Symposium Feb. 29: The Changing Relationship Between Local Prosecutors and State Governments

New Online: Zero-Option Defendants: United States v. McLellan and the Judiciary’s Role in Protecting the Right to Compulsory Process

By: Wisdom U. Onwuchekwa-Banogu

Latest Issue: Volume 113, issue 3

Volume 113, Issue 2

Volume 113, Issue 1

Inviting Submissions to JCLC Online, Our New Feature

Extraterritorial State Criminal Law, Post-Dobbs

By: Brown, Darryl K. | March 5, 2024

Like the federal government, states can apply their laws to people beyond their borders. Statutes can reach out-of-state conduct, such as fraud, that has effects within the state, and in some circumstances, states can prosecute their own citizens for out-of-state conduct. Many applications of extraterritorial jurisdiction are well established and uncontroversial; state common law and the Model Penal Code provide for such authority. The practice draws little attention when states’ criminal laws are broadly similar and treat the same activities as crimes. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, however, state laws now sharply conflict over conduct related to abortion services. In addition to prohibiting in-state activities that facilitate access to abortions, some state legislatures and local prosecutors seek to extend criminal liability to persons acting in states in which their conduct is legal. Louisiana, for example, made it a crime for anyone outside of Louisiana to ship “abortion- inducing drugs” to a Louisiana resident. This article analyzes the principles of state extraterritorial criminal jurisdiction and the longstanding state laws that authorize criminal jurisdiction over actors in other states. It then turns to the existing and proposed state criminal laws that target abortion services beyond a state’s own borders. In some cases, such laws are well grounded; for others, the validity of extraterritorial application is unclear. But even for statutes with valid extraterritorial reach, barriers to enforcement remain. In many circumstances, cross-border enforcement depends on state cooperation, especially in extraditing defendants and obtaining out-of-state evidence and witness testimony. Federal law requires states to fulfill other states’ extradition requests only for “fugitives,” which creates a gap between the law of extradition and of extraterritorial jurisdiction. Those who violate one state’s criminal law while in another state are not fugitives, which means pro-choice states can refuse to extradite their residents for other states’ abortion-related prosecutions. A few states have already changed their laws to permit this kind of resistance—another sign of diminished comity between states. Finally, the article briefly surveys constitutional doctrines that might constrain extraterritorial prosecutions. Few of those doctrines provide clear limits, suggesting that, if the post-Dobbs world leads to extraterritorial prosecutions, the constitutional parameters for that practice will be one of the new battlegrounds.

The Rule of Lenity as a Disruptor

By: Hulicki, Maciej,Reid, Melanie M. | March 5, 2024

This article discusses the application of the rule of lenity in the American legal system. Although this constitutes a substantial element of criminal law in the United States and has been duly established in jurisprudence and legal science, it has still not been adequately applied in judicial practice. The authors of the article reflect on this situation, analyzing the historical background and the origins of this principle, as well as its current implementation in the U.S. criminal law. The work also includes a comparative analysis, where the authors juxtapose the rule of lenity with similar principles known in civil law traditions, primarily with the in dubio pro reo principle. It allows the authors to uncover the true essence of the rule of lenity, better comprehend its meaning, and answer the question of how its wider use can strengthen the American criminal law system. According to the authors, a forgotten, albeit fundamental, principle such as the rule of lenity has the potential to become a disruptor for the entire US criminal law system. The article is divided into three parts. In Part I, the authors discuss the practice of applying the rule of lenity in US law. In particular, attention is paid to the legal basis, scope, and motives for its use in judicial practice. However, the authors do not stop there and analyze where the courts’ reluctance to use this legal tool comes from, and why it should be used more often in cases where there is ambiguity in the language of a statute. Part II of the article contains a comparative legal analysis, where the authors look for equivalents for the rule of lenity in legal systems based on the civil law tradition and within international law. The Polish criminal law system was chosen for the analysis, as a typical order of continental law. This section discusses how legal systems, in which the importance of codified law and the role of the judge is greater, use similar legal tools in truth-finding within the criminal process. Importantly, such analysis allows one to look at American solutions from a completely new and fresh perspective, allowing one to understand the true essence and importance of the rule of lenity. In Part III of the article, the authors argue for greater use of the rule of lenity in American judicial practice, what is essential for maintaining fairness and justice, and ensuring compliance with the basic principles of the criminal law. Importantly, the authors emphasize the importance of fuller inclusion of the rule of lenity in the decisions of various actors of the criminal process, i.e. courts, prosecutors, and juries, but also within the legal education process. Above all, this principle comprises a fundamental element of the criminal system and safeguards against an unjustified deprivation of liberty in cases where the law is unclear.

Forbidden Purposes: A New Path for Limiting Criminalization

By: Donelson, Raff | March 5, 2024

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and remove them from public spaces. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, what difference would it make in a court of law? While most can agree that officials act wrongly if motivated by these concerns, it is less clear whether such officials act illegally. Does constitutional law disclose any legal ground for opposing action taken for these nefarious purposes? This Article outlines a strategy that courts might adopt for finding that some governmental purposes are, constitutionally speaking, forbidden purposes. Purpose-based arguments for invalidating government action are not entirely new. Rational basis review, familiar from the Equal Protection and Substantive Due Process contexts, sometimes requires courts to determine whether governmental action advances legitimate purposes. However, such scrutiny lacks general elucidation, and few have endeavored to elaborate how this would work specifically in the criminal sphere. This Article is a first attempt to develop a method for distinguishing the legitimate from the forbidden purposes in criminal law and beyond. On the proposed framework, courts would consider the constitutive rules of liberal legal systems, that is, those rules that both define and govern liberal legal systems. The set of constitutive rules will limit the state’s pursuit of certain aims, and those foreclosed options are, on the proposed framework, forbidden purposes under rