Unstitching Scarlet Letters?: Prosecutorial Discretion and Expungement

This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution

On the volatility of volatility

The Chicago Board Options Exchange (CBOE) Volatility Index, VIX, is calculated based on prices of out-of-the-money put and call options on the S&P 500 index (SPX). Sometimes called the "investor fear gauge," the VIX is a measure of the implied volatility of the SPX, and is observed to be correlated with the 30-day realized volatility of the SPX. Changes in the VIX are observed to be negatively correlated with changes in the SPX. However, no significant correlation between changes in the VIX and changes in the 30-day realized volatility of the SPX are observed. We investigate whether this indicates a mispricing of options following large VIX moves, and examine the relation to excess returns from variance swaps.Comment: 15 pages, 12 figures, LaTe

Original Understanding, Punishment, and Collateral Consequences

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction. This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment. First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine. Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach. Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive. Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes. Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes. The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist. Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment. By contrast, existing doctrine narrowly conceives the meaning of the term “punishment.” If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence. In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government. These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment

Insider Expungement

Like many phases of the criminal justice system, insiders dominate the practice of expungement and there is little to no involvement of the broader community. Recently, scholars in favor of democratization in criminal justice have called for enhanced public involvement during policing, charging, bail determinations, plea-bargaining, and sentencing to improve accountability, transparency, and democratic participation. This Article is the first to extend this critique to decision-making during the expungement process. It conveys how expungement always has been the province of insiders and how recent expungement reforms, while broadening some substantive expungement remedies, double down on this paradigm. Procedures are implemented by judicial staff, prosecutors and defense attorneys filter petitions, the ultimate decision usually rests with a single judge, and bureaucrats are tasked with making expungement efficacious. The move towards tech-based, automatic expungement is merely insider expungement by another name. After documenting insider expungement in its past and present forms, this Article explains why insider expungement adjudication is the norm. First, expungement processes were conceived, designed, and reformed in a system characterized by increased bureaucratization. In this sense, expungement law is a product of its environment. Second, the expungement remedy implicates the maintenance of public criminal records, which are connected to policy preferences for deterrence, incapacitation, and rehabilitation, all of which involve complicated costbenefit analyses. In the same vein, expungement adjudication is about the assignment of risk to individuals, which traditionally has been understood as the province of criminal justice experts. Finally, insider expungement is built on the premise that the public is too punitive. In sum, insider-based expungement is a product of forces for criminal justice professionalization that are larger than the field of expungement, as well as a belief that the public cannot be trusted to address stigma-based harm or foster reentry. Finally, while there is no question that the ability to obtain formal expungement relief has become easier over the past two decades, this Article notes several possible concerns with an exclusively insider-based expungement regime, including how secrecy and insider adjudication might undercut the purpose of expungement in the long run: full reintegration by the community and for more individuals. The absence of the community from expungement adjudication raises procedural justice, democratic, and legitimacy issues

Beyond the Right to Counsel: Increasing Notice of Collateral Consequences

This article responds to these questions by focusing on the primary roots of this justice issue, namely the prevalence of guiltypleas and the continued efforts of legislatures to increase the life- long price of a conviction. Part I begins with a discussion of these practical realities within the criminal justice system. Part II then examines the law of guilty pleas under the Fifth Amendment, including constitutional standards for valid pleas, and how current jurisprudence fails to account for the collateral consequences mentioned in Part I. Part II also discusses the right to effective assistance of counsel under the Sixth Amendment, post-Padillaand Frye, and concludes that the spirit of both cases is the increased notice of collateral consequences, albeit through defense counsel. Part III describes the current state of the law on the right to counsel and analyzes the merits and shortcomings of ex-panding the right to counsel in order to address the problem of collateral consequences. Finally, Part IV offers a few solutions that are more systemic in nature, in contrast to total reliance on the attorney-client relationship, and that involve the judiciary and prosecutors. Part IV also proposes new disclosure obligations for the judiciary and the prosecution because any system-wide solution to the growing effect of collateral consequences must in- clude the various players involved

Are Collateral Consequences Deserved?

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that exoffenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, they align with utilitarian, public-safety-based rationales for criminal punishment, such as incapacitation. Interpreting the nature of collateral consequences, their legislative justifications, and judicial doctrine confirms that utilitarian terrain underlies the creation and reform of collateral consequences. At the same time, these philosophical premises stunt broad reform because public safety and risk-prevention rationales inspire only marginal tinkering and do not adequately respond to the general public’s understanding of desert as crucial to the administration of criminal justice. The result is extra punishment run amok and in desperate need of constraints. This Article suggests a different approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints emphasize dignity and autonomy, blameworthiness, proportionality, and restoration, and impose obligations and duties on the state, suggesting many collateral consequences are overly punitive and disruptive of social order. This mode of analysis aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present-day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders