Constitutionalizing Immigration Law on Its Own Path

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional issues (including due process) and criminal statutory interpretation. The Court has accorded agency deference on matters of agency expertise, which does not include interpretation of criminal law and convictions. And the Court has created generally applicable procedural protections in order to minimize court interference with substantive immigration policy. Guided by these core concepts, courts are poised to develop procedural protections for immigrants in removal proceedings that are tailored to the institutional interests at stake and protective of immigrants. By constitutionalizing immigration on its own path, courts may also avoid some of the pitfalls of a Sixth Amendment–based criminal-rights model

Fairly Pricing Guilty Pleas

Building on Professor Andrew Taslitz’s work, this article explores how Fair Price Theory can help us analyze the fairness of guilty pleas. In Judging Jena’s D.A., Professor Taslitz used Fair Price Theory to explore how prosecutors could strive to achieve fairness and reduce the perception of racial stigma. He used Fair Price Theory to propose a system of prosecutorial ethics that takes into account racial stigma. This article considers how Fair Price Theory challenges courts to analyze guilty pleas differently, by focusing on price without relying on the agency of prosecutors. Under current doctrine, a court examines whether the defendant’s decision to plead guilty is voluntary, informed, and factually supported. Courts do not assess whether the defendant is getting a fair deal or fair price. Fair Price Theory could help define and assess what makes a deal (or price) fair. And that analysis, with its related questions, challenges the status quo by making price and fairness a central inquiry

Confrontation after Ohio v. Clark

The Supreme Court’s decision in Ohio v. Clark, provides an occasion to take stock of the Sixth Amendment Right to Confrontation since the court’s landmark 2004 decision in Crawford v. Washington. Crawford strengthened a defendant’s right to confront his accusers face-to-face, underscoring that cross-examination is the constitutionally preferred method for testing the reliability of accusatory statements. Clark could eliminate that right in a wide range of cases where, although the reliability of a declarant’s out-of-court statements is critically important, a defendant has no right to confrontation

Using Outcomes to Reframe Guilty Plea Adjudication

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. This Article traces these significant doctrinal shifts and argues that they supply both impetus and authority for trial courts to regulate guilty pleas by monitoring plea outcomes. This proposal builds on marketbased concepts while strengthening the judicial role in safeguarding constitutional values. By monitoring outcomes, courts can detect and correct factors in the plea-bargaining market, such as prosecutorial overreaching and ineffective defense counsel, which can distort the parties’ ability to negotiate fair results. Outcomes monitoring is justified for practical reasons because it builds on courts’ expertise and unique place in the plea markets, it can be implemented at the trial court level, it reinforces courts’ traditional sentencing authority, and it can prevent litigation of prejudicial ineffective assistance in post-conviction proceedings

Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas Corpus

This Article examines an important unsettled question in federal habeas law: whether equitable tolling is available under the statute of limitations applicable to federal habeas petitions filed by state prisoners. The answer to this question will determine access to federal judicial review of thousands of prisoners’ claims that their convictions resulted from violations of their federal constitutional rights in state courts. In twelve cases reviewing the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Supreme Court has curtailed the availability of statutory tolling of the limitations period. Equitable tolling of the statute of limitations represents the last best chance for habeas petitioners who find themselves shut out of federal court by the Supreme Court’s restrictive interpretation of the AEDPA. Without it, their constitutional claims will never be heard. The Supreme Court has twice signaled in recent cases that the availability of equitable tolling under the AEDPA remains unsettled, suggesting that it could reject equitable tolling under the AEDPA. This Article examines the AEDPA’s equitable tolling issue in light of the Court’s meandering equitable tolling jurisprudence and its historical role in habeas corpus. Although lower courts have held that equitable tolling is available under the AEDPA, they have failed to articulate convincingly why equitable tolling is justified in the context of federal habeas corpus. This Article fills the void by examining the Court’s seminal equitable tolling cases, from Irwin v. Department of Veterans Affairs, to its most recent decision in John R. Sand & Gravel Co. v. United States. Three contextual factors influence the Court’s role in applying the statute at issue. Applying these factors to the AEDPA, equitable tolling is justified for institutional, constitutional, and statutory reasons, including the Court’s unique role in ensuring access to the Great Writ and remedying constitutional violations

Mass Incarceration at Sentencing

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales-individual, family, and community-and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors. In this phase, judicial discretion is at its highest, the judges\u27 contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts. Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant\u27s history and the traditional sentencing purposes-including the need to benefit public safety and to ensure that sentences are fair and just. Information about mass incarceration would enhance courts\u27 understanding of the impacts of sentencing on the defendant and others in the local community. This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts\u27 capacity to consider and mitigate the harms of mass incarceration in individual cases