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The American public is slowly recognizing the criminal justice system’s deep defects. Mounting visual evidence of police brutality and social protests are generating an appetite for something different. How to change this system is still an open question. People across the political spectrum vary in their conceptions of the pressing problems and how to solve them. Interestingly, there is one consequential and overlooked area of the criminal justice system where there is broad consensus: police quotas.

Police quotas are formal and informal measures that require police officers to issue a particular number of citations or make a certain number of arrests. Although law enforcement leadership typically denies implementing quotas, courts, legislators, and officers have all confirmed the existence of this practice and linked it to odious criminal justice problems such as racial profiling, policing for profit, and overcriminalization. These problems have led legislators in many states to implement statutory prohibitions on quotas. Some of these statutes are of recent vintage and others are decades old. Nevertheless, these prohibitions and their attendant litigation have escaped sustained analytical scrutiny. Legal scholars typically overlook police quotas, subsume them within other categories (e.g., broken windows policing), or give pat acknowledgment of their existence without explaining how they work.

This Article corrects these omissions and makes two arguments. First, it contends that police quotas are a significant but undertheorized feature of criminal law and procedure. Quotas make police rewards and sanctions significant features of punishment in ways that can trump criminal offending and pervert due process principles. Second, it argues that quota-based policing is a unique area where there is widespread agreement and possibilities for change. Liberals, libertarians, conservatives, police officers, police unions, and racial minorities have all criticized police quotas. These vastly different constituents have argued that quotas distort police discretion and produce unnecessary police-civilian interactions. This Article supplements these arguments with a novel descriptive, statutory, and jurisprudential account of police quotas in the United States. It offers a framework for under- standing the arguments for and objections to quotas, and proposes some normative strategies that could build on statutory and litigation successes.

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.

In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.

This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.

There is a widely held belief that, in order to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour. After all, the logic goes, the incentives for prisoners who face the death penalty differ from those who do not. Noncapital prisoners typically try to move the terminal point of a sentence (release) forward, and capital prisoners typically try to push that point (execution) back. This theory of litigant behavior—what I call the “Strategic Delay Account,” or the “SDA”—underwrites an extraordinarily harsh institutional response. It primes courts to discount real constitutional grievances and to punish participating lawyers, and it spurs legislatures to restrict crucial remedies.

In this Article, I explain that the SDA inaccurately describes condemned prisoner behavior, both because it assumes a non-existent incentive structure and because it ignores the major structural causes of delayed litigation. First, deferred litigation is risky, and fortune disfavors the bold. Procedural doctrines that operate across post-conviction law strongly incentivize the promptest conceivable presentation of claims. Second, prisoners often omit challenges from early rounds of litigation not because they have done so strategically, but instead because some claims are inherently incapable of being asserted at that time. Third, the volume of end-stage litigation reflects the comprehensive failure of American jurisdictions to provide adequate legal services; condemned prisoners are often functionally unrepresented from the moment early-stage proceedings conclude until the state sets an execution date.

Network investigative techniques (NITs) are law enforcement tools that allow the government to hack into targeted computers by exploiting technological vulnerabilities. NITs have succeeded in identifying and locating criminal actors operating on the Dark Web where traditional investigative techniques have failed. They play a critical role in the investigation of cybercrime and in the national security sphere. But disclosure of a NIT’s code can render it useless and jeopardize government operations that rely on that code. In numerous federal cases, criminal defendants have sought access to NIT code, and courts have had to decide whether the government must disclose the code. The government’s interest in confidentiality is inherently at tension with criminal defendants’ right to discovery and information material to their defense.
In order to make informed decisions about disclosure, courts must be cognizant of the equities at stake and understand technical details about NITs. Courts can better equip themselves by holding ex parte and in camera proceedings, and appointing experts to augment their understanding of technical issues. These procedures can ensure that the government is held accountable, defendants’ rights are protected, and NIT code is preserved. As the Dark Web expands, cybercrime is likely to become more pervasive, and criminal actors will devise more sophisticated means of anonymizing their presence online. Law enforcement will have to respond creatively and courts must be prepared to tackle novel issues that straddle technology and law.

