The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this Article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state and federal penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions—guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and legislatures then developing (and justifying through careful study) the exceptions to those rules. Indeed, a careful examination of the Court’s Eighth Amendment cases suggests that this “presumptive” sentiment is already implicit in much of the thinking of the Court.
While undercover operations by the police are familiar, the harm they can impose on third parties is not. When government agents impersonate criminals, they can impose personal, physical, financial, and reputational harms on victims wholly unrelated to their criminal investigation. A sham drug deal can lead to gunfire and an injured bystander. The mere existence of a government-run fencing operation can lead to increased property theft.
In a number of recent financial fraud investigations, FBI agents have conducted stings that they knew could harm unwitting investors. These stings targeted fraudulent price manipulation of “penny stocks”: low-priced stocks marketed and sold directly to the public rather than through stock exchanges. Typically, an undercover FBI agent offers to help a suspect inflate the price of a penny stock by purchasing a large number of shares for manipulative purposes in exchange for a kickback. Not only does the tactic result in an arrest, it can also harm innocent investors who purchase stock at a price that was misleadingly inflated—by the government itself.
How should the law address third-party harms attributable to such undercover operations?
At about 8:15 a.m. on May 2, 2012, National City Police picked up a fourteen-year-old runaway for loitering and suspected prostitution. Lauren’s twenty-eight-year-old “boyfriend” had brought her from her hometown of El Paso, Texas, to California to pimp her out.
While her “boyfriend” was exploiting her, Lauren performed hundreds of sexual acts on clients. Typically meeting with seven to ten “johns” each day, she was shuffled from one seedy southern California hotel room to the next. Her trafficker moved her from Los Angeles, down to San Diego, back up to Los Angeles, down to Orange County, and finally back to San Diego where she was arrested. During this time, her “boyfriend” had total control over Lauren—he posted online advertisements offering her sexual services on Backpage.com, arranged and paid for the hotel rooms in which she met her clients, dictated how she should dress, and took all of her earnings.
After being picked up by police in National City, Lauren ran away from a victim’s service center back to her “boyfriend.” She was arrested again for prostitution less than a week later in Los Angeles. Her trafficker was arrested as well and eventually charged by the United States Attorney’s Office for the Southern District of California with Sex Trafficking of a Child in violation of 18 U.S.C. § 1591 and Transportation of a Minor to Engage in Prostitution in violation of 18 U.S.C. § 2423(a).
Consider a fourteen-year-old boy whose entire life was spent moving in and out of foster care because his mother was an alcoholic and his stepfather was abusive. This boy suffered from early-onset depression, and had already attempted suicide four times by the age of fourteen. One night, the boy and his friend went to a trailer owned by his mother’s drug dealer to drink and do drugs. After the adult drug dealer passed out from consumption, the boy—seeing an opportunity for some quick cash—took the dealer’s wallet from his back pocket to steal his money. However, the dealer woke up and grabbed the boy by the throat. The boy’s friend hit the dealer with a nearby baseball bat. Once the boy was released, he repeatedly struck the drug dealer with the bat until he believed the man to be dead. To hide the evidence of the crime, the boys set fire to the drug dealer’s trailer, ultimately killing the man inside. This fourteen-year-old boy was sentenced to die in prison for his crimes, without any hope for release. This boy’s name is Evan Miller.
Defending Data proposes a data-driven, systems-based approach to improving public defense in America. Public defenders represent millions of defendants every year. Yet public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense.
“Once upon a time, not so long ago, culture, in the lower case, was primarily an anthropological preoccupation. Not any more. It is hardly news that peoples across the planet have taken to invoking it, to signifying themselves with reference to it, to investing it with an authority, a determinacy, a superorganic unity of which even the most conservative anthropologist would be wary. Culture, now capitalized in both senses of the term, has come to provide the language, the Esperanto, of difference spoken in the active voice.”
In 1980, twenty-one-year-old Delma Banks, Jr. was convicted of murdering sixteen-year-old Richard Whitehead outside of Nash, Texas and was sentenced to death for his crime. During the penalty phase of Banks’s trial, the question that would determine whether Banks was eligible for a death sentence was whether a probability existed that he would commit other violent crimes and continue to pose a threat to society if allowed to live. Robert Farr was an essential witness for the prosecution on this point. Farr testified that, before Banks was arrested, Farr had traveled with Banks to Dallas to pick up a pistol that he and Banks needed to commit a series of robberies they were planning. “According to Farr, Banks ‘said he would take care of it’ if ‘there was any trouble during these burglaries.’” On cross-examination, Farr perjured himself twice when asked if he had provided information about the trip to a deputy sheriff, answering that he had not. The state remained silent during this questioning.
We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees’ Fourth,Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees’ vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and single- family status are accounted for. Furthermore, police take advantage of the permissive parole search jurisprudence, conducting more searches and arrests of both parolees and their nonparolee neighbors. Combined, this analysis shows that parole institutionalizes individuals and marginalizes communities.
A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice”—that is, a claim of innocence. The Supreme Court’s miscarriage of justice standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the postconviction statute for federal prisoners, and the “Savings Clause” that permits resort to habeas corpus rather than § 2255. That standard requires a judge to ask whether a reasonable decisionmaker would more likely than not reach the same result. However, the use of the miscarriage of justice standard with respect to claims of sentencing error remains quite unsettled. In this Article, I provide a taxonomy of types of innocence of sentence claims, and describe how each has developed, focusing on federal courts. I question whether finality should play the same role regarding correction of errors in sentences, and I propose that a single miscarriage of justice standard apply to all types of sentencing error claims, when not considering on appeal under reasonableness review. Finally, I briefly describe how changes to the sentencing process or sentencing guidelines could also reflect certain concerns with accuracy.
It is customary at the USC Gould School of Law to commemorate the publication of books authored by members of the faculty. A while before the publication of In Doubt: The Psychology of Criminal Justice, Dean Robert Rasmussen summoned me to discuss a way to commemorate its release. The conversation quickly converged on the idea that rather than hold an event to celebrate the publication of the book, we should seize the opportunity to hold an earnest discussion about the core issues raised in it: What has brought the criminal justice process to its current state, and more importantly, where should the process go from here? In that vein, we invited leading figures working at the forefront of these questions to participate in a conference: Criminal Law at the Crossroads. We also invited the speakers to submit their papers for publication in a special Symposium by the same name, and they responded graciously. It is an honor to pen the opening article of this Symposium.