Digital Commons Network^™

Branding Corporate Criminals, W. Robert Thomas, Milhailis E. Diamantis

Fordham Law Review

Corporate punishment has a branding problem. Criminal sanctions should call out wrongdoing and condemn wrongdoers. In a world where generic corporate misconduct is a daily affair, conviction singles out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve, deters future wrongdoers who want to preserve their good name, and publicly reinforces society’s most treasured values.

Unfortunately, corporate punishment falls far short of all these communicative ambitions. For punishment to convey its intended message, society must be able to hear about it. When courts convict individuals, everyone understands that …

An Apt Analogy?: Rethinking The Role Of Judicial Deference To The U.S. Sentencing Guidelines Post-Kisor, Amy Walker

Fordham Law Review

Since its inception in 1984, the U.S. Sentencing Commission (the “Commission”) has struggled to garner and maintain a sense of legitimacy among federal judges. The tension is both a story about competing expertise between judges and the Commission and competing values, namely uniformity and individuality. In 1993, the U.S. Supreme Court in Stinson v. United States prioritized uniformity by telling lower courts to treat the Commission as they would any other administrative agency. Lower courts—for the most part—faithfully executed this directive until 2019, when the Supreme Court in Kisor v. Wilkie gave them another option, one that seemed to leave …

Burden Of The Bargain: Ineffective Assistance Of Counsel Claims In The Absence Of A Plea Offer, Sriram H. Ramesh

Fordham Law Review

The modern criminal justice system in the United States is a “system of pleas.” Plea bargains have largely supplanted trials as the primary method of resolving criminal proceedings in this country. Acknowledging their prevalence, the U.S. Supreme Court has held that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process. Thus, defendants may bring ineffective assistance of counsel (IAC) claims for alleged ineffectiveness during the plea-bargaining phase.

In two companion cases, Missouri v. Frye and Lafler v. Cooper, the Court held that its two-pronged test for IAC, laid out in Strickland v. Washington, …

Foreword: The Legal Profession And Social Change, Atinuke O. Adediran, Bruce A. Green

Fordham Law Review

Fordham University School of Law’s Stein Center for Law and Ethics has collaborated with the Fordham Law Review every year since the late 1990s to encourage, collect, and publish scholarly writings on different aspects of the legal profession, including its norms, regulation, organization, history, and development—that is, on themes relating to what law schools loosely call “legal ethics.” The legal profession is an important subject of study for legal scholars, among others. Although one U.S. Supreme Court Justice, himself a former law professor, airily derided legal ethics as the “least analytically rigorous . . . of law-school subjects,” we dispute …

No More Nixon: A Proposed Change To Rule 17(C) Of The Federal Rules Of Criminal Procedure, Norah Senftleber

Fordham Law Review

Today, the standard for subpoenas under Rule 17(c) of the Federal Rules of Criminal Procedure, espoused in United States v. Nixon, provides for limited, almost useless, pretrial subpoena power for criminal defendants. When subpoenaing a third party, a defendant must show (1) relevancy, (2) admissibility, and (3) specificity for documents that they have not yet gained access to. This narrow scope of Rule 17(c) has long engendered criticism from judges, scholars, and practitioners alike. Yet, Rule 17(c) has not been changed, either by judicial opinion or amendment.

Following years of criticism, the Advisory Committee on Criminal Rules (“Advisory Committee”) …

Extraordinary Punishment: Conditions Of Confinement And Compassionate Release, Meredith B. Esser

Fordham Law Review

People experience severe forms of harm while incarcerated, including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment—the most common vehicle through which people seek to redress these harms—presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

Regulating The Public Defender Identity, Irene Oritseweyinmi Joe

Fordham Law Review

The public defender institution has trouble meeting its mission. This is partly because, despite the specific and clear purpose of representing indigent defendants in criminal proceedings, public defender offices rely on various centering principles to meet this objective. The institution falters if it chooses a centering principle that unwittingly complicates its ability to meet the institution’s central mission. For public defender leaders tasked with developing and maintaining an institutional identity for a particular office, neither legal nor professional regulations supply the type of considerations that guarantee that an adopted identity will comply with core institutional responsibilities. This project seeks to …

Charging Abortion, Milan Markovic

Fordham Law Review

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Fordham Law Review

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Children Are Constitutionally Different, But Life Without Parole And De Facto Life Sentences Are Not: Extending Graham And Miller To De Facto Life Sentences, Ellen Brink

Fordham Law Review

Under the U.S. Supreme Court’s current juvenile sentencing jurisprudence, a juvenile may legally receive a prison sentence of hundreds of years without parole in instances in which a sentence of life without parole would be unconstitutional. This illogical state of affairs is the result of the Court’s silence on whether its holdings in Graham v. Florida and Miller v. Alabama, which together limit the availability of juvenile life without parole sentences, also apply to so-called de facto life sentences. De facto life sentences are lengthy term-of-years sentences that confine offenders to prison for the majority, if not the entirety, …

Proceedings At An Impasse: Appealing Fugitive Disentitlement Orders Of International Defendants Under The Collateral Order Doctrine, Parker Siegel

Fordham Law Review

The doctrine of fugitive disentitlement allows federal courts to decline to entertain a defendant’s claims when that defendant is deemed a fugitive from justice. Once disentitled, defendants cannot seek relief from the judicial system until they submit to the court’s jurisdiction. But complications emerge when federal district courts disentitle non–U.S. citizens who reside outside of the United States, who are indicted for alleged misconduct committed abroad, and who attempt to dismiss charges while remaining in their home countries. Federal circuit courts of appeals are split on whether such defendants can appeal from a fugitive disentitlement ruling without submitting to the …

Criminalizing Threats Against Schools: A Divergence Of Mens Rea And Punishment Severity In Recent State Legislation, Max Kaufman

Fordham Law Review

School shootings occur on a regular basis in the United States. Fear of the next school shooting leads schools to take any potential threat of violence seriously, but responding to a threat can be extremely disruptive to a school’s operations and the community that it serves. In the last five years, nine state legislatures have attempted to deter these threats by specifically criminalizing threats of violence against schools.

Despite the proximity in time in which these states enacted school threat statutes, these laws diverge in two important ways: First, the nine statutes employ several different mens rea requirements. Second, these …

Carceral Deference: Courts And Their Pro-Prison Propensities, Danielle C. Jefferis

Fordham Law Review

Judicial deference to nonjudicial state actors, as a general matter, is ubiquitous, both in the law and as a topic of legal scholarship. But “carceral deference”—judicial deference to prison officials on issues concerning the legality of prison conditions—has received far less attention in legal literature, and the focus has been almost entirely on its jurisprudential legitimacy. This Article contextualizes carceral deference historically, politically, and culturally, and it thus adds a piece that has been missing from the literature. Drawing on primary and secondary historical sources and anchoring the analysis in Bourdieu’s field theory, this Article is an important step to …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Closing The Door On Permanent Incorrigibility: Juvenile Life Without Parole After Jones V. Mississippi, Juliet Liu

Fordham Law Review

In April 2021, the U.S. Supreme Court decided Jones v. Mississippi, its latest opinion in a line of cases addressing when, if ever, a child should be sentenced to life in prison with no hope of parole or release. Although Jones purported to resolve division among lower courts over the findings that a sentencing court must make about a child defendant’s character and prospects for reform and rehabilitation, the decision will likely lead to further disagreement among courts.

This Note argues that although the Supreme Court’s jurisprudence has protected children from harsh sentences, it has also opened a Pandora’s …

Sentencing After Stash Houses: Addressing Manipulation Of The Federal Sentencing Guidelines, Elizabeth Foy Gudgel

Fordham Law Review

In the realm of undercover work, law enforcement has broad discretion to define the contours of a criminal offense. Due to quantity-based provisions in the Federal Sentencing Guidelines, federal agents or their informants may coerce an individual into a higher sentencing range by escalating their behavior to align with mandatory minimums or quantifiable offense levels. Because this type of offense is police-initiated, law enforcement has discretion to select the individuals subject to these tactics and influence their eventual sentences. The defenses of sentencing entrapment and sentencing manipulation are meant to combat this discretion. However, these defenses are rarely invoked successfully …

Does Brady Apply To Supervised Release Revocation Hearings?, Alex Breindel

Fordham Law Review

Many federal offenders face a term of supervised release upon leaving prison. The successor to the federal parole system, supervised release places conditions upon individuals’ freedom. Violation of a condition may result in revocation of release and reimprisonment. To revoke release, the government must prove to a judge by a preponderance of the evidence that a violation occurred. At this proceeding, known as a “revocation hearing,” the individual may contest the alleged violation and present their own evidence.

Under Brady v. Maryland and its progeny, due process requires the government to disclose material exculpatory evidence to criminal defendants. This Note …

Decarceration's Inside Partners, Seema Tahir Saifee

Fordham Law Review

This Article examines a hidden phenomenon in criminal punishment. People in prison, during their incarceration, have made important—and sometimes extraordinary—strides toward reducing prison populations. In fact, stakeholders in many corners, from policy makers to researchers to abolitionists, have harnessed legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls. Despite this outside use of inside moves, legal scholarship has directed little attention to theorizing the potential of looking to people on the inside as partners in the long-term project of meaningfully reducing prison populations, or “decarceration.”