The ubiquity of cell phones has transformed police investigations. Tracking a suspect’s movements by following her phone is now a common but largely unnoticed surveillance technique. It is useful, no doubt, precisely because it is so revealing; it also raises significant privacy concerns. In this Note, I consider what the procedural requirements for cell phone tracking should be by examining the relevant statutory and constitutional law. Ultimately, the best standard is probable cause; only an ordinary warrant can satisfy the text of the statutes and the mandates of the Constitution.

In this Note, Valerie Roddy studies the continuing hesitancy of U.S. courts to include foreign relevant conduct in federal sentences, despite the expansive inclusion of domestic relevant conduct. Roddy analyzes the courts’ principal concerns and concludes that the distinctions that courts are drawing between foreign and domestic relevant conduct are illusory. She argues that to achieve consistency in sentencing and proportional sentencing for international defendants, foreign and domestic conduct must be treated identically. Finally, she contends that distinguishing foreign relevant conduct and subjecting it to a special analysis is best viewed as a means of retaining a measure of discretion in a federal sentencing system struggling with both the potent effect of relevant conduct on sentences and the shrinking judicial discretion over sentences.

Almost twenty years ago, the Supreme Court’s decision in Tanner v. United States established that under Federal Rule of Evidence 606(b) juror intoxication was an “internal” influence to which jurors were incompetent to testify. Since that decision, many states have discarded their diverse approaches regarding the admissibility of juror testimony on juror misconduct in favor of Tanner’s external/internal framework.

This Note demonstrates why the policy considerations justifying restrictions on juror testimony are not well served by Tanner’s external/internal framework. The Note offers states an alternative approach to the issue of juror misconduct which would better protect both jurors and litigants.

A great gulf divides insiders and outsiders in the criminal justice system. The insiders who run the criminal justice system—judges, police, and especially prosecutors—have information, power, and self-interests that greatly influence the criminal justice system’s process and outcomes. Outsiders—crime victims, bystanders, and most of the general public— find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result of this gulf, a spiral ensues: Insiders twist rules as they see fit, outsiders try to constrain them through new rules, and insiders find ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s substantive goals. The gulf clouds the law’s deterrent and expressive messages, as well as its efficacy in healing victims; it impairs trust in and the legitimacy of the law; it provokes increasingly draconian reactions by outsiders; and it hinders public monitoring of agency costs. The most promising solutions are to inform crime victims and other affected locals better and to give them larger roles in criminal justice. It also might be possible to do a better job monitoring and checking insiders, but the prospects for empowering and educating the general public are dim.

Brady v. Maryland requires prosecutors to disclose to criminal defendants all material, favorable evidence in the government’s possession. Evidence is material if its disclosure would have created a reasonable probability of a different verdict. Though materiality may correctly guide appellate courts in deciding when to reverse convictions, the author contends that it is both impractical and unconstitutional to ask prosecutors to use materiality as the measure of their disclosure obligations before trial. It is impractical because it requires prosecutors convinced of the defendant’s guilt to decide what combination of evidence, if disclosed, would create a reasonable probability of an acquittal at the end of a trial that has yet to begin. It is unconstitutional so long as due process means something other than that which produces the right outcome. This Note suggests that prosecutors should employ a balancing test based on the interaction of Brady disclosure rules and the defendant’s right to a trial by jury to determine when favorable evidence must be disclosed. This balancing test provides prosecutors with a disclosure standard that is simple, constitutional, and compatible with courts’ continued use of the materiality standard after trial.

This Note explores whether “constitutional default rules,” or judicially crafted constitutional rules designed to spur legislative action, can generate interbranch cooperation in the area of criminal procedure. The Note looks at two types of constitutional default rules—the “model” default rule and the “penalty” default rule—in theory and in practice, examining how the Court has employed such rules to generate a dialogue with Congress in order to implement constitutional rights. The Note argues that while there have been notable failures by the Court in using the default rule to elicit a rights-protective legislative reaction (namely, in the case of Miranda v. Arizona) under the right conditions, the constitutional default rule may still be a viable tool for spurring progressive legislative policy and reform of the criminal justice system.