The Misplaced Trust in the DOJ\u27s Expertise on Criminal Justice Policy

As should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, “[t]he key is to create and foster an institutional framework that prioritizes data” and “expertise” so as to “create incentives for key decisionmakers to be accountable for real results” (pp. 14-15). But in creating reforms, the kindof expertise is also important. Many federal policymakers currently view the DOJ and NAAUSA as possessing the most salient expertise on all criminal justice matters. This Review, I hope, calls that premise into serious doubt. In Part I of this Review, I explain how the DOJ and NAAUSA have had a vise-like grip on federal policymakers when deciding criminal justice issues. In Part II, I detail their lobbying efforts in favor of longer sentences and against any reforms that would reduce sentences, and I explain why their claims against reform are flawed. Part III addresses the DOJ\u27s and the NAAUSA\u27s active opposition to criminal justice policies set by the presidents whom they serve because federal prosecutors seek to retain power to the exclusion of all other policy goals. If we want a federal criminal justice system that reflects the goals of public safety, fairness, and equal enforcement, then federal policymakers should give less deference to the views of federal prosecutors because they do not possess the requisite expertise or will to move our policies toward those ends

Restoring the Historical Rule of Lenity as a Canon

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon. First, I argue that federal courts should apply the historical rule of lenity (also known as the rule of strict construction of penal statutes) that applied prior to the 1970s, when the Supreme Court significantly weakened the rule. The historical rule requires a judge to consult the text, linguistic canons, and the structure of the statute and then, if reasonable doubts remain, interpret the statute in the defendant’s favor. Conceived this way, the historical rule cuts off statutory purpose and legislative history from the analysis, and places a thumb on the scale in favor of interpreting statutory ambiguities narrowly in relation to the severity of the punishment that a statute imposes. As compared to the modern version of the rule of lenity, the historical rule of strict construction better advances democratic accountability, protects individual liberty, furthers the due process principle of fair warning, and aligns with the modified version of textualism practiced by much of the federal judiciary today. Second, I argue that the historical rule of lenity should be deemed an interpretive canon and given stare decisis effect by all federal courts. If courts consistently applied historical lenity, it would require more clarity from Congress and less guessing from courts, and it would ameliorate some of the worst excesses of the federal criminal justice system, such as overcriminalization and overincarceration

The Not So Speedy Trial Act

The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public’s significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA’s goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been effectively marginalized by federal district and circuit courts. The reason this happens is simple: no actor in the criminal justice system has an incentive to follow it. Prosecutors and defense attorneys alike rely on delays in the system; and overburdened district courts, which have opposed the STA since its inception, have failed to enforce it as written. Appellate courts, too, prefer to thwart the STA’s requirements rather than reverse a conviction obtained by otherwise constitutional means. The institutional inertia that pulls courts away from the STA’s commands has led to a predictable result: an increase in pretrial delays, the very ill that Congress intended to cure when it passed the Act. This Article highlights and examines the ways in which federal courts undermine the STA and details a number of open circuit court conflicts involving the Act. The Article then proposes a comprehensive, but non-Congressional, fix that prescribes how every actor in the criminal justice system can comply with the Act as Congress intended. See the response by Brooks Holland, https://digitalcommons.law.uw.edu/wlro/vol90/iss1/3/ \u3eThe Two Sided Speedy Trial Problem

Reply Brief. Crouse v. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), 2017 U.S. S. Ct. Briefs LEXIS 4102, 2017 WL 4918297

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” -as the Fourth Circuit holds - if the speaker directed his or her statements to one person rather than the “larger public,” was motivated by some “ personal concern” in speaking about that subject, or was “not providing a particularly informed opinion”? (3) Can a defendant establish qualified immunity under Garcetti v. Ceballos, by showing that he or she could reasonably have believed that the action of the plaintiff was in his “capacity” as an employee (the rule in the Fourth Circuit), or only by showing he or she could reasonably have believed that the plaintiff spoke “pursuant to his professional responsibilities” (the rule in the First, Fifth and Ninth Circuits)

Grace in the Criminal Justice System

In 1999, Shon Hopwood stood before a federal judge and was sentenced to over twelve years in federal prison for his role in five bank robberies. As he related to an audience of students, professors, and staff members during the Faith in Action talk at the Columbus School of Law, the journey from that day to this one, in which he enjoys a teaching fellowship in Appellate Litigation at Georgetown, is a tale filled with no small amount of grace. During the February 18th event, Hopwood explained how while in prison, he began to teach himself the law and began writing legal briefs for other prisoners. Not only did I have to learn the law, I had to learn to write, and I started to figure it out. I researched for days, weeks, months, said Hopwood. A summary of the event is available here

Grace in the Criminal Justice System

In 1999, Shon Hopwood stood before a federal judge and was sentenced to over twelve years in federal prison for his role in five bank robberies. As he related to an audience of students, professors, and staff members during the Faith in Action talk at the Columbus School of Law, the journey from that day to this one, in which he enjoys a teaching fellowship in Appellate Litigation at Georgetown, is a tale filled with no small amount of grace. During the February 18th event, Hopwood explained how while in prison, he began to teach himself the law and began writing legal briefs for other prisoners. Not only did I have to learn the law, I had to learn to write, and I started to figure it out. I researched for days, weeks, months, said Hopwood. A summary of the event is available here

Petition for a Writ of Certiorari. Crouse v. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), 2017 U.S. S. Ct. Briefs LEXIS 2864, 2017 WL 3500042

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” -as the Fourth Circuit holds - if the speaker directed his or her statements to one person rather than the “larger public,” was motivated by some “ personal concern” in speaking about that subject, or was “not providing a particularly informed opinion”? (3) Can a defendant establish qualified immunity under Garcetti v. Ceballos, by showing that he or she could reasonably have believed that the action of the plaintiff was in his “capacity” as an employee (the rule in the Fourth Circuit), or only by showing he or she could reasonably have believed that the plaintiff spoke “pursuant to his professional responsibilities” (the rule in the First, Fifth and Ninth Circuits)