Criminal Law Archives – Page 2 of 11 – Southern California Law Review

Filtered Dragnets and the Anti-Authoritarian Fourth Amendment

July 2024July 2024Jane R. Bambauer*

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities.

However, filtered dragnets imperil society precisely because they detect crime too well. Sudden increases in the detection of criminal conduct will intensify the pathologies of American criminal justice: namely, that too many marginally harmful acts are criminalized, crimes are punished too harshly, and police and prosecutors have too much discretion. If nearly everybody commits some technical violation of criminal law that can be easily detected and harshly punished, all Americans will be at the mercy of the constable’s pity.

These threats are not well constrained by current Fourth Amendment jurisprudence, based on privacy rights, because filtered dragnets detect crime without revealing irrelevant details. Thus, Fourth Amendment theory and doctrine must strengthen the anti-authoritarian objectives endowed in its roots. A search conducted with a filtered dragnet should be considered reasonable only if it is administered in an evenhanded manner, and a subsequent seizure of a person is reasonable only when the misconduct is abhorrent enough to justify arrest and imprisonment.

INTRODUCTION

Nearly forty years ago, Justice Brennan asked his colleagues, who had just given a constitutional stamp of approval to the drug-sniffing dog, to imagine a device “that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine.”¹ If the device could detect the presence of cocaine inside a building, “there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.”² He believed the prospect of police having a tool of near-perfect detection presented a catastrophic threat that the courts have a duty to stop.

We are not too far off from this scenario anymore,³ and some strategies already in use by law enforcement and intelligence agencies are similar to Brennan’s machine. Examples include DNA matching, facial recognition from photographs or video of a crime when it was in progress, automated child sexual abuse material detection, and reverse digital searches (where police use information known about the crime, such as location, timing, or special instrumentalities, to cross-check against service provider data in order to identify a suspect). Many more of these investigative techniques are sure to come, especially if or when the Internet of Things reaches its potential by placing increasingly powerful sensors on nearly every machine.

Twenty-first century policing will increasingly use data collected from tracking and sensing technologies to conduct investigations that work backwards. Law enforcement will use the particulars of a crime as a “fingerprint,” so to speak, to determine who should belong in the pool of suspects. Unlike the standard dragnet, which permits law enforcement to observe large amounts of data and to choose their targets, filtered dragnets force investigations to focus on the evidence of a crime. Computers will automatically scan through data without exposing it and will make a disclosure only when there is probable cause to believe that a person’s data matches the signature of the crime. Moreover, even when data is disclosed, filtered dragnet programs can be designed so that the only data revealed is potentially relevant data; extraneous details can be withheld.

When surveillance technologies meet all these benchmarks—that is, when (1) they are used to find an individual related to a crime (rather than to find a crime related to an individual), (2) when they report details from an otherwise private database only after meeting a high threshold of confidence (e.g., probable cause or higher), and (3) when they withhold details that are ex ante unlikely to be relevant to the current criminal investigation, the nature of that surveillance is different from other types of police work. Filtered dragnets, as I will call them, are structured to avoid many problems traditionally associated with mass surveillance.

Fourth Amendment theory and reasoning is just starting to find its legs in digital search cases,⁴ but filtered dragnets will destabilize criminal procedure law again. They will whittle down most of the privacy rationales for Fourth Amendment protection. Mounting a Fourth Amendment defense will require a litigant to convincingly argue that even though the defendant very likely committed a crime, and even though the police did not see or have discretionary access to data for any other persons and did not even have irrelevant data about the defendant for that matter, the search was nevertheless unreasonable. That sort of privacy über alles argument might work for crimes of questionable legitimacy—drug possession, for example—but it won’t work in the context of universally reviled conduct like murder.

What is more, filtered dragnets may reduce privacy intrusions on net, as compared with current investigation techniques, because they can remove many people from the scope of suspicion who would otherwise become targets of investigation. In other words, filtered dragnets break the privacy-security trade-off because they simultaneously increase criminal detection and privacy. As Bennet Capers has explained, they may be a useful tool to simultaneously tackle under-protection and over-policing problems.⁵ Outright bans of these technologies, as have been advocated in many corners,⁶ would be irresponsible.⁷

Nevertheless, even if filtered dragnets detect crime and nothing else, they pose serious social risks that Fourth Amendment law and scholarship are ill equipped to handle: What happens to Fourth Amendment theory and the practice of criminal justice if nearly every crime could be detected?

In the late 1990s, Larry Lessig asked this very question.⁸ He anticipated that digital technologies may create a wedge between the privacy and anti-authoritarian rationales for criminal procedure. But most Fourth Amendment scholars do not even recognize a schism between privacy and anti-authoritarian goals. Instead, they continue to focus on privacy as the key constraint on any police activity that leverages large amounts of personal data. The scholars who have recognized liberty and anti-authoritarianism as a Fourth Amendment lodestar have insisted that all technology-assisted surveillance is a tool of abusive state power per se.⁹ As a result, Fourth Amendment scholars lump filtered dragnets with all other surveillance and advocate for the strictest access controls, guaranteeing the continuation of a low rate of criminal detection.

This is the wrong course. The threat from filtered dragnets is tyranny, and the Fourth Amendment will be more effective and coherent if we recognize that. Filtered dragnets will dramatically increase the detection of crime, and this will intensify existing pathologies in American criminal justice that have little to do with privacy. Namely, we have too many crimes, too much punishment, and too much police and prosecutorial discretion. These problems jointly produce the risk of authoritarian power. An overly expansive criminal code paired with harsh penalties ensures that nearly everybody could be subjected to incarceration.¹⁰ When the state also has unchecked power to choose where and when to investigate within the ocean of criminal-but-typically-ignored conduct, the populace is at the mercy of the state’s will.¹¹

Today, the criminal justice equilibrium rests on an unspoken compromise. The state has broad substantive law, harsh punishment, and unchecked discretion, it is true, but the populace has privacy rights that nearly guarantee low detection, even when police are highly motivated. When filtered dragnets give police near-perfect detection, the bargain has to be renegotiated.

This Article proposes a new grand bargain for Fourth Amendment law: the Supreme Court should recognize filtered dragnets as a legitimate and even desirable tool for criminal investigations. But constitutional rules should guarantee that the substance of American criminal law will be limited to conduct that is commonly recognized as heinous, that the severity of the punishment fits the reprehensibility of the crime, and that the enforcement of criminal laws is equitable and nonarbitrary.¹² Without these civil rights, if the substance of criminal law is left as broad and vague as it is today,¹³ and if penalties and the impact of prison are as debilitating as they are now, filtered dragnets would give the government the means of exercising tyrannical control through the omnipresent threat of criminal enforcement and the power of discretionary clemency.

This Article proceeds as follows: Part I describes some filtered dragnets that are already in use and lays out the essential features that distinguish them from other investigation tools.

Part II describes the potential social benefits that can be gained from the responsible use of filtered dragnets.

Part III describes the scholarship and caselaw challenging the constitutionality of filtered dragnets on privacy grounds and disagrees with it. By most common-sense meanings of privacy, filtered dragnets are in fact much more private than the sorts of investigations that routinely occur.

Part IV shows that the threat of filtered dragnets comes not in the form of privacy but in the form of tyranny. Perfect detection of crime in a system where criminal statutes are sprawling and criminal penalties are harsh will either create a country of convicts or will give government too much power to engage in selective leniency.

Part V reinterprets the Fourth Amendment prohibition of unreasonable searches and seizures to fit the criminal justice problems that emerging surveillance technologies will cause. The reasonableness of a seizure should depend on whether the defendant’s conduct truly warrants criminal liability and penalties. The reasonableness of a search should depend on both expectations of privacy and on evenhanded investigation practices.

Part VI explains why the Constitution, and the Fourth Amendment in particular, are well suited to carry out this shift even though it would mark a departure from twentieth century precedent.

The agenda laid out in this Article is ambitious—almost embarrassingly so. What I propose here would require a seismic shift in Fourth Amendment principles that would cross the procedural/substantive divide.¹⁴ Given that, I take comfort in the fact that I am not painting on blank canvas. This project is a remix of themes developed by Bill Stuntz,¹⁵ Bennett Capers,¹⁶ Elizabeth Joh,¹⁷ Bernard Harcourt and Tracey Meares,¹⁸ Chris Slobogin,¹⁹ Mark Kleiman,²⁰ and many others. Even so, it is awfully presumptuous to suggest courts might start invalidating criminal laws or sentencing rules using a new-fangled conception of the Fourth Amendment. But I will suggest it anyway because it is the only desirable and realistic option. The criminal justice system needs to be transformed in a manner that accepts much greater levels of detection in exchange for many fewer criminal prohibitions and punishments. It is a trade that has to be executed simultaneously in order to avoid disastrous consequences.²¹ No legislative or local government process could pull off a massive rights horse trade of the sort that is required. It can only be accomplished through the style of landmark constitutional cases that, every generation or so, help realign Fourth Amendment operational rules with the ultimate purpose of Fourth Amendment protection.²²

I. WHAT ARE FILTERED DRAGNETS?

The progenitors of filtered dragnets have been around for a while. Fingerprinting analysis is a well-known and time-honored method of backwards investigation where the facts from the scene of a crime (the fingerprint markings) are cross-checked against a large stockpile of information in order to make a fairly confident match to a particular suspect.²³ Police dogs are another example.²⁴ We know that the mind-boggling sensitivity of a dog’s nose is such that, if it could talk, it could reveal vast amounts of information about a person—what is inside their bag, how their health is, whether they’ve been in recent contact with other people—that are unobservable to we mere humans. In some sense, the mind of a police dog is a treasure trove of personal information that remains inaccessible to police most of the time. But when they are trained to alert to contraband or to specific scents sampled from a crime scene, the dog and the training combine to create a “binary search”—a mechanism that tells the police nothing unless there is probable cause that a crime is being committed.²⁵

These crime-driven, quasi-filtered investigations are the outliers in a system of police investigation that relies much more heavily on witnesses, confessions, and physical searches.²⁶ But we can expect the practice to rapidly expand because of the greater amounts and variability of data available for cross-checking the facts of a crime against data from the population of potential suspects.

This Part lays out the two required features of filtered dragnets that will cause an unprecedented shock to Fourth Amendment theory. We will then visit examples of techniques that are already in use that either already satisfy the definition of filtered dragnets or soon will.

A. Required Elements to Qualify as a Filtered Dragnet

Filtered dragnets provide a suspect’s data to police only if (a) their data matches uniquely criminal details such that there is a high probability they have engaged in criminal conduct; and (b) their data has been pared down to provide only relevant details about the suspected crime to the police. When combined, these features make filtered dragnets a qualitatively different style of police investigation.²⁷

1. Automated Matching of Uniquely Criminal Details

Filtered dragnet investigations will trawl through and process large amounts of data. There is no doubt that they are a dragnet. But to qualify as a filtered dragnet, the filter of the dragnet must constrain the system’s ability to leak information. A filtered dragnet must be programmed to alert police only if an individual’s data matches a unique fingerprint of a crime.²⁸ In other words, the system blinds the police until at least probable cause (and hopefully more suspicion) is established.

Filtered dragnets are a subset of the category of investigations that Christopher Slobogin calls “suspectless searches.”²⁹ But they are a narrow subset. Very few of the suspectless searches that Slobogin analyzes (many of which I describe below) have the potential to become filtered dragnets. As they are practiced today, they will not meet the heightened standards for filtered dragnets because they do not use unique signatures of criminal behavior. For example, geofencing and familial DNA-matching procedures often allow police today to access data about a handful of individuals, all but one of whom are necessarily innocent, in order to help the police create leads for traditional follow-up investigation. To find the Golden State Killer, the FBI found a genetic match to a family member, and then used traditional genealogy to trace from that family member to the suspect.³⁰ The revelation of that family member’s identity would not qualify as matching to “uniquely criminal detail.”

Slobogin argues that even when a small number of people, some of whom are guaranteed not to be the perpetrator (such as somebody whose DNA only partially matches that of the sample from a crime scene), are identified to the police, the intrusion into privacy is fairly minimal and should be handled through Fourth Amendment doctrines that allow for warrantless searches and seizures, like checkpoints.³¹ I agree with nearly all of Slobogin’s proposals about how courts should interpret the Fourth Amendment with respect to these examples. But they still do not meet the criteria I am setting—criteria that, when met, challenge the most basic conceptions of Fourth Amendment privacy. To meet the definition of a filtered dragnet for my purposes, police will remain ignorant to details and identities until there is a high probability that the information identifies and pertains to the perpetrators and no one else.

2. Nondisclosure of Irrelevant Details

The first requirement on its own ensures that filtered dragnets are analogous to “binary searches” like drug-sniffing dogs—the sort that alert only if there is probable cause of a crime. But there is an additional affordance that should be exploited: filtered dragnets must refine the information that is ultimately disclosed to police by filtering out personal, irrelevant details even about a suspect. This is equivalent to a drug-sniffing dog that could magically produce a suspect’s drugs without any of the rifling through cars and pockets that are necessary today. Thus, the suspect will retain privacy over details that are not relevant to the criminal investigation at hand.

To be clear, neither of these requirements are meant to be absolute guarantees. All systems have error, and even if police are able to set very demanding thresholds for false positives, police will occasionally access licit, irrelevant details when a filtered dragnet falsely identifies a suspect who is then subjected to an arrest or probable cause–based search. But the requirements for disclosure in a filtered dragnet system can be calibrated to fit societal needs and expectations: the chance of false accusation error can be driven down to practically zero if we would like, if we are willing to tolerate the consequences that there will be more false negatives (more crimes that are not detected) or that police departments will need to access more data in order to maintain the same level of detection.

A. Examples

Next, we will visit a set of backwards investigation techniques that are in use today. These use the particularities of a crime to lead police to a suspect. While most cannot meet the demanding definition of “filtered dragnet” formalized above, with time and additional data resources, they will surely get there.

1. DNA Matching

DNA-matching investigations use parts (non-revelatory portions) of a DNA sequence produced from a sample collected at a crime scene or from a crime victim in order to identify a suspect using DNA databases. They are an obvious extension of fingerprinting analyses with some souped-up features. First, DNA matching can set a very high threshold of statistical probability of true match (or, in other words, a very low probability of a false match) because each DNA sequence has a large amount of data.³² Second, they can make use of popular commercial and ancestry databases for cross-checking and are therefore not limited to identifying individuals who have a history with the criminal justice system.

Third, familial or partial DNA matches are very useful for police investigations in a way that partial fingerprint matching is not. In familial DNA-matching investigations, such as the one that eventually led to the arrest of the Golden State Killer, police departments recover the identity not of the suspect but of one or more of the suspect’s genetic relatives.³³ This raises privacy concerns for the relatives whose identities are revealed to law enforcement in the course of finding the perpetrator.³⁴ So, as practiced today, familial DNA searches do not fit the definition of a filtered dragnet. They fail the second element (filtering out innocent and irrelevant details) by revealing identities and information about family members who are definitely not the perpetrator of the crime.³⁵ However, it is conceivable that in the future, if multiple databases are able to be accessed and triangulated, familial DNA matching can be part of a filtered dragnet system that automatically finds a familial match, trawls other data sources in order to identify the correct relative of familial match (based on, e.g., age, location, or personal history of the relatives), and discloses the identity of the suspect and the relevant details only when and if there is sufficient confidence that the correct suspect has been identified.³⁶ All of this can be automated.

DNA evidence holds an esteemed place in criminal justice and public perception. DNA evidence is durable (as long as it is handled properly) and judges and juries can justifiably place a high degree of confidence in the reliability of DNA-matching investigations.³⁷ Other types of data beyond DNA can have these qualities, too, but they provoke much more suspicion and dissent. Distinguishing them from DNA matching will become increasingly untenable.

2. Facial Recognition

Facial recognition uses large databases of identified photographs (often scraped from the public Internet) to discover the identity of a person who would otherwise be anonymous.³⁸ The technology can be used as a filtered dragnet when police departments deploy facial recognition on photographic evidence from the scene of the crime.³⁹ For example, law enforcement has used facial recognition to pin identities to individuals who appeared in surveillance footage from the Capitol on January 6, 2021, as well as to robberies and street crimes.⁴⁰ Although facial recognition algorithms are less accurate for female and non-white faces,⁴¹ industry members claim this is not the case for top-performing algorithms in active use.⁴²

3. Automated CSAM Detection

Last year, Apple unveiled a program that would automatically scan iPhoto images and cross-check them against a library of known child pornography when the images were uploaded to the iCloud. Apple had planned to use a hashing technique to check all files sent from Apple devices to be stored on iCloud servers. Essentially, every image received by an Apple phone is converted to a code that corresponds to the visual image.⁴³ When a person’s iPhoto images produce ten matches, Apple employees would automatically be alerted and would share the information with authorities. Thus, while every image would be hashed and cross-checked against child pornography, only the images that matched could lead to a disclosure to law enforcement. Apple has since abandoned its plans in response to criticism,⁴⁴ but the technological capability still exists.

4. Geofences and Other Reverse Searches

In 2019, a spate of arsons involving vehicles parked in commercial lots was committed in short succession.⁴⁵ Based on the locations, surveillance footage, and similar modi operandi, police had reason to believe that a single set of co-conspirators was involved in all six arsons. When federal investigators requested that the court issue a warrant requiring Google to search its time-logged geolocation records for cellphones that were at or near the scenes of the arsons during the times that they were committed, a U.S. magistrate judge complied.⁴⁶ This type of process—where police start with the location, approximate time, and other details of a crime and ask service-providers to find a matching account—is known as a “geofence warrant,” and magistrate judges have issued orders authorizing their use under certain conditions. Judges have refused to issue warrants (without deciding whether warrants are actually necessary) when the request cast too wide a net—that is, if too many devices are likely to be identified as matching the search criteria.⁴⁷ For example, if police are investigating a crime that took place during a Beyoncé concert, even a geofence with a small radius, during a fairly precise window of time, will draw in too many false matches—too many phones of innocent bystanders. But this concern falls away if police can use multiple details or the intersection of several geofences in order to create a search criteria that will be unique to the perpetrator.⁴⁸ For example, in one recent case, a perpetrator who was suspected to have cased the location of a murder on the day before he committed it was identified using overlapping geofences from the day before and the day of the murder.⁴⁹ License plate readers, drone footage, Internet of Things data, and satellite surveillance imaging could also be sources of geolocation information in the likely circumstance that criminals begin to leave their devices at home.⁵⁰

Geolocation data can be combined with other types of information, too, to form a signature of crime that is more likely to be unique. As an illustration, US intelligence agencies located Osama bin Laden in part by looking for locations where they would expect to find Internet and cell service but in fact found none.⁵¹ There are data sources outside of location data that can create a signature for reverse searching. For example, while investigating an arson case, the Denver police department sought and received a “keyword warrant”—a court order requiring Google to reveal the account information of users who had recently searched for the address of the arson during a fifteen-day period leading up to the crime.⁵² Cyberstalking, child pornography, and many other online crimes have used forms of reverse searches in order to identify the accounts associated with IP addresses that were used to engage in those crimes.⁵³

5. Scanners, Sensors, Cameras, and Microphones

Red light cameras were one of the first ventures into automated policing and were also much despised.⁵⁴ These systems used sensors to detect if a car entered an intersection after the light had turned red, took a photograph of the car, and later used the image of the car (and its license plate) to track down the owner and mail a ticket. These systems are not dragnets per se (they do not make use of pre-existing collections of data), but they set the stage for Automatic License Plate Readers that do capture an abundant amount of data in case some particular parts of it are useful later, as when police are searching for a stolen vehicle.⁵⁵

Patterns that are highly suggestive of crime can also be automatically detected using recording devices with cameras, microphones, or sensors that operate in “always on” mode.⁵⁶ One example in use today is ShotSpotter microphones that are constantly “listening” in a public setting but alert the police and save data long term only when the noises captured by the shot-spotter match the sounds of gunshots.⁵⁷ In theory, Alexa, which also constantly records to respond to watchwords like “Hey Alexa,”⁵⁸ could be designed to detect sounds that are particular to domestic violence or home invasion and automatically alert the authorities.

Other sensitive devices like terahertz scanners can detect when naturally occurring radiation is blocked by metal objects. When the blocking metal objects are gun shaped, the scanners can be programmed to alert.⁵⁹ But this is nothing compared to what quantum magnetometry will be able to do in the near future.⁶⁰ Quantum sensing is so sensitive to minute differences in magnetic fields that the sensors will be able to detect trace amounts of chemicals, even when they are concealed behind walls. So, Justice Brennan’s nightmare scenario is here: we will soon have contraband detection devices.

This survey of suspicionless searches and backwards investigations demonstrates that there is increasing viability and interest in using these types of techniques. The practices currently in use do not usually meet the two formal requirements for “filtered dragnets,” but it is useful to assume they eventually will. By assuming investigations will eventually meet the demanding definition of filtered dragnets, we will be able to state with more rigor precisely why it is we are nervous about these law enforcement technologies, and what the policy or constitutional response should be.

II. THE ADVANTAGES OF FILTERED DRAGNETS

This Article will eventually explain why filtered dragnets impose serious risks on society that are not adequately (or even nominally) addressed in Fourth Amendment theory. But first, we will explore reasons to embrace, rather than resist, the integration of filtered dragnets into policing.

Filtered dragnets offer several advantages over the investigation practices in common use.⁶¹ These include decreased exposure of innocent details, increased accuracy and efficacy of criminal investigations, increased detection and deterrence of crime, decreased discretion for suspect selection, and decreased risk to witnesses and victims. In combination, these advantages contribute such compelling benefits to society that courts and attorneys should feel a moral obligation to harness their powers as much as possible.

A. Decreased Exposure of Innocent and Irrelevant Details

Filtered dragnets protect the privacy of innocent individuals, as well as the innocent-and-irrelevant details of a suspect. They protect innocent individuals whose data is scanned in the process by allowing police and courts to set a high standard for false match error. That is, filtered dragnets can be programmed to alert and reveal personal information only when the statistical probability that the person has engaged in crime is greater than 50%, or 80%, or 99%. This would ensure that the number of innocent individuals who are initially approached and investigated will be only a fraction of the number of criminals who are found.⁶²

Moreover, filtered dragnets limit the type of information that is revealed even about the proper subjects of investigation who have committed a crime. This is a game-changer. If police could have searched a house or a car in a manner that blinded them to everything except contraband or criminal evidence, the text and interpretation of the Constitution would probably differ from what we have today. The closest analogy we have to filtered dragnets, as I have mentioned before, are drug-sniffing dogs. Police dogs are allowed to sniff and alert based on the (mostly defensible) assumption that they will be trained well enough to have a low error rate.⁶³ The dog sniff and subsequent alert are, controversially, treated as a non-search in Fourth Amendment law unless the dog has trespassed into the home or curtilage of a resident.⁶⁴ But once the dog alerts, the police have probable cause to perform an entire human-conducted unfiltered search of a person’s vehicle, home, or effects, thereby revealing intimate and innocent details while they look for contraband. Filtered surveillance is more privacy-protective than drug-sniffing dogs because it can restrict the sort of data that is revealed even as police are verifying that the alert is accurate.

I do not mean to suggest that filtered dragnets avoid all revelations about innocent people or activities. Relevant data disclosed to police as a result of a high probability match will frequently, maybe even usually, reveal information that is not directly tied to wrongdoing. For example, if in the future the police used a system that combines familial DNA matching with other records to identify a sexual assault offender, police may see and use the identity of the family member in order to confirm that the identification is sound and to show how the case was solved to a jury. This could reveal the identity of estranged parents or children of the suspect or could uncover paternity that was not previously known.⁶⁵ But this is a consequence of the fact that all successful investigations impose some irreducible privacy costs on the innocent. Even using traditional strategies, police will occasionally and appropriately question a spouse in a manner that reveals the suspect is having an affair or may make other similar sensitive revelations. If the revelations are in service of pursuing a probable cause–backed investigation, these will be innocent-but-relevant details.⁶⁶ The advantage I describe here pertains to the shielding of innocent-and-irrelevant information.

B. Increased Accuracy

By definition, filtered dragnets identify suspects and reveal information only when there is a high probability of crime. This is a form of increased accuracy—a reduction in false positive error. (In the next subsection, I will discuss the other form of increased accuracy—the reduction in false negative error—which would allow filtered dragnets, if deployed consistently, to solve more crimes and increase clearance rates.)

If filtered dragnets are held to higher probability standards than standard investigation techniques, they will cause proportionally fewer false starts and erroneous arrests and searches along the way.⁶⁷ In time, a shift toward filtered dragnets should decrease the dangers and anxiety that come from false suspicion and conviction at every stage of criminal investigation. Indeed, facial recognition systems that identify a suspect based on photographs or surveillance footage from a crime already outperform the accuracy rates of average eyewitnesses and PC-based warranted searches by a large margin.⁶⁸

Skeptics will have at least two critiques of my optimistic prediction: all systems have some error, and the sort of error that comes from a highly technical and data-driven system might be particularly worrisome since a falsely accused defendant will have to go up against a trusted and more accurate system.⁶⁹

It is true that no investigation tool is free from error, and it is also possible that police, prosecutors, and juries could be at risk of reflexively trusting the results of a filtered dragnet system because they are so reliable. But the premise of the critique might be plain wrong. When a filtered dragnet produces a spurious result, the error could very well be easier to catch than when an informant or witness makes a spurious identification. For example, when a man named Michael Usry was the target of an investigation based on his father’s partial genetic match to crime scene DNA, Usry was cleared as soon as his own DNA sample was collected and analyzed because it did not match the sample collected at the scene of the crime.⁷⁰ This should generalize: the more independent sources of data there are, the more protection there should be for innocent.⁷¹ A person wrongly identified by facial recognition is more likely to have a credible digital alibi (e.g., geolocation data that puts them in an entirely different state at the time of a crime) than a wrongly identified person who was accused by a confidential informant.

The facts of United States v. Chatrie⁷² illustrate the propensity for the erroneous targets of filtered dragnets to be cleared earlier and easier than erroneous targets in traditional investigations. In that case, police used a geofence warrant to access the deidentified location data of individuals who were near the scene of a bank robbery during the hour that the crime took place.⁷³ The geofence produced the deidentified location records of nineteen individuals, only one of whom was the perpetrator.⁷⁴ These facts do not fit the requirements of a filtered dragnet because law enforcement accessed and manually examined information related to the eighteen individuals who were not the perpetrator, but we can think of these eighteen as stand-ins for those who are wrongly targeted by filtered dragnet. One hour of anonymous geolocation data conclusively ruled out sixteen of them, and an additional hour ruled out the other two. None of the eighteen were identified (by name or other direct identifier) to the police, and none were questioned.⁷⁵ By contrast, consider the experiences of two individuals who were briefly implicated in the investigation before the FBI used geofence technologies. Using traditional policing methods, the FBI first investigated the ex-boyfriend of a woman who saw news reports about the bank robbery and called the police to offer a false tip. They also investigated somebody who owned the same kind of car that was used as the getaway vehicle when a bank employee reported the possible tip, but that, too, was a dead end.⁷⁶ It is not clear from the opinion what sorts of encounters and information-gathering the police used to rule out these two, but I suspect the anxiety and privacy burden absorbed by them was greater, by almost any measure, than the burden to the eighteen individuals whose approximate movements in public during one to two hours were disclosed in deidentified form. If this case is representative, the geofence warrant process should be a method of first resort, rather than last resort, because it is likely to lead more quickly to both the identification of the right suspect and the elimination of wrong ones.

A second skeptical critique is that I am describing the positive qualities of filtered dragnets under the assumption that the systems will be deployed as intended and will not be manipulated or tampered with. This is a legitimate concern to which the long history of flaws in forensic labs can attest.⁷⁷ But as a comparative matter, data-driven techniques of this sort might be more accountable and auditable than old-school forms of criminal investigation. When the same level of scrutiny and doubt is applied to traditional investigations that would have to continue in the absence of new technologies—the risks of error and manipulation present in eyewitness testimonies, suspect interrogation, or warrant affidavits⁷⁸—the prediction that filtered dragnets will be more corrupt and error-prone is hard to believe.⁷⁹

C. Increased Detection and Deterrence

The accuracy and efficiency of filtered dragnets can help tackle longstanding social problems of chronically unsolved crime, assuming filtered dragnets are used regularly.⁸⁰ About twenty-five million Americans—8% of the population—suffer from a violent felony or a felony-level theft each year.⁸¹ These events are of course disproportionately likely to beset low-income households. While violent crime rates today are still down compared to the high-water marks in the 1980s and early 1990s,⁸² the statistics are still grim, particularly for communities of color. In the U.S., about five people in every 100,000 are murdered each year.⁸³ For African-Americans, the rate is above six per 100,000.⁸⁴ (By comparison, the rates in France and Italy are 1.28 and 0.52 per 100,000, respectively.)⁸⁵ In addition to the trauma and losses to crime victims, society also absorbs a range of economic costs and psychological distress in the course of guarding against crime.⁸⁶ It is all too easy for scholars, lawmakers, and others who live in safe neighborhoods to forget: serious crime is just awful.

Crime clearance rates (that is, the proportion of crimes actually reported to the police that have led to an arrest or otherwise been considered solved) for violent crime is 42%, and the rate is under 15% for property crimes.⁸⁷ Only about half of violent crimes and one-third of property crimes are ever reported to the police, and many arrests and convictions are erroneous. The low likelihood of reporting a crime, the low clearance rates, and the somewhat sizable chance of false arrest altogether mean that the probability a criminal will be prosecuted for any particular violent crime is probably under 20%.⁸⁸

Clearance rates in black neighborhoods are even worse. The events over the last decade validate Bill Stuntz’s observation that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.”⁸⁹ Dampening crime in lower income black communities is a civil rights goal of longstanding stature.⁹⁰ Bennett Capers described underenforcement as the criminal justice problem that gets short shrift,⁹¹ and that was before George Floyd’s murder made police violence and over-policing problems an issue of pressing global salience. There is some squeamishness today in discussing crime in black neighborhoods (and certainly in referring to that crime as “black on black”), but it is foolish to expect criminal justice reform to be lasting and meaningful if it does not tackle both of the scourges of inner-city policing: harsh policing and civilian violence.