Building on the change-making agency and revolutionary ideation inside …

Police Vehicle Searches And Racial Profiling: An Empirical Study, Griffin Edwards, Stephen Rushin

Fordham Law Review

In 1981, the U.S. Supreme Court held in New York v. Belton that police officers could lawfully search virtually anywhere in a vehicle without a warrant after the arrest of any occupant in the vehicle. Then, in 2009, the Court reversed course in Arizona v. Gant, holding that police could only engage in vehicle searches after such arrests in a smaller number of extenuating circumstances. This series of cases became a flash point for the broader debate about the regulation of policing. Law enforcement groups argued that administratively complex rules, like those established in Gant, risk officer safety. …

Criminal Justice Expertise, Benjamin Levin

Fordham Law Review

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions, and (2) the democratic, which treats criminal policy as insufficiently responsive …

Progressive Prosecutors Are Not Trying To Dismantle The Master’S House, And The Master Wouldn’T Let Them Anyway, Paul Butler

Fordham Law Review

The first thing to note about Audre Lorde’s famous phrase “the master’s tools will never dismantle the master’s house” is that it cannot literally be true. If tools can dismantle the master’s house, the master’s own tools would be good as anyone’s. The main problem would not be that the tools don’t work, but rather how to get them to the people who most need the master’s house dismantled—the enslaved ones. But the considerable work that the phrase does in social justice movements and critical theory is figurative rather than literal. It is usually intended as a rebuke of liberal …

No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Andrew Manuel Crespo

Fordham Law Review

The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a “system of pleas.” The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles’ heel is exposed once we see people facing prosecution not as isolated individuals but …

Opening The Safety Valve: A Second Look At Compassionate Release Under The First Step Act, Michael T. Hamilton

Fordham Law Review

Under federal law, judges are generally prohibited from changing a sentence once it has been imposed. Compassionate release, to put it simply, provides a “safety valve” against this general principle, allowing federal judges to reduce a prisoner’s sentence when it is warranted by “extraordinary and compelling reasons.” For the past thirty years, statutory and bureaucratic roadblocks made compassionate release an unlikely avenue for prisoners to receive sentence reductions. With the passage of the First Step Act of 2018, the U.S. Congress made the first significant changes to the compassionate release statute in decades, permitting defendants for the first time to …

The First Step Act And Individualized Review: Must Judges Apply The 18 U.S.C.   3553(A) Factors To Section 404 Petitioners?, Kielan Barua

Fordham Law Review

In 2010, the U.S. Congress amended the notorious mandatory minimum sentencing structure for crack cocaine offenses in response to the decades of harm it had caused. As the amendment was not retroactive, Congress passed the First Step Act of 2018 to allow prisoners incarcerated before 2010 to petition their original sentencing court for discretionary relief based on the new penalties. However, what exactly these courts must do when deciding whether to grant relief has divided the circuits. Some circuits require an up-to-date consideration of defendants’ individual mitigating circumstances and whether their sentences are the minimum necessary to satisfy the purposes …

Bargaining For Abolition, Zohra Ahmed

Fordham Law Review

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

An Uncertain Participant: Victim Input And The Black Box Of Discretionary Parole Release, Noah Epstein

Fordham Law Review

Little is understood about the parole release process, as state parole boards predominately operate with incredible discretion and keep their deliberations and rationales hidden from public view. Even less is understood about the intersection of the inscrutable parole release decision-making process and victim rights. As the victim rights movement mobilized in the 1970s, victims, instead of remaining passive witnesses, came to wield significant influence over the release decision process. Today, victim participation in parole proceedings is increasing as most parole boards proclaim how important victims’ voices are and, in turn, actively incorporate victim input into their release calculus. Yet, it …

Disarming Abusers And Triggering The Sixth Amendment: Are Domestic Violence Misdemeanants Guaranteed The Right To A Jury Trial?, Julia Hatheway

Fordham Law Review

Domestic violence is a global issue, but in the United States it is especially lethal. Hundreds of women are shot and killed in the United States by intimate partners every year. Federal and state legislatures have enacted laws that focus on the issue of domestic violence and gun violence. In 1996, Congress passed the Lautenberg Amendment to the Gun Control Act of 1968, which permanently prohibits individuals convicted of domestic violence misdemeanors from possessing firearms. Twenty-nine states and the District of Columbia have also enacted laws that mirror the Lautenberg Amendment. In many jurisdictions, misdemeanor domestic violence convictions carry a …

The Racial Architecture Of Criminal Justice, I. Bennett Capers

Faculty Scholarship

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …