Category: 98:1
Lies Behind Bars: An Analysis of the Problematic Reliance on Jailhouse Informant Testimony in the Criminal Justice System and a Texas-Sized Attempt to Address the Issue
The advent of DNA technology in the late 1980s led to a wave of exonerations in the United States, shedding light on major problems with the U.S. criminal justice system. Many of these wrongful convictions were traced back to criminal informants, colloquially referred to as “snitches,” who provided incriminating testimony in exchange for a sentence reduction, leniency, inmate privileges, or some other perk. The correlation between wrongful convictions and informant testimony is a cause for concern, especially in Texas, where more people have been executed and exonerated than anywhere else in the country. This Note analyzes the use of criminal informants with a particular focus on jailhouse informants—inmates that come forward with the “confessions” of fellow inmates. First, this Note discusses the broad use of criminal informants throughout history and the problems that have arisen therefrom. Second, it examines Nolley v. State, the Texas Court of Criminal Appeals case that inspired legislative change in Texas. Third, this Note assesses Texas House Bill 34, which is Texas’s latest legislative effort to regulate the use of jailhouse informants. Finally, this Note proposes a solution to address the problem of unreliable jailhouse informant testimony that requires judges to serve a “gatekeeping role” through which they could filter out unreliable testimony before trial. As part of this solution, this Note recommends giving judges and defense attorneys access to a statewide database containing information on every jailhouse informant ever used so that they do not have to rely on the prosecution to produce that information. Though this solution will add to the workload of judges, it is necessary to prevent prosecutorial misconduct and ensure the integrity of the U.S. criminal justice system.
Constraining the Statutory President
When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious.
The President, however, is not subject to such constraints, even when exercising purely statutory authority, i.e., acting as the “Statutory President.” That autonomy is due to the Supreme Court’s holding in Franklin v. Massachusetts that the President is not an “agency” under the Administrative Procedure Act (APA). Thanks to Franklin, the President exercises delegated authority to make policy decisions that have enormous implications for the public without the public involvement, transparency, deliberation, and political and judicial accountability that we demand when agencies make such decisions.
This Article is the first to take Franklin v. Massachusetts head on. It demonstrates that the Court’s 1992 holding conflicts with the plain language and history of the APA; it explains the flaws in the Court’s constitutional analysis; and it presents the normative case for treating the Statutory President like any other agency.
Having shown that Franklin was wrong, this Article sketches a new model for treating the Statutory President like an “agency” under the APA. It concludes by explaining how both the process and outcome of Trump v. Hawaii, in which the Supreme Court upheld the President’s order barring immigration from certain Muslim-majority nations, would have been different had the President been subject to the APA.
Payday
Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions—safely, cheaply, and instantaneously—workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid.
The same worker who taps a credit card to pay for groceries in semiautomated checkout lines depends on dated payroll systems that only transfer payments on a “payday.” Workers, especially those living paycheck-to-paycheck, are hard-pressed to meet their daily needs and turn to expensive, short-term credit products—notably, payday lenders. While the need for credit is a real one, credit providers charge a steep price, often culminating in endless debt spirals. So, why does the payday still exist?
This Article studies various explanations—economic, historical, behavioral, and legal. A primary conclusion is that the payday owes its existence to legacy legal architecture. That is, payday is a software problem, not a hardware problem. The hardware—i.e., money and payroll technology—is here. We can pay workers daily; in fact, gig economy workers in developing countries will often be paid more quickly than an American employee for the same work. What holds us back is our legal software: dated Eisenhower-era legislation that failed to anticipate technological change. Surprisingly, even pro-worker legislation, such as minimum wage laws, inadvertently encourages the practice.
By revealing the overlooked and dated legal infrastructure that sustains the payday, this Article suggests a path for legal reform. Daily streams of payment to workers are feasible, practical, and far more efficient than most people realize. A focused reform could effectively bring an end to the puzzling and pernicious practice of having workers lend money to their employers while they wait for their payday.
Justice by Luck: How Unclear Records Force Some Unlucky Prisoners to Serve Unconstitutional Sentences in the Wake of Johnson v. United States
The Armed Career Criminal Act (ACCA) imposes mandatory minimum sentences on individuals convicted of being a felon in possession of a firearm who have at least three prior convictions for “violent felon[ies].” “Violent felon[ies]” include those crimes contemplated by the ACCA’s “residual clause.” The Supreme Court ruled that the residual clause was unconstitutional in Johnson v. United States in 2015. As the decision in Johnson was retroactive, individuals whose sentences were enhanced on the basis of the residual clause may seek relief under Johnson. In affording such relief, however, the circuits disagree as to what standard of proof should apply to the question of whether a sentence enhancement was in fact based on the residual clause. Some circuits have held that a movant must show only that his sentence enhancement “may have” been based on the residual clause in order to have the sentence vacated. Other circuits, however, have held that a movant must meet the higher preponderance-of-the-evidence standard by showing that the judge more than likely relied on the residual clause in handing down the sentence. In 2019, the Fifth Circuit in United States v. Clay chose sides in the circuit split by adopting the harsher preponderance-of-the-evidence standard. This Note uses the Fifth Circuit’s decision in Clay as a springboard for analyzing the consequences of the preponderance-of-the evidence standard.
Compassionate Homicide
Ample psychological studies demonstrate that emotions provide reasons for action and are powerful drivers of a host of behaviors, including criminal acts. Studies further establish that experiencing intense emotions might impair actors’ judgment and decision-making, sometimes culminating in committing homicide.
Existing criminal law doctrines only partially correspond to these findings. They recognize mostly anger and fear as underlying the excuses of provocation, imperfect self-defense, and duress by mitigating murder charges to manslaughter or otherwise excusing offenders. Currently, however, no doctrine recognizes compassion as a basis for mitigation. Under existing laws, an actor who intentionally kills a terminally ill or severely disabled close family member, wholly out of compassion for the victim, commits the crime of murder. The actor’s motive to end the victim’s suffering is irrelevant for determining the scope of criminal responsibility.
In recent years, legal scholars have developed a new field of study focusing on the interplay between law and the emotions, including among others, in the realm of criminal law. This Article contributes to existing literature in this area by suggesting that compassion is yet another emotion that may trigger certain actions. Advocating the adoption of a statutory affirmative defense that is grounded in compassion, this Article argues that recognizing this excuse is consistent with the rationales and reasoning underlying criminal law’s recognition of existing emotion-based excuses. This Article develops the theoretical and doctrinal bases for endorsing a compassion-based partial excuse by advancing three arguments. First, it contends that experiencing compassion towards a close family member might affect an actor’s judgment and decision-making, motivating them to kill. Second, it argues that from a policy-based perspective, recognizing a compassion-based excuse is normatively warranted because while the killing is neither justified nor fully excused, it is an understandable reaction given the circumstances the actor was facing. Third, this Article outlines some necessary constraints on the scope and limits of the partial excuse to ensure that it is applicable only in appropriate cases, where actors normatively deserve mitigation.
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