it provides the Board with an ability to deny parole on grounds that do not have a “rational nexus” to an inmate’s current dangerousness.

 [33]. Id.

 [34]. In re Rosenkrantz, 59 P.3d 174, 203 (Cal. 2002).

 [35]. Parole Suitability Hearings, supra note 4.

 [36]. See generally Petersilia, supra note 7.

 [37]. Cal. Code Regs. tit. 15, § 2281(c)(5)–(6) (West 2018).

 [38]. Robert Weisberg et al., Stan. Crim. Just. Ctr., Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California 7 (2011).

 [39]. Cal. Penal Code § 3043 (West 2018).

 [40]. See David R. Friedman & Jackie M. Robinson, Note, Rebutting the Presumption: An Empirical Analysis of Parole Deferrals Under Marsy’s Law, 66 Stan. L. Rev. 173, 198 (2014). Marsy’s law was enacted after Ms. Marsalee (Marsy) Nicholas was murdered by her ex-boyfriend. A week after Marsy was killed, Marsy’s mother and brother encountered Marsy’s ex, the accused murderer in a grocery store. Marsy’s family was not informed that he had been released on bail. Because of the bill’s passage, courts now must consider the “safety of victims and families when setting bail and release conditions.” See About Marsy’s Law: Justice with Compassion, Marsy’s Law, (last visited Aug. 20, 2018). In addition, family members are legally entitled to attend all bail hearings, pleas, sentencing and parole hearings. Id.

 [41]. Victim’s Bill of Rights Act of 2008: Marsy’s Law, Cal. Bd. of Parole Hearings, (last visited Aug. 20, 2018).

 [42]. See Weisberg et al., supra note 38, at 20.

 [43]. Id. at 22.

 [44]. See id. at 7–8. See also Cal. Dep’t of Corr. and Rehab., Parole Suitability Proceeding Handbook: Information for Victims and Their Families 8–9 (2016).

 [45]. Cal. Code Regs. tit. 15, § 2402 (West 2018).

 [46]. See Weisberg et al., supra note 38, at 7–9.

 [47]. Lifer Parole Process, supra note 20.

 [48]. Beth Caldwell, Creating Meaningful Opportunities for Release: Graham, Miller and California’s Youth Offender Parole Hearings, 40 N.Y.U. Rev. L. & Soc. Change 245, 267 (2016). To competently prepare for a parole hearing, an attorney will need to spend much more than $400 worth of time. Preparation should include reviewing the inmate’s entire C-File which can be hundreds to thousands of pages long, as well as other pertinent documentation such as childhood and medical records. In addition, the lawyer should visit the client multiple times to moot and prepare for the difficult questioning at the hearing.

 [49]. Lifer Parole Process, supra note 20.

 [50]. See Parole Suitability Proceeding Handbook, supra note 44, at 9.

 [51]. Parole Suitability Hearings, supra note 4.

 [52]. Cal. Penal Code § 3041.5 (West 2018).

 [53]. Id.

 [54]. Victims’ Bill of Rights Act of 2008: Marsy’s Law, Cal. Const. art. I, § 28.

 [55]. Friedman & Robinson, supra note 40, at 180.

 [56]. Lifer Parole Process, supra note 20.

 [57]. Cal. Penal Code § 3041.2 (West 2018).

 [58]. Friedman & Robinson, supra note 40, at 181.

 [59]. Id.

 [60]. U.S. Const. art. I, § 9, cl. 2. California inmates have a right to file a federal habeas corpus petition challenging their parole denial. Swarthout v. Cooke, 562 U.S. 216, 219–22 (2011) (“[T]he responsibility for ensuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts.”).

 [61]. In re Rosenkrantz, 59 P.3d 174, 183 (Cal. 2002).

 [62]. In re Shaputis, 265 P.3d 253, 264–68 (Cal. 2011). See also In re Lawrence, 190 P.3d 535, 538–39 (Cal. 2008); In re Rosenkrantz, 59 P.3d at 183.

 [63]. In re Shaputis, 265 P.3d at 264–68.

 [64]. Id. at 270–71.

 [65]. Id.

 [66]. Rebecca Vallas, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Ctr. for Am. Progress (July 18, 2016, 12:01 AM),

 [67]. Id.

 [68]. Id.

 [69]. Laura M. Maruschak, Medical Problems of Prisoners, Bureau of Just. Stat. (last revised Aug. 20, 2018),

 [70]. See id.

 [71]. See, e.g., Vallas, supra note 66.

 [72]. See Petersilia, supra note 7, at 46.

 [73]. See Cal. Dep’t of Corr., Clark v. California: Remedial Plan 1–2 (2002),

 [74]. Id.

 [75]. Sentencing, Incarceration, & Parole of Offenders, supra note 10. See infra Section III.A.

 [76]. See Clark v. California: Remedial Plan 1, supra note 73, at 2.

 [77]. Id.

 [78]. See Katie Riley et al., ADA Overview—Inmates with Disabilities 19 (2013),

 [79]. Id.

 [80]. 42 U.S.C. § 12101–12213 (2012).

 [81]. Id. § 12131 (defining “public entity” as “any department, agency, special purpose district, or other instrumentality of a State or States or local government” and thus reaching states’ correctional facilities).

 [82]. Resources for Persons with Disabilities, Cal. Bd. of Parole Hearings, (last visited Aug. 20, 2018).

 [83]. Id.

 [84]. See id.

 [85]. Armstrong v. Wilson, 942 F. Supp. 1252, 1258 (N.D. Cal. 1996), aff’d, 124 F.3d 1019, 1021 (9th Cir. 1997).

 [86]. Armstrong v. Schwarzenegger, 622 F.3d 1058, 1063 (9th Cir. 2010). This case began when Schwarzenegger’s predecessor was in office, Governor Davis, and has continued since Schwarzenegger left office, under Governor Brown.

 [87]. Clark v. California, 739 F. Supp. 2d 1168, 1173 (N.D. Cal. 2010).

 [88]. See infra Sections II.C.1–3

 [89]. Wilson, 942 F. Supp. at 1258.

 [90]. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (2012) (emphasis added).

 [91]. See Wilson, 942 F. Supp. at 1258.

 [92]. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998).

 [93]. In July 2005, the Board of Parole Hearings (“BPH”) replaced the Board of Prison Terms (“BPT”) as the agency responsible for determining whether and when lifers are released on parole. See S.B. 737 (Cal. 2005) (enacted) (adding California Government Code section 12838.4, eliminating the Board of Prison Terms, and creating the Board of Parole Hearings, which are now under the umbrella of the CDCR).

 [94]. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1062 (9th Cir. 2010) (“More than a decade and a half ago, disabled prisoners and parolees brought this action against the California officials with responsibility over the corrections system and parole proceedings.”); Armstrong v. Davis, 275 F.3d 849, 854–55 (9th Cir. 2001). See also Case Profile: Armstrong v. Schwarzenegger, C.R. Litig. Clearinghouse,