The Story of Ewing: Three Strikes Laws and the Limits of the Eighth Amendment Proportionality Review

In 1994 California enacted the nation\u27s harshest three strikes law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment. The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing Gary Ewing’s life, the crime that became his third strike, and each stage of his case. It describes all of the players and brings to life the oral argument and the Supreme Court’s opinion. This chapter also explores three questions: First, why did California law impose such a draconian sentence for such a minor offense? The chapter tells the story of the voter initiative that enacted the three strikes laws, the unsuccessful efforts to amend the law, and it describes the way the law has been enforced by California’s elected district attorneys and construed by its courts. Second, why wasn\u27t such a sentence prohibited by the cruel and unusual punishment clause? The chapter reviews the Supreme Court’s prior Eighth Amendment cases and analyzes the majority and dissenting opinions in Ewing. The chapter concludes with a discussion of the question what limits -- if any -- the Eighth Amendment imposes on the state\u27s authority to replace policies based on rehabilitation, retribution, and individualized sentencing with a policy that seeks to protect society by incapacitating recidivists

Integrating Statistical Evidence and Legal Theory to Challenge the Selection of Grand and Petit Jurors

A defendeant charged with a federal or state crime may employ statistical evidence to challenge the selection of the grand jury that indicts him or the petit jury that tries and convicts him. This article will consider three issues that arise in jury selection cases: (1)what are the proper figures upon which to base the statistical analysis; (2)what statistical method should be employed to analyze the data; and (3)what degree of disparity must be shown? This article will argue that the propriety of using particular statistcal evidence in jury selection cases cannot adequately be assessed without distinguishing between challenges based on the equal protection clause and those based on the constitutional or statutory right to a jury drawn from a fair cross section of the community

The Development and Evolution of the U.S. Law of Corporate Criminal Liability

In the United States, corporate criminal liability developed in response to the industrial revolution and the rise in the scope and importance of corporate activities. This article focuses principally on federal law, which bases corporate criminal liability on the respondeat superior doctrine developed in tort law. In the federal system, the formative period for the doctrine of corporate criminal liability was the early Twentieth Century, when Congress dramatically expanded the reach of federal law, responding to the unprecedented concentration of economic power in corporations and combinations of business concerns as well as new hazards to public health and safety. Both the initial development of the doctrine and the evolution in its use reflect a utilitarian and pragmatic view of criminal law. This article describes the evolution of the practice of corporate criminal liability and sentencing, arguing that administrative responses by the Department of Justice and the U.S. Sentencing Commission have responded to widespread criticism of the existence of corporate liability as well as the breadth of the respondeat superior standard of liability. As a result of this evolution in enforcement, only a very small number of corporations are convicted, and the penalties imposed on those that are convicted are adjusted to reflect corporate culpability. Nevertheless, the broad potential for criminal liability has significant consequences for a wide range of corporate behavior. Corporations have powerful incentives to perform internal investigations, cooperate with both regulators and prosecutors, and actively pursue settlement of claims of misconduct. To avoid criminal liability, corporations also enter into deferred prosecution agreements that often require changes in corporate business practices and governance as well as monitoring to ensure compliance. The purpose of these administrative responses attempt is to reduce or eliminate the negative effects of imposing criminal liability while exploiting the law’s power to deter criminal behavior, improve corporate citizenship, and bring about beneficial structural reforms. The persistence of the doctrine of respondeat-superior-based corporate criminal liability and its limitation in practice shed light on three key aspects federal criminal law. First, the Sentencing Guidelines have served as a more limited substitute for comprehensive criminal code reform. Second, the federal justice system lacks the resources to process the vast majority of cases falling under the criminal code, and prosecutorial discretion is relied upon to select a small fraction of cases for prosecution. Finally, like corporations, all defendants receive incentives for cooperation that may effectively compel them to plead guilty and/or assist in the investigation and prosecution of others

Prosecutorial Discretion in Three Systems: Balancing Conflicting Goals and Providing Mechanisms for Control

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. Finally, all national systems are facing the challenge of increasing caseloads. The United States differs from France and Germany in the training and selection of prosecutors, in the understanding of their role, and in the structure of prosecutorial authority. This chapter explores how these differences affect the balance each system has struck among the competing goals of accountability, neutrality, efficiency, accuracy, and equal treatment, how these systems differ in the availability of mechanisms to establish and implement policies, and how each is responding to the challenges of increasingly heavy caseloads. This chapter begins with a description of the U.S. approach to the structure of prosecutorial authority, the training, selection and ethos of U.S. prosecutors, and the scope of prosecutorial discretion in the U.S. Part II turns to a comparison of the French and German systems. On the basis of this foundation, Part III then considers how the three systems are resolving some of the key tradeoffs between the goals of efficiency, accuracy, democratic accountability, neutrality, consistency, and the need for mechanisms to set priorities and policies. It concludes that the structure of prosecutorial authority is continuing to play a significant role in each system’s distinctive response to prosecutorial discretion. In contrast, differences in the traditional understanding of the prosecutor’s role seem to be of diminishing importance as each system responds to the pressure of increasing caseloads

Public Opinion and the Abolition or Retention of the Death Penalty Why is the United States Different?

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. Other nations have abolished capital punishment despite widespread public support—in many cases, support of more than 70 percent of the public at the time of abolition. In the United States, however, after the Supreme Court imposed a de facto moratorium on capital punishment in the early 1970s, strong public support led to its reintroduction in two-thirds of the states. This paper explores the relationship between public opinion and the abolition or retention of the death penalty, comparing the U.S. experience to that of other nations (with a particular focus on Germany, France, the United Kingdom, and Canada). Although the experience of each country includes distinctive elements, several common themes emerge. In each country, political elites led the abolition movement. The structure of the electoral process and the parliamentary party system, moreover, allowed legislators and other public officials a degree of insulation from popular opinion. The elites differed from their electorates in education, experience, and knowledge of the issue. Because of these differences, support for capital punishment was much lower among these elites than among the general public. In abolishing capital punishment, the elites acted in accordance with their own views, rather than those of the median voter or the general public. Some scholars have characterized this type of political behavior as the “elite leadership hypothesis.” Additionally, international agreements and norms played a significant role in Europe, making abolition difficult to reverse once enacted and helping to persuade other nations to abolish capital punishment despite the existence of popular support. Finally, abolition (whether de jure or de facto) has had a tendency over time to reduce public support for capital punishment, thus diminishing popular pressure to reverse course

The Trafficking Victim Protection Act: The Best Hope for International Human Rights Litigation in the U.S. Courts?

The article focuses on uses Alien Tort Statute as a vehicle for litigating human rights abuses in both civil and criminal prosecutions in the U.S. Topics discussed include developments in International Criminal Law in addressing human rights violations; judicial attitudes that could affect the interpretation of the Trafficking Victim Protection Act; and Sosa v. Alvarez-Machain court case on the same

What Developments in Western Europe Tell Us About American Critiques of Corporate Criminal Liability

Although corporate criminal liability has been recognized in the United States for nearly a century, contemporary academic commentators have questioned its legitimacy and argued that it is inferior to its alternatives: civil liability for the corporation and/or criminal liability for individual corporate agents. Other academic critics have attacked the present definitions of corporate criminal liability. In other words, although corporate criminal liability has also had its academic champions, it has been under attack in the United States. The situation in Europe poses a sharp contrast

An Honest Services Debate

This commentary employs a fictional debate to explore the issues raised by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which dramatically cut back on “honest services” prosecutions under the mail and wire fraud statutes. In response to an earlier decision by the Supreme Court reading these statutes narrowly, Congress enacted 18 U.S.C. § 1346, which extends mail and wire fraud to schemes to deprive another of “the intangible right of honest services.” In 2009 the Supreme Court granted certiorari in three cases presenting questions concerning the “honest services” provision. One of the cases involved the indictment of state legislator who failed to disclose he was seeking employment from a large corporation while voting on legislation affecting the company. The other cases involved honest services convictions for deception and self dealing in the private sector by news magnate Conrad Black and former Enron CEO Jeffrey Skilling, whose false statements about the Enron’s financial situation propped up its stock price as it careened towards collapse. The Court issued only one opinion on the merits, in Skilling. In an opinion written by Justice Ginsburg, six members of the Court rejected the claim that § 1346 is void for vagueness but construed the statute to be limited to bribes and kickbacks, which it found had comprised the “lion’s share” of the honest services prosecutions. The Court did not resolve – or even discuss – the other questions on which it had granted certiorari: whether a state law violation or economic harm or private gain were necessary elements (though bribery and kickbacks by their nature involve gain to the defendant). Justice Scalia (writing for himself and two other justices) wrote separately to argue that § 1346 is unconstitutionally vague. I use the debate form to critique the Skilling opinion and explore a variety of issues raised by honest services prosecutions: (1) the federalism issues raised by the prosecution of state and local government officials, (2) the potential for overlap and conflict between broad conceptions of mail fraud and other federal and state regulatory systems, (3) the proper boundaries of criminal law and the problem of overcriminalization, and (4) the largely unregulated prosecutorial discretion that results from broadly drafted criminal statutes. Remarkably, the Court failed to engage or even acknowledge those issues, except to the extent they were necessarily part of its assumption that absent a limiting interpretation § 1346 would have been unconstitutionally vague. Precisely because the Court did not engage these concerns, the Skilling opinion prompted me to explore other issues that are less often the focus of criminal law scholarship: the doctrine of constitutional avoidance, the standards governing facial versus as-applied challenges, the proper methodology for interpreting statutes, and institutional concerns regarding the federal judiciary and its relationship to the other branches of government. Although these issues have generally been seen as the province of scholars specializing in constitutional law, federal courts, legislation, and public choice theory, the debate concludes that they should be a more important role in criminal law scholarship