The most obvious and natural way to curb future violent crime is to increase the detection of very serious crimes today.⁹² Some scholars, Tom Tyler chief among them, have made the case that in the long run, law-abiding behavior has less to do with criminal law enforcement tactics than with cultural, economic, community, and norms-based factors.⁹³ Occasionally, this insight has been oversimplified and distorted to leave the impression that law enforcement detection rates have nothing to do with crime rates.⁹⁴ This is a mischaracterization of the evidence.⁹⁵ While there are multiple “root causes” of crime,⁹⁶ data and common sense confirm that holding other factors steady, criminal behavior is sensitive to the probability of law enforcement detection. The relevant criminology studies consistently find evidence that detection reduces the incidence of future crime.⁹⁷ There is also some evidence that the swiftness of enforcement—the “celerity”—makes a difference.⁹⁸

Increased detection of crime not only reduces crime rates, but also improves other measures of social mobility and security as well. Greater crime detection increases the likelihood that offenders will seek and find employment, enroll in education, and live in a stable family environment, and it reduces school absenteeism in the community.⁹⁹ Indeed, given how dramatic the impact of detection is on increasing pro-social behavior, it is not at all clear that law enforcement should even be distinguished from the so-called “root causes” of crime. Fear that crime will not be well controlled is a root of many of the root causes of crime.¹⁰⁰

So, an enduring and well-documented fact is that an increased likelihood of detection and enforcement drives crime rates down. This is much less true, and possibly not true at all, for the severity of punishment, where increasing the length of prison sentences is found to have no impact or even criminogenic effects.¹⁰¹ Thus, the state’s essential duty to protect its constituents from the violence and exploitation of others is well served by good detection. Unfortunately, crime rates are currently under the management of the American criminal justice system’s haphazard style of enforcement: occasional, error-prone, and harsh.¹⁰²

D. Decreased Discretion for Suspect Selection

Filtered dragnets are crime-driven rather than suspect-driven. In suspect-driven investigations, police have developed suspicion—or a hunch—around a particular individual and focus their observations in an attempt to develop a case.¹⁰³ Suspect-driven investigations are propelled by the theories of police officers and proceed within their discretionary control. Police also have some control over filtered dragnet investigations (e.g., over where and when to deploy them), but once they are put into service, police lose control over the results. If facial recognition or reverse searches identify a wealthy or politically connected individual as the suspect of a crime, it will be much more difficult for police and prosecutors to avoid pursuing investigation and prosecution, as compared to cases where police use informants or witnesses as the main source of identification.

In later Parts, this Article describes the ways in which police can still exercise too much discretion by, for instance, using a filtered dragnet tool preferentially to solve some crimes and not using it on others that are substantially similar. But we should not lose sight of the ways filtered dragnets do constrain discretion. One of the greatest risks from mass surveillance (that is, dragnets) is its potential to create a resource for selecting the suspect first and then finding a crime, or for using legal but sensitive information to discredit political enemies and personal foes.¹⁰⁴ Police cannot exert this type of control over filtered dragnets.¹⁰⁵

The Supreme Court caselaw that has found fault with Big Data policing has involved digital searches in which the police first selected their target and then accessed long histories of their target’s whereabouts without a warrant.¹⁰⁶ The Court is right to constrain investigations that permit police to access sensitive and detailed information without any justification or checking mechanism. Even when police have developed suspicion against a target, the low-tech factors that go into building up suspicion about a particular individual (e.g., testimony from an informant or presence in a “high crime neighborhood”) can impose an indirect racial tax on innocent minorities that could mostly be avoided with filtered surveillance programs that have very low error.¹⁰⁷

Not all agree with this assessment. Kiel Brennan-Marquez has argued that “nothing about the logic or practice of data-driven law enforcement makes [] redistributive impulses necessary. On the contrary, they will be hard fought—and particularly in our current political climate, unlikely.”¹⁰⁸ I share a certain degree of Brennan-Marquez’s cynicism (I have wondered, for example, if law enforcement’s sloth-like speed in adopting crime-driven investigation practices rather than suspect-based practices are related to the loss of control over defining the pool of suspects),¹⁰⁹ but he goes too far. There already is some evidence that data-driven policing has redistributed the costs of law enforcement and will continue to do so. DNA-based exonerations, for example, have proven the innocence of disproportionately more minority convicts than whites.¹¹⁰ This suggests that, going forward, DNA-based investigations will shift police focus not only toward the guilty, but also away from wrongfully accused Black and minority suspects.

E. Decreased Risk to Victims, Witnesses, and Suspects

Police investigations cause a range of problems that are not captured in the variables I have discussed so far—privacy intrusions, erroneous arrest, et cetera. When police have to rely on old school methods of case investigation, the system necessarily puts victims, witnesses, and suspects at risk of physical or economic harm.

Let us start with crime victims and witnesses. Cooperating with the government is a perilous activity for these individuals, as captured by the saying “snitches get stitches.”¹¹¹ By one theory, clearance rates for serious crimes are low in the U.S. because proving homicide or robbery cases requires victims and witnesses to testify and put themselves at risk.¹¹² Bill Stuntz hypothesized that police forces increased their focus on drug and gun possession charges because these crimes were “self-proving” once contraband was discovered, and therefore did not necessitate the cooperation of a victim or witness.¹¹³ As a result, more serious crimes were harder to clear than low-level crimes. But, of course, those are the crimes that are more damaging to the community. If reverse searches, facial recognition, and other filtered dragnets could allow police to prove cases independently, without exposing victims and witnesses to the risk of social stigma and retaliation, they would contribute benefits to society that are not accounted for in the usual privacy-versus-security debates.

As for the suspects, the manner in which traditional policing builds up cases leave much to be desired. Police stops and searches are often vectors for bias and disrespect where swearing, insults, unwarranted accusations and suspicion, and unjustified physical contact lead to demoralization and distrust.¹¹⁴ Traditional investigations are costly in terms of time, fear, property damage, and general unpleasantness. A person who is pulled over for a secondary inspection when a police dog alerts to her car may very well have no recourse when the police slash open the seats of her car to try to find drugs. Home searches and interrogations cause additional physical, emotional, and economic strain to suspects, irrespective of what sorts of private information is revealed. These costs will become more obvious and more salient when technology obviates the need for a government agent to tear open the upholstery of a suspect’s car, dishevel a dresser, and “grope[] and grab[] our children” at the airport.¹¹⁵

***

In combination, these factors show that filtered dragnets should be part of any responsible law enforcement program. They extend the “pareto frontier” by allowing privacy and crime detection to increase at the same time.¹¹⁶ It would be counterproductive for law to prohibit their use based on a formalistic or expansive notion of Fourth Amendment protection. And yet, as the next Part shows, there is some risk that courts and lawmakers may do just that.

III. FILTERED DRAGNETS AND PRIVACY

Most of the courts, scholars, and civil society organizations that have considered the societal impact of filtered dragnets such as geofencing and reverse keyword searches have concluded that they pose serious threats to privacy.¹¹⁷ Putting aside for a moment whether filtered dragnets are consistent with the full set of Fourth Amendment principles, this Part argues that filtered dragnets pose almost no threat to Fourth Amendment privacy. What I mean is, among all of the meanings and purposes that the right to privacy is meant to capture, the only ones that are meaningfully violated by filtered dragnets are related to abuses of power. The privacy expectations of the non-offender, which are the ones that predominate Fourth Amendment analysis, suffer at most a technical violation. If we separate out the anti-authoritarian goals of privacy, nothing is left of the privacy critique of filtered dragnets.

This does not mean that filtered dragnets are harmless—to the contrary, as Part V will argue, they pose significant dangers to civil liberties. But by ruling out privacy as the vector of abuse, courts can harvest the benefits of analytical precision and adjust Fourth Amendment law to better match the problems. This Part describes how courts and scholars have responded to filtered dragnets so far and then explains why Fourth Amendment principles are so poorly suited to address the negative reactions.

A. Judicial Reactions to Filtered Dragnets

Courts are not prepared for the challenges that filtered surveillance pose to Fourth Amendment jurisprudence. Indeed, they are struggling as it is to find principled limits in more common and straightforward digital dragnet cases.¹¹⁸

So far, lower court opinions are surprisingly unfriendly to technologies and practices that will be the predicates to filtered dragnets. For example, Baltimore tried to set up a program called Aerial Investigation Research (“AIR”) in which its police department collected and retained 45 days’ worth of aerial surveillance footage, but would not be allowed to access the footage unless a violent crime occurred and was likely to be caught on camera.¹¹⁹ Civil liberties organizations successfully challenged the program, arguing that the Fourth Amendment should constrain the government from amassing data that can be used for longitudinal location tracking no matter how constrained the Baltimore Police Department’s access and use of the data might be.¹²⁰ The Fourth Circuit used the theoretical possibility of government access to information as a sufficient reason to find that a Fourth Amendment search on all Baltimore residents took place, regardless of the design, practice, and risk of abuse for the program.¹²¹ If this reasoning is adopted throughout the judiciary, law enforcement will not be able to collect their own information for filtered dragnets and will have to rely on data that is collected and held by private industry.

Many courts have expressed similar reservations when the government asks a private company like Google to trawl through its data to conduct reverse searches, too.¹²² But these opinions suggest that a warrant process that is sufficiently narrow and “particularized” so as to avoid disclosing data of innocent bystanders to the police would satisfy Fourth Amendment requirements.¹²³ This leaves an opening for filtered surveillance. It suggests that the automated scan that Google or another third party would perform of all its data in the process of identifying responsive records would not be a search in and of itself. In other words, the focus of the courts that have analyzed geofence warrants is not on the data that is scanned at all, but on the data that is ultimately revealed to police.

Courts might begin to clamp down on third-party scanning for law enforcement purposes following the logic of the Fourth Circuit’s decision in the Baltimore AIR case. Many scholars are advocating for this, as I describe next. But it is still not clear that filtered dragnets will be understood to be a search at all given that they are designed to alert only when probable cause of a crime has been established. Even if police use computing technologies to automatically scan through large amounts of personal data, the constitutionally relevant event is the revelation and use of information to the government agents who are making decisions.¹²⁴

This is best captured by the binary search doctrine—the rule establishing that, for example, a drug dog’s alert is not a search under the Fourth Amendment because it reveals only the presence of contraband and criminal wrong-doing. There is little reason to believe the Supreme Court will backpedal. The Court has found that a universal fingerprinting database, possibly even one that requires involuntary contributions of fingerprints by individuals who are not yet in the database, could be justified, given that fingerprinting is an “inherently more reliable and effective crime-solving tool than eyewitness identification or confessions.”¹²⁵ More recently, in Maryland v. King, the Supreme Court found that police can forcibly swab an arrestee and cross-check his DNA against the database of DNA samples from unsolved crimes.¹²⁶ The opinion focused almost entirely on the physical act of swabbing and took for granted that the cross-checking of a DNA sample to a crime database will not be a search because it reveals either nothing at all or reveals only a high-confidence match to a crime.¹²⁷

That said, some of the Supreme Court decisions in the last ten years written by Justice Scalia incorporated a strong property-based formalism. In United States v. Jones, the use of a GPS device was a search not because of the sensitivity of the information gathered, but because of the touching of the suspect’s car.¹²⁸ And in Florida v. Jardines, use of a drug-sniffing dog on a front porch was a violation of the Fourth Amendment because the practice involved a trespass with information gathering.¹²⁹ The fact that the information gathering was in the form of a binary search did not alleviate the flaw, according to the majority.¹³⁰ If Scalia’s formalism for real and tangible property is extended to personal data, filtered dragnets could be considered a search of all individuals whose data is mechanically scanned in the process, irrespective of how trivial the invasion to them may be.

Even if courts come to agree that mechanically processing data is a Fourth Amendment search, this would still not guarantee the death of the filtered dragnet. They might be reasonable searches under the special needs or checkpoints doctrines.¹³¹ In the context of checkpoints, bulk searches, and other dragnets, the Supreme Court has articulated the factors that it would use to determine whether the searches are “reasonable” despite a lack of individualized suspicion. These factors include the intrusiveness of the search, the public and government interest that is served by the dragnet, and the degree of oversight or limitations on discretion that are involved.¹³²

Thus, judicial reasoning seems to be on a collision course between (a) cases that are eager to expand the recognition of privacy rights to cover all data subjects in large databases whose information is theoretically accessible to police and (b) cases that find highly probative “binary searches” are outside the ambit of Fourth Amendment prohibition.

B. Scholarly Reactions to Filtered Dragnets

Lawrence Lessig saw this train wreck coming. In Code, he pointed out that the Internet and digital information technologies will allow police to identify a perpetrator with high confidence while remaining blind, by design, to the intimate details of the innocent. He explained that this will cause the privacy rationale for Fourth Amendment protection to lose relevance, at least when filtered dragnet investigations are possible. He expected these technologies would force a wedge between privacy and anti-authoritarian justifications for criminal procedure, when in the past, the two types of arguments traveled together.

Fourth Amendment scholars have doubled down on privacy.¹³³ They have lumped filtered dragnets together with all other digital surveillance in order to hinder police access. Dragnets of every sort, including the filtered sort, still suffer from analytical chaos because of value judgments and predictions that too often stay latent in the scholarship.¹³⁴ As a result, scholars are all over the map in terms of the proper treatment of digital dragnets, and none have focused on the right factors.

A few examples. Daphna Renan has argued that the collection, retention, and theoretical capability for law enforcement to access data is alone sufficient to constitute a privacy harm. Consent or a warrant should be required before the government collects any privately held data, and even before they access or request machine scanning of that data by third parties, irrespective of how limited and careful the readout is.¹³⁵ Natalie Ram has approvingly held up Maryland’s law prohibiting law enforcement from using genomic databases to solve crimes unless they have received consent from all individuals whose data is in the genomic dataset.¹³⁶ More generally, this brand of scholars use access to data, rather than how it is used, as the sine qua non for Fourth Amendment analysis and ask why anybody should be under “lifetime surveillance.”¹³⁷

Scott Sundby and Nadine Strossen take the more moderate position that dragnets (of any sort) should be used only as a last resort,¹³⁸ though it is not clear they would apply their conclusions to filtered dragnets in particular. Eldar Haber, in considering how the Internet of Things can become a rich source of police investigatory data for reverse searches, advocates for a warrant requirement that goes beyond the “super-warrant” requirements of the current Wiretap Act to create an “ultra-warrant” requirement.¹³⁹ Since the super warrant requires police to exhaust all other means of investigating before securing a wiretap warrant, the effect and objective of Haber’s recommendation is similar to Sundby’s and Strossen’s—to ensure that the criminal justice system strongly disfavors use of Internet of Things data in investigation.¹⁴⁰

Continuing down the spectrum, some scholars appreciate the potential benefits of filtered dragnets and have advocated for a style of restraint that differs from prohibition or PC-based warrant requirements. Stephen Henderson and Kiel Brennan-Marquez argue that police departments should have a budget for searches and seizures (including digital investigations that, at least right now, operate outside the formal definition of a Fourth Amendment search) so that they are incentivized to use the most efficacious practices rather than the most expedient ones.¹⁴¹ Christopher Slobogin has explicitly called for a more nuanced understanding of dragnets and suspicionless surveillance. He would allow dragnets that meet a standard of “generalized reasonable suspicion” where their efficacy outweigh the privacy intrusion enough to merit their use in criminal investigations.¹⁴² Jeffrey Bellin recommends locating the Fourth Amendment interest in databases with the owner or holder of data, rather than the subject of the data searches, which would give a company the right to either consent to a search or to demand a warrant.¹⁴³ Andrew Ferguson would allow the use of dragnets as long as the legislative branch explicitly authorizes their use.¹⁴⁴

Reaching the other end of the spectrum, some scholars (myself included), see the use of filtered dragnets as a move toward justice rather than away from it.¹⁴⁵ The prohibition of a highly reliable investigation tool is unethical when the prohibition would push police toward more invasive and less accurate investigation techniques and when serious crime would too often go undeterred. David Kaye and Michael Smith have made this argument with respect to DNA matching.¹⁴⁶

Where does this leave us? Hopefully with an open mind and a hunger for reasoning from first principles.

C. The Pointlessness of Fourth Amendment Privacy

Filtered dragnets will disrupt the equilibrium between the government, criminals, victims, and bystanders. That is obvious enough. Orin Kerr has made the descriptive and normative claim that courts intuitively adjust Fourth Amendment rules to strike a new balance between privacy and security whenever the government gains a significant new surveillance capability.¹⁴⁷ Filtered dragnets implicate only a few Fourth Amendment interests, and those few are not well served by the reasonable expectations of privacy test, by the warrant requirement, or even by intuitive adjustments. We are in new terrain in which a technology increases both privacy and crime control.

1. Theoretical Dimensions of Fourth Amendment Privacy

Borrowing from a rich literature that catalogues and elucidates the concept of privacy,¹⁴⁸ the following arise most frequently in the context of government intrusions and surveillance:

i. Freedom from Embarrassing Revelations, Social Dislocation, and Harassment

Perhaps the most common and robust form of privacy is the recognition that everybody has some legitimate, pro-social reason to want to keep licit details about their lives away from at least a subset of people.¹⁴⁹ They want the freedom that comes from relative obscurity,¹⁵⁰ where their decisions and behavior are not under the scrutiny and judgment of others.¹⁵¹ Everybody deserves to be shielded, at least to some degree, from embarrassment over the things they have said or done that did not cause any lasting harm to others and that can be misunderstood.¹⁵²

The scope of this interest ranges from trivial embarrassments (the regrettable hairstyle, the piece of toilet paper stuck to a shoe) to the truly life-changing (the ostracism of an HIV diagnosis, the physical attack carried out with the help of location information).¹⁵³ Much of the time, the sensitivity of a piece of information will depend greatly on context,¹⁵⁴ but the point is that “everyone has facts about themselves that they don’t want shared, disclosed, or broadcast indiscriminately.”¹⁵⁵ When information is permitted to leap from one context to another and to be used in unexpected ways, it will cause harm.¹⁵⁶

Filtered dragnets relieve, rather than exacerbate, these concerns. By shielding data from police (and everyone else) unless and until they match the fingerprint of a crime, filtered dragnets keep as much information private as practically possible.¹⁵⁷ Indeed, if more police investigations were conducted through filtered dragnets, members of the community would be much more obscure and unknown vis-à-vis the state as compared with programs that involve heavy use of interviews, street patrols, traffic stops, and home searches.

ii. Freedom from Manipulation

An actor can exploit access to another person’s data by discovering their vulnerabilities or gaps in rationality and then using those to persuade, cajole, or threaten the data subject into doing something.¹⁵⁸ Again, as with freedom from embarrassment, filtered dragnets present a lower, rather than higher, risk of this sort because law enforcement and other government actors are blinded from nonrelevant information. The only use to which the dragnet data are put involves solving a crime.

iii. Freedom from Indignity

The privacy literature prizes at least two forms of dignity that are not captured in other concepts on this list. First, privacy intrusions sometimes bring about an indignity from being singled out for suspicion.¹⁵⁹ Dragnets, whatever their faults, do not have this intrusion. Nearly everybody suffers the same indignity when bulk data is scanned, just as they do at TSA checkpoints and DUI roadblocks.¹⁶⁰ Another form of dignity concerns being treated as a human rather than being processed as a faceless line of data. This has some overlap with the concept of “individualized suspicion,” which I will discuss below, and which (in my opinion) filtered dragnets more than adequately should meet. Nonetheless, it is undeniable that filtered dragnets are entirely mechanical up until the point when a limited set of information is disclosed to police. Whether this should make a difference in the moral and legal status of filtered dragnets, though, is debatable.¹⁶¹

iv. Freedom from Anxiety

A common theme throughout the discourse revolves around the idea of loss of control and the uncertainty and anxiety that arises from it.¹⁶² When the government has personal information about a subject, the subject is uncertain how the information could be used and fears that it may be used against them. This fear is, in and of itself, a social cost. Kiel Brennan-Marquez has argued that new data-gathering technologies create, and to some extent have already created, an omnipresent low-level form of anxiety similar to the feeling one gets when seeing a patrol car in the rear-view mirror and “feeling your pulse quicken; awareness heightened and senses alert, as you try not to break any traffic rules.”¹⁶³

A natural follow-up question is: What havoc can the government cause with data?¹⁶⁴ The greatest risk posed by filtered dragnets is to offenders, and it is the risk that their offense (and nothing more) will be detected. Thus, for filtered dragnets, freedom from anxiety calls for a freedom from law enforcement itself. It vindicates the rights of the supposedly “guilty” rather than the innocent. Fourth Amendment privacy recognizes no such interest.

2. Routine Compliance with Reasonable Expectations of Privacy

Data-driven policing has inspired a series of gloomy articles that predict the Fourth Amendment’s reasonable expectations of privacy test has become irrelevant.¹⁶⁵ As long as the third-party doctrine stands, permitting police to access data held by third-party companies without justification or oversight, privacy will be insufficiently protected. I agree with these scholars.¹⁶⁶ But courts are already addressing this problem. Cases like Carpenter v. United States—in which the Supreme Court found that police access to several days’ worth of geolocation data constitutes a search that would require a warrant or appropriate warrant exception—have proven that for suspect-driven searches, Fourth Amendment privacy is not yet irrelevant and is becoming more powerful by the day.¹⁶⁷

Nevertheless, the reasonable expectations of privacy test is very unlikely to impede the adoption of filtered dragnets. That test has repeatedly been interpreted to deny privacy interests of the guilty. “[A]ny interest in possessing contraband cannot be deemed ‘legitimate,’ and thus government conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.’ ”¹⁶⁸ Jed Rubenfeld’s synthesis of Fourth Amendment caselaw seems to get it right: the Fourth Amendment aspires to support “a justified belief that if we do not break the law, our personal lives will remain our own.”¹⁶⁹ Filtered dragnets pass this test.¹⁷⁰

To be clear, there are reasons, independent of privacy, to protect law-violators-as-violators. These arguments, which I describe in depth in the next Part, are critical for understanding the threat from filtered dragnets. But they are only loosely related to “privacy” as the term is typically used, and they will not be incorporated into the reasonable expectations of privacy unless that test is changed beyond all recognition.

3. The Irrelevance of the Warrant Requirement

In U.S. v. Chatrie, the geofence case described earlier, the court suggested it would approve a geofence warrant process if a magistrate or court got to make a probable cause determination before the geolocation data of a target were de-anonymized.¹⁷¹ Generalizing to other filtered dragnets, law enforcement would seek a warrant after the filtered dragnet system alerts, but before any identifying data is revealed.

This process might be a good component for accountability and oversight, and to ensure that filtered dragnets are performing at or above the expected “hit rate,” but it is hard to imagine why a warrant could ever be denied. A warrant is valid as long as it is issued by a neutral judge or magistrate, is based on probable cause, and states with sufficient particularity what is to be searched or seized.¹⁷² The standards for both probable cause and particularization will be met—more than met—given that the definition of filtered dragnets I am using requires them to withhold information until the probability that the target has engaged in the investigated crime meets a high standard. As for particularization, because the filtered dragnet procedure begins with the signatures of a crime and works backwards to find the perpetrator, the profile for matching (what I have been calling the “fingerprint” of the crime) is as particularized to a crime as it can be.¹⁷³

Privacy advocacy groups have argued that warrants issued for reverse searches are tantamount to general warrants because they do not identify (or even anticipate) a particular suspect before they are issued.¹⁷⁴ But the only similarity that geofence warrants have to general warrants from the Colonial Era is the lack of a named suspect. In every other way, geofence warrants restrict the information that is revealed to that which is closely linked to a particular crime. By comparison, general warrants authorized agents of the colonial government to look for stolen or untaxed goods anywhere the agent “[should] think convenient to search.”¹⁷⁵ The only manner in which the geofence warrant is unconstrained—by allowing police to discover who the suspect is rather than requiring police to come with a suspect in mind—is a feature of geofence warrants that should be praised, as it limits the discretion of the police to select their targets in advance. This is the critical distinction between filtered dragnets like geofence warrants or DNA searches and suspect-driven searches—one that scholars and commentators too frequently gloss over.¹⁷⁶

Thus, a warrant requirement is irrelevant to the adoption of filtered dragnets, apart from the time, resources, and general system friction involved, because they should routinely be granted.

***

Privacy scholars are courting disaster by lumping filtered dragnet techniques in with other types of dragnets and digital searches. Even if there are court victories in the short term, they will be pyrrhic. The very concept of “privacy” will become increasingly vulnerable to the “I have nothing to hide” argument that is loathed by the field (and rightly so).¹⁷⁷ Courts might fail to sufficiently constrain unfiltered dragnets and suspect-driven investigations because of the utility and low harm of filtered dragnet techniques that happen to share the same Fourth Amendment bucket.

Arguments against mass surveillance often start with the observation that surveillance fundamentally shifts power from the surveilled to the surveillor.¹⁷⁸ This is true as far as it goes, but if the surveillor is constrained and can only see evidence of a crime, that power shift will often be a desirable one. In fact, assuming that the law is legitimate, the enforcement of a law is one of the most legitimate acts the government can do. The burden is therefore on surveillance scholars to explain why those who have violated the law may have justified interests in being protected from state detention and prosecution, even when their law-abiding conduct remains private. There are answers to this challenge, but they sound in tyranny rather than invasions of privacy. There is a virtue to being precise about the problems of filtered dragnets without reliance on capacious notions of privacy that would implicate nearly every law enforcement function.

IV. FILTERED DRAGNETS AND TYRANNY

Filtered dragnets will provide a highly concentrated dose of criminal detection. Even though, in theory, the whole point of having law enforcement departments is to detect and prosecute crime, a drastic increase in criminal detection can have toxic effects on society. The dynamics and interaction of other criminal justice factors have come of age in a time of low detection and only make sense if detection continues to be difficult.

This Part begins by revisiting the interests that privacy scholars have identified that would be affected by filtered dragnets. Each of them is really an anti-tyranny concern garbed in the language of privacy. If we are more explicit about the goals and analyze the risks of authoritarianism that filtered dragnets may drag along with them, the problems (and, therefore, the remedies) become much more obvious.

The true threats from filtered dragnets are that: (1) many Americans will confront a real risk of criminal liability based on our overbroad criminal codes; (2) prosecutions of those crimes could lead to life-altering detentions in our inhumane prison systems; and (3) without the shield of abysmally low detection rates, the only protection is lenity, which is no protection at all from a government that attempts to exert authoritarian power.

A. Privacy as a Stalking Horse for Anti-Authoritarianism

Neil Richards claims that privacy is a necessary bulwark “if we want political freedom against the power of the state.”¹⁷⁹ But privacy is inadequate on its own to protect the broad range of liberty and equality interests that arise with abuse of power. Filtered dragnets prove it. They can be used to trample liberties and to serve the public unequally even though the government will not know any irrelevant details about licit activities.

Instead of trying to expand the meaning of “privacy” to tackle every possible state abuse, courts and criminal justice scholars alike should seize the moment and force constitutional theory to shift its focus from privacy to anti-authoritarian constraint. To be sure, courts should continue to refine the conception of Fourth Amendment privacy interests to address unfiltered digital dragnets. But if we have any hope of harnessing the great potential of filtered dragnets without creating a despot’s playground, the Supreme Court will need to simultaneously cultivate an anti-authoritarian strand of Fourth Amendment rules.

When surveillance scholars use the concept of privacy to curb abuses of power, they are concerned about unnecessary social control and abuses of discretion.¹⁸⁰

1. Unnecessary Social Control

Law enforcement serves the obvious and highly valued function of social control. As Kiel Brennan-Marquez explains, “we want people to worry about breaking the rules”¹⁸¹—at least, when the rules are good rules, and when the consequences for breaking rules are proportional and fair. However, Brennan-Marquez is concerned that data-driven policing tools will leave the police “awash in probable cause,” allowing them to stop, search, or arrest nearly anybody.¹⁸² This concern gets to the heart of the matter. But it is ultimately a critique of the substance of criminal law and the discretion of criminal justice decisionmakers. These are the same themes that Bill Stuntz repeatedly raised when he critiqued Fourth Amendment cases and scholars for allowing privacy to be a distraction from more pressing threats.¹⁸³

Let us return for a minute to Brennan-Marquez’s metaphorical driver who has just discovered a patrol car in the rearview mirror. If the government had done a massive purge of its penal codes and the only crimes left on the books were murder, rape, arson, armed robbery, and aggravated assault, and if false positive police error was vanishingly small, would the driver feel anxiety? For a time after the change, yes of course. There will be a short-term period of distrust and adjustment when technologies or rules change suddenly and dramatically.¹⁸⁴ But in the long run, anxiety will ebb under the pressure of persistent feedback of non-events and the absence of harm.

Public opinion surveys find that attitudes about privacy are mediated through attitudes about the substantive criminal law that is being enforced: a dog that is sniffing for bombs is perceived as less privacy-invasive than a dog that sniffs for drugs even though the experience is identical for the investigation target (at least, up until the moment that the dog alerts, that is).¹⁸⁵ If assessments of privacy change not because of the revelations or techniques that are used but because of the crimes that are prosecuted, the concept of privacy is standing in for objections to the substance of the law.

The concern about unnecessary social control is better addressed by defining, as best we can, which types of antisocial conduct rise to the level of being worthy of criminal punishment and which do not. And the concern raises important questions about whether criminal violators are treated too harshly. Privacy is a blunt instrument for these purposes. It draws lines that have only a vague relationship to the distinctions we mean to draw.

2. Selective Attention

Another serious concern is that police might make use of a system of surveillance to rifle around for something to use against a specific person or group.¹⁸⁶ Motivations could range from political persecution to racism to personal vengeance to simply wanting to make a quota or appear well in performance metrics within a bureaucratized police department.

As with unjustified social control, the problem of discretion and selective attention is only indirectly related to privacy. Indeed, it is not even clear that privacy has any positive influence on police discretion. Privacy steers police toward information sources that disproportionately expose low-income and minority groups: if police cannot bring a drug-sniffing dog to a house, they will bring it to apartments and cars.¹⁸⁷ If police cannot search the full set of government and commercial DNA databases for a match to a crime scene sample, they will just use the government’s database of arrestee DNA data.¹⁸⁸ At the same time, police can also engage in selective inattention by avoiding leads that could cause problems for friends or powerful people and by failing to give crimes perpetrated against low-status victims the same attention as the ones inflicted on high-status victims. When communities are under-protected, it is a form of too much privacy vis-à-vis the government.

The policy antidote to government discretion and bias is to directly limit discretion and bias. Filtered dragnets already do this, to some extent, because once they are employed, police lose control over who will ultimately be identified as a suspect. But law enforcement can still deploy filtered dragnets unfairly when selecting the neighborhoods or cases in which filtered dragnets will be deployed.¹⁸⁹

Thus, in the context of filtered dragnets, “privacy” concerns are attempting to capture and curb something bigger: too much social control at the discretion of the government.

B. Filtered Dragnets and the Risks of Tyranny

An authoritarian regime thrives when it has unlimited discretion to issue stiff punishment based on criminal behavior that has negligible negative consequences (and possibly even positive consequences) to society. This threat is blunted if the state lacks the means to acquire evidence of criminal behavior, but with reliable surveillance mechanisms, law enforcement officials will be able to exert as much social control as they please, because nearly every person can be charged with a crime.¹⁹⁰

Thus, filtered dragnets present risks that run along three vectors: (1) overbreadth of criminal law; (2) overly harsh punishment of criminals; and (3) overly discretionary investigations and enforcement. If these three forces remain unchecked, filtered dragnets could cause more harm than good. In the wrong hands, filtered dragnets could cause catastrophic risks of the sort that the Constitution is meant to prevent.

1. Overbreadth of Criminal Law

A government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care when it promulgates or maintains its criminal laws. If we wince at the thought that everybody who commits a minor offense will get caught and will be prosecuted if they do not seem to qualify for a privilege or defense, this is a sign that the conduct is a poor fit for criminal law, and legislators must consider alternatives (e.g., warnings, civil fines, or positive incentives for pro-social conduct) instead.¹⁹¹

Right now, constitutional case law does very little to constrain the creation of criminal laws. Outside criminal statutes that would intrude upon specific individual liberties recognized in the Bill of Rights, the courts hold legislatures to very low standards of care (the rational basis test).¹⁹² This latitude on substance has a curious relationship with the procedural restrictions imposed by the Fourth Amendment: as long as police have probable cause to believe that a person is violating or has violated a criminal law, police can make an arrest or initiate a search, no matter how trivial the offense. Thus, in Atwater v. Largo Vista, the Supreme Court found that the government acted within the bounds of the constitution when a police officer arrested a woman who was driving with two small children for the violation of a seatbelt law.¹⁹³

Even if the Court is reluctant to interfere with legislators’ management of criminal codes, common sense dictates that some crimes are much worse than others. The state’s attention should focus on conduct that causes serious harm to others. There is a reason, for example, that the states that have regulated familial DNA-matching programs have allowed their use only for serious offenses like murder and rape,¹⁹⁴ and Baltimore’s Aerial Investigation Research (“AIR”) system, before it was dismantled, was restricted to use in investigating a limited set of very serious crimes.¹⁹⁵ It is the same reason that the federal Wiretap Act permits courts to issue wiretap orders only when there is probable cause to investigate one of the explicitly listed serious criminal offenses.¹⁹⁶ The same impulse explains why there is scholarly criticism and public outrage when a surveillance system adopted for the purpose of detecting one set of serious criminal violations (like smuggling or terrorism) is simultaneously used to detect violations of drug laws.¹⁹⁷ The unstated assumption is that some crimes should be detected as well as possible (terrorism, for instance) and some should not.¹⁹⁸

The fact that state and federal criminal law has dramatically expanded in quantity and complexity is not in dispute.¹⁹⁹ And yet, curiously, responses to the problem tend to focus on procedural rather than substantive limits.²⁰⁰ The unchecked growth of substantive criminal law ironically creates a problem for public safety because the fear of prosecution prompts a demand for privacy and law enforcement obstruction.²⁰¹

The first and most obvious reason to place limits on criminal liability is to reduce the opportunity for unnecessary social control. The relationship between the government and the governed changes profoundly when a crime has been committed. The defendant in Atwater should have put a seatbelt on her children, and the government has an interest in encouraging, even requiring, that behavior. But not through criminal law.²⁰² A second reason to constrain the substance of criminal law is to increase compliance with the rules we care about most.²⁰³ Overstuffed criminal codes also bleed into the problems of law enforcement discretion (discussed at greater length below) because the government has too much power to decide which members in the nation of criminals to send to prison.

Consider two examples that illuminate the problem through opposite ideological lenses. First, abortion will be criminalized in many states in light of Dobbs v. Jackson Women’s Health Organization.²⁰⁴ Some states are considering criminal liability for women who seek out an abortion.²⁰⁵ For liberals and progressives, criminal liability for abortion-seekers represents an intolerable overreach of the state. To combat the substance of these laws, organizations such as the ACLU have already issued warnings about the risk that geofence searches could facilitate arrests and prosecutions of a law that a sizable portion of the state’s constituents believe is unjust.²⁰⁶

By contrast, conservatives might be concerned about overzealous enforcement of gun restrictions.²⁰⁷ Geolocation and credit card transaction data could be used to create a filtered dragnet that finds individuals without a gun license who cross state lines, attend a gun show, make a sizable purchase, and immediately return to their state.

In both cases, perceived flaws in the substance of the law would not be so troubling if the laws carried only modest punishments—warnings or fines, for example, rather than the incarceration and downstream labor and housing problems that inevitably follow conviction.²⁰⁸ But given the breadth and severity of criminal law, plus the mostly unchecked discretion that police departments have when deciding which among an ocean of technical criminal violations to investigate, the prospect of near-perfect detection takes on a more sinister character. Thus, when people have reservations about, for example, Alexa devices being used to detect the sounds of domestic violence, the reservations stem not from the specific use case but the general capabilities. They wonder, for good reason, what mischief can be made from such a technology when the set of conduct that is forbidden and harshly punished is sprawling and unevenly enforced.²⁰⁹

Criminal codes are often expanded when the state has not gotten a handle on crimes of violence and property theft. The criminalization of vice (alcohol and drugs) was supported by the community not necessarily out of concerns that the drugs themselves cause to users but because of the “unconscionable violence” that came along with trafficking and addiction.²¹⁰ In other words, substantive criminal law is expanded to compensate for deficiencies in the detection and prosecution of crimes that were already on the books so that police could arrest for lower level crimes and (stochastically) reduce the incidence of more serious crimes.²¹¹ If detection of the serious crimes were more functional, this should relieve the need for sprawling criminal codes.

Hence the dilemma: better crime detection could help stop the pattern of an upward ratchet, but as long as the criminal codes are already sprawling, there will be resistance to increasing detection.

2. Overly Harsh Punishment

On severity of punishment, the United States stands out among developed nations. We use incarceration intensively. In France and the U.K., a criminal who punches a person in the nose would be sentenced to less than six months in jail.²¹² The same conduct in the U.S. would result in a sentence of about three years.²¹³ Moreover, no outsider would mistake our prisons for institutions of rehabilitation: the entire sentence is usually carried out in a facility that is punishing, with drab quarters, humiliating toilet and bathroom facilities, and rancid food.²¹⁴ Once released, the negative consequences continue as the housing and labor markets penalize criminal convicts.²¹⁵ Long sentences also create risks of abuse by giving police officers and other state agents leverage to extract bribes, pleas, and false confessions.²¹⁶

The harshness of our sentences is the byproduct of a low detection rate. Communities that at various times have been disfigured from crime waves tend to demand more and harsher criminal penalties.²¹⁷ The intuitive appeal of using long prison sentences to make up for low detection rates became the explicit policy of federal and local governments following the landmark work of Gary Becker. Becker modeled crime with a simple formula determined by the probability of conviction and the severity of punishment.²¹⁸ Because it is much easier and cheaper for the state to ratchet up punishment than to catch more perpetrators, his work persuaded many politicians to manage crime through tough sentencing.²¹⁹

The sparseness of Becker’s model for crime rates leaves much to be desired for anybody looking for a comprehensive explanation for crime—crime, of course, has a range of social and economic causes²²⁰—but as Part II explained, there is little doubt that detection has a significant influence over the amount of crime in a given community.²²¹ Punishment, by contrast, seems to have a U-shaped relationship to recidivism, where no punishment and long, harsh punishment both tend to increase the odds that a perpetrator will recidivate.²²²

I do not want to overstate the case for reducing prison time. Roughly half of the inmates in prison are individuals with such consistent sociopathic and antisocial behaviors that for those inmates, long-term incapacitation has positive externalities. Not only does incapacitation prevent these particular individuals from committing additional crimes (specific deterrence), but their families and particularly children may benefit from having less, rather than more, exposure to them.²²³ Nevertheless, the social costs of harsh punishment do not seem to serve deterrence or otherwise be justified outside the context of heinous or repeated criminal activity.

Over-punishment and criminal detection are inextricably connected. We cannot expect to find a political will to reduce punishment unless the police have—and use—new means to detect and root out crime. Filtered dragnets can jolt and resettle the criminal justice system in a new equilibrium where detection, rather than harsh punishment, is the key mechanism for crime control.

3. Discretionary Application

Once the police have committed to investigating a particular crime, filtered dragnets take discretion away from the police to drive the investigation. But there are other points in time before and after a filtered dragnet may be used when government agents can exert control over the process:

i. Selective Protection

When it comes to serious crimes of violence and theft, American police forces have a troubling history of systematically ignoring the suffering of minority communities. Police once actively conspired to deprive former slaves of their right to protection by joining the murderous mobs.²²⁴ Over the subsequent century, police started to exhibit a more passive form of selection by simply not investigating and pursuing crimes committed against African-Americans as zealously as crimes committed against whites.²²⁵ This is a form of inequality that is not adequately addressed in constitutional caselaw.²²⁶ Thus, courts must prevent police from using filtered dragnets to solve crimes committed against one set of privileged crime victims while failing to use the same tools to solve comparable (and comparably detectable) crimes committed against others.

ii. Selective Crackdowns

Police also decide which crimes to target,²²⁷ and when and where to focus their resources.²²⁸ For example, police will decide which crime scene images should be subjected to facial recognition. There is no guarantee that they will pursue arrest and prosecution of violent or destructive participants at Black Lives Matter protests or at a pro-Trump rallies with the same vigor.

iii. Controlling the Data

Whether police use government-held data or data held by private companies to operate a filtered dragnet, they can exert some influence over the process if they are allowed to use a subset of available information to run through the filtered dragnet.²²⁹ For example, if the government were able to limit DNA-matching to the data collected from ex-convicts only, or if a geofence warrant could direct a service provider to look for matching records only among customers who live in a certain precinct, the police could do an end run around the discretion-reducing function of filtered dragnets.

iv. Downstream Decisions

After a suspect is identified by a filtered dragnet, police and prosecutors still have unchecked power to use leniency and to simply not pursue the leads that they do not like.²³⁰

The unifying theme across these decision-making practices is that the Supreme Court has avoided interfering with law enforcement discretion any time it has a plausible connection to judgment about the best use of resources. In Whren v. United States, the Supreme Court rejected a constitutional challenge by a criminal defendant who was pulled over for making an illegal U-turn. The defendant argued that the police would not have pulled over a white person, or any person about whom the police did not have a pre-existing “hunch,” under similar circumstances.²³¹ The court believed that the defendant’s theory of unequal enforcement of minor traffic infractions was irrelevant and unworkable.²³² At the time it probably was.²³³ But it is not anymore and will be even less so in the future. Today, a defendant bringing a case like Whren might have the data, thanks to GPS tracking of police and civilian cars, to demonstrate that police pull over only a small fraction of the illegal U-turns and other traffic infractions that they observe, and that the enforcement disproportionately targets minority drivers (if this is so).²³⁴

If police are able to use filtered surveillance to solve crimes at minimal expense, there will be even less need for discretion. So, if police have a filtered dragnet, courts must make sure they have an acceptable response to the question: “Why did you enforce the criminal law here and not there?”²³⁵

In summary, a government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care with respect to the promulgation of criminal laws, the use of incarceration and punishment, and the application of detection tools.

V. THE ANTI-AUTHORITARIAN FOURTH AMENDMENT

Anti-authoritarianism, rather than privacy, should be the benchmark for the Fourth Amendment when police develop cases using filtered dragnets. What makes facial recognition or a geofence or some other form of filtered dragnet “reasonable” is not that the privacy of the innocent is protected—they will all do that. Rather, an “unreasonable” use of these technologies means the state is misusing its power to punish and control.

The current trajectory of Fourth Amendment caselaw suggests that we are headed for one of two suboptimal endpoints: either the state will be able to use filtered dragnets with little to protect its citizens from the perils of broad criminal laws, harsh criminal sentences, and selective enforcement, or the state will effectively be prohibited from using filtered dragnets, leaving a criminal justice status quo that nobody would devise and few would defend.²³⁶ But if the courts start to take seriously the fundamental differences between filtered dragnets and other investigation techniques—if they recognize that technology can explode longstanding assumptions about the nature of risk when police increase the detection of crime—courts can harness the disruptive technology and help society land in a better equilibrium.

Thus, the Fourth Amendment must evolve to demand “reasonableness” when detection is easy. The thrust of my proposal is that the phrase “reasonable searches and seizures” should be understood as a more expansive and robust guarantee of reasonableness.²³⁷ Specifically, the requirement of “reasonable” seizures should guarantee that the consequences of a seizure (e.g., carceral arrest and a possible prison sentence) are fitting and proportionate to the gravity of the suspected crime. The requirement of “reasonable” searches should guarantee not only that the search is conducted based on probable cause and in line with established warrant requirements, but also that the decision to search or not search is reasonable and non-arbitrary. The former ensures that the criminal law being enforced is serious enough to justify the loss of rights that comes along with an arrest or a long sentence. The latter ensures that criminal detection tools are used in an even-handed manner.

A. Reasonable Seizing—Restricting the Substantive Criminal Law

The prospect of near-perfect detection requires more care in defining a reasonable seizure. In order for a carceral seizure of a person to be reasonable, state uses of force and coercion involved must be justified by the harm that the arrestee has imposed on society. “Freedom from unreasonable . . . seizures” should be interpreted to protect the interests of individuals who have engaged in conduct that is technically illegal but not morally reprehensible.²³⁸ Thomas Jefferson’s unfinished vision laid out in the Declaration of the Rights of Man and of the Citizen provides the blueprint. Article 4 states, “Liberty consists in the power to do anything that does not injure others”; Article 5 states, “The law has the right to forbid only such actions as are injurious to society”; and Article 8 states, “The law ought to establish only penalties that are strictly and obviously necessary.”²³⁹

A seizure should only be reasonable if the underlying criminal conduct and the resulting punishment are also reasonable. While substantive due process rights and the Eighth Amendment provide some absolute constitutional limits against unreasonable criminal codes or punishments, these rights must be bolstered in the face of near-perfect detection. An analysis of reasonable seizures in light of filtered dragnets has two aspects to it: (1) whether the behavior is sufficiently blameworthy to belong in the criminal code at all, and (2) if so, whether the punishment fits the risks and harms of the crime.

Is the conduct crime-worthy? The first inquiry asks whether the suspect’s conduct is bad enough to justify arrest and incarceration at all.²⁴⁰ This is a threshold issue. Criminal conviction needs to be blameworthy and stigmatizing. Defining what sort of conduct is “blameworthy” raises deep philosophical questions, but there is an aspect of the question that is empirical: it needs to be rare. If the conduct captured by the scope of the criminal codes is commonplace, the actor’s community evidently has not incorporated restraint deeply into its moral fabric.²⁴¹ In those cases, government intervention short of criminal liability (including expressive law, civil fines, or positive reinforcement for its opposite) should be used.²⁴²

This is at odds with cases like Atwater, where the court refused to second-guess a local government’s decision to criminalize a minor driving infraction,²⁴³ but Fourth Amendment case law does occasionally break rank with Atwater and peeks at the substance of the criminal violation in order to gauge the reasonableness of a procedure. For example, when analyzing whether a warrantless traffic checkpoint is constitutional as a reasonable warrantless seizure, the Supreme Court explicitly considers “the gravity of the public concerns served by the seizure” as one of the factors.²⁴⁴ And the Court has refused to allow exigent circumstances to excuse the failure to secure a warrant for a home search and arrest when the underlying crime is a minor offense.²⁴⁵ And Atwater is ahistorical: a quick tour of the notorious cases the Crown directed against colonists that inspired the Bill of Rights are offensive, in large part, because of the substance of the crimes. These included crimes such as writing or publishing “gross and scandalous reflections and invectives upon his majesty’s government” or the crimes of illegal trade and inadequate record-keeping.²⁴⁶

Is the punishment too harsh? If the suspect’s conduct is reprehensible enough to pass the initial threshold test, a post-conviction seizure could still be unreasonable if the quality and length of detention is disproportionately harsh.²⁴⁷ The sentences of many crimes, even violent crimes, could probably be reduced to weeks or days, or even converted to non-carceral forms of punishment (like public service or surveillance-enabled supervised release) without increasing crime rates if detection rates were much higher than they currently are. Long-term prison sentences can be reserved for murder, treason, severe sexual assault, severe child abuse, and for the incapacitation of repeat criminals.²⁴⁸ For other crimes, detection through filtered dragnets, rather than a small chance of very harsh punishment, can be the door jamb that stops the metaphorical revolving door of recidivism.

B. Reasonable Searching—Minimizing Discretion

A police department’s use of filtered dragnets will be fair if it avoids gaps in the protection from crime as well as gaps in leniency from enforcement.

1. Duty to Search

All cases of reported or otherwise known crimes that are equally suitable for filtered dragnets should be investigated.²⁴⁹ For example, if a police department can use filtered dragnets to detect gun violence or robberies, and it fails to investigate daytime violence and robberies taking place near low-income schools even though it investigates every daytime robbery or assault that takes place near high-income schools,²⁵⁰ the uneven use of filtered dragnets would render it an unreasonable search. As a practical matter, while it would make more sense for a constitutional challenge to come in the form of a § 1983 claim brought by a resident who is harmed by a detectable or deterrable crime, the challenge is more likely to emerge when a criminal defendant brings a claim similar to the claim brought in Whren (arguing that although they committed an offense, the crime is unequally enforced).²⁵¹ Courts should be open to a claim and evidentiary proof of this sort.

2. Duty to Cast a Large Dragnet

Law enforcement should not have undue control defining the search pool that will be used by a filtered dragnet. The database that will be used to cross-check against the facts of a crime should include everyone possible whose data is accessible and whose participation in the crime would not be an impossibility. This reduces the risk of arbitrariness or bias that could result if police search for potential leads and matches in one population while ignoring another.

By this standard, facial recognition systems like Clearview AI are more legitimate (in the sense of being less susceptible to bias or discretion, at least) when they match surveillance footage at a crime scene against the largest possible set of publicly available portraits on the open web. Contrast this with DNA filtered dragnets: it is increasingly common and popular to restrict local law enforcement who are running DNA searches to CODIS, the federally maintained database of arrestee or convict DNA samples.²⁵² Whatever rationale might justify subjecting convicts to greater likelihood of being caught in their own future crimes, the logic does not follow to arrestees or to individuals whose crimes are detected through familial DNA.²⁵³

The principle of evenhanded enforcement is consonant with what Bennett Capers meant when he argued that equitable policing may require “redistributing privacy.”²⁵⁴ But it may require courts to enforce subpoenas or issue warrants in order to pierce through corporate policies that resist law enforcement access.²⁵⁵ These policies are already in place at some companies.²⁵⁶ Of course, there may be times when law enforcement resources really are constrained so that investigating every trackable crime or casting the widest possible dragnet will not be possible, but the police should be able to offer some reasonable explanation. And an explanation that would not be reasonable is that too many individuals would be caught: if the availability of filtered dragnets forces law enforcement to confront the problem that there are too many criminal acts, the proper government response is to revisit and narrow or purge some of the substantive criminal laws.

C. Police Culture: The Era of the Nerdy Police Force

The adoption of filtered dragnets will require law enforcement agencies to become more technocratic. Much of the initial investigation work is likely to be centralized, in upper management working at desks, and their compliance with Fourth Amendment restrictions will require competence, if not expertise, in statistical methods and data auditing procedures. To some extent, this change in operations is already happening with the gradual introduction of DNA forensic labs, facial recognition, and now, reverse searches. With clear Fourth Amendment guidance for filtered dragnets, police forces could rapidly adopt filtered dragnets and divest somewhat from traditional techniques. Police operations would shift away from self-initiated patrols and field-based investigation toward data-driven initiation and investigation. This will change who is qualified for and attracted to a policing job. Police investigators who are used to solving cases through interrogations and informants will begin to feel like the baseball scouts who still visit high school and college teams looking for “good legs” while their younger, nerdier, and (eventually) better paid colleagues use Bill James-style statistics to prioritize the team’s recruiting efforts.²⁵⁷

This may prove to be a feature—a way to achieve the reform of police culture by working backwards from shared ends that are appealing to both suburban families and Black Lives Matter activists (lowering crime, reducing false convictions, and achieving even-handed enforcement). The cultural shift can provide counterpressure to a problem that currently plagues police recruitment—that the people most interested in working for law enforcement have stronger-than-average preferences for meting out punishment.²⁵⁸ All the more reason civil liberties organizations should reconsider their instinctive negative reactions to filtered dragnets.

The criminal defense bar may get transformed, too. Andrew Ferguson has made the case that law enforcement data-collection and data-mining practices can be inverted to discover negligent or abusive practices within police departments.²⁵⁹ Defendants can make use of “blue data” to prove their cases that, for example, law enforcement had used an unreasonably narrow dragnet.²⁶⁰ This may offend a police department’s sense of agency and self-determination, but this is a reasonable price to pay for the power and efficiency of filtered dragnets.²⁶¹

VI. ADDRESSING FRIENDLY OBJECTIONS

Some readers will no doubt disagree with my description of the looming opportunities and problems that will arise with filtered dragnets, and as a result will reject the policy solutions offered in Part V. I addressed doubts about the upsides of filtered surveillance or the downsides of near-perfect detection as best I can in those earlier Parts. Whatever disagreements about the policy implications remain will have to be aired in other fora. Here, I address some objections that will be raised even by readers who agree that the policies advanced in this Article are sound.

“Friendly” critics will wonder why it is necessary to constitutionalize these policies rather than advocating for a legislative response. The answer, in brief, is that constitutional protections are the only viable tools when several criminal justice rules must be changed at the same time.

Friendly critics may also wonder why the Fourth Amendment is the right vehicle for course correction even if all agree that constitutional law must be pressed into service. On this question, I am more neutral. If the Eighth Amendment and Due Process clauses can be interpreted to reach the same anti-authoritarian objectives, there is little reason to insist on the Fourth Amendment as the primary source of these rights. But since filtered dragnets will inevitably cause seismic activity in Fourth Amendment law, and since highly efficient searches are the reason that the threat of government tyranny will become more pronounced, it is at least fair to say that the Fourth Amendment could be the right constitutional source for the anti-authoritarian rights described in Part V.

A. Why the Courts? (Or, Why Not the Legislature?)

Not every problem in law enforcement needs to be solved through the constitution, but this one does. The political process is exceedingly unlikely to get us out of our criminal justice rut, where low detection rates are messily compensated through criminal liability for minor infractions. Political winds bob from too much lenity to authoritarian severity,²⁶² and as a result, surveillance restrictions and decriminalization usually rise and fall together depending on whether the mood is pro-rights or anti-crime. Political institutions do not have the tools to break surveillance and substantive criminal law apart and to work out a criminal justice horse trade. But a horse trade is what we need: we simultaneously need the police to detect more violent crime while also ensuring that no person who is caught with a $10 baggie of drugs could ever be in a position to go to prison for the rest of their life.²⁶³

This trade—reduced criminal liability in exchange for greater detection—can only be accomplished through constitutional adjustment. If criminal liability and punishment are reduced without a simultaneous increase in detection, crime rates will rise and the ballot box consequences for political actors will be harsh. If detection capacity is increased without any change to the criminal codes, the political actors’ constituents will be justifiably nervous about how the newfound power of detection will be used. But if the two reforms happen at the same time—if the state is constrained by constitutional interpretation from detaining or imprisoning individuals based on minor infractions, or from levying long sentences for anything other than the most serious and violent offenses—surveillance is defanged because the threat of unjust prosecution is reduced.²⁶⁴

Put another way, the political pressure to limit or ban surveillance tools might make sense as a second-best solution if decriminalization and reduced sentencing is politically infeasible, but the risk is that the strategy can lock out the first best solution—the low penalty/high detection solution. Indeed, in the wake of rising murder rates, the decriminalization and police reform movements are already more politically controversial than they were just a couple years ago. If crime rates continue to rise while detection is capped or suppressed through new legal constraints on technology, politically accountable decisionmakers will continue to use mass incarceration to manage crime.

To be fair, many luminaries in the field of criminal justice have seen roughly the same patterns of dysfunction and technological disruption that I have recounted and have recommended solutions in the form of legislation, administrative regulation, and restoring the role of local government. Bill Stuntz, for example, argued that many of the abuses of power in the criminal justice system would be avoided if local governments (rather than states) were the primary promulgators of criminal law and if juries (rather than prosecutors) were the decisionmakers who most often determined whether a defendant should be convicted or serve time.²⁶⁵ Chris Slobogin, Barry Friedman, Maria Ponomarenko, Catherine Crump, and Andrew Ferguson have argued that legislatures and regulatory agencies should be more active in structuring how (non-filtered) dragnet and surveillance technologies should and should not be used in the field.²⁶⁶ But they also acknowledge that politically accountable bodies always run the risk that their decisions will disproportionately benefit the politically powerful and will be relatively indifferent to problems of under-protection and prejudiced enforcement.²⁶⁷

Daphna Renan has argued, convincingly in my opinion, that political processes alone cannot be expected to produce the sort of basic rights and counter-majoritarian protections that the Constitution should guarantee.²⁶⁸ Our agreement ends there, though, because Renan advocates for a Fourth Amendment superstructure, or set of principles, that would set requirements and boundaries on administrative agencies (such as the Privacy and Civil Liberties Oversight Board) tasked with creating law enforcement surveillance programs.²⁶⁹ But no board, no matter how independent, could actually make the grand maneuver that I’m asking readers to consider here—where filtered dragnets are permitted, but in exchange for protection from bad laws, harsh punishment, and discretionary application. Renan’s proposal may be a good second-best solution, but a dramatic reorientation of constitutional priorities can only be done by the Supreme Court. It is time for constitutional renewal in search of a better equilibrium.²⁷⁰

B. Why the Fourth Amendment?

The harder question, and I confess this is where I am on shakier ground, is why the anti-authoritarian principles that I claim are so important during this inflection point are the responsibility of the Fourth Amendment to solve rather than other parts of the Bill of Rights or notions of substantive due process.²⁷¹ The case is somewhat easier for the principle that reasonable searching requires evenhandedness. At the founding, the Fourth and Fifth Amendments were meant to prevent the government from being able to rummage through a disfavored target’s things looking for evidence of a crime, so equal and non-arbitrary treatment was always a goal.²⁷²

The case for using the Fourth Amendment to put constraints on substantive criminal law and sentencing is a bit harder. After all, the Supreme Court has repeatedly authorized law enforcement agencies to execute stops, searches, and arrests, no matter how trivial the law-violating behavior may be to overall public safety.²⁷³ As early as Boyd v. United States, decided in 1886, the Court found that Fourth Amendment protections do not apply to those who have committed a public offense, and courts have declined to second-guess whether the public offense was valid in the course of a Fourth Amendment analysis.²⁷⁴ And one may reasonably think that if courts are going to invalidate an overly harsh prison sentence on constitutional grounds, as I argue they should under the guise of protecting against unreasonable seizures, they would have already imposed these limits under the Eighth Amendment’s cruel and unusual punishment clause.²⁷⁵

Perhaps it would make as much sense to make Eighth Amendment or Due Process protections more robust to ensure that criminal liability is not overbroad and sentences aren’t overlong.²⁷⁶ But a long view of the Fourth Amendment can support a shift from the protection of the property, privacy, and autonomy of non-offenders to the protection of those same interests of those who are innocent in the more platonic sense.

In many ways, the history of Fourth Amendment caselaw shows a faltering and incoherent attempt to get to the main point: to make sure the state does not have too much power to enforce silly crimes and scare its constituents into submission.²⁷⁷ Silly crimes have been at the center of the original construction of the Fourth Amendment and each of its major reforms. Shortly after the American Revolution, sedition laws motivated creative lawyers like Alexander Hamilton to use procedure in order to correct flaws in the substantive criminal law that were not, at that time, adequately constrained by the First Amendment.²⁷⁸ In the context of that time, when states had nearly full rein to search for physical evidence and when prosecutions were proved primarily using witnesses, the thought that constitutional protections could get in the way of convicting rapists and murderers would have been preposterous.²⁷⁹ After all, the founders did not expect the Fourth Amendment to constrain how local law enforcement investigated crimes, and group searches executed without particularized warrants were tolerated.²⁸⁰ Thus, at that time, the buildup of procedure to help protect against crimes of belief and thought had little cost to the control of more conventional crimes.

Courts again increased Fourth Amendment procedural protections during two subsequent periods when the substance of criminal law was directed at questionable, arguably victimless vice crimes like gambling, alcohol (during prohibition), obscenity, and recreational drugs.²⁸¹ In the twentieth century, new information technologies changed the nature of police investigation by enabling wiretapping and forms of long-term tracking of suspects without reliance on trespass or witness cooperation. The standard story is that these technologies unsettled the balance between conflicting societal goals related to police investigations, which is true enough. But another important factor is that the test cases involved the detection and enforcement of gambling, bootlegging, and drug distribution crimes. Katz v. United States, the Fourth Amendment case that developed the reasonable expectations of privacy test, involved bugging a phone a bookmaker was using.²⁸² And it followed the logic of Justice Brandeis’s dissent in an earlier case, Olmstead v. United States,²⁸³ which involved the wiretapping of a bootlegger.²⁸⁴ Katz marked the end of a primarily property-based conception of Fourth Amendment rights and ushered in the privacy phase. When test facts making their way to the Supreme Court involved more serious crimes, like stalking, the Supreme Court avoided finding a privacy violation.²⁸⁵

To be clear, there are other reasons, separate from the substance of the criminal law being enforced, that justify a focus on privacy. Twentieth century surveillance capabilities certainly left Americans—criminals and the innocent alike—at greater risk of unwanted observation of licit activities. But there is also a clear pattern: courts have used criminal procedure to frustrate the enforcement of controversial criminal statutes that cover activities in which a sizable proportion of Americans willingly participate.²⁸⁶ Once privacy posed a significant obstacle to police investigations, procedural rights became the default defense against a tyrannical state. There was less pressing need to press the Constitution into service to challenge whether conduct should even be considered criminal in the first place or whether the police are protecting communities fairly. For better or worse, the Fourth Amendment privacy rule created a tractor beam for public defenders and civil liberties organizations to concentrate their anti-authoritarian efforts.

Scholars have occasionally attempted to refocus the Fourth Amendment on a more general purpose to create a constraint on power.²⁸⁷ Bill Stuntz faulted Fourth Amendment’s turn to privacy because it “tend[ed] to obscure more serious harms that attend police misconduct.”²⁸⁸ More recently, Thomas Crocker has argued that the Fourth Amendment should be understood as a substantive right, not just a procedural one, that follows in the vision of the First, Second, and Ninth Amendments.²⁸⁹ But ultimately, Crocker advocates for the use of this substantive right to argue for a more thorough protection against surveillance.²⁹⁰ Naturally, I think this misses the point. A citizen whose government makes nearly all conduct and action illegal will never feel secure no matter how many restrictions on surveillance are in place. And conversely, a government that is rigidly constrained from expanding its criminal laws beyond the conduct that is nearly universally reviled will be limited in its ability to threaten a citizen’s sense of liberty no matter how much surveillance is in place.

The happenstance of technology provides another reason to prefer the Fourth Amendment over other constitutional sources to redress the problems of overcriminalization and uneven protection. The privacy of the innocent was mediating the clash between American values in freedom and security. Increasing use of filtered dragnets will make this arrangement untenable. If we expect the role of the Fourth Amendment to be meaningful—to be something other than a brief paperwork requirement in the process of securing warrants for filtered dragnets—it is both necessary and appropriate that Fourth Amendment caselaw starts to look for its root function and embrace its substantive as well as procedural dimensions.

CONCLUSION

In 1967, Alan Westin, a leading light among privacy scholars, said that “the modern totalitarian state relies on secrecy for the regime, but high surveillance and disclosure for all other groups.”²⁹¹ This is probably a true statement, but highly incomplete. Surveillance is a necessary condition for authoritarian control, but not sufficient on its own. Indeed, all modern states need surveillance. Modern systems of taxation, public benefits distribution, medical services, and public health could not function without copious amounts of personal data. Thus, surveillance is necessary for all states, not just despotic ones. Moreover, surveillance is no more unique to totalitarianism than are weapons, prisons, and other tools the state must use to carry out the most basic obligations to support social order and security.

The tools that live exclusively in the toolbox of despots are repressive substantive criminal laws, harsh punishment, and discretion to choose when to enforce the law. Even in George Orwell’s dark depiction Nineteen Eighty-Four, Big Brother was oppressive partly because of the substance of the law: the wrong thought could land a person in jail.²⁹²

Against this threat of uncontrolled surveillance, many privacy scholars recommend the dismantling of the surveillance apparatus. This Article focused instead on the “uncontrolled” quality of uncontrolled surveillance. Filtered dragnets are a highly controlled dragnet that reveal only criminal violations. Thus, they are only as threatening to society as the criminal statutes that they enforce and the discretion of the government agents who use them. With the right alignment of Fourth Amendment rules to authoritarian threats, the state can be made to heel—to detect crimes fairly without burdening any communities with under-protection or over-punishment. This will require some intrusion of the traditionally procedural domain of the Fourth Amendment into the substantive realm of criminal law and punishment. If the state can suddenly detect every violation, prison must be reserved for truly awful behavior, and law enforcement should have less latitude to seek out or avoid the investigations of members of certain groups.

These are radical proposals. They go well beyond the privacy framework that has dominated Fourth Amendment theory for over half a century. But they respond to a radical tool that will shock a criminal justice system that is already in crisis and deserves rescue.

97 S. Cal. L. Rev. 571

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Jane R. Bambauer*

* University of Arizona James E. Rogers College of Law. The author is grateful for the advice and invaluable feedback from Jordan Blair Woods, Tracey Maclin, Farhang Heydari, Toni Massaro, Tammi Walker, John Villasenor, Andrew Woods, Lilla Montagnani, Kiel Brennan-Marquez, Jeffrey Fagan, Christopher Slobogin, Derek Bambauer, Mark Verstraete, Xiaoqian Hu, Andrew Coan, Niva Elkin-Koren, Uri Hcohen, and Tal Zarsky.

Regressive White-Collar Crime

June 2024July 2024Stephanie Holmes Didwania*

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and other financial crimes tends to focus on the absence of so-called “white-collar” prosecutions against wealthy executives. This Article complicates that familiar narrative. It contains the first nationwide account of how the United States actually prosecutes financial crime. It shows—contrary to dominant academic and public discourse—that the government prosecutes an enormous number of people for financial crimes and that these prosecutions disproportionately involve the least advantaged U.S. residents accused of low-level offenses. This empirical account directly contradicts the aspiration advanced by the FBI and Department of Justice that federal prosecution ought to be reserved for only the most egregious and sophisticated financial crimes. This Articles argues, in other words, that the term “white-collar crime” is a misnomer.

To build this empirical foundation, the Article uses comprehensive data of the roughly two million federal criminal cases prosecuted over the last three decades matched to county-level population data from the U.S. Census. It demonstrates the history, geography, and inequality that characterize federal financial crime cases, which include myriad crimes such as identity theft, mail and wire fraud, public benefits fraud, and tax fraud, to name just a few. It shows that financial crime defendants are disproportionately low-income and Black, and that this overrepresentation is not only a nationwide pattern, but also a pattern in nearly every federal district in the United States. What’s more, the financial crimes prosecuted against these overrepresented defendants are on average the least serious. This Article ends by exploring how formal law and policy, structural incentives, and individual biases could easily create a prosecutorial regime for financial crime that reinforces inequality based on race, gender, and wealth.

INTRODUCTION

Fraud is an old crime. It can be found in criminal codes around the world for as long as the historical record exists. The Code of Hammurabi, composed around 1750 B.C.E. in Ancient Babylon, included several provisions outlawing various forms of fraud with punishments including death.¹ As Alice Ristroph has noted, the second-lowest level of Hell in Dante’s fourteenth-century Inferno is reserved for people who perpetrate fraud, treating them more harshly than those who engage in physical violence.² According to the United States Supreme Court, “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.”³

Our state and federal criminal codes define myriad kinds of frauds, which comprise the majority of what we call “financial crimes” or “white-collar crimes.” Every year, tens of thousands of U.S. residents are convicted of financial crimes, most of them frauds.⁴ Yet, financial crime rarely surfaces in public discussion about how substantive criminal law fuels mass and unequal incarceration in the United States.

Instead, the terms “financial crime” and “white-collar crime” usually conjure up images of a rich banker on Wall Street or an elite executive in a powerful multinational corporation who is able to escape prosecution.⁵ This imagery is fueled by an academic and popular discourse that tends to equate financial crime with the executive class and emphasizes the absence of prosecutions against wealthy people. For example, in recent years, much journalistic coverage of financial crime has focused on explaining why so few people and no companies were convicted of a crime connected to the financial crisis of 2008.⁶ Similarly, much academic scholarship about financial crime attempts to document and explain the causes and consequences of the U.S. Department of Justice’s (“DOJ”) routine policy of declining or deferring prosecution of financial crimes committed by or within large companies.⁷ This Article argues that this popular conception of financial crime is inaccurate.

The popular imagery surrounding white-collar crime is also kindled by prosecutors themselves. For decades, the DOJ has repeatedly and publicly touted its focus on fraud prosecutions that hold corporate executives and corporations accountable as opposed to poor and middle-class people. Prosecuting business executives, according to Attorney General Merrick Garland, is “essential to Americans’ trust in the rule of law.”⁸ That is because “the rule of law requires that there not be one rule for the powerful and another for the powerless; one rule for the rich and another for the poor.”⁹ Numerous attorneys general have made similar statements.¹⁰ This prosecutorial discourse risks creating the false impression that financial crime is primarily committed by the most wealthy and privileged Americans and, perhaps as a result, is leniently, if ever, punished. The reality, as this Article shows, is the opposite.

In short, this Article shows that our prevailing conception of financial crime is, at best, incomplete and, at worst, wrong. It argues that scholarly and public discourse around financial crime, which focuses on the absence of “white-collar” prosecutions (that is, prosecutions of members of the wealthy executive class), paints an inaccurate picture of how financial crime is prosecuted. The United States does, in fact, prosecute a huge number of people for financial crimes—thousands per year. But these defendants are for the most part not wealthy executives. Instead, financial crime prosecutions disproportionately involve people who are low-income and people who are Black. This Article suggests that financial crime is in this way unexceptional in an American criminal system that otherwise consistently reflects class- and race-based inequality.¹¹

With data on the roughly two million federal criminal cases prosecuted since the early 1990s matched with county-level Census data, this Article is the first comprehensive study of all federal financial crime prosecutions.¹² This Article demonstrates that, like all federal criminal defendants, the people convicted of financial crimes have fewer resources than the average U.S. adult. Financial crime defendants have attained less formal education than average and frequently rely on appointed counsel. Federal judges waive the fines of roughly eighty-six percent of federal financial crime defendants due to the defendant’s inability to pay. In other words, the median fine in a federal white-collar prosecution is $0.

This Article also shows that financial crimes are not prosecuted at equal rates across the U.S. population. Women are prosecuted at higher rates for financial crimes than for other types of federal crimes.¹³ The same is true in state courts, as Kaaryn Gustafson and others have pointed out.¹⁴ Financial crime prosecutions are also unequal by race. Black women are especially likely to be prosecuted for financial crimes and are prosecuted at roughly three times the per capita rate as Hispanic and non-Hispanic White women.¹⁵ The same is true for Black men, who are prosecuted at roughly three times the rate as Hispanic and non-Hispanic White men.¹⁶

This analysis is especially important for understanding racial inequalities among female defendants. Black women are more likely to be convicted of a financial crime than any other type of federal crime.¹⁷ This has been true every year since 1994—as far back as reliable federal criminal case data goes.¹⁸ The same is not true of any other race-gender group of defendants.¹⁹

This Article also shows it is not the case that the defendants most overrepresented in financial crime cases (that is, low-income defendants and Black defendants) commit the most severe or complex financial crimes. The opposite is true. I argue that these prosecutorial patterns could easily stem from a combination of formal law and policy, individual biases, and systemic incentives.

A muddled view of how financial crime is prosecuted has meaningful consequences. Maybe because financial crime (often stylized as “white-collar” crime) is viewed as a pursuit of the elite, there seems to be little appetite for leniency toward those convicted of financial crimes on either side of the political aisle. As Benjamin Levin and Kate Levine write, “prosecuting some imagined class of bankers or executives remains very popular with many liberal, left, and progressive commentators.”²⁰ Along these lines, President Biden’s clemency efforts have almost exclusively—and in some cases explicitly—focused on people serving sentences for drug trafficking or possession.²¹

Not only has the Biden administration essentially excluded white-collar prisoners from its clemency efforts, but Attorney General Merrick Garland has also emphasized that cracking down on white-collar crime is one of DOJ’s top priorities.²² In a March 2022 speech describing this white-collar initiative, then-Assistant Attorney General for the Criminal Division Kenneth A. Polite, Jr. echoed the idea that white-collar crime is not punished harshly enough, telling the audience, “When we talk about drug dealing and violence, we all have no problem conjuring notions of accountability for the criminal actors. But the sheer mention of individual accountability in white-collar cases was, and is, received as a shockwave in our practice.”²³ This Article cautions that directing more resources toward prosecuting white-collar crime could perpetuate class- and race-based inequalities rather than mitigate them.²⁴

The federal criminal system is a worthy site to study the regressive prosecution of white-collar crime even though most criminal defendants in the United States are prosecuted in state courts.²⁵ This Article focuses on the federal system for two reasons. First, the federal criminal system is important in its own right. The federal government incarcerates more people than any state and federal prisoners on average serve longer sentences than state prisoners.²⁶ Fraud—the most common financial crime—is itself the third-most prosecuted type of federal crime after drug trafficking and immigration offenses.²⁷ Indeed, even as federal prosecutions of other types of crimes have exploded, fraud alone has constituted around 10 percent or more of the federal felony docket since the early 1990s.²⁸

Second, as described in Section I.B, federal officials repeatedly emphasize that it is their goal to prosecute the most egregious and complex financial crimes. Because state courts have concurrent jurisdiction over many financial crimes, DOJ and FBI can in theory focus their efforts on complex investigations. DOJ and FBI routinely tout their partnerships with other federal agencies to detect and prosecute sophisticated financial crimes. It seems unlikely that state prosecutors are doing better than the federal government at prosecuting complex financial crimes with fewer investigative resources. For this reason, prosecuting serious financial crime is often viewed as a federal project.²⁹

Indeed, many observers rightly view the complexity of serious financial crimes as an impediment to prosecution. Criminal investigations can take years; relevant documents can number in the millions; trials can take months.³⁰ This Article’s primary goal is not to determine whether the federal government has chosen the best balance in prosecuting the cases that it does, but rather to bring to light the fact that most financial crime cases are modest ones that disproportionately impact people with the fewest advantages.

This Article’s analysis advances in four steps. Part I traces the history of financial crime and shows how, for centuries, rich and powerful people have escaped prosecution for financial crimes while people who are poor and middle-class have been prosecuted. Section I.B describes how federal financial crime cases are prosecuted today and provides examples of four such cases. Section I.C argues that most scholarly and public discourse around financial crime overlooks the types of financial criminal cases that are most routinely prosecuted in U.S. courts.

Part II presents the bulk of the empirical analysis. It shows persistent income, gender, and race gaps in financial crime prosecutions that disfavor defendants who are low-income, male, and Black. Part III offers many possible explanations for the results. It groups these explanations into four categories. First, Section III.A considers but rules out the possibility that people who are overrepresented commit the most serious financial crimes. Second, Section III.B describes how systemic and structural conditions create a system in which prosecutors are motivated to prosecute the cases they view as most winnable. Third, Section III.C describes ways that formal criminal law and policies could lead prosecutors to focus their efforts on simplistic, low-level financial crimes. As one example, it shows how federal laws governing restitution benefit defendants with more resources. Finally, Section III.D describes how biases on the part of actors in the criminal system could contribute to inequality.

Part IV concludes. It argues that the findings provide vital context for understanding how financial crime is prosecuted in the United States and challenges the popular notion that financial crime is under-prosecuted.

I. PROSECUTING FINANCIAL CRIME

This Part broadly traces the history of financial crime prosecution. As described in Section I.A, the United States has a long history of prosecuting poor and middle-class people for financial crimes. (Part II shows that this pattern continues through today, despite repeated statements to the contrary by modern prosecutors). Section I.B describes how the federal government has prosecuted fraud since the 1990s and presents four archetypical examples of federal financial crime cases, to which I return throughout the Article. Section I.C explains how this Article contributes to the existing literature on federal financial crime, which largely avoids discussing the relatively low-level cases that pervade the federal criminal system.

A. Early Prosecutions and the Concept of “White-Collar” Crime

Most financial crimes are frauds.³¹ For centuries and up to present day, Anglo-American legal systems have tolerated frauds committed by the rich and powerful while systematically prosecuting poor and middle-class people for fraud offenses.³² But wealthy people have always committed fraud and other financial crimes even if they went unpunished. For example, the term “robber barons” originated to describe medieval English nobles who engaged in extortion.³³ As historian Barbara Hanawalt describes, “kings and barons [of medieval England] both assumed that a certain amount of criminal activity was involved in being a noble and that it would be tolerated as long as it did not become excessive.”³⁴ Although medieval English nobles engaged in “widespread extortion,” they were rarely criminally prosecuted.³⁵

In other words, society saw financial crimes committed by the elite as part of the social fabric. Fraud was thus considered what observers would come to call a “street crime,” meaning it was viewed as a crime when committed by poor or middle-class people. For example, one of early America’s most infamous fraudsters—Charles Ponzi—was a poor immigrant from Italy who worked as a dishwasher, waiter, and bank teller before launching the eponymous scheme that would eventually result in his arrest, conviction of federal mail fraud, and a seven-year prison sentence.³⁶ Despite eventually amassing enormous wealth through his pyramid scheme, Ponzi was never a member of the elite.³⁷

Meanwhile, as centuries went on, the term “robber barons” adapted to refer to business magnates of the nineteenth century who monopolized industries, corrupted government, engaged in unethical business practices, and exploited workers and investors.³⁸ Like the medieval robber barons whose criminal activity was ignored by the King,³⁹ the robber barons of the 1800s were also rarely prosecuted.⁴⁰

By the early twentieth century and spurred by the Great Depression, the public and federal government grew increasingly interested in regulating markets and prosecuting members of the upper classes. During this era, Congress passed antitrust laws and laws regulating Wall Street.⁴¹ Following the stock market crash of 1929, Congress in 1934 created the Securities and Exchange Commission (“SEC”) to restore confidence in the stock market and enforce securities laws.⁴²

Scholars and the public needed an entirely new phrase—“white-collar crime”—to recognize that fraud committed by members of the elite was crime. Recognizing that members of the upper class engaged in enormous amounts of unpunished financial crime, sociologist Edwin Sutherland coined the term “white-collar crime” in his 1939 presidential address to the American Sociological Society.⁴³

Sutherland defined a “white-collar crime” as “a crime committed by a person of respectability and high social status in the course of his occupation.”⁴⁴ Sutherland’s basic thesis was that the academic methods by which crime was understood and measured at the time were invalid because “they have not included vast areas of criminal behavior of persons not in the lower class.”⁴⁵

Sutherland critiqued the academic criminological community for focusing too heavily on “street crimes” perpetrated by “low status” people and for being insufficiently interested in crimes committed by people in “high status” occupations. As an example, Sutherland explained, “The ‘robber barons’ of the last half of the nineteenth century were white-collar criminals, as practically everyone now agrees.”⁴⁶ Sutherland warned, however,

The present-day white-collar criminals . . . are more suave and deceptive than the “robber barons” . . . . Their criminality has been demonstrated again and again in the investigations of land offices, railways, insurance, munitions, banking, public utilities, stock exchanges, the oil industry, real estate, reorganization committees, receiverships, bankruptcies, and politics. Individual cases of such criminality are reported frequently, and in many periods more important crime news may be found on the financial pages of newspapers than on the front pages.⁴⁷

Beginning in the mid-twentieth century, the federal government began to articulate and attempt to carry out a new vision of white-collar prosecution. In the 1970s the SEC created its first enforcement division to uncover fraud.⁴⁸ In 1977, Congress passed the Foreign Corrupt Practices Act which outlawed bribery of foreign officials principally by large U.S. companies.⁴⁹ In the 1980s, DOJ prosecuted over 1,000 cases associated with the savings and loan crisis, including some top executives at major banks.⁵⁰ During this time, as some observers noted, “Many U.S. Attorneys’ Offices . . . restructured their offices in order to develop and prosecute a large number of cases of white-collar crime.”⁵¹ The next subsection describes the mechanics of this modern era of federal enforcement of financial crime.

B. Modern Fraud Prosecutions: 1990s Through Present

Efforts to differentiate financial crime committed by the elite from financial crime committed by poor or middle-class people were short-lived. Today, the term “white-collar” crime eludes easy definition.⁵² Scholars, journalists, and public officials often use the term as in its original definition—to refer to financial crimes committed by wealthy people in the course of business activity,⁵³ as exemplified by Ralph Nader’s pithy description of white-collar crime as “crime in the suites,” rather than “crime in the streets.”⁵⁴

However, official definitions of the term “white-collar” crime typically do not refer to the social status or occupation of those who perpetrate it, but rather, to the type of criminal behavior committed by the defendant.⁵⁵ The FBI, for example, defines “white-collar crime” as “those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence.”⁵⁶ The National Incident-Based Reporting System (“NIBRS”), which compiles data on crimes reported to law enforcement, classifies the following crimes as white-collar crimes: fraud, bribery, counterfeiting/forgery, embezzlement, and writing bad checks.⁵⁷

This Article roughly follows the NIBRS definition but uses the term financial crime because, as this Article shows, the term white-collar crime is a misnomer. I define a crime as a financial crime if it is categorized as an antitrust violation, bribery, counterfeiting, forgery, fraud, or tax offense.⁵⁸ Since the mid-1990s, the federal government has prosecuted around 10,000 financial crimes per year, most of them frauds.⁵⁹ This section describes in broad terms how the federal government prosecutes and talks about financial crime.

1. The Statutory Landscape

Federal law today defines many types of financial crimes, most of which are contained in Chapter 47 of Title 18 of the United States Code. The most commonly prosecuted federal financial crimes are embezzlement of public money, mail and wire fraud, bank fraud, and tax fraud.⁶⁰ Congress has repeatedly expanded the scope of federal financial criminal law and, over the years 1994 to 2019, federal defendants were prosecuted for violations of many different types of fraud.⁶¹

Federal prosecutors use mail fraud (and its sister crime, wire fraud) particularly expansively. The original mail fraud statute prohibited the use of the mails to advance “any scheme or artifice to defraud.”⁶² The original purpose of the statute was to protect the U.S. Postal Service from being used to commit fraud. Mail was the “first communications network in the United States,”⁶³ and in 1870 the U.S. Postal Service enjoyed a natural monopoly over mail delivery.⁶⁴ Perhaps because the mail was so widely used, “[o]ver time, the mail fraud statute came to be viewed as a stop-gap provision that provides a ‘first line of defense’ to combat innovative frauds until Congress could enact more specific legislation.”⁶⁵

In 1995, Peter Henning contended that “the mail fraud statute has become the primary provision to extend federal jurisdiction to crimes traditionally prosecuted only at the state and local level.”⁶⁶ Today nearly all frauds use mail, telephone, radio, or the Internet in some way, giving the federal government the ability to prosecute almost any fraud it chooses. Federal prosecutors exercise enormous discretion in deciding which fraud crimes to prosecute, and the resulting prosecutions therefore reflect decisions by prosecutors and law enforcement agents about which cases to prioritize.

Although there are many federal financial crimes, their defining characteristic is that they involve dishonesty. To this end, most financial crimes include mens rea elements that require the government to specifically prove the defendant’s deceitful intent.⁶⁷ For example, the mail fraud statute requires proof that the defendant devised or intended a “scheme or artifice to defraud.”⁶⁸ Health care fraud similarly requires proof that the defendant knowingly and willfully executed “a scheme or artifice . . . to defraud any health care benefit program” or to obtain, “by means of false or fraudulent pretenses, . . . any of the money or property owned by, or under the custody or control of, any health care benefit program.”⁶⁹

Despite this common element, the financial crimes that are prosecuted vary widely on many grounds. Victims of financial crimes can be individuals, organizations, or the government. Some financial crimes have a single concrete victim, others have many, and yet others have no concrete victim (like insider trading). Some financial crimes involve wrongdoing that is also investigated and enforced by the government through civil proceedings (such as securities fraud or tax fraud), while others have no regulatory counterpart (such as embezzlement). The next section broadly describes how federal prosecutors and agents investigate and bring financial crime cases.

2. Federal Prosecutions in Practice

Nearly all federal financial crime prosecutions are brought by prosecutors who work in the ninety-three U.S. Attorney’s Offices (“USAOs”). Each USAO is associated with exactly one of the 94 geographically distinct federal district courts, with one exception.⁷⁰ Every USAO is led by a U.S. Attorney, who is appointed by the President. The prosecutors who work in USAOs are called Assistant United States Attorneys (“AUSAs”).

Although USAOs must follow centralized policies dictated by DOJ leadership, they for the most part work independently, prosecuting crimes that occur within their jurisdictions. Most prosecutorial decisions (such as the decision to bring criminal charges) are subject to little judicial oversight and courts are “hesitant to examine the decision whether to prosecute.”⁷¹ As a result, prosecutors enjoy broad discretion in deciding how to carry out their work.⁷²

Despite limited oversight from the courts, individual prosecutors are subject to other forms of workplace oversight. AUSAs are governed by the Justice Manual, which contains detailed rules for how individual prosecutors should exercise their discretion. For example, the Manual dictates that charging decisions should be reviewed by supervisors and specifies that “[a]ll but the most routine indictments should be accompanied by a prosecution memorandum that identifies the charging options supported by the evidence and the law and explains the charging decision[s] therein.”⁷³

The Manual also expresses a nationwide policy that federal prosecutors should usually charge “the most serious offense that is encompassed by the defendant’s conduct and that is likely to result in a sustainable conviction.”⁷⁴ However, the Manual leaves room for an AUSA to deviate from this policy by also considering “whether the consequences of those charges for sentencing would yield a result that is proportional to the seriousness of the defendant’s conduct, and whether the charge achieves [the] purposes of the criminal law.”⁷⁵

Given these policies, how do prosecutors decide which cases to charge? The answer is complicated and varied, but much legal and sociolegal scholarship has shown the perhaps unremarkable phenomenon that prosecutors seem to like to bring cases they think they can win.⁷⁶ This is because obtaining convictions is often a metric for promotion and advancement.⁷⁷ Winning cases is also important for appropriations. As Lauren Ouziel describes,

U.S. Attorney’s Offices, after all, need money, and federal funds are not forthcoming—either from Congress in the first instance or Main Justice in the subsequent allocation—without some measure of demonstrated performance. For federal prosecutors, the relevant performance metrics are defendants charged and convicted. Both of these metrics determine the lump sum congressional appropriation for all ninety-three U.S. Attorneys’ Offices across the country, while individual offices’ caseloads largely determine the allocation of those funds among the offices. In short, case volume and prosecutorial success dictate a U.S. Attorney’s Office’s budget allocation.⁷⁸

After a person is convicted of a federal crime, federal judges sentence them. At sentencing, a judge can impose fines or imprisonment or both on a defendant, and some scholars have pointed out that fines are imposed more frequently in financial crime prosecutions than in other federal prosecutions.⁷⁹ Some have theorized that fines are more appropriate for defendants convicted of financial crimes because their crimes are more deterrable.⁸⁰ Researchers have also argued that the prevalence of fines in financial crime sentencing reflects a fine/incarceration tradeoff, in which the greater a defendant’s ability to pay a fine, the less (if any) imprisonment is imposed at sentencing.⁸¹

The literature on white-collar crime’s fine/incarceration tradeoff might give the impression that fines are widespread in financial crime prosecutions, but this is not the case. Most federal financial crime defendants do not have any fines imposed in their cases. In the data, the median fine amount for a defendant convicted of a federal financial crime is $0.⁸² A fine of just $500 represents the top thirteen percent of fines imposed among people convicted of financial crimes.⁸³ It is true that fines are more prevalent among financial crime defendants than others (a fine of $500 for a federal defendant convicted of a non-financial crime would represent the top nine percent of all fines imposed),⁸⁴ but it is not the case that fines are widespread among those who are convicted of financial crimes. Instead, fines are much more relevant in cases involving corporate defendants. This is because corporations cannot be imprisoned, fines generate revenue, and prosecutors worry about the collateral consequences that criminal conviction can impose on large corporations.⁸⁵

In addition to fines and imprisonment, convicted defendants will usually be ordered to pay restitution to any concrete victim. Restitution is different from a fine. A fine is a form of punishment imposed on a defendant and usually paid to the government prosecuting the case. Restitution is instead paid by the defendant to either the victim or a government restitution fund. Like the law in all states, federal law requires courts to order restitution in any case “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”⁸⁶

Unlike fines, most defendants convicted of a financial crime are ordered to pay some restitution. The median restitution amount ordered is around $6,000.⁸⁷ In contrast, for federal defendants convicted of non-financial crimes, fewer than ten percent are ordered to pay any restitution.⁸⁸

The majority of defendants convicted of federal financial crimes are sentenced to prison. Sentences for financial crime defendants are lower than the average among other types of federal crimes. For federal criminal defendants convicted of financial crimes, the average sentence is around sixteen months.⁸⁹ For all other federal criminal defendants, the average sentence is fifty-three months.⁹⁰ This could reflect the fact that most financial crimes do not carry mandatory minimum penalty provisions.⁹¹

3. Federal Financial Crime Archetypes

This subsection illustrates some of the kinds of financial crime cases the federal government prosecutes. It centers around four real-world examples of federal financial crimes, from least to most severe.⁹² These cases exemplify nationwide patterns that this Article reports and explores in Part II, and this Article returns to these examples throughout.

In Case A, a man who is a citizen of Mexico used a social security number belonging to another person to secure employment and attend a job orientation training with a local company.⁹³ The man was prosecuted in the Eastern District of Louisiana and was ultimately convicted of violating 18 U.S.C. § 408(a)(7)(b), which makes it a crime to fraudulently use another person’s social security number. The man was sentenced to one year of probation.

In Case B, a man received Social Security and Department of Defense benefits intended for his late father for four years after his father’s death.⁹⁴ The man’s elderly father had moved in with the man in 2012.⁹⁵ The man cared for his father for next four years, until his father’s death at age 92 in 2016.⁹⁶ When the man began caring for his father in 2012, they joined bank accounts, into which his father’s benefits were deposited.⁹⁷ After his father’s death, a death certificate was properly filed, but his late father’s benefit payments continued to be deposited into their joint bank account.⁹⁸ Over the four years that followed his father’s death, the man collected $42,103 in Social Security benefits and $41,609 in Department of Defense benefits to which he was not entitled.⁹⁹

Case B was prosecuted in the U.S. District Court for the Southern District of Ohio. The man pled guilty to theft of public money. He was sentenced to eight months in prison and ordered to pay $83,712 in restitution to the Social Security Administration (“SSA”) and Department of Defense.¹⁰⁰

Case B was part of a federal initiative called the Social Security Administration Fraud Prosecution Project.¹⁰¹ The SSA Fraud Prosecution Project is a collaboration of the SSA Office of the Inspector General (“SSA OIG”) and DOJ.¹⁰² The investigation of Case B also involved employees of the Department of Defense Office of Inspector General, the Veteran’s Administration Office of Inspector General, the United States Office of Personnel Management Office of Inspector General, and the United States Secret Service.¹⁰³ It appears that many federal agencies and employees devoted significant resources to bringing Case B and others like it.

In all, the SSA OIG reports that as a result of its audit program, it discovered dozens of instances of people collecting social security or veteran benefits intended for another person in Ohio, a state that has an adult population of more than eight million.¹⁰⁴ The SSA OIG investigation has led the USAO for the Southern District of Ohio to prosecute at least fifteen people in cases like Case B. The losses to SSA associated with these cases average just under $60,000 per defendant.¹⁰⁵

In Case C, a married couple owned and operated a company called Kingdom Connected Investments (“KCI”), which they advertised as a Christian organization.¹⁰⁶ KCI sought to pair clients who fell into two categories: (1) homeowners who owed more on their homes than the home was worth (that is, they were “underwater” on the home); and (2) potential homebuyers who did not have a high enough credit score to qualify for a conventional mortgage. KCI operated by matching homeowners (sellers) and buyers. KCI told the sellers they would transfer title of the home to KCI and take over the home’s mortgage payments, allowing the homeowners to get out of their underwater mortgage. KCI collected down payments from the buyers, telling them they were renting-to-own the home.

None of this was true. In reality, KCI never actually purchased the sellers’ homes, which meant each property still had an existing mortgage in the seller’s name(s) after the sellers thought they no longer owned the home. Rather than using the buyers’ down payments to pay the mortgages in full as promised, KCI used much of these down payments for personal use and to try to build their real estate business. Eventually, with the mortgages unpaid, nearly all the homes went into foreclosure and sold at auction. Many sellers learned that KCI had not actually purchased their home when they received foreclosure notices. Many of KCI’s buyers, who thought they were renting-to-own their homes, learned the truth when the home’s new owners sought to evict them. In all, KCI received $2.7 million from the buyers but only made $1.4 million in mortgage payments. Approximately 130 properties were involved in the scam, suggesting the average buyer lost around $20,000. Most sellers had their credit scores ruined by the foreclosures.

Case C was prosecuted in the U.S. District Court for the District of South Carolina. A federal jury found the defendants guilty of conspiracy to commit mail fraud and equity skimming after just ninety minutes of deliberation. The husband and wife were sentenced to seventy-eight and 136 months in prison, respectively, and ordered to pay $2,664,796.69 in restitution.

Case D will be familiar to many readers. JPMorgan Chase, a major U.S. bank, knowingly packaged shoddy mortgages into securities that did not meet its credit standards. JPMorgan Chase sold these securities to investors. A JPMorgan Chase manager (and attorney), Alayne Fleischmann, described JPMorgan Chase’s mortgage securities business as a “massive criminal securities fraud.”¹⁰⁷ Before the 2008 crash, Fleischmann wrote a thirteen-page memo to her supervisor warning that the bank was improperly packaging bad mortgages into securities and selling them as investments. Fleischmann was fired and bankers at JPMorgan Chase continued in their scheme. Fleischmann eventually became a whistle-blower and provided detailed evidence about JPMorgan Chase’s wrongdoing to the SEC and federal prosecutors.

Unlike the defendants in Cases A, B, and C, the federal government never prosecuted either JPMorgan Chase the organization or any of its employees for their fraud. Chase instead agreed to a $13 billion settlement with federal and state agencies for wrongdoing during the crisis. As a publicly traded company, Chase paid the settlement with shareholders’ money and the settlement agreement did not name any bankers. A few weeks later, Chase’s CEO, Jamie Dimon, received a seventy-four percent raise, bringing his salary to $20 million per year.

C. How We Talk About Financial Crime

Academic and journalistic writing about white collar crime tends to focus on cases like D.¹⁰⁸ It examines and seeks to understand the causes and consequences of a criminal system that is unwilling or unable to convict large firms and the people who lead them, even when those firms and people create staggering social harm and there is evidence that their conduct violates the criminal law. Much work in this area documents the DOJ’s increased use of deferred and non-prosecution agreements for companies engaged in corporate crime.¹⁰⁹ Other work asks similar questions about individuals who hold positions of leadership in corporate organizations that commit crimes.¹¹⁰

In contrast to much of the literature, this Article focuses instead on cases like A, B, and C, which represent the bread and butter of most federal financial criminal enforcement in the United States. Many scholarly examinations of federal white-collar crime characterize these cases as not white-collar crime. For example, Samuel Buell explains in his 2014 study of white-collar sentencing:

Many white collar offenses, maybe even most of them, are committed by pedestrian hucksters, scam artists, cheaters, and liars. Such persons have been among us for ages. This Article makes few claims about the treatment of this class of offenders—the home buyer who lies to obtain a mortgage, the taxpayer who cheats the Internal Revenue Service (IRS), the restaurant manager who bribes the health inspector, and their ilk. The discussion here responds to a public debate that does not often mention the small-time crook.¹¹¹

This Article argues that when—as Buell notes—the public debate about white-collar crime excludes financial crimes committed by people who are not wealthy executives, the exclusion is not merely semantic. Using the term “white-collar crime” to only include prosecutions of elite people shields from public view the vast majority of prosecutions that happen under our financial criminal laws.

We have not always talked about financial crime this way. This Article provides updated and more comprehensive answers to some of the questions asked in a series of studies produced in the 1980s through early 2000s by Stanton Wheeler and others called the Yale Studies on White-Collar Crime (“Yale Studies”). In the final of four studies in this series, the authors analyzed the personal characteristics of those whom the authors characterized as federal white-collar defendants. Using a sample of roughly 210 white-collar defendants randomly sampled from seven federal district courts, the authors found that their sample of white-collar defendants “departs from common images of the typical white collar offender in that they are very similar to average or middle class Americans.”¹¹² The authors also noted that their study found white-collar crimes to “have a much more mundane quality than those which are associated with white collar crime in the popular press,” noting that “the bulk of white collar crimes prosecuted in the federal courts are undramatic and maybe committed by people of relatively modest social status.”¹¹³

The Yale study’s findings are similar but less extreme than the updated and more fulsome patterns this Article documents in Part II. This Article, for example, suggests that the average financial crime defendant is likely to have lower income than the average U.S. adult, whereas the authors of the Yale study find that “most white-collar offenders were from the middle class, that is, they were significantly above the poverty line, but they were not from the upper echelons of wealth and social status.”¹¹⁴ Part II also shows that Black people are disproportionately prosecuted for white-collar crimes, which the Yale study did not find.

A likely reason the nationwide findings presented in this Article suggest the federal financial criminal defendant population is even less advantaged than as suggested by the Yale study is that the Yale authors’ sample was not representative of all federal financial crime prosecutions. The authors explain that they chose seven districts “in part because some of them were known to have a significant amount of white-collar prosecution,”¹¹⁵ and all of the chosen districts contain major U.S. cities. By focusing on districts with active and sophisticated white-collar dockets in large U.S. cities, the Yale study likely overrepresents the income of all federal financial crime defendants. It also uses a sample of federal financial crime defendants whose racial makeup (seventy-eight percent White) is different from what this Article observes in its nationwide analysis (forty-nine percent White).¹¹⁶

This Article also relates to Max Schanzenbach and Michael Yaeger’s 2006 examination of racial disparities in federal white-collar cases.¹¹⁷ Using regression analysis, Schanzenbach and Yaeger find that after controlling for many relevant defendant and case characteristics, Black and Hispanic defendants convicted of white-collar crimes receive longer prison sentences than do White defendants.¹¹⁸ They also find that a significant portion of this inequality can be explained by defendants’ ability to pay a fine, lending support to the idea that there is a fine/incarceration tradeoff in white-collar cases.¹¹⁹

This Article fundamentally differs from Schanzenbach and Yaeger’s work because this Article is a descriptive analysis. Many studies—like Schanzenbach and Yaeger’s—estimate whether defendants within a criminal system appear to be treated differently for reasons they should not be (such as their race,¹²⁰ skin color,¹²¹ gender,¹²² or wealth¹²³). In contrast, this Article does not seek to advance a causal claim about the sources of inequality. To that end, this Article does not compare the outcomes of federal financial crime defendants to each other; it compares the population of federal financial crime defendants to the underlying U.S. adult population. It then examines whether, where, and for how long these inequalities in who is prosecuted have existed. The next Part presents this empirical analysis.

II. INEQUALITY IN FEDERAL FINANCIAL CRIME PROSECUTIOS

Between 1994 and 2019, 1.7 million defendants were convicted of federal crimes and sentenced under the U.S. Sentencing Guidelines.¹²⁴ Around 15% of these defendants were convicted of financial crimes, making financial crime the third-most prosecuted type of federal crime over this period, following drug crime (35% of cases) and immigration crime (25% of cases).¹²⁵ Most defendants convicted of financial crimes were convicted of some type of fraud, and even counted alone, fraud is the third-most prosecuted type of federal offense.¹²⁶

This Part presents the first nationwide empirical analysis of federal financial crime cases. Section II.A explains how I constructed the data set. Section II.B presents summary information about federal financial crime cases. Sections II.C through II.E use sentencing data matched to county-level population data to examine inequality in who is prosecuted for federal financial crimes. Section II.C shows that people who are Black and low-income are overrepresented in financial crime prosecutions relative to the U.S. adult population, while people who are White and middle- to high-income are underrepresented. Section II.D shows that income and race gaps in the prosecution of financial crime have narrowed over the last few decades but remain significant. Section II.E documents differences in these inequality patterns across federal districts. It shows that USAOs in the Deep South prosecute female defendants at the highest rates. Because states in the Deep South have among the largest Black populations in the U.S., their more intensive prosecution of women for financial crimes drives the overrepresentation of Black women among financial crime defendants. Section II.E also shows that Black defendants are overrepresented in financial crime cases in nearly all federal districts, which demonstrates that the nationwide inequality patterns are not solely a function of different prosecutorial priorities between districts.

A. Data

The descriptive analysis that follows presents two types of facts about federal financial crime prosecutions. First, it describes the scale of federal prosecution of financial crime. It answers questions like: How many people does the federal government prosecute for financial crimes per year? How does this number compare to prosecutions for other types of federal crimes? How has this number changed over time? Second, the analysis describes representation in federal prosecutions of financial crime. It answers questions like: Are low- or high-income people over- or underrepresented among federal defendants charged with financial crimes? Which, if any, racial or gender groups are over- or underrepresented? Does over- or under-representation vary over time? Does it vary between USAOs?

Answering these descriptive questions requires two types of data: data on federal criminal cases and data on the U.S. adult population. The dataset used in this Article includes quantitative data of the roughly 1.7 million federal defendants sentenced under the U.S. Sentencing Guidelines in fiscal years 1994 through 2019, matched at the district and year level to population data from the U.S. Census. I built the federal criminal case dataset by combining annual data files published by the U.S. Sentencing Commission (“Commission”).¹²⁷

The Commission data files include thousands of variables that describe federal criminal defendants and their cases. Critically for this project, the Commission data include a defendant’s self-reported race and Hispanic ethnicity, gender,¹²⁸ level of formal education, age, and the nature of the defendant’s prior criminal record. The Commission data also include variables that provide information about the subject of the defendant’s case, such as the type of offense (divided into thirty-five categories) and the statutes of conviction. The Commission data also include variables describing case outcomes, including details of the sentence imposed upon the defendant and their advisory sentencing range. Finally, the Commission data report the month, year, and federal district court in which the defendant was sentenced. These variables allow me to understand the geography and history of inequalities in federal financial crime prosecutions.

After building the Commission dataset, I merged it with county-level data published by the U.S. Census Bureau that describes the U.S. adult population (“Census Data”). The Census Data’s county-level intercensal population estimates include annual age-by-race-by-gender data of county populations.¹²⁹ The Economic Research Service of the USDA publishes county-level educational attainment information of the adult population using data from the U.S. Census and American Community Survey.¹³⁰

After compiling the county-level Census Data, I aggregated it to the federal district level with a district‑to-county crosswalk file.¹³¹ This matched data allowed me to measure per capita prosecution rates between districts and to compare characteristics of the federal defendant population with the entire adult resident population over time and within each federal judicial district.

B. Preliminary Descriptive Statistics of Federal Financial Crime Cases

Before examining inequality in federal financial crime cases, Table 1 presents descriptive statistics of these cases from the data. I define a case as a “financial crime” if the Commission data characterizes it as an antitrust, bribery, counterfeiting, forgery, fraud, embezzlement, larceny,¹³² or tax crime.

The Commission data do not include a variable to characterize the victim(s) in the case, so I coded this variable based on the criminal statute under which the defendant was convicted. Based on the statute of conviction, I coded the case as involving one of these four victim types: (1) a government victim; (2) a private victim; (3) no concrete victim; or (4) an unknown victim. For example, a case in which the defendant is convicted of embezzling or stealing public money is coded as having a government victim.¹³³ A case in which the defendant is convicted of defrauding a bank is coded as having a private victim.¹³⁴ A case in which the defendant is convicted of making a false statement to a federal agent is coded as having no concrete victim.¹³⁵ A case in which a person is convicted of defrauding a health insurer is coded as having an unknown victim because a person can commit this crime by defrauding either a government insurer (like Medicare) or a private insurer.¹³⁶ Appendix Table A.1 lists the statutory provisions for defendants convicted of the most common financial crimes and how they were coded.¹³⁷

Table 1 provides summary statistics of many variables about the defendants and their cases in the data. Column (1) of Table 1 presents averages for the variables across all 276,210 defendants convicted of financial crimes in the years 1994–2019. Columns (2) through (5) present averages for the same variables among defendants whose crimes involve the lowest losses (column (2)) through largest losses (column (5)).¹³⁸ Because the severity of financial crimes is (for the most part) increasing in loss amount, readers should think of moving across Table 1 from column (2) to column (5) as moving from less serious to more serious financial crimes.¹³⁹

Overall, Table 1 presents initial descriptive patterns that suggest regressive inequality in financial crime prosecutions. First, readers will notice that fraud makes up more than 80% of financial crime cases across all columns, making up 76.5% of low-level cases (column (2)) and 87.8% of high-level cases (column (5)). The median loss in a financial crime prosecution is just under $50,000, but it is $0 in the lowest quartile and nearly $850,000 in the highest. The median fine in all categories—even the most serious financial crimes—is $0.

Table 1 shows there are differences in the representation of defendants by race, gender, and income levels across the severity distribution. Black defendants and female defendants make up a smaller share of defendants in high-loss cases than in other types of cases. Specifically, Black defendants and female defendants each make up around 30–40% of defendants in low to medium-loss cases, but only around 25% of defendants in high-loss cases. Hispanic defendants are particularly overrepresented in low-loss cases. This could be because around half of Hispanic defendants convicted of financial crimes are not U.S. citizens, and among non-citizen defendants many are convicted of crimes that do not involve a concrete victim, such as making a false statement to federal officials or using a false social security number, as in Case A described in Section I.B.

The pattern is similar for education. Defendants who have not completed high school—who are likely to be those with the fewest resources—appear in low-level cases at much higher rates (28% of defendants) than they appear in high-loss cases (11% of defendants). The pattern for defendants who have college degrees—who are likely to be those with the most resources—is the opposite. College graduates make up 31% of defendants in high-loss cases and just 10% of defendants in low-loss cases.

Overall, Table 1 provides initial descriptive evidence of patterns that this Article explores in the next three subsections. It suggests that people who are likely to have the most advantages—people who are male, White, and have completed college—are more frequently prosecuted for more serious financial crimes than others. The rest of this Part examines inequality in the entire data, over time, and by geography.

Table 1. Federal Financial Crime Prosecutions, 1994–2019
	All Financial Crimes (1)	Low Loss (2)	Med-Low Loss (3)	Med-High Loss (4)	High Loss (5)
Offense Characteristics
Antitrust	0.002	0.003	0.003	0.003	0.003
Bribery	0.021	0.026	0.020	0.015	0.015
Counterfeiting/Forgery	0.083	0.189	0.103	0.049	0.021
Fraud	0.833	0.765	0.833	0.832	0.878
Tax Offense	0.061	0.018	0.044	0.105	0.083
Government Victim	0.246	0.305	0.315	0.294	0.151
Private Victim	0.422	0.298	0.440	0.455	0.540
No Concrete Victim	0.057	0.142	0.035	0.020	0.008
Unknown Victim	0.276	0.256	0.210	0.231	0.302
Loss (median in $)	48,362	0	20,802	105,997	847,375
Defendant Characteristics
Black	0.293	0.302	0.384	0.324	0.237
Hispanic	0.147	0.199	0.114	0.115	0.137
Other Race/Ethnicity	0.068	0.064	0.056	0.058	0.065
White	0.492	0.434	0.446	0.503	0.561
Male	0.702	0.688	0.610	0.674	0.766
Less than HS	0.189	0.282	0.211	0.157	0.106
HS Only	0.315	0.356	0.355	0.308	0.248
Some College	0.310	0.258	0.316	0.343	0.333
College Grad	0.186	0.104	0.118	0.192	0.313
U.S. Citizen	0.669	0.671	0.740	0.773	0.797
Retained Counsel	0.337	0.218	0.264	0.408	0.562
Fines Waived	0.859	0.827	0.905	0.909	0.920
Case Characteristics
Guidelines Mean (months)	28.7	12.3	12.6	22.6	54.3
Any Incarceration	0.559	0.491	0.495	0.702	0.863
Sentence (months)	16.4	8.4	7.2	14.2	36.2
Below Guidelines	0.478	0.236	0.495	0.611	0.599
In-Range	0.499	0.730	0.484	0.369	0.383
Above Guidelines	0.021	0.033	0.019	0.018	0.017
Fine (median in $)	0	0	0	0	0
Restitution (median in $)	5,800	0	11,422	65,000	429,968
Observations	276,210	43,151	43,146	43,226	43,071
Note: All variables are coded as 0/1 unless otherwise noted. Guidelines and sentence length variables are capped at 470 months—the Commission’s assigned value for life sentences. Many variables are not reported in all years.

C. Overall Inequality (All Districts, All Years)

This section begins by examining whether one can fairly say the government focuses its financial crime enforcement efforts on “white-collar” crime. It suggests the answer is no. It shows that low-income and Black defendants are disproportionately represented while higher-income and White defendants are underrepresented in federal financial crime cases relative to the U.S. population. It shows that this overrepresentation is particularly stark for Black women, who are underrepresented in federal criminal cases as a whole but overrepresented in financial crime prosecutions.

The Commission data do not provide information about a person’s income or wealth, so Figure 1 uses three proxies for a defendant’s financial means: the level of formal education attained by the defendant, whether the defendant’s fines were waived by the court based on the defendant’s inability to pay them, and whether the defendant retained paid counsel. Appendix Table A.2 presents the same results in table form.

Figure 1. Proxies for Poverty in Federal Financial Crime Cases

Note: Educational attainment is only reported for defendants sentenced in fiscal years 1997 through 2019. Defense counsel type is only reported for defendants sentenced in fiscal years 1994 through 2003. Waived fines are reported for all years (1994 through 2019).

Figure 1 shows the averages for all federal financial crime defendants (dotted columns), for U.S. citizen financial crime defendants (solid columns), and for the U.S. adult population (striped columns). It reports the estimates separately for U.S. citizen-defendants because Census data, which is used to compute the averages across the U.S. adult population, chronically undercounts people who are not U.S. citizens.¹⁴⁰ Despite this undercounting, the averages for U.S. citizen-defendants are very similar to the averages among all federal defendants.

As Figure 1 shows, nearly 20% of financial crime defendants did not graduate high school, which is true of only around 10% of U.S. adults. Around 30% of the U.S. adult population has a college degree, but less than 20% of federal financial crime defendants have one. Around 85% of federal financial crime defendants have their fines waived by the court. Put another way, only around 15% of federal financial crime defendants can afford to pay their fines. The majority (around two-thirds) of federal financial crime defendants rely on appointed counsel. These averages suggest that defendants convicted of financial crimes are likely to have a lot less income and wealth than the average U.S. adult.

Figure 2 displays race-gender representation in federal financial crime cases (solid columns) and all federal criminal cases (striped columns) over the years 1994 to 2019. Appendix Table A.3 presents the same results in table form. The horizontal line at y = 1 demarcates the boundary for whether a group is over- or under-represented in federal cases relative to their share of the U.S. adult population.¹⁴¹

Figure 2 shows that, as many readers will already know, Black and Hispanic men are the most overrepresented groups in the federal criminal system (their striped columns extend the highest), while women who are not Black or Hispanic are the most underrepresented groups (their striped columns extend the lowest). Overall, there are five race-gender groups that are underrepresented relative to the adult population: women of all race and ethnicity groups and White men. Men who are not Black or Hispanic are prosecuted at rates closest to parity (their striped columns are the shortest), with White men slightly underrepresented and men who are another race slightly overrepresented.

For financial crimes, the pattern is different in a few notable ways. First, unlike in the entire federal defendant population, Black men and women are the most overrepresented groups in financial crime prosecutions, while White and Hispanic women are the most underrepresented groups. Black men are significantly more overrepresented in financial crime prosecutions than any other group (their solid column is much taller than any other solid column). Men who are not Black are also overrepresented in financial crime cases but to a much lesser extent than Black men.

Black women are overrepresented among financial crime defendants despite being underrepresented in the federal criminal defendant population. Women of all other race and ethnicity groups are underrepresented in financial crime prosecutions, just as they are in all federal prosecutions. These findings suggest that financial crime prosecutions are an important site of racial inequality in the federal criminal system and that this inequality uniquely burdens defendants who are Black.

Figure 2. Race-Gender Representation in Federal Prosecutions, 1994–2019

Note: The y-axis is scaled such that a group that is x times overrepresented will have the same size column as a group that is x times underrepresented. BM=Non-Hispanic Black Men; BW=Non-Hispanic Black Women; HM=Hispanic Men; HW=Hispanic Women; OM=All Other Men (including Alaska Native, American Indian, Asian, Native Hawaiian, and Other Pacific Islander Men); OW=All Other Women (including Alaska Native, American Indian, Asian, Native Hawaiian, and Other Pacific Islander Women); WM=Non-Hispanic White Men; WW=Non-Hispanic White Women.

D. Inequality in Financial Crime Prosecutions over Time

This section describes how the federal financial criminal caseload has changed over the past quarter century. It shows first that the annual number of financial crime prosecutions remained stable until 2015, when it began to decrease. Second, it shows that the caseload decline in 2015 did not coincide with any noticeable change in the education, gender, or race gaps that persist throughout the period. Third, it shows that since around 2008, Black defendants have been prosecuted at roughly three times the per capita rates that Hispanic, non-Hispanic White, and other defendants have been prosecuted for financial crimes. Beginning in 2008, defendants in all racial or ethnicity groups who are not Black were prosecuted at very similar per capita rates. Fourth, it shows that this race gap is larger but shrinking among female defendants and smaller but more stable among male defendants. Because most of the patterns I documented are stable over time, most of the figures that accompany this section are contained in the Appendix.

Before examining how inequality has changed over time, this section first considers how overall levels of financial crime prosecution have changed since the early 1990s. Appendix Figure A.1 plots the federal government’s criminal caseload for the three most-prosecuted types of crime: drug trafficking (dotted line); immigration (dashed line); and financial crime (solid line). As Figure A.1 reveals, the annual number of federal prosecutions of financial crime remained stable until it began to decline in 2015. On the other hand, financial crime as a share of all federal prosecutions has decreased over a longer period, but this is not due to a significant decrease in the number of financial crime cases; rather, it is a result of a steep rise in immigration-related prosecutions, which dilute financial crime’s share of all federal criminal cases.

It is possible that as the number of financial crime prosecutions decreased beginning in 2015, inequality in who is prosecuted for financial crimes also changed. Appendix Figure A.2 looks for changes in the average education levels of defendants prosecuted for financial crimes, while Figure 3 considers changes in the race and gender composition of the financial criminal defendant population over time. Figure A.2 studies defendants’ educational attainment because education proxies for a defendant’s income, which is not a variable that the Commission data reports.¹⁴²

Figure A.2 plots financial crime cases prosecuted against defendants who did not graduate high school, graduated high school but did not attend college, attended college but did not earn a bachelor’s degree, and earned a bachelor’s degree. Panel A, which plots the share of defendants in each category, shows that the educational composition of financial crime defendants remained largely stagnant over the 1997 to 2019 period.

Panel A suggests a small increase in the share of financial crime defendants who have attended or completed college and a small decrease among defendants who never attended any college over the same period. However, as Panel B reflects, these changes have not kept pace with the population, which has on average seen increased formal education over time. If anything, the education gap expanded over the period, as Panel B shows. Panel B plots the extent to which defendants in each educational group are over- or under-represented relative to the U.S. adult population. It shows that defendants who have not completed high school were prosecuted at higher rates in the late 2010s than in earlier parts of the period. Thus, Figure A.2 suggests that overall changes in the financial crime caseload over time did not benefit those with few resources; if anything, the opposite is true.

Financial crime also has a race and gender gap. As with nearly all types of crime, men are more likely to be prosecuted for financial crimes than women. Racial gaps in financial crime also persist among both male and female defendants. Figure 3 plots the per capita rates at which each race-gender group is prosecuted for financial crimes over the 1994–2019 period. To avoid cramming eight lines into one graph, Panel A plots the prosecution rates for female defendants and Panel B for male defendants. The panels are arranged side-by-side and scaled with the same y-axis so that readers can compare female and male defendants by looking across the panels. The y-axis measures the number of financial crime defendants in each race-gender group divided by the U.S. adult population of that race-gender group (then multiplied by 1000). Thus, a higher line indicates a higher rate of prosecution.

Figure 3. Financial Crime Cases by Race, 1994–2019
A. Female Defendants	B. Male Defendants

Note: Each line represents the number of financial crime cases brought against defendants in the race-gender group, multiplied by 1,000 and divided by the U.S. adult population of that race-gender group. Race-gender groups are labeled as in Figure 2.

Figure 3 shows several facts about race and gender inequality in federal financial crime prosecutions. First, financial crime has a persistent gender gap. Men are prosecuted for financial crimes at higher per capita rates than women. Second, Figure 3 shows that Black men and women are prosecuted for financial crimes at the highest rates. Since 2008, there does not appear to be a significant race gap among any other race groups for either female or male defendants. Instead, Black adults are uniquely susceptible to prosecution for financial crimes.

Third, the racial gaps appear to narrow over time for women but not men. For female defendants, Panel A shows that prosecution rates among racial groups compressed over the 1994 to 2019 period. The data bears this pattern out: Black women comprised 38% of female financial crime defendants in 1994 and 32% in 2019.¹⁴³ For male defendants, Panel B shows less compression. The data also bears this pattern out: Black men comprised 25% of male financial crime defendants in 1994 and 27% in 2019.¹⁴⁴ Over this period, Black men and Black women constituted between 5–7% of the U.S. adult population, so these changes cannot be attributed to significant changes in the composition of the underlying population.¹⁴⁵

E. Inequality in Financial Crime by Geography

The previous section showed that over the last three decades, financial crime cases have remained a significant portion of the federal criminal docket and that income, gender, and racial inequalities persist in these prosecutions. Among male and female defendants, Non-Hispanic Black people are prosecuted at roughly three times the per capita rate as all other defendants. People who did not complete high school are by far the most overrepresented group in financial crime cases, while those who have completed college are the only group that is significantly underrepresented.

But averages across the entire federal criminal system as presented in the previous sections obscure differences in how individual USAOs prosecute financial crime. For example, the previous sections showed that Black women and Black men are overrepresented in federal financial crime cases while White women are underrepresented, but one might wonder whether this is true in all federal districts in the United States. Variation over the entire country might reflect variation in underlying rates of financial crime, office priorities, or the individual attitudes of decisionmakers such as prosecutors and agents. This section measures and maps inequalities in financial crime prosecutions at the USAO level. Figure 4 begins by showing the intensity with which each USAO prosecutes financial crimes. Darker shading means a larger share of the district’s cases are financial crime cases.

Figure 4 shows that the districts that focus more heavily on fraud cases include large urban districts like the Central District of California (home to Los Angeles), the Northern District of Illinois (home to Chicago), and the Southern District of New York (home to Manhattan). In these USAOs, financial crime respectively constitutes 32.1%, 36.7% and 29.3% percent of all criminal cases. This finding is perhaps unsurprising because these districts encompass many major financial centers. The five districts that border Mexico have much less intense financial crime caseloads (less than 6% of all prosecutions in all five districts) because immigration cases dominate the federal criminal caseloads in those districts.¹⁴⁶ Figure 4 also shows that USAOs in Western states appear to prosecute financial crime less intensely than states in the Deep South¹⁴⁷ and the Great Lakes Region.¹⁴⁸

Figure 4. Financial Crime Prosecution Intensity (All Years)

Note: This figure maps the share of each district’s criminal cases that are financial crime cases. Each shade represents an equal interval in the distribution. Lightest shading means roughly 2–11% of cases in the district are financial crime cases; second-lightest shading means 11–19% of cases are financial crime cases; second-darkest shading means 19–28% of cases are financial crime cases; and darkest shading means 28–37% of cases are financial crime cases.

Figure A.3 shows that districts in the Deep South, Alaska, and Oklahoma prosecute women for financial crimes at among the highest rates in the United States. Figure A.3 plots the intensity with which each district prosecutes women for financial crimes relative to men. Darker shading means female defendants make up a larger share of that USAO’s financial crime caseload. There are eight districts in which women constitute more than forty percent of financial crime defendants: the Southern, Middle, and Northern Districts of Alabama; the District of Alaska; the Middle District of Georgia; the Middle and Western Districts of Louisiana; and the Northern District of Oklahoma. By contrast, women make up the smallest portion of fraud defendants in New England and southwestern states. There are ten districts in which women make up less than twenty-five percent of fraud defendants: the Southern District of California, the District of Connecticut, the District of Massachusetts, the District of Minnesota, the District of New Hampshire, the District of New Jersey, the Eastern and Southern Districts of New York, the Eastern District of Pennsylvania, and the District of Rhode Island.

Prosecuting women for financial crimes at higher rates in the Deep South, Alaska, and Oklahoma compared with other jurisdictions is likely to create racial inequality among female defendants because the Deep South states have among the largest Black populations in the United States.¹⁴⁹ Alaska and Oklahoma have among the largest Indigenous populations in the United States.

