Funding Favored Sons and Daughters: Nonprosecution Agreements and Extraordinary Restitution in Environmental Criminal Cases

Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases. In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms. And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements. Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review. This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement. The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing. Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies. This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining—the latter are subject to judicial review while the former are not—and unearthing the differences between these payments and any common-law understanding of restitutionary principles. The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors. Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution-agreement process

COVID-19 and the Provisional Licensing of Qualified Medical School Graduates as Physicians

Each level of government has its own peculiar responsibilities to address the COVID-19 pandemic. The states are responsible for licensing physicians who can treat the affected people. Each year, a large number of American and foreign medical school graduates do not find a residency position in the United States. Medical school graduates who have passed the qualifying examination have acquired a considerable amount of education and training during their medical studies, far more than physician assistants, nurses, military corpsmen and medics, and civilian paramedics or emergency medical technicians. They comprise a pool of talent that could be immensely useful in ameliorating the shortage of physician care throughout the country during the pandemic. State lawmakers should allow those graduates to receive a provisional license so that they can provide emergency medical care under the supervision of a licensed physician to help treat the ever-increasing number of COVID-19 patients we will see throughout the near future, or those patients who suffer from more common illness and injuries

Swift, Certain, and Fair Punishment: 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders

Criminologists believe that the certain and swift imposition of a mild punishment has a greater deterrent effect than the remote and indefinite application of a severe punishment. Judges in South Dakota and Hawaii independently put that theory to the test and created innovative strategies to deal with substance abuse and crime. Those programs—the 24/7 Sobriety program in South Dakota and Hawaii’s Opportunity Probation with Enforcement—subject probationers to a rigorous alcohol or drug testing regimen backed up by a guaranteed and immediate but modest sentence of confinement for everyone who tests positive. Those programs have proved to be sensible, humane, and effective mechanisms for dealing with substance abuse and crime. A few other states have adopted similar regimens, but most have not. The latter jurisdictions should consider creating their own programs based on the South Dakota and Hawaii models

The Original Understanding of Property in the Constitution

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights to which everyone was entitled, such as the right to governance under “the rule of law.” Property was not immune from regulation, but that regulation had to be for the purpose of promoting “the general Welfare,” not the interests of specific groups or people. It is time for the Supreme Court to revisit Anglo-American legal history and to re-examine its precedents in light of what that history teaches

Taking Mistakes Seriously

Part I of this article discusses the principle that mistake or ignorance of the law is no excuse. It is settled law that no one can defend against a criminal charge on the grounds that he did not intend to flout the law and, at worst, made only a reasonable, honest mistake as to what he was free to do. Part II examines several areas in which the law does precisely the opposite by repeatedly manifesting a willingness to forgive reasonable mistakes by one or more actors in the criminal justice system. Part III then asks whether the developments discussed in Part II justify reconsidering the doctrine set forth in Part I that a mistake of law should not serve as an excuse to a crime. As I explain there, the Supreme Court’s recent and oft-stated rationale for its willingness to forgive mistakes made by actors in the criminal justice system militates strongly in favor of allowing private parties to assert a mistake-of-law defense. If the law is willing to countenance reasonable mistakes that government officials make, it also should be willing to forgive the reasonable mistakes that the rest of us make. And if that is true, then it is time to re-examine the hoary mistake-of-law doctrine

Revenge Porn, State Law, and Free Speech

The ease of access to the Internet, coupled with the modern practice of sharing intimate digital photos between lovers, has given rise to a disturbing new trend known colloquially as “revenge porn”—that is, the nonconsensual posting of images that were originally given to another with the implied expectation of confidentiality. That act involves a deep personal betrayal and can inflict serious emotional damage on the person whose image has been shared, sometimes resulting in grave consequences to the victim. And once those images reach the Internet, they are often circulated widely; the victims retain no control over who may view or share them. This Article explores the types of laws that victims could use to seek justice, and it identifies relevant hurdles to relief. Several state tort laws, such as invasion of privacy, false light portrayal, defamation, and intentional infliction of emotional distress, could be used to combat revenge porn. Contract law may also provide a remedy through breach-of-implied-agreement claims or the collateral doctrine of promissory estoppel. Some states have recently gone so far as to enact criminal statutes penalizing the practice of revenge porn, focusing on the victim’s lack of consent. Of course, the mere existence of a criminal law does not guarantee its enforcement, and such laws do not offer victims the possibility of being awarded damages. Moreover, as of yet, there have been no successful prosecutions under these statutes, so we do not know how they will be construed or will fare in court. There are obstacles that a revenge porn victim must overcome. A defendant’s likely defense of consent could nullify such claims. In addition, the First Amendment Free Speech Clause will be said to impose an obstacle if a revenge porn victim seeks civil relief or if the government initiates a criminal prosecution. In fact, some would contend that no tort suit or prosecution could ever be successful. The argument would be that the First Amendment protects an individual against civil or criminal liability for publishing a lawfully obtained image honestly depicting the photographer’s subject, regardless of how unflattering the photograph may be or the effect that publication may have on the subject. This Article, however, explains why consent and First Amendment defenses should be unsuccessful. Ultimately, the Article maintains, the law must adapt to the “selfie” and “sexting” generation in order to provide meaningful relief to individuals whose well-intentioned—albeit ill-advised—attempts at flirtation achieve perpetual—and unwanted—fame and notoriety on the Internet. Intimate photographs are shared under circumstances giving rise to an implied agreement of confidentiality between the parties, and the Free Speech Clause does not shield a recipient against his broken promise not to share a photograph with others. Imposing tort and criminal liability on someone who breaches an agreement of confidentiality will not chill protected speech. It will only encourage people to keep their word