Figure 5 explores the geography of race and gender inequality in financial crime prosecutions. It depicts whether race-gender groups are over- or under-represented in financial crime prosecutions relative to their share of the U.S. adult population in each federal district. In Figure 5, districts filled in blue stripes mean the group is underrepresented (with darker shades of blue representing more underrepresentation). Districts filled in solid red mean the group is overrepresented (with darker shades of red representing more overrepresentation).

Panels A and B show that Black men are overrepresented in financial crime cases in every federal district, and Black women are overrepresented in all but six federal districts.¹⁵⁰ In contrast, Panel H shows that White women are underrepresented in financial crime cases in every federal district. White men are overrepresented in roughly half of all districts, but in all districts, it is clear their representation is relatively close to parity because all of the districts have pale shading. These findings demonstrate that the racial inequalities documented across the full United States are generated at least in part by inequalities within—not just between—USAOs.

As in Figure 5, Figure 6 explores the geography of income inequality in financial crime prosecutions. As throughout, the defendant’s level of formal education is used as a proxy for income because the Commission data does not report information about a defendant’s income or wealth. Also, like Figure 5, Figure 6 uses red solid- blue striped shading to indicate whether defendants are over- or under-represented relative to the U.S. adult population. Districts shaded in blue stripes mean the group is underrepresented (with darker shades of blue representing more underrepresentation). Districts shaded in solid red mean the group is overrepresented (with darker shades of red representing more overrepresentation). The shading in Figure 6 uses the same red/blue scale as Figure 5 so readers can compare.

Figure 5. Race-Gender Representation in Financial Crime Prosecutions
A. Cases Against Black Men	B. Cases Against Black Women

C. Cases Against Hispanic Men	D. Cases Against Hispanic Women


E. Cases Against Men of Another Race	F. Cases Against Women of Another Race

G. Cases Against White Men	H. Cases Against White Women

Note: This figure maps the over- and under-representation of each race-gender group in the district’s financial crime cases. Districts shaded in striped (solid) fills prosecute the race-gender group at lower (higher) rates than the district’s population. Darker shading indicates larger disparity.

Figure 6. Educational Representation in Financial Crime Prosecutions

A. Cases Against Defendants with a College Degree

B. Cases Against Defendants Without a High School Degree

Note: This figure maps the over- or under-representation of defendants in the district’s financial crime cases. Districts shaded in striped (solid) fill prosecute the education group at lower (higher) rates than the district’s population. Darker shading indicates larger disparity.

Figure 6 shows that defendants who have graduated from college—and are likely to be the wealthiest federal defendants—are underrepresented in financial crime prosecutions in every federal district in the United States, even those that prosecute the most complex and sophisticated financial crime (such as the Southern District of New York). In contrast, defendants who have not completed high school—and are likely to have the fewest resources—are overrepresented in nearly every district, although they are underrepresented in eleven districts.

The preceding discussion suggests that USAOs could significantly vary in the average severity of financial crimes they prosecute. Figure 7 investigates this theory and depicts the median loss associated with financial crime cases in each federal district. In other words, Figure 7 shows the severity of the average financial crime prosecution by each USAO. It shows significant variation in severity across USAOs.

Figure 7. Median Loss Amount in Financial Crime Prosecutions (All Years)

Note: This figure maps the median loss in financial crime cases by USAO. Each shade represents an equal interval. Lightest shading means the median loss amount in financial crime cases is between $7,519 and $44,323; second-lightest shading means the median loss is between $44,323 and $81,127; second-darkest shading means the median loss is between $81,127 and $117,931; and darkest shading means the median loss is between $117,931 and $154,735.

Figure 7 shows that the most serious financial crimes are prosecuted in the Northeast (including the Eastern and Southern Districts of New York, and the Districts of Connecticut, Massachusetts, and Rhode Island), as well as a few scattered districts that are home to major U.S. cities (the Southern District of California, the Southern District of Florida, the Northern District of Georgia, the Northern District of Illinois, and the District of Minnesota). The least serious financial crimes are prosecuted in Southern and Great Plains states.

III. EXPLAINING THE FINDINGS

Part II presented evidence of income, racial, and gender inequality in the prosecution of federal financial crimes. It showed that the federal prosecution of financial crime has a disparate impact, prosecuting low-income and Black people at higher rates than the rest of the U.S. adult population, while prosecuting college graduates and White people at lower rates than the rest of the adult population. Part II also showed that these inequality patterns have persisted since the 1990s and appear in every federal judicial district. This Part offers several potential explanations for the inequalities documented in Part II. It first examines differences in the reported offense conduct of financial crime defendants in different education, race, and gender groups. It shows that the defendant groups that are the most overrepresented are also prosecuted for, on average, the least serious financial crimes. It then describes how systemic incentives, formal law and policy, and individual biases could explain the Article’s findings. I do not attempt to definitively prove that any particular mechanism dominates. Instead, this Part is designed to present many possible explanations for the regressive nature of federal white-collar prosecution.

A. Charged Offense Conduct

As a threshold matter, this section examines whether the federal financial crime cases brought against defendants of different education, race, and gender groups systematically differ in reported offense conduct. The DOJ and FBI routinely state that they prioritize prosecuting serious and sophisticated financial crimes. It could be that the groups that are most overrepresented in financial crime prosecutions also commit on average the most serious financial criminal offenses, and that overrepresentation is thus consistent with the federal government carrying out its stated priorities. This section considers but rejects that hypothesis.

To perform this analysis, this section considers three variables that capture offense conduct: (1) the offense severity (which primarily corresponds with the amount of monetary loss in financial crime cases); (2) whether the case involved illegal drugs; and (3) the average amount of aggravation computed in the case. I define the amount of aggravation as the amount by which the defendant’s base offense level was increased or decreased at sentencing on account of their offense characteristics.¹⁵¹ The aggravation measure can therefore be a positive or negative number. Figure 8 presents averages for each of these measures of offense conduct by defendants’ educational attainment. As before, I use the defendant’s level of formal education as a proxy for income because the Commission data do not include information about defendants’ income or wealth.

Figure 8. Financial Crime Case Characteristics by Education Group

A. Median Loss Amount in Financial Crime Cases

B. Share of Financial Crime Cases Involving Drugs

C. Average Aggravation in Financial Crime Cases

Note: Average aggregation is the average difference between defendants’ base and final offense levels.

Figure 8 suggests that financial crime defendants who have attained more formal education are prosecuted for financial crimes that are more serious than the financial crimes prosecuted against defendants with less formal education. The median loss amount for defendants without a high school diploma is just $18,500, while the median loss amount for defendants with a college degree is $168,276. The amount of aggravation in the offense is also increasing in formal education, as Panel C shows. In contrast, Panel B shows that the presence of illegal drugs in financial crime cases is roughly equal across all education groups.

Figure 9 plots the same three variables by defendant race-gender group. Figure 9 demonstrates that Black men and women—who Part II showed are prosecuted for financial crimes at the highest rates—do not commit the most serious financial crimes. Cases involving female defendants also tend to be less severe than those against male defendants. Median loss amounts for female financial crime defendants are lower than for male financial crime defendants in all racial groups except Hispanic defendants, in which loss amounts are roughly equal between male and female defendants. In all racial groups, female financial crime defendants are less likely to have drugs involved in their cases. Finally, financial crime cases against women involve fewer aggravating characteristics.

In all measures, financial crime cases brought against White men appear to be the most serious. They involve by far the largest losses—the median loss amount for financial crime prosecutions of White men is $80,150; for Black women and women who are not White, Hispanic, or Black, the amount is $29,520 and $29,416, respectively. Financial crime cases against White men are also the most likely to involve drugs and the largest average aggravation.

Given that differences in offense conduct do not appear to justify the inequalities documented in Part II, the remaining sections explore alternative explanations for the findings. The data do not allow me to disentangle whether the inequalities documented in this Article are created by intentional discrimination, subconscious bias, are a byproduct of systemic incentives that shape prosecutorial and investigative decisions about which cases to prioritize, or are some combination of all these (or other) reasons. Sections III.B, III.C, and III.D consider many explanations for the findings.

Figure 9. Financial Crime Case Characteristics by Race-Gender Group

A. Median Loss Amount in Financial Crime Case

B. Share of Financial Crime Cases Involving Drugs

C. Average Aggravation in Financial Crime Cases

Note: Race-gender groups are labeled as listed in Figure 2. Average aggregation is the average difference between defendants’ base and final offense levels.

B. Systemic and Structural Explanations

In many areas of law, the government struggles to aggressively prosecute or pursue legal claims against sophisticated lawbreakers. This section focuses on systemic explanations for why federal prosecutors might focus on lower-level financial crime cases. It argues that complicated financial crimes are difficult to detect, hard to investigate, and burdensome to prove. As Jesse Eisinger put it, “Embezzlement is as easy to understand as purse snatching. But securities manipulation is a more abstract concept.”¹⁵² The workplace realities that prosecutors and investigators confront could create the inequalities documented in Part II.

The inequalities in financial crime prosecutions might reflect structural realities that have been documented in many other settings. In an article examining how the federal government prosecutes drug crime, for example, Lauren Ouziel lays bare the “disconnect between [federal criminal] law’s ambition and fruition.”¹⁵³ Ouziel shows that in federal drug prosecutions, the substantive criminal law is explicitly designed to target the most serious defendants—those whose crimes involve large quantities of illegal drugs and acts of physical violence, and those who have significant prior criminal records.¹⁵⁴ But despite this ambition, the federal government nonetheless prosecutes many defendants who do not fall into these categories.¹⁵⁵ Ouziel argues that the pressure and incentives that federal prosecutors face in their work—among other things—contribute to this ambition/fruition divide.¹⁵⁶

Examples of the ambition/fruition divide are not limited to the criminal setting. In the context of environmental enforcement, Nathan Atkinson shows that the Environmental Protection Agency (“EPA”) imposes fees on corporate pollution that are roughly one-fifth the size necessary to make polluting unprofitable ex ante.¹⁵⁷ In another example, ProPublica journalists Paul Kiel and Jesse Eisinger showed a perhaps illogical disparity in the Internal Revenue Service (“IRS”) enforcement efforts: taxpayers who receive the Earned Income Tax Credit (“EITC”)—mostly low-income wage earners—are audited at higher rates than households with much larger earnings.¹⁵⁸ Along the same lines, a county-level analysis by ProPublica’s Paul Kiel and Hannah Fresques found that America’s poorest counties are our most audited.¹⁵⁹ Yet recent research shows that despite the lower costs to carry them out, IRS audits of low-income people yield less net revenue than audits of wealthy taxpayers at the top of the income distribution.¹⁶⁰ IRS’s choice to focus much of its enforcement activity on EITC filers also contributes to racial inequality in audits.¹⁶¹

Like the drug crime and IRS contexts, prosecutors and law enforcement agents working on financial crimes face incentives and constraints that likely lead them to focus their efforts on straightforward, uncomplicated, and winnable prosecutions.¹⁶² Of course, what kinds of cases and defendants an agent or prosecutor thinks are “winnable” requires judgments that will be filtered through and reinforced by the agent or prosecutor’s individual biases, as described in Section III.D.

How do prosecutors decide which potential cases are winnable? They likely consider the evidentiary strength of their case, the resources necessary to investigate and prosecute the case, and how a jury is likely to view the case.¹⁶³ These assessments are likely shaped by biases, as described in the next section.

All these factors—the strength of the evidence, the resources necessary to bring the case, and how a jury is likely to view the case—militate toward prosecuting low-level cases. As described in Sections I.B and III.C, a financial crime prosecution typically requires a prosecutor to prove beyond a reasonable doubt that the defendant intended to defraud someone. In simplistic cases, such as when an employee uses a company credit card to buy personal items, the evidence of fraud will often be straightforward and easily attainable: typically, the victim (the employer) will have records showing unauthorized purchases and can turn those records over to prosecutors.

In contrast, the task of building a case will be much more difficult in frauds for which there is no victim who can provide evidence of the fraud, such as when a fraud is carried out in a large corporate organization with many diffuse victims. As Miriam Baer describes, “[l]ife within corporate settings is remarkably compartmentalized and siloed. Information and responsibility fractures among multiple units and departments, allowing criminal targets to claim that the left hand did not know what the right hand was doing, or at very least, that an intent to harm or deceive was absent.”¹⁶⁴

In such cases, the government will typically need to rely on a whistleblower for evidence and may have a hard time proving that any particular person involved had the requisite intent to defraud. Whistleblowers can be hard to recruit because, although they are occasionally rewarded for bringing wrongdoing to light, more often they are fired and struggle to find a new job in their industry.¹⁶⁵ This is precisely what happened to Alayne Fleischmann, the whistleblower in Case D.¹⁶⁶

Second, building and bringing complex cases takes a lot of work and resources. It uses up prosecutors’ and investigators’ time. The more witnesses there are to interview, the more documents there are to review, and the more expertise is required to understand the fraud—all these tasks require a lot of resources. A straightforward case can move forward more quickly and easily.

Relatedly, the resource differences on each side of a criminal case can strain the government’s ability to prosecute. Charging a person who will hire a large law firm to represent them in defense will create a different resource dynamic than prosecuting a person who will rely on appointed counsel.¹⁶⁷ These resource differences could easily lead the federal government to disproportionately prosecute indigent defendants.

C. Formal Law and Policy

The substantive laws and rules that define financial crimes and govern how they are prosecuted and sentenced favor sophisticated criminal lawbreakers in many ways. We see examples of this phenomenon in other contexts, too. For example, by far the largest source of theft in the United States is wage theft, which some researchers estimate accounts for more than $15 billion stolen every year.¹⁶⁸ An employer commits wage theft when they do not pay an employee wages to which the employee is legally entitled, such as by paying less than the minimum wage, not paying required overtime wages, or asking employees to work “off the clock” before or after their shifts.¹⁶⁹ But wage theft is almost never prosecuted.¹⁷⁰ The primary way that stolen wages are recovered is through civil actions brought by the U.S. Department of Labor’s Wage and Hour Division, state departments of labor, state attorneys general, and civil class actions. In contrast, larceny and auto theft each steal around $5 billion per year and robbery steals around $380 million.¹⁷¹ Unlike wage theft, these crimes are frequently prosecuted.¹⁷²

There are myriad ways that federal criminal law and formal policy similarly benefit sophisticated people who commit higher-value, more complex crimes. Here, I focus on two: the mens rea requirements of fraud statutes, and the way restitution is calculated and prioritized.

1. Mens Rea Elements

As described in Section I.B, most financial crimes contain mens rea elements that require the government to prove the defendant’s intent to defraud. In a relatively straightforward fraud—such as Cases A, B, and C described in Section I.C—it is easy to see how a jury could view the defendants’ conduct and conclude that they intentionally deceived their victims. But in a complex fraud case involving many parties, such as Case D, proving a deceitful intent or scheme on the part of any particular participant could be very difficult for prosecutors.¹⁷³ As a result, complicated and sophisticated financial crimes—which Table 1 shows are more likely to be perpetrated by people who are high-income, male, and White—are likely much more difficult to prosecute.

2. Restitution Calculations

The rules around restitution calculations also benefit defendants who commit complex crimes. As described in Section I.B, federal law (like the law in all states) requires courts to order restitution in any case “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”¹⁷⁴

One might imagine this means people who commit more complex, higher-value crimes will have to pay more restitution and could therefore be more desirable to prosecute from a prosecutor’s perspective. But this is not the case because the restitution statute contains two exceptions. First, it does not require restitution in cases in which “the number of identifiable victims is so large as to make restitution impracticable.”¹⁷⁵ Second, it does not require restitution in cases in which “determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.”¹⁷⁶ In other words, financial crimes that are more complex, for which losses are harder to calculate, and for which there are more victims are much less likely to involve restitution. Thus, even if JPMorgan Chase or any of its employees had been convicted of a crime in connection with the financial crisis, they would have had a strong argument that the statute did not require them to pay restitution. In contrast, the defendants in Cases B and C were ordered to pay restitution because their crimes were not complex enough to trigger a statutory exception.

3. Restitution Policy

Notwithstanding the statutory exceptions, federal prosecutors and judges tend to be highly committed to ensuring as much restitution as possible for victims of financial crimes. For example, the federal sentencing statute instructs judges to consider “the need to provide restitution to any victims of the offense” when sentencing defendants.¹⁷⁷ The Justice Manual tells prosecutors that when “determining whether it would be appropriate to enter into a plea agreement,” they should consider (among other factors) “[t]he interests of the victim, including any effect upon the victim’s right to restitution.”¹⁷⁸ Similarly, the Manual instructs prosecutors to “take[] into account the need for the defendant to provide restitution to any victims of the offense” when making sentencing recommendations.¹⁷⁹ Assistant Attorney General for the Criminal Division Kenneth A. Polite, Jr. described federal white-collar efforts in a recent speech, telling the audience, “[c]onsidering victims must be at the center of our white-collar cases. . . . Though we cannot always recover every cent, we deploy all tools at our disposal to restrain assets, obtain restitution, and when possible, repatriate assets for victims.”¹⁸⁰

One consequence of prosecutors’ and judges’ desire to provide restitution to victims of financial crimes is that defendants with more resources can argue (either as a pitch to prosecutors before charging or to a judge at sentencing) that they should not be prosecuted or incarcerated because a criminal case or prison sentence will interrupt their ability to earn income to pay toward restitution. For example, a financial advisor convicted of fraud in the District of Massachusetts made this argument in his sentencing memo, writing:

If incarcerated, [the defendant] will not be able to contribute to restitution; he will lose his job and have to start all over upon his release. Whereas in his current position, where he has advanced to a management position in a relatively short amount of time, he will be able to contribute immediately toward a restitution award.¹⁸¹

Indeed, federal courts routinely justify low or probation-only sentences for financial crime defendants by stating their desire to allow the defendant to work and provide restitution.¹⁸² In one of the Yale Studies that surveyed federal district court judges about how they sentence white-collar defendants, one judge was asked about his decision not to impose a prison sentence on a person convicted of not reporting large amounts of income. The interviewer asked the judge, “[Y]ou must have considered sending him to a term in prison. What made you decide that that wasn’t appropriate in this case?” The judge responded,

Well, the restitution. There is half a million dollars back in the coffers that we wouldn’t have got if I had sent him to prison. He would have served his term, and there would have been no way of getting it, and eventually some day or other he would have gotten out of the country somehow or other and gotten that money. That was it.¹⁸³

A defendant with fewer resources or without stable employment will have a harder time making this argument to a prosecutor, which could explain why wealthy defendants are less likely to be prosecuted for financial crimes.¹⁸⁴

D. Bias

As described in Section I.B, federal investigative agencies and DOJ have nearly absolute discretion in deciding which cases to investigate and prosecute. Although individual agents and federal prosecutors might be constrained formally and informally by office policies and norms, there are almost no formal legal constraints on how enforcement agents decide which cases to investigate and how prosecutors decide which cases to pursue.¹⁸⁵ Wide discretion often allows decisionmakers to make discriminatory decisions, either consciously or subconsciously.

1. Stereotypes About Dishonesty

Deceit is the central characteristic of financial crime. Social psychologists have documented consistent stereotypes that associate honesty with social class, race, and gender in the United States. For example, literature in psychology finds that participants often view people of low socioeconomic status as lazy, incompetent, and prone to substance abuse, while viewing people of high socioeconomic status as more competent and intelligent.¹⁸⁶

Stereotypes characterizing women—and, in particular, women of color—as dishonest are pervasive in the United States, which might explain why Black women are overrepresented among financial crime defendants despite being underrepresented in federal prosecutions overall. Women have long been viewed as dishonest in criminal cases,¹⁸⁷ and Marilyn Yarbrough and Crystal Bennett describe “a hierarchy when credibility issues arise in the courts. It is not only a simple hierarchy of men over women, but it is one where White women are found to be more credible than African American women.”¹⁸⁸ And as Chan Tov McNamarah explains, “[S]kepticism of Black credibility is part of a larger, historically created space in which those who are deemed rational, reliable, and worthy of belief are White and male.”¹⁸⁹ These kinds of prejudices could affect how agents decide which people to investigate and prosecutors decide which cases to bring.

2. In-Group Favoritism

Bennett Capers argues, “[T]o understand mass incarceration, we must not only understand overcriminalization and overenforcement in minority communities. We must also understand the role played by under-enforcement, and privilege, in nonminority communities.”¹⁹⁰ Consciously or not, prosecutors and agents might be less willing to prosecute people with whom they have more in common, a phenomenon often referred to as “in-group favoritism.”

In-group favoritism occurs when a decision-maker gives preferential treatment to those who share a salient trait with the decision-maker, such as by being a member of their gender, racial, ethnic, or religious group.¹⁹¹ For many years, there was a growing consensus that the majority of discrimination in the United States takes the form of in-group favoritism,¹⁹² although in recent years overt racism and sexism have grown increasingly prevalent.¹⁹³

In-group favoritism is well-documented in the criminal system. In prior work, I showed that federal prosecutors exhibit gender-based in-group favoritism, treating defendants of their own gender relatively more leniently than other-gender defendants.¹⁹⁴ New research suggests that firms risking prosecution appear to strategically leverage in-group favoritism to help improve negotiations with federal prosecutors.¹⁹⁵ Other scholars have previously documented in-group favoritism among other actors in criminal legal systems, including judges¹⁹⁶ and police officers.¹⁹⁷ As an important caveat, however, some research finds evidence of a phenomenon called the black-sheep effect, in which people punish in-group members more harshly than out-group members for bad behavior.¹⁹⁸

Perhaps more than in other types of federal cases (most of which involve immigration, drugs, or firearm possession), prosecutors and federal agents might feel affinity for financial crime defendants who work as business professionals due to cultural or social proximity. This hypothesis is not new. Over 40 years ago, one of the Yale Studies described in Section I.B.2 surveyed federal district judges and found sentiment of in-group favoritism when judges were asked about sentencing white-collar defendants. For example, one federal judge described his views on sentencing white-collar defendants to prison this way:

I think the first sentence to a prison term for a person who up to now has lived and has surrounded himself with a family, that lives in terms of great respectability and community respect and so on, whether one likes to say this or not I think a term of imprisonment for such a person is probably a harsher, more painful sanction than it is for someone who grows up somewhere where people are always in and out of prison. There may be something racist about saying that, but I am saying what I think is true or perhaps needs to be laid out on the table and faced.¹⁹⁹

The authors believe the judge’s previous comment is the result of increased empathy toward wealthy and professional class white-collar defendants.²⁰⁰ Indeed, in-group favoritism often takes the form of empathy toward in-group members, and, in experimental settings, people are often more likely to feel empathy in observing the pain of an in-group member compared to an out-group member.²⁰¹ It is plausible that prosecutors and FBI agents are more empathetic about the harms of federal prosecution when it comes to potential defendants with similar levels of formal education and wealth.

CONCLUSION

This Article has shown that, contrary to popular wisdom, financial crime is frequently prosecuted in the United States. Part II showed that federal financial crimes are prosecuted in ways that replicate inequalities that exist throughout American criminal law. Black men and women are more likely to be prosecuted for financial crimes than any other racial and gender group. Unlike the traditional view of white-collar crime, which posits that it is a form of crime largely perpetuated by economic elites, the findings also show that federal financial crime defendants are likely to have fewer resources than most U.S. adults.

Part III offered many explanations for these findings. It argued that systemic incentives, formal law and policy, and individual biases could all drive inequality. It also showed that the overrepresentation of Black and low-income defendants does not appear to be because these defendants commit the most egregious forms of financial crime (in fact, the opposite is true).

The inequalities documented in this paper are concerning because they seem to be overlooked. The intense focus on elite white-collar criminals—by the media, the academy, and the federal government itself—seems to at best not understand the realities of the system in which they are operating. This Article hopes to address this mistake.

APPENDIX

Figure A.1. Federal Criminal Cases: Three Most Common Offense Types, 1994–2019

Note: This figure plots the number of cases sentenced each fiscal year between 1994 and 2019 for the three most commonly prosecuted types of federal crime: drug trafficking and possession, immigration, and financial crime.

Figure A.2. Educational Attainment in Federal Financial Crime Cases Over Time
A. Educational Attainment in Federal Financial Crime Cases

B. Educational Attainment Representation in Federal Financial Crime Cases

Note: For each year, the “Representation Gap” in panel B is computed as the share of financial crime defendants in the educational group divided by the share of the U.S. adult population between the ages of 25 and 54 in that educational group.
Figure A.3. Gender Inequality in Financial Crime Prosecutions (All Years)

Note: This figure maps the share of each district’s financial crime cases that are prosecuted against women. Each shade represents an equal interval in the distribution. Lightest shading means roughly 15–22% of financial crime defendants in the district are women; second-lightest shading means 22–29% of financial crime defendants are women; second-darkest shading means 29–36% of financial crime defendants are women; and darkest shading means 36–43% of financial crime defendants are women.

Table A.1. Victim Coding: Most Prosecuted Financial Crimes
Crime (Short Description)	Statute	Share of Cases	Victim
Conspiracy or Defrauding the United States	18 U.S.C. § 371	0.185	U
Embezzlement or Theft of Public Money	18 U.S.C. § 641	0.079	G
Attempt or Conspiracy to §§ 1341‑48	18 U.S.C. § 1349	0.074	P
Bank fraud	18 U.S.C. § 1344	0.073	P
Wire fraud	18 U.S.C. § 1343	0.072	P
Mail fraud	18 U.S.C. § 1341	0.065	P
Tax Fraud	26 U.S.C. § 7201	0.053	G
False Statements to Federal Officials	18 U.S.C. § 1001	0.050	N
Counterfeiting	18 U.S.C. § 472	0.046	P
Credit Card Fraud	18 U.S.C. § 1029	0.046	P
Identity Theft	18 U.S.C. § 1028	0.044	U
Mail Theft	18 U.S.C. § 1708	0.031	G
Accessory to a Crime	18 U.S.C. § 2	0.027	U
Social Security Fraud	42 U.S.C. § 408	0.021	G
Embezzlement by Bank Employee	18 U.S.C. § 656	0.015	P
Healthcare Fraud	18 U.S.C. § 1347	0.015	U
Conspiracy to Defraud the Government	18 U.S.C. § 286	0.013	G
Note: This table reports how victim status was coded for the most prosecuted federal financial crimes. G=government victim; N=no victim; P=private victim; U=unknown victim. The table is restricted to crimes constituting at least one percent of charged cases. Many additional types of financial crimes were also coded, and a complete crosswalk is available from the author by request.

Table A.2. Proxies for Poverty in Federal Fraud Prosecutions
	% of Financial Crime Defs (All)	% of Financial Crime Defs (Citizens)	% of U.S. Adult Pop (if applicable)
Less than HS	18.89	16.78	11.09
High School Only	31.49	31.59	29.43
Some College	31.02	32.24	27.42
College Graduate	18.60	19.40	32.06
Fines Waived	85.89	89.04	–
Retained Counsel	33.73	33.63	–
Observations	276,210	161,552
Note: Computations are for federal defendants sentenced under the U.S. Sentencing Guidelines for financial crimes in fiscal years 1994–2019. U.S. adult population averages computed over the years 1994–2019.

Table A.3. Race-Gender Representation in Federal Fraud Prosecutions
	% of Financial Crime Defs	% of All Defs	% of U.S. Adult Pop
Black Men	18.62	19.51	5.55
Hispanic Men	10.86	40.37	7.11
Another Race Men	4.69	3.76	2.93
White Men	36.06	22.82	32.89
All Men	70.23	86.47	48.47
Black Women	10.70	3.34	6.41
Hispanic Women	3.85	4.26	6.97
Another Race Women	2.08	0.92	3.29
White Women	13.13	5.01	34.86
All Women	29.77	13.53	51.53
Observations	276,210	1,667,763
Note: Computations are for federal defendants sentenced under the U.S. Sentencing Guidelines in fiscal years 1994–2019. U.S. adult population averages computed over the years 1994–2019.

97 S. Cal. L. Rev. 299

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Stephanie Holmes Didwania*

* Associate Professor of Law, Northwestern Pritzker School of Law. I am grateful to Joshua Braver, Samuel Buell, Franciska Coleman, Brandon Garrett, Michael Gentithes, Ben Grunwald, Andrew Hammond, Paul Heaton, Carissa Hessick, Christine Jolls, Kay Levine, James Lindgren, Yair Listokin, Yaron Nili, Lauren Ouziel, Maria Ponomarenko, John Rappaport, Megan Stevenson, Neel Sukhatme, Kegon Teng Kok Tan, Nina Varsava, Lisa Washington, Ron Wright, as well as participants at the 2022 CrimFest Conference, the 2022 Chicagoland Junior Scholars Conference, the 2022 Empirical Criminal Law Roundtable, the 2023 Annual Meeting of the American Law and Economics Association, the 2023 Conference on Empirical Legal Studies, the 2023 Harvard/Stanford/Yale Junior Faculty Forum, the Larry E. Ribstein Law & Economics Workshop at George Mason University Antonin Scalia Law School, the Soshnick Colloquium on Law and Economics at Northwestern Pritzker School of Law, and the University of Wisconsin-Madison La Follette School of Public Affairs Seminar for thoughtful comments on this work. Thomas Gordon and Matthew Marcin provided excellent research assistance. Finally, I thank the fantastic student editors of the Southern California Law Review for their meticulous and insightful editorial assistance.

Regressive White-Collar Crime

Stephanie Holmes Didwania*

Fraud is one of the most prosecuted crimes in the United States, yet scholarly and journalistic discourse about fraud and

The Discriminatory Religion Clauses

Wayne Batchis*

The Supreme Court’s decision in Carson v. Makin is the third in a trilogy of cases dramatically upending the meaning

Auditor Independence: Moving Toward Harmonization or Simplification?

Nikita Patel*

INTRODUCTION Auditor independence has been a priority for the Securities and Exchange Commission (“SEC”) under the leadership of both the

Miss-Stake by IRS: Proof-of-Stake’s Underinclusive Regulatory Guidance

Jack H. Duncan*

Death and taxes are the two certainties of life, and for some, the former may be more conceptually pleasant than

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

October 2023February 2024David R. Dow

Under the so-called dual sovereignty doctrine (“DSD”), the Fifth Amendment’s Double Jeopardy Clause (“DJC”) is not implicated by successive prosecutions brought by separate sovereigns against the same defendant for the same act. For example, if a defendant is prosecuted first by the federal government for a certain crime, that defendant’s right not “to be twice put in jeopardy of life or limb”¹ for the same offence does not protect him against a subsequent prosecution by a state government for a crime involving the same conduct. As the Court put it in the recent case of Gamble v. United States,² “a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”³

I argue in this Article that this DSD errs in two respects, one of which has drawn a bit of attention, and one of which has gone entirely unnoticed in the cases and academic literature. First, as suggested by Justices Ginsburg and Gorsuch in their separate Gamble dissents,⁴ and as I elaborate, the DSD rests on a mistaken originalist view of how successive prosecutions by separate sovereigns were regarded at common law; consequently, the inference as to how the eighteenth-century English doctrine applies to the United States, which rests on a concept of divided sovereignty alien to the common law, is fundamentally flawed.⁵

Second, the current and longstanding view of the DJC assesses whether that Clause is implicated by focusing on whether the same offense (or conduct) forms the basis for successive prosecutions by separate sovereigns. I offer an entirely different methodology that does not depend (as does this orthodox view) on an unsound originalist analysis.⁶ Rather than focusing on what a defendant did or how a sovereign has defined an offense, the better approach to determining whether successive prosecutions by separate sovereigns violate the DJC is to focus on what the jury found. The methodology I propose hones in on the elements of the crime with which a criminal defendant is charged in the initial prosecution because the outcome of that trial will turn on the factfinder’s evaluation of those elements. To my knowledge, nobody has previously proposed this approach to analyzing double jeopardy challenges to successive prosecutions brought by separate sovereigns.

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

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Self-Defense Exceptionalism and the Immunization of Private Violence

July 2023April 2024Eric Ruben*

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

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

INTRODUCTION

On August 25, 2020, seventeen-year-old Kyle Rittenhouse traveled to Kenosha, Wisconsin, with an illegally obtained AR-15–style rifle in the wake of the shooting of Jacob Blake by a police officer.¹ Rittenhouse said he went heavily armed to provide medical aid and protect property, albeit strangers’ property, during racial justice protests and unrest following yet another police shooting of a Black man.² Instead, he shot three men during altercations, killing two of them.³ Rittenhouse was charged with crimes including murder,⁴ and in his defense he asserted self-defense: he feared that the men would disarm him and use his own rifle against him unless he shot them first.⁵

Rittenhouse’s case was closely watched and controversial, splitting the nation into diametrically opposed camps regarding the appropriateness of his conduct. It also raised difficult factual and legal questions, including whether he provoked the confrontations and thereby negated the lawfulness of his defensive force.⁶ At the end of a two-week trial at which dozens of witnesses testified, a jury deliberated for three days and returned a verdict of not guilty.⁷ The outcome should have pleased those who supported Rittenhouse’s conduct that summer night. Instead, a common reaction was, as former President Donald Trump put it, that Rittenhouse “shouldn’t have been prosecuted in the first place.”⁸

If that sentiment were simply a feature of modern political rhetoric, it might be undeserving of close scrutiny. Indeed, the politics of self-defense shone brightly after the Rittenhouse trial. U.S. Representative Marjorie Taylor Greene even introduced a bill to award Rittenhouse a civilian’s highest congressional tribute, a Congressional Gold Medal, for his “courageous actions.”⁹ Several Republican politicians invited Rittenhouse to intern in their offices.¹⁰ Just days after the verdict, he was welcomed at Trump’s Mar-a-Lago Club in Florida.¹¹

But this Article shows how the notion that people “should not fear exposure to criminal prosecution when they use firearms to defend themselves and their homes” is more than rhetoric.¹² Rather, it is the foundation for an effort to grant an exemption from prosecution to those who, like Rittenhouse, claim self-defense in defending against criminal charges. After Rittenhouse’s acquittal, one advocate penned “Kyle’s Law” to cement the exalted status of self-defense.¹³ The proposed statute would alter the law in various ways, including effectively immunizing lawful defensive force from prosecution altogether.¹⁴ As it turns out, more than one-fourth of U.S. states have already done just that,¹⁵ and the trend is likely to continue.¹⁶

In the past decade, legal scholarship has explored “Stand Your Ground,” or the removal of the common law duty to retreat before using lethal defensive force in public.¹⁷ That literature shows how Stand Your Ground interacts with an expansion of gun rights in a way that can lead to more violence and exacerbate existing patterns of discrimination in the criminal justice system.¹⁸ Articles have likewise explored additional features of the intersection of criminal law, self-defense, and gun rights.¹⁹ And legal scholars are starting to explore whether self-defense law might be bolstered in light of changed circumstances—especially the proliferation of gun carry—to limit the unnecessary loss of life.²⁰

Yet the notion that self-defense is exceptional and “deserves” to be immunized, as one legislative witness put it,²¹ has evaded close scrutiny. Articles about Stand Your Ground have acknowledged what Cynthia Ward termed the “curious beast” of self-defense immunity as well as the “confusion” it invites.²² However, self-defense immunity warrants a sustained analysis in terms of how it began as an adjunct to the gun rights movement and how it fits within the criminal justice system today. That, in turn, calls for an examination of a more general topic that similarly has received little attention: the procedural treatment of criminal law defenses and why prosecutorial immunities are so few in number. To exempt a category of defendants from the ordinary criminal process is profound, bestowing “a far greater right than any encompassed by an affirmative defense, which may be asserted during trial but cannot stop a trial altogether.”²³ Examining why the criminal law is generally opposed to granting an exemption from prosecution is an important, understudied part of the inquiry.²⁴

This Article proceeds in three parts. Part I shows how justifications for otherwise criminal conduct, like self-defense, have traditionally been adjudicated: as affirmative defenses to criminal charges. Some have argued that immunizing self-defense is simply a return to past protections that have been lost in recent times.²⁵ But those engaging in private violence have always been exposed to criminal prosecution and trial. The argument that self-defense exceptionalism is rooted in tradition is unsupported.

Part I also shows how modern pretrial criminal procedure is consistent with the historical antecedents. The formal process is overwhelmingly structured to bring cases forward to trial, even if few cases get that far.²⁶ Pretrial screening is largely geared toward questioning the basis for the charged offense, not adjudicating potential defenses.²⁷ The criminal law makes exceptions for a narrow set of pretrial matters—narrower than in the civil context. The scant prosecutorial immunities and their narrow justifications can be linked to the criminal law’s aims and distinctive character, which are especially protective of public prosecutions. The exceptions that receive prosecutorial immunity tend to be fundamentally different than self-defense in both their scope and purpose. In particular, other criminal law immunities benefit narrow classes of defendants and must be addressed ahead of trial to protect distinctive public interests like maintaining foreign relations or preserving the balance of powers.²⁸ Self-defense, in contrast, can be invoked by any defendant and, like a multitude of other defenses,²⁹ can be adjudicated at trial without undermining its role as justifying otherwise unlawful conduct. Moreover, interests served by self-defense law—like maintaining the legitimacy of the legal order—are actually undermined by immunity.

Part II then turns to the next logical question: Why are states now diverging from American legal tradition and standard practices to treat self-defense as something exceptional? The Article traces self-defense immunity from a barely debated and misunderstood change to Colorado law in the 1980s to a primary ambition of gun rights advocates in the 2000s. The resulting legal changes are often characterized as “Stand Your Ground laws,” but that understates the transformation that is afoot. Stand Your Ground relates to just one of many ways that legislators are remaking the law governing defensive force. Indeed, one possible reason why self-defense immunity has escaped close scrutiny is that the typical focus is on the substantive elements establishing what lawful self-defense is, and especially the duty to retreat, while glossing over changes to how self-defense is adjudicated.³⁰

Yet while Stand Your Ground has garnered the most attention, advocates—and especially gun rights advocates—have pursued a deeper goal: insulating defensive gun use from legal oversight to the greatest extent possible. It is hard to overstate the degree to which the quick rise of self-defense immunity is due to lobbying by advocates for one deadly weapon (the gun) that is used in a minuscule percentage of self-defense confrontations.³¹ The loudest voices advocating for immunizing self-defense tend not to be those seeking criminal justice reform generally but rather those seeking to expand gun rights. A National Rifle Association (“NRA”) lobbyist, for example, drafted and led the campaign to institute self-defense immunity in Florida, which then became a model for states across the nation.³² The playbook for transforming self-defense into an immunity mirrors the one used to expand gun rights.³³ The overlap between gun rights and self-defense rights advocacy begs the question of whether any principle other than bestowing a benefit on gun users is guiding self-defense’s transformation from an affirmative defense into an immunity. Part II raises several possibilities, but it finds each too thin to justify such an immense procedural departure.

Part III then explores functional and institutional costs of immunizing private violence. Self-defense immunity sends a signal that people can judge for themselves when to deploy violence in the name of self-protection without exposure to prosecution, thereby encouraging unnecessary violence.³⁴ Meanwhile, by preventing the community, through the jury, from evaluating the lawfulness of defensive force, immunity jettisons the institution best suited for adjudicating self-defense.³⁵ In addition, immunizing self-defense creates an inefficient process by which courts consider the same witnesses and arguments that will be presented at trial during a separate pretrial hearing, setting up the sort of mini-trial that criminal procedure generally disfavors.³⁶

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

I. SELF-DEFENSE AND PRETRIAL CRIMINAL PROCEDURE

As Carl Sagan famously put it: “You have to know the past to understand the present.”³⁷ That maxim applies equally well for modern criminal law. This Part thus explores how self-defense was historically implemented in criminal procedure. It shows how the criminal justice system that the United States adopted from England was “trial-centered, in the sense that the legal system sought to resolve most criminal business at trial,”³⁸ including claims of self-defense. This Part then shows how that treatment continued in modern times until the recent effort to grant pretrial prosecutorial immunity for self-defense. The effort to recharacterize self-defense as an immunity invites a question about how immunities fit within the criminal justice system. This Part closes by addressing that question, showing how and why prosecutorial immunities are few in number and narrowly construed, and how and why their typical rationale does not apply to self-defense.

A. Historical Procedure

In 1841, in People v. McLeod, a New York court considered a habeas corpus petition for a defendant charged with murder.³⁹ The defendant sought his “unqualified discharge” on the basis of pretrial evidence that, among other things, he acted in lawful self-defense.⁴⁰ The court emphatically rejected the “extraordinary” request,⁴¹ noting the “absurdity of such a proposition in practice, and its consequent repudiation by the English criminal courts” whose law and procedure the United States inherited.⁴² Among other things, granting the defendant’s request “would be to trench on the office of the jury.”⁴³ As the court explained, “[a]n innocent man may be, and sometimes unfortunately is[,] imprisoned. Yet his imprisonment is no less lawful than if he were guilty. He must await his trial before a jury.”⁴⁴ That early American understanding of the appropriate time—and the appropriate entity—to adjudicate self-defense was firmly rooted in the English common law tradition.

During the seventeenth and eighteenth centuries in England, after a felony was charged, judges lacked authority to discharge defendants “without further trial.”⁴⁵ This was true regardless of whether the defendant was believed to be justified in engaging in the alleged offense conduct.⁴⁶ In the 1700s, judges began conducting a “pretrial inquiry” that “increasingly took on the trappings of a public hearing, which would ultimately come to be known as the preliminary hearing.”⁴⁷ At such hearings, however, the defense attorney was limited to challenging the prosecution’s case and was not entitled to present the defense’s case.⁴⁸

Classic common law treatises demonstrate how self-defense was just like other defenses in that it was a trial issue, not a pretrial issue. For example, Michael Foster, a judge on the King’s Bench and the author of a widely read treatise published in 1762, observed that the defendant raising self-defense “standeth upon just the same foot that every other Defendant doth: the Matters tending to Justify, Excuse, or Alleviate, must appear in Evidence before He can avail himself of them.”⁴⁹ And the opportunity to introduce that evidence was not until trial: “[W]hether the Facts alledged by way of Justification, Excuse, or Alleviation are True, is the proper and only Province of the Jury.”⁵⁰

Several years after Foster’s publication, William Blackstone completed “the preeminent authority on English law for the founding generation,”⁵¹ in which he explained that “it is incumbent upon the prisoner to make out, to the satisfaction of the criminal court and jury,” any “circumstances of justification, excuse, or alleviation.”⁵² The jury, Blackstone wrote, is “to decide whether the circumstances alleged [regarding self-defense or other affirmative defenses] be proved to have actually existed”; the judge then decides “how far [the proved circumstances] extend to take away or mitigate the guilt.”⁵³

Edward Hyde East, in his influential 1803 treatise, built on Blackstone’s and Foster’s accounts and elaborated on the lack of a pretrial process for asserting self-defense.⁵⁴ He wrote that “the jury alone [is] to decide” on “the truth” of the defendant’s allegations of “justification, excuse, or alleviation,” though the judge could consider such defenses when deciding on bail.⁵⁵ The McLeod case demonstrates that this current continued in the United States into the nineteenth century.⁵⁶ In his 1872 Commentaries on the Law of Criminal Procedure, Joel Prentiss Bishop described how a defendant entering a plea of not guilty at arraignment formally “puts himself upon the country,” or submits to a trial by jury.⁵⁷ The jury therefore remained the primary entity to decide disputed fact issues in criminal cases, including regarding self-defense.⁵⁸

Pretrial processes, like the preliminary hearing and the grand jury, generally did not provide a defendant an opportunity to introduce evidence of any particular defense.⁵⁹ As the 1918 edition of Francis Wharton’s treatise on criminal procedure observed, “the better opinion is that on a preliminary hearing the magistrate is to hold the defendant for trial” when “there is made out a probable case of guilt.”⁶⁰ Similarly, in a proceeding before the grand jury, “it is not the usage to introduce, in matters of confession and avoidance, witnesses for the defense, unless their testimony becomes incidentally necessary to the prosecution.”⁶¹

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

B. Modern Procedure

In 1971, Indiana passed a statute providing that “[n]o person . . . shall be placed in legal jeopardy of any kind whatsoever” after exercising lawful self-defense.⁶² Armed with that broad statutory language, one defendant sought a pretrial determination of the lawfulness of his claimed self-defense.⁶³ In Loza v. State, Indiana’s highest court recognized the novelty of the proposition before reacting much like the New York court did more than a century earlier in McLeod.⁶⁴ In particular, in order “to prevent absurdity,” the court held that the new law “neither creates a new remedy nor does it alter our procedure in any respect.”⁶⁵ In other words, self-defense remained a trial issue. The Loza court’s understanding was consistent with modern pretrial procedure.

Modern criminal procedure is heavily constitutional,⁶⁶ and an overview of the minimalist pretrial constitutional requirements for defenses (like self-defense) is therefore instructive. Under the Fourth Amendment, police officers must have probable cause before making an arrest,⁶⁷ and an impartial magistrate must review whether probable cause exists if the arrestee is to remain in custody.⁶⁸ The Supreme Court has described probable cause as “a fluid concept” that “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”⁶⁹ Admittedly, probable cause is “not a high bar.”⁷⁰

Importantly, moreover, probable cause does not require robust consideration of self-defense, if it requires any at all. The Third Circuit has held that “affirmative legal defenses”—like self-defense—“are not a relevant consideration in [a police] officer’s determination of probable cause.”⁷¹ In contrast, the Second Circuit has held that “a police officer’s awareness of the facts supporting a defense can eliminate probable cause.”⁷² That said, such evidence must be “conclusive” or first-hand,⁷³ and once an officer has probable cause to make an arrest, the officer does not constitutionally have “to investigate exculpatory defenses offered by the person being arrested or to assess the credibility of unverified claims of justification.”⁷⁴ Self-defense is not singled out for special treatment, but rather is treated like any other defense.⁷⁵

Subsequently, once a prosecutor makes a charging decision, there is “no federal constitutional right to any review” of that decision before trial “apart from the grand jury clause of the Fifth Amendment.”⁷⁶ The grand jury, meanwhile, is also guided by the standard of whether there is “probable cause necessary to initiate a prosecution for a serious crime.”⁷⁷ In United States v. Williams,⁷⁸ the Supreme Court held that, notwithstanding the constitutional obligation to disclose material exculpatory evidence to a defendant before trial,⁷⁹ the Constitution does not require prosecutors to disclose substantial exculpatory evidence to the grand jury, including regarding a potential claim of self-defense.⁸⁰ Looking back to the common law history, the Court explained that the grand jury is “an accusatory [body],” not “an adjudicatory body,” and its task is “to assess whether there is adequate basis for bringing a criminal charge.”⁸¹ Historically, “it has always been thought sufficient for the grand jury to hear only the prosecutor’s side.”⁸²

In some jurisdictions, by either law or internal policy, prosecutors are held to a higher standard than the federal constitutional baseline with respect to grand juries.⁸³ However, most such departures only require presenting “evidence that is clearly exculpatory” or “that would exonerate the accused or lead the grand jury to refuse to indict.”⁸⁴ Given the low bar for indictment—again, probable cause⁸⁵—even these jurisdictions stop far short of adjudicating self-defense before trial.

The Federal Rules of Criminal Procedure, which “almost always reflect the basic position adopted in a substantial number of states,”⁸⁶ provide other pretrial procedural steps apart from the grand jury, most notably a preliminary hearing.⁸⁷ Yet the preliminary hearing—consistent with historical practices⁸⁸—focuses on the prosecution’s evidence for the charged offense, and not evidence of self-defense or any other affirmative defense. Again, the standard is probable cause: the prosecutor need only show “probable cause to believe an offense has been committed and the defendant committed it.”⁸⁹ Moreover, the prosecutor gets to decide whether to have a preliminary hearing at all: if the prosecutor secures an indictment before a grand jury, then the defendant has no right to demand a pretrial hearing.⁹⁰

It thus has remained true under conventional criminal procedure that “[i]f a defendant claims innocence or has a defense,” including self-defense, “the proper body to decide the issue is the petit jury.”⁹¹ Recent reform efforts, however, characterize self-defense not as a “defense” but as an “immunity,” calling to mind exceptions to the general rule—a category of traditional immunities and other matters that are adjudicated pretrial. The next Section addresses such pretrial issues in relation to self-defense.

C. Immunities from Prosecution

Recent legislation declaring that self-defense is an immunity from prosecution has led judges and commentators to treat self-defense as a “true immunity” comparable to others.⁹² This classification invites questions about how other prosecutorial immunities operate, why they exist, and whether they share anything in common with self-defense.⁹³

Common immunities from prosecution include diplomatic immunity, judicial immunity, legislative immunity, executive immunity, immunity after compelled testimony, and immunity bestowed on the basis of a plea agreement.⁹⁴ These are “defenses” in the sense that they are asserted by a defendant as a way to avoid a conviction. But their essence goes beyond ordinary defenses because immunities operate to exempt a person from the mandate of the criminal law, not to justify otherwise criminal conduct because of the circumstances surrounding that conduct.⁹⁵ Black’s Law Dictionary cross-references “impunity” in its definition of “immunity,” which similarly denotes an “[e]xemption from punishment.”⁹⁶ The example that Black’s uses to describe impunity relates to diplomatic immunity: “because she was a foreign diplomat, she was able to park illegally with impunity.”⁹⁷ Immunity gets asserted early in the criminal process to head off the prosecution of someone possessing such an exemption.

As such, prosecutorial immunities are a remarkable departure from the ordinary criminal process described above; moreover, they are in tension with a basic, distinctive function of criminal law. Criminal law is traditionally viewed as a means to declare “a formal and solemn pronouncement of the moral condemnation of the community.”⁹⁸ The community’s role in implementing the criminal law—through a public prosecution and jury trial—is intertwined with that function. It is no coincidence that the prosecutor in a criminal case is called “The People” in many jurisdictions.⁹⁹

Prosecutorial immunity dilutes the formal power of the public in assessing an alleged crime, and it thus raises special concerns in criminal law that might exist only to a lesser extent in the civil context, where immunity is sometimes granted, for example, primarily to avoid costs.¹⁰⁰ In the criminal context, immunities tend to be justified by a narrower, more compelling rationale. As a general matter, only when avoiding the criminal justice process is a defense’s entire raison d’être is it exempted from prosecution as an “immunity.” Put differently, the public policies underlying the above-mentioned criminal law immunities necessarily require the avoidance of prosecution and trial.

Consider diplomatic immunity. A key reason why we immunize conduct by foreign diplomats in the United States is to protect American diplomats outside the United States from exposure to foreign court systems.¹⁰¹ There is no way to satisfy that goal through an affirmative defense at trial. Consistent with the purpose of diplomatic immunity, it also does not protect diplomats from sanction upon return to their home countries.¹⁰² Judicial, legislative, and executive immunities are similarly geared to specific policy rationales necessitating avoidance of a trial. Each protects “governmental officials from personal liability arising from their official duties” because of the strong interest in facilitating their ability to serve the public.¹⁰³ The Supreme Court has explained how legislative immunity enables “representatives to execute the functions of their office without fear of prosecutions.”¹⁰⁴ An added component of legislative and judicial immunity is to preserve the balance of power between the three branches of government by insulating legislative and judicial officers from prosecutions by the executive branch.¹⁰⁵ Again, interests that these governmental immunities serve cannot be furthered—and indeed would be undermined—if they were treated as defenses to be proved at trial. The remarkable benefit of immunity is thus granted because of strong public policy arguments that inherently entail a bar to prosecution.

How does self-defense relate to immunities? Self-defense is not about trial avoidance but exculpation.¹⁰⁶ Like other justification defenses and unlike immunities, it can be adjudicated in the traditional way—through trial—without undermining its rationale.¹⁰⁷ Moreover, unlike typical immunities, self-defense furthers interests that are in fact undermined by short-circuiting a prosecution and trial.

T. Markus Funk has identified seven values served by self-defense law: protecting the state’s monopoly on force, protecting the individual attacker’s right to life, maintaining the equal standing between people, protecting the defender’s autonomy, ensuring the primacy of the legal process, maintaining the legitimacy of the legal order, and deterring attackers.¹⁰⁸ Immunity arguably advances the interests in protecting a defender’s autonomy or deterring attackers. But it runs roughshod over other values, especially self-defense law’s dual roles of ensuring the primacy of the legal process and maintaining the legitimacy of the legal order. Both roles underlie the idea that “the authority to punish and condemn” remain with “the liberal state,” not with individual citizens.¹⁰⁹ In his discussion of ensuring the primacy of the legal process, Funk notes that “[t]o the extent possible, . . . the justice system must promote the resolution of disputes in the courts.”¹¹⁰ Immunity, however, dilutes the state’s oversight of defensive violence and, perhaps worse still, undermines the community’s role through the jury to assess the lawfulness of violence—a point addressed in greater depth in Part III. In other words, in contrast to typical immunities, whose purposes areoverall advanced by providing an exemption from prosecution, key values underlying self-defense law are undercut by providing such an exemption.

Immunities, of course, are not the only matters that receive pretrial resolution. Some defenses—like those based on statutes of limitations, double jeopardy, and speedy trial requirements—are also adjudicated in advance of trial. Other issues, like competency to stand trial, also receive pretrial determination. In the effort to implement self-defense immunity, some have analogized self-defense to those other pretrial issues even though they are not technically “immunities.”¹¹¹ Yet these issues, like traditional immunities, protect interests that necessarily call for avoiding trial and thus are dissimilar to self-defense. Statutes of limitations affirm the belief that “[a]fter a period of time, a person ought to be allowed to live without fear of prosecution.”¹¹² Double jeopardy protections are “designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”¹¹³ Speedy trial guarantees mandate “the Government [to] move with the dispatch that is appropriate to assure [the defendant] an early and proper disposition of the charges against him.”¹¹⁴ And resolving competency questions must also happen before a trial since the entire point is to determine the defendant’s “ability to participate meaningfully in the trial.”¹¹⁵

In connection with competency hearings, one exception to the general rule of limiting pretrial criminal matters to those that inherently require pretrial determination involves the insanity defense. Courts tend to draw a clear line between the question of competency to stand trial, which is adjudicated in advance of trial, and insanity at the time of the offense, which is a trial issue.¹¹⁶ As a general matter, therefore, an insanity defense is submitted to the fact finder at trial and is not decided at a pretrial hearing.¹¹⁷ However, such bifurcation is not universally followed. Pennsylvania law, for example, grants a judge the discretion to “hear evidence on whether the person was criminally responsible for the commission of the crime charged” so long as the judge is already conducting a competency hearing.¹¹⁸

In that context, judicial economy might weigh in favor of considering evidence of both competency and insanity at a pretrial hearing. At least one other state—North Carolina—gives courts discretion to hold a pretrial insanity hearing so long as the state consents.¹¹⁹ That exception is highly limited in that courts and prosecutors can override a defendant’s request for a hearing, making it quite different from self-defense immunity.¹²⁰ And in Washington, a defendant may request a pretrial insanity determination, but the statute notes that any acquittal under the statute cannot be used to contest mental health detention—a possibility that distinguishes insanity and self-defense.¹²¹

This Section has set out the limited nature of criminal law immunities and other pretrial matters and offered a normative explanation, rooted in the criminal law’s distinctive role, for that narrow scope. Below, the Article considers additional arguments for and against expanding immunities to include self-defense.¹²² First, however, the Article turns to the story of how self-defense immunity arose in the first place.

II. THE PUSH TO MAKE SELF-DEFENSE EXCEPTIONAL

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

A. Inauspicious Beginning in Colorado

Accounts of recent self-defense reforms tend to begin with Florida’s 2005 Stand Your Ground legislation.¹²³ Indeed, Florida’s law served as a model that influenced legal changes across the country.¹²⁴ But the first example of a self-defense immunity statute was not Florida’s but rather a last-minute compromise bill from Colorado twenty years earlier.¹²⁵

The Colorado law did not, at first, provide for prosecutorial immunity. Rather, the bill initially added a legal presumption to self-defense law to enhance the scope of lawful self-defense against home intruders.¹²⁶ To be sure, homeowners already had an expanded right to self-defense through the “Castle Doctrine,” which generally removed a person’s duty to retreat before using lethal defensive force in the home.¹²⁷ However, Colorado policymakers wanted to do more, so they borrowed from a California statute that a person confronting a home intruder is legally “presumed” to fear for their life.¹²⁸ That presumption would satisfy one requirement of lethal defensive force—that the defender reasonably perceives a threat of death or serious bodily injury¹²⁹—thereby relieving the defendant of the need to produce evidence of such heightened fear.

Prosecutors objected because they “believed that it would be very difficult, if not impossible, to rebut the presumption in favor of the homeowner.”¹³⁰ There was little public debate regarding the subsequent compromise that became the nation’s first law providing immunity from prosecution for self-defense.¹³¹ Yet the law appears to have imported a civil immunity provision enacted in Colorado in 1982 into the criminal law.¹³²

By way of background, in 1981, a Colorado jury awarded a plaintiff more than $300,000 in damages from a defendant for gunshot injuries incurred while the plaintiff was burglarizing the defendant’s shop.¹³³ The public outcry was swift and the shop owner’s lawyer helped to draft a bill immunizing people like his client from civil damages.¹³⁴ The resulting law barred payouts for personal injuries “sustained during the commission of or during immediate flight from” a felony if the person inflicting the injury reasonably believed that physical force was “reasonable and appropriate” to prevent both injury and the commission of the felony.¹³⁵ The wisdom of such civil immunity is beyond the scope of this Article; more important for present purposes is that it did not address immunity from criminal liability. As discussed above, criminal liability is geared toward vindicating public harms in a way that civil liability is not.¹³⁶ Nonetheless, the criminal immunity bill that later passed in Colorado in 1986 mirrored the earlier civil immunity law. The law provided that a person “shall be immune from criminal prosecution” if the person used defensive force and four conditions were met relating to an unlawful home intrusion.¹³⁷

The 1986 law’s legislative sponsors and the negotiating prosecutors appeared to have different beliefs about what the new law actually accomplished. The sponsors appreciated that they had achieved “greater protection [for defendants] than a presumption for the homeowner as part of an affirmative defense at trial.”¹³⁸ The negotiating prosecutors, in contrast, believed that they gave up nothing. Denver’s district attorney, for example, publicly commented that the “compromise is just a clarification of existing law.”¹³⁹

In that vein, some prosecutors tried to argue in subsequent litigation that the new provision could not possibly grant true immunity for self-defense.¹⁴⁰ Among other things, they pointed out that the provision appears alongside other affirmative defenses in Colorado’s criminal code.¹⁴¹ When the issue reached the Colorado Supreme Court, however, the justices rejected the prosecutors’ interpretation that self-defense remained an ordinary defense to be proved at trial, noting that “[i]t must be presumed that the legislature has knowledge of the legal import of the words it uses.”¹⁴² The plain meaning of “shall be immune from criminal prosecution” in the statute, they concluded, was “to bar criminal proceedings against a person for the use of force under the circumstances set forth” in the law.¹⁴³ In the course of reaching that holding, the justices acknowledged what went unsaid during the legislative hearings: that “the immunity created by [the law] is an extraordinary protection which, so far as we know, has no analogue in Colorado statutory or decisional law.”¹⁴⁴ In fact, immunity for self-defense in criminal cases does not appear to have existed anywhere else in the country.¹⁴⁵

Perhaps because of its unusualness, or because it was an eleventh-hour deal seemingly unrooted in any principle other than compromise, Colorado’s self-defense immunity law was not immediately enacted elsewhere. In 1987, for example, Oklahoma’s governor vetoed legislation similar to Colorado’s, which subsequently passed after the immunity provision was removed.¹⁴⁶ Nonetheless, Colorado’s immunity provision was on the books, providing a template for future efforts.

B. Auspicious Effort by Gun Rights Advocates

The Colorado self-defense immunity law was not instituted at the behest of gun rights advocates or other lobbyists, but rather, it arose as a compromise with prosecutors after a locally elected leader perceived a need for expanding self-defense protections against home intruders.¹⁴⁷ In more recent times, however, gun rights advocates and the NRA in particular have led a campaign to expand not only the right to have and carry guns but also to brandish and shoot them when gun owners feel threatened.¹⁴⁸ Most public attention to this campaign has centered around Stand Your Ground, but looking closely at testimony and commentary reveals a deeper ambition: immunizing defensive gun use from prosecution.

The parallels between the NRA’s lobbying for gun rights and its lobbying for self-defense immunity is striking. Gun rights advocates frequently claim that the right to keep and bear arms is being disrespected in the courts and therefore that the Second Amendment needs more protection.¹⁴⁹ The claim with self-defense is similar: as one gun rights advocate put it, self-defenders are “victimized . . . in court.”¹⁵⁰ The executive director of the NRA’s Institute for Legislative Action lamented that “people who defend themselves are more likely to be charged with crimes and, as the old sayings go, be forced to ‘tell it to the judge’ and ‘let the jury sort it out.’ ”¹⁵¹ That creates a problem, he explained, because “a murder trial puts the defendant at risk of a long prison sentence—or worse.”¹⁵² The NRA lobbyist most directly involved with Florida’s landmark Stand Your Ground bill in 2005 was likewise moved by this notion.¹⁵³ A basic problem, in her view, was that people were “being arrested” and “prosecuted . . . for exercising self-defense that was lawful.”¹⁵⁴

An answer to that feeling of disregard for self-defense was to transform it from an affirmative defense to an immunity. The NRA devised a self-defense immunity law¹⁵⁵ and found legislative sponsors in Florida who agreed with the complaint that, as one put it, “law-abiding citizens” who “protect themselves [are] in a posture that they have to defend themselves from their own government.”¹⁵⁶ The measure passed in 2005 and went even further than Colorado’s, extending prosecutorial immunity to all self-defense—not just self-defense in the context of home invasions.¹⁵⁷ In particular, the law provided that someone using lawful self-defense is “immune from criminal prosecution,” with “criminal prosecution” defined to “include[] arresting, detaining in custody, and charging or prosecuting the defendant.”¹⁵⁸

Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Id. The law, formally called, “An act relating to the protection of persons and property,” 2005 Fla. Laws 199, also enacted Stand Your Ground, 2005 Fla. Laws 202, and two presumptions making it easier to defend deadly defensive force in a person’s home and cars, see id. (creating Fla. Stat. § 776.013(1), (4)).

After some Florida judges placed the burden on the defendant to prove self-defense at a pretrial hearing, legislators stepped in to strengthen the immunity provision by clarifying that the burden of proof is on the prosecutor to disprove self-defense before trial by clear and convincing evidence.¹⁵⁹ That standard is much higher than the probable cause standard that prosecutors must satisfy to indict, which, as discussed above, is the primary focus of traditional and modern pretrial screening.¹⁶⁰ And there have been efforts to increase the burden even more, such as by requiring the prosecutor to disprove self-defense beyond a reasonable doubt—the same burden borne by the prosecutor at trial.¹⁶¹

Unlike Colorado’s law, which failed to attract buy-in elsewhere, Florida’s law was aggressively promoted by the NRA and the conservative American Legislative Exchange Council (“ALEC”),¹⁶² which described the need to “[p]rotect[] citizens from prosecution or liability if they use a firearm in self defense [sic] inside or outside their homes.”¹⁶³ Similar laws were introduced in states across the country,¹⁶⁴ and the NRA-promoted sentiment that civilians asserting self-defense should have a path to immunity was frequently invoked. When legislators debated Iowa’s self-defense law, one objected that a person must “spend eternity in prison trying to defend themselves” after being put “in that untenable situation where they have to make that snap decision and defend themselves or another from an aggressor.”¹⁶⁵ In Ohio, a legislative witness inveighed that “[t]he mere fact of acting justly in self-defense should not result in dragging folks who used defensive force in accordance with Ohio law through the mud, costing them valuable time and resources.”¹⁶⁶ In South Carolina, a self-defense bill’s sponsor argued that “the State should have to prove you did something wrong before they can send you to jail” to await trial in homicide cases.¹⁶⁷ And in Utah, an advocate complained that people should not have to “go through the crucible of a self-defense trial.”¹⁶⁸ Ultimately, after the passage of Florida’s law, more than twenty other states passed some sort of self-defense reform, such as Stand Your Ground,¹⁶⁹ with at least thirteen enacting self-defense immunity.¹⁷⁰

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

C. Searching for a Rationale

A common assertion among advocates for self-defense immunity is that awaiting trial is “not giving the right to self-defense the consideration it deserves.”¹⁷¹ But why not? After all, awaiting trial is the traditional process and the one afforded other defenses. In his systematic analysis, Paul Robinson identifies dozens of other affirmative defenses that bar conviction.¹⁷² What is the basis for treating self-defense differently than these other defenses? Though legislative debates offer no consistent rationale, four can be teased out: restoring procedural protections for self-defense lost to history, stopping politically motivated prosecutions of self-defenders, vindicating the notion that self-defense is a “natural right,” and reducing defense costs for gun owners. None of these is as strong as the rationale for traditional immunities—an inherent need for pretrial adjudication.¹⁷³ Moreover, each is unpersuasive on its own terms.

Some advocates argue that prosecutorial immunity restores self-defense to an exalted place from a bygone era. In Florida, for example, a witness testified that making the prosecutor disprove self-defense before trial “recover[s] a right that we as citizens lost to defend ourselves from criminals.”¹⁷⁴ In Utah, a witness testified that “Utah used to have a robust preliminary hearing procedure” as it relates to self-defense, and that immunity “restores some much-needed balance.”¹⁷⁵

A related move has been to couple self-defense immunity with Stand Your Ground and then defend both on the basis of Stand Your Ground history. For example, the NRA has said that Stand Your Ground laws, such as Florida’s (which includes an immunity provision), “focus on the narrow issue of whether and to what extent a person who would otherwise have a right to self-defense forfeits that right by not first attempting to flee the confrontation.”¹⁷⁶ With omnibus bills like Florida’s so purportedly reduced, the NRA then asserted that removing the duty to retreat has “a pedigree in American law dating back over 150 years.”¹⁷⁷ Other advocates have similarly ignored everything in recent self-defense legislation other than Stand Your Ground and then defended the entirety on the basis of Stand Your Ground history.¹⁷⁸

Nostalgia is a staple of gun rights advocacy,¹⁷⁹ so it is unsurprising to see appeals to history when it comes to self-defense immunity. Yet, as shown in Section I.A, there is no basis in Anglo-American legal tradition for immunizing private defensive violence. Treating self-defense as exceptional through immunity is a thoroughly modern innovation.

An alternative rationale is that people exercising lawful self-defense are targeted for “political” prosecutions.¹⁸⁰ Prosecutors have vigorously rejected that narrative, and advocates for immunizing self-defense have failed to offer convincing evidence of political prosecutions, let alone the sort of systemic abuses that would justify a radical change to self-defense law. Advocates for both of the first immunity statutes—in Colorado (1986) and Florida (2005)—could not point to a single example of an improper prosecution.¹⁸¹ Rather, the chief NRA lobbyist for the Florida law ultimately contended that whether bad prosecutions have been brought is “not relevant.”¹⁸²

In subsequent efforts to immunize self-defense, advocates have invoked the prosecutions of George Zimmerman for the shooting death of Trayvon Martin and Rittenhouse for the Kenosha incident as exemplars of political prosecutions justifying self-defense immunity.¹⁸³ Looking to Zimmerman’s prosecution is somewhat ironic given that it took place in Florida after Florida adopted its 2005 immunity provision and Zimmerman opted not to have a pretrial immunity hearing.¹⁸⁴ Furthermore, in both cases the juries reached verdicts only after extensive deliberation. The lead homicide investigator in the Zimmerman case recommended charges but was initially overruled.¹⁸⁵ Many perceived the declination of charges as reflecting racial bias, as Martin was an unarmed Black teenager.¹⁸⁶ A special prosecutor ultimately brought charges and a trial was held.¹⁸⁷ The law considered by Zimmerman’s jury did not include how initial aggressors have a limited right to self-defense, since the judge declined to instruct the jury on the initial aggressor doctrine;¹⁸⁸ perhaps that would have made a difference in the verdict. Others have argued that prosecutors in both cases made strategic errors that may have affected the outcomes.¹⁸⁹ In the Zimmerman trial, half of the jurors reportedly wanted to convict but changed their minds.¹⁹⁰Deliberations in both cases extended over multiple days before the jurors returned not guilty verdicts.¹⁹¹

Of course, in an ideal world, prosecutors would have perfect clarity into guilt and innocence, and prosecutions that result in acquittals after trial would never be brought. That, of course, is not realistic and is the reason why affirmative defenses and trials exist.¹⁹² Moreover, in light of the radical nature of the change wrought by singling out self-defense for immunity, if political prosecutions are the justification, then advocates should put forth more and better examples.

Another rationale that advocates raise is that self-defense is philosophically or morally distinct as a natural or human right.¹⁹³ The Republican Party platform refers to the right of self-defense as “God-given.”¹⁹⁴ And the argument that self-defense is a justification and not an excuse is often explained by referencing moral philosophy.¹⁹⁵ But these understandings of self-defense as a natural, divine, or human right have long existed in harmony with adjudication at trial. Blackstone, for example, referred to self-defense as a natural right,¹⁹⁶ but he believed, as described above, that self-defense is squarely a jury question.¹⁹⁷ Saying that self-defense is a natural right does not rationalize treating it as an immunity any more than it rationalizes erasing the common law elements of necessity and proportionality that have long guided self-defense decision-making.¹⁹⁸

That leaves the fourth explanation, which perhaps arises most often: that gun owners should not have to pay typical criminal defense costs if they have a claim of self-defense. The NRA’s former executive director noted that “the legal fees . . . can easily top $50,000.”¹⁹⁹ A representative of a gun rights advocacy group in Wyoming expressed a similar view: “We don’t want to have a gun owner bankrupted by the criminal process just because he had to use a firearm in self-defense.”²⁰⁰ And in Utah, an advocate said, “I have people calling me all the time [and saying] I’m afraid it will ruin me if I have to defend myself.”²⁰¹ The legislative sponsor of the Utah bill recounted how a person leaving a gun carry class remarked, “I would rather die than financially ruin my family” by using a gun in self-defense.²⁰²

The cost of criminal defense is a concern for all defendants, not just those asserting that violent conduct was justified as self-defense, and cost typically is not a sufficient rationale for prosecutorial—as opposed to civil—immunity.²⁰³ If self-defense, alone among affirmative criminal law defenses, is to be immunized, it warrants a much stronger rationale than cost saving for gun owners. This is especially true in light of the costs incurred as a result of self-defense immunity that are discussed in the next Part.

III. THE COSTS OF IMMUNIZING PRIVATE VIOLENCE

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

A. More Unlawful Violence (and Increased Impunity)

The message that self-defense immunity sends is troubling: that people can engage in defensive violence that they believe is lawful with less legal oversight. Both logic and data suggest that this message could bring about more assaults and homicides because of the impunity it signals—and in fact provides. Frederick Schauer has observed that “[q]uite often, officials who are immune for one reason or another from formal legal sanctions violate the law with some frequency.”²⁰⁴ One can expect the same result from self-defense immunity, except for a much larger swath of the population; relatively few people receive official immunity, but everyone is entitled to assert self-defense when defending against criminal charges.²⁰⁵

Rafi Reznik has recently argued that the modern understanding of self-defense as a justification, not an excuse, can signal societal acceptance of the alleged offense conduct in a way that promotes more violence;²⁰⁶ immunity sends an even more powerful signal. As Reznik describes, in the dominant view, a justification indicates that “the wrongfulness of the act is negated.”²⁰⁷ Excuses, on the other hand, do not negate the wrongfulness of the conduct but “negate the blameworthiness of the actor.”²⁰⁸ The upshot is that “[j]ustifying self-defense,” as opposed to excusing it, “can . . . amount to an encouragement and it can even amount to an imperative.”²⁰⁹ Reznik argues that self-defense should be considered an excuse, which it was under English common law.²¹⁰ On the ground, however, the trend is going in the opposite direction: jurisdictions are granting immunity to self-defenders, which goes even further down the path toward encouraging the use of violence than considering self-defense a justification.²¹¹

This trend is especially problematic because people are often wrong about the lawfulness of defensive force. One study found, for example, that a majority of self-reported defensive gun uses are likely illegal.²¹² People “view [a] hostile encounter from their own perspective; in any mutual combat both participants may believe that the other side is the aggressor and that they themselves are acting in self-defense.”²¹³ A particular incident from the summer of the Rittenhouse shooting is exemplary.

Two months before the Rittenhouse shooting, Mark and Patricia McCloskey stood outside their St. Louis, Missouri, mansion as racial justice protesters marched nearby.²¹⁴ Both were captured on video screaming angrily and wielding firearms: Mr. McCloskey, an AR-15–style rifle, and Ms. McCloskey, a handgun that she pointed at one protester after another.²¹⁵ In Missouri, it is a crime to “exhibit[], in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.”²¹⁶ A local prosecutor charged the couple with violating that statute.²¹⁷ In their defense, the couple asserted that their conduct was justified to protect themselves and their property.²¹⁸

Speaking at the 2020 Republican National Convention (the McCloskeys, like Rittenhouse, became celebrities on the political right for their gun use),²¹⁹ Mr. McCloskey, a lawyer, expressed outrage that the prosecutor “actually charged [them] with felonies for daring to protect [their] home.”²²⁰ Then, in a remarkable move, Missouri’s attorney general urged dismissal of the local charges on the basis of the sentiment underlying immunity: “Missourians should not fear exposure to criminal prosecution when they use firearms to defend themselves and their homes from threatening intruders.”²²¹ In the end, however, the couple effectively conceded that they were not lawfully defending themselves when they pled guilty to the crimes of assault and harassment, thereby waiving any claim for self-defense.²²² In other words, despite their confident assertions that they were legally justified in their actions, they ultimately admitted that they had no legal justification for their conduct.²²³

Unlawful defensive force imposes an especially troubling risk to Black men and women, like many of those marching in front of the McCloskey house, who are mistaken as threats all too frequently. Data has consistently shown that Black people are more likely to be misperceived as a threat than white people.²²⁴ According to L. Song Richardson and Phillip Atiba Goff, this is in part because Black people “serve as our mental prototype (i.e., stereotype) for the violent street criminal.”²²⁵ A prosecution and trial can separate out biased and unreasonable threat perceptions from unbiased and reasonable ones better than any individual can in the moment.²²⁶ And getting it right is important for ensuring a fair and just implementation of criminal law.

Well-intentioned people can have flawed perceptions of lawfulness, but encouraging restraint for defensive violence through the threat of prosecution and punishment is even more important for those who are ill-intentioned. For some people, “genuine and sanction-independent obedience [to the law] is rare.”²²⁷ In that circumstance, “coercion through the threat of sanctions emerges as the principal mechanism for securing the obedience that turns out to be so often necessary.”²²⁸ Immunity lessens the law’s constraining force and risks that someone prone to violence will construe immunity as a license to commit violence.²²⁹

In this regard, it is notable that a study of the effects of Colorado’s 1986 immunity law found that those invoking immunity “used force (sometimes deadly force) as much out of anger as self-defense.”²³⁰ Moreover, the legal change primarily benefited defendants other than the intended beneficiaries—homeowners confronting stranger intruders.²³¹ In the years immediately following the enactment, the only “strangers” who intruded into homes and faced defensive force triggering immunity were police officers.²³²

Unfortunately, more recent empirical studies on the impact of changes to self-defense law do not distinguish between the effect of various simultaneous changes, such as Stand Your Ground, presumptions, and immunity. Several such studies have shown that self-defense reforms that include an immunity provision correlate with more violent crime.²³³ One study found that in the decade following Florida’s 2005 legislation, “monthly rates of homicide increased by 24.4% and monthly rates of homicide by firearm by 31.6%.”²³⁴ Another found that the law was associated with a 44.6% increase in adolescent firearm homicides.²³⁵ In February 2020, the U.S. Commission on Civil Rights released a report finding no evidence of crime deterrence and an increase in homicide rates in states that adopted such laws.²³⁶ A commissioner recommended rejecting self-defense immunity because it “remove[s] incentives to mitigate or reduce the use of deadly force by protecting the claimant regardless of the collateral consequences.”²³⁷ Yet, as noted, the power of these studies as regards the impact of self-defense immunity is limited and, hopefully, future empirical studies will seek to isolate the effect of self-defense immunity.

A corollary to the signals sent by self-defense immunity is that sometimes immunity can in fact hinder or prevent a conviction of someone who engages in unlawful violence. The analysis of cases soon after Colorado passed its self-defense immunity law in 1986 found that the statute likely led to an acquittal in one case that would otherwise have been a probable conviction, as well as decisions not to prosecute in others.²³⁸ The district attorney for a single county in Kansas has reported “declin[ing] to file charges against thirty-three people based on self-defense immunity,” thirty of which were deemed homicides by the coroner.²³⁹ Three additional cases were charged by the district attorney but dismissed on self-defense immunity grounds by a judge.²⁴⁰

Those arguing in support of self-defense immunity do not contest, and implicitly concede, much of this analysis. They acknowledge that the risk of having to defend against a prosecution causes gun owners to hesitate before deploying lethal force, and they seek to reduce such hesitation.²⁴¹ However, a cost of immunizing self-defense is to transform the signals sent by conventional self-defense law in a way that likely leads to more unlawful, and at times discriminatory, violence. Furthermore, immunizing self-defense erects an obstacle to achieving a basic goal of the criminal justice system: punishing those who commit crimes of violence.

B. Fewer Juries in Matters of Community Importance

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

Today, the jury is most often discussed solely in the context of defendants’ rights,²⁴² but the jury’s importance to society is actually far deeper. At the nation’s founding, Anti-Federalists were adamant about protecting the institution of the jury because, even more than protecting the defendant, the jury integrated “the people in the administration of government.”²⁴³ As Laura I. Appleman has put it, “the right of the jury trial” is about “the participation of the citizenry in [the] rule of law.”²⁴⁴ This feature of the jury—as a key means of community involvement in the law’s implementation—is reflected in the fact that a defendant has no federal constitutional right to waive a jury trial, even if a defendant can demand one.²⁴⁵ Prosecutors and courts generally can demand jury trials even over the defendant’s objection.²⁴⁶ Today, as in the past, there is a “strong preference for jury trials on all elements of a criminal case.”²⁴⁷

Accuracy is one important interest served by this longstanding commitment to juries, because “[j]uries . . . are considered the best deciders of fact.”²⁴⁸ This is in no small part because juries “are more representative of their communities than judges . . . . They better represent various races, socio-economic classes, various levels of formal education, differing religions, and a broader spectrum of political engagement than do judges.”²⁴⁹ This is especially true when the task is assessing “matters reflecting their communities’ values,”²⁵⁰ like self-defense.

Self-defense is inherently fact-based, calling for answering difficult questions about the reasonableness of a defendant’s perception of—and violent response to—a threat. Evaluating the lawfulness of self-defense calls for an assessment of whether defensive force was reasonably necessary and proportionate to a reasonably perceived threat.²⁵¹ Criminal law scholars devise complex classifications in an attempt to capture the permutations of defensive confrontations and how they intersect with the law of self-defense,²⁵² but it is impossible to resolve self-defense claims through any sort of rote analysis. It is necessary to apply community values and experiences to assess reasonableness, and judges, unlike juries, are often removed from both.²⁵³ Simply because a jury is comprised of a cross-section of the community, the jury will incorporate perspectives and experiences that lead to a fair resolution of disputed facts more so than a single judge who is likely insulated from the circumstances that gave rise to the violence.

Moreover, importantly, community resolution of the difficult factual questions that go into self-defense can legitimate the law and promote acceptance of outcomes.²⁵⁴ Precisely because “juries have the power to incorporate societal norms and values into their decisions . . . citizens can view these determinations as legitimate and as not influenced by the political leanings of government-employed judges.”²⁵⁵ That sense of legitimacy, in turn, can help a community accept a case’s outcome and move past the trauma of community violence.

For example, after the killing of Trayvon Martin, the quick decision not to prosecute George Zimmerman led to mass protests across the country.²⁵⁶ Many thought that the declination of charges suggested that “the criminal justice system was indifferent to Trayvon Martin’s death and was disinclined to try to provide justice.”²⁵⁷ The fact that Martin was a Black teenager triggered speculation that race was part of the reason for not immediately prosecuting Zimmerman.²⁵⁸ When a special prosecutor subsequently charged Zimmerman, the move brought great relief. Martin’s mother commented that “[w]e simply wanted arrest, nothing more, nothing less, and we got it.”²⁵⁹ Although many people who wanted a prosecution may have been disappointed by the jury verdict of not guilty, that the process was followed, and that the decision was rendered by a jury certainly lowered the temperature of the earlier protests.

Conversely, a prosecution’s dismissal because of immunity sends a very different signal to the community. Victims and family members can never know how a jury of their peers would decide on the legality of defensive force. Indeed, a homicide case in Utah elicited the opposite reaction after the defendant was discharged because of self-defense immunity.²⁶⁰ A family member of the victim of the alleged homicide exclaimed in court: “We all feel the justice system has no doubt failed us.”²⁶¹ Another said: “This has forever changed my outlook on the system and the faith that I once had that justice would prevail.”²⁶² Similarly, in Kansas, after a prosecutor declined to bring homicide charges against juvenile detention officers citing a self-defense immunity law, the victim’s family viewed the decision as “yet another instance of an unarmed Black teenager killed by law enforcement with impunity” and without “even an ounce of accountability.”²⁶³ Likewise, a community partnership expressed “outrage[]” at the declination of charges, viewing it as a “blatant disregard for the life” of the victim.²⁶⁴

The denouncements above demonstrate that self-defense immunity can not only prevent a community from healing, but can also undermine the rule of law and faith in the judiciary. In this regard, it is notable that the criticism in such cases is not at the legislature for passing a self-defense immunity bill, or at the governor for signing it, but rather at the “justice system” that “no doubt failed.”²⁶⁵ Moreover, under the law of self-defense, the harm caused by defensive violence is supposed to “remain[] a legally recognized harm which is to be avoided whenever possible,”²⁶⁶ and the conduct underlying self-defense is supposed to “remain[] generally condemned and prohibited.”²⁶⁷ Immunity dilutes the force of such legal values and erodes trust that the judicial system will enforce them.

C. Inefficient Mini-Trials

One counterargument to concerns about self-defense immunity is that it will only weed out rare, egregious prosecutions. In some places where self-defense immunity is already enacted, the defendant has the burden of proving self-defense at an immunity hearing,²⁶⁸ or, in the alternative, the prosecutor must only show probable cause that self-defense did not justify the defendant’s violence.²⁶⁹ In those places, most self-defense cases might still proceed to trial. This, however, raises a question about judicial economy.

To be sure, the likely trajectory for self-defense immunity is for legislators to strengthen it, similar to how Florida recently placed the burden on prosecutors to disprove self-defense by clear and convincing evidence at a pretrial hearing.²⁷⁰ Since Florida has led the way for NRA-backed initiatives to be subsequently passed elsewhere,²⁷¹ it is no surprise that when Utah passed its self-defense immunity law in spring 2021, a legislative sponsor said the law “basically copie[d] and paste[d]” the clear and convincing evidence standard “from Florida[’s] statute.”²⁷² Furthermore, even in jurisdictions with lesser prosecutorial immunity standards currently, immunity still sends troubling signals that could increase violence.²⁷³

Setting aside these concerns and focusing narrowly on the argument that immunity will have little impact on prosecutions outside of rare cases, a question arises: Why undertake an expensive immunity hearing that will mirror the eventual trial at all? Two goals of the rules governing criminal procedure are to “secure simplicity of procedure” and “to eliminate unjustifiable expense.”²⁷⁴ Self-defense immunity runs counter to those goals.

In this regard, it is helpful to contrast self-defense with other pretrial issues discussed above,²⁷⁵ which generally implicate evidence that is both clear-cut and distinct from proof of guilt or innocence. Whether too much time has passed between criminal conduct and a prosecution so as to violate a statute of limitations, for example, may call only for simple arithmetic unrelated to the alleged offense conduct.²⁷⁶ The same could be said for speedy trial issues.²⁷⁷ Determining whether a pending prosecution is substantially the same as an earlier one, thereby violating double jeopardy protections, calls for a comparison of the two prosecutions.²⁷⁸ And determining whether diplomatic immunity attaches often only requires inquiring into the defendant’s status as a diplomat and whether the sending state has waived the immunity.²⁷⁹

Yet proving or disproving whether self-defense exculpates requires consideration of the same witnesses and evidence that will be introduced at trial to prove the charged crime. Indeed, this is implicit in affirmative defenses (like self-defense), which contend that something happening at the time of the alleged offense justified or excused the underlying conduct. Resolving the lawfulness of self-defense ahead of trial would call for delving into the circumstances surrounding the charged offense and receiving testimony from the same witnesses of the alleged crime who will testify at trial. Self-defense immunity hearings, when they do not result in a dismissal, involve “mini-trials of the evidence in advance of the actual trial” that criminal procedure typically seeks to avoid.²⁸⁰

To be sure, adding costs and inefficiencies is not always inappropriate. Many scholars agree that grand juries are ineffective at eliminating bad prosecutions²⁸¹ and that the plea bargain system that is used to resolve the vast majority of criminal prosecutions creates injustices.²⁸² Some scholars and advocates have thus suggested reforms that would be costly, like enhancing internal prosecutorial screening²⁸³ or devising something akin to summary judgment for criminal procedure.²⁸⁴ But self-defense immunity is extrinsic to that broader conversation, which is about how to improve the pretrial process for all issues bearing on guilt and innocence, and for all defendants. Self-defense immunity grants a benefit for one defense championed by powerful lobbyists. That may explain why self-defense immunity is passing in legislatures, but it hardly rationalizes the costs.

CONCLUSION

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

96 S. Cal. L. Rev. 509

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Eric Ruben*

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

Self-Defense Exceptionalism and the Immunization of Private Violence

Eric Ruben*

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly

Suing SPACs

Emily Strauss*

In 2020, the financial world became transfixed by a massive increase in the number of firms going public through special

Co-Creating Equality

Sarah Polcz*

When a creative work has many co-creators, not all of whom contributed equally, how should they split ownership? In the

The Limitations of Applying the Stored Communications Act to Social Media

Victoria M. Allen*

The advent of social media has increasingly affected how people live and communicate. Millions of Americans use social media every

Battle of the Opinions: Conflicting Interpretations of False Opinions and the Falsity Standard Under the False Claims Act

Thitipong Mongkolrattanothai*

Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government . . . . [Bad actors] may

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

December 2022April 2024Meghann M. Lamb*

INTRODUCTION

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

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

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

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

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

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

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

Meghann M. Lamb*

INTRODUCTION Judicial override is a practice by which a judge overrules a sentence decided by a jury. Perhaps the most

Crack Taxes and The Dangers of Insidious Regulatory Taxes

Hayes R. Holderness*

An unheralded weapon in the War on Drugs can be found in state tax codes: many states impose targeted taxes

The Role of State Attorneys General In Improving Prescription Drug Affordability

MICHELLE M. MELLO,* TRISH RILEY† & RACHEL E. SACHS‡

Impact litigation initiated by state attorneys general has played an important role in advancing public health goals in contexts as

Provisional Assumptions

Heidi H. Liu*

In courtrooms, the law often asks individuals to ignore information—carefully, purposely—that otherwise feels important. Juries, for example, are often asked

A Closer Look at the PTAB Operation

Ge You*

Prior to the passage of the America Invents Act (“AIA”) in 2011,[1] allegedly low-quality patents were allowed to proliferate. Many

Crack Taxes and The Dangers of Insidious Regulatory Taxes

December 2022December 2022Hayes R. Holderness*

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

[1]. Michael Hennessey, Inside the North Carolina Law Requiring Drug Dealers to Pay Taxes, myfox8.com (May 10, 2019, 10:21 AM), https://myfox8.com/news/inside-the-north-carolina-law-requiring-drug-dealers-to-pay-taxes [https://perma.cc/DT5B-NDPS].

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

[3]. See Anne Barnard, In Taxing Illegal Drugs, the Trouble Comes in Collecting, N.Y. Times (Jan. 24, 2008), https://www.nytimes.com/2008/01/24/nyregion/24drugs.html [https://perma.cc/PMS5-YBU
7] (quoting an associate of the Federation of Tax Administrators describing the taxes as hearkening to “the Al Capone model”); Christopher Paul Sorrow, The New Al Capone Laws and the Double Jeopardy Implications of Taxing Illegal Drugs, 4 S. Cal. Interdisc. L.J. 323, 323 (1995); Christina Joyce, Expanding the War Against Drugs: Taxing Marijuana and Controlled Substances, 12 Hamline J. Pub. L. & Pol’y 231, 239 (1991).

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

[5]. See infra note 34.

[6]. See infra Section I.B.

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

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

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

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

[9]. See infra note 30.

[10]. See infra Section I.B.

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

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

[13]. See infra Section I.B.

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

[15]. See infra Part II.

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

[17]. See, e.g., Barnard, supra note 3 (reporting comments of a tax administrator recognizing the potential for the taxes to impose punishment when criminal sanctions cannot); Robert E. Tomasson, 21 States Imposing Drug Tax and Then Fining the Evaders, N.Y. Times (Dec. 23, 1990), https://www.
nytimes.com/1990/12/23/us/21-states-imposing-drug-tax-and-then-fining-the-evaders.html [https://per
ma.cc/VD68-HAJF] (reporting on controlled substance taxes as effective tools in combatting illegal drug sales because of their ability to avoid the protections afforded to criminal defendants).

[18]. See authorities cited infra note 125.

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

[20]. See infra Section II.B.

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

[22]. See infra Section II.C.

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

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

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

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

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

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

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

[29]. See, e.g., Lucy Dadayan, Tax Pol’y Ctr., Are States Betting on Sin? The Murky Future of State Taxation 3-4 (2019), https://www.taxpolicycenter.org/publications/are-states-betting-sin-murky-future-state-taxation/full [https://perma.cc/K6AX-5D4C] (reporting upward trends in the imposition of “sin taxes” on unwanted behaviors); Rachelle Holmes Perkins, Salience and Sin: Designing Taxes in the New Sin Era, 2014 BYU L. Rev. 143, 145 (2014) (describing increasing use of sin taxes).

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

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Civil vs. Criminal Legal Aid

March 2022May 2022Shaun Ossei-Owusu*

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

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

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Prosecutors and Mass Incarceration by

February 2022March 2022Southern California Law Review Admin

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

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

Keywords: Prosecutor Discretion, Charging

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

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

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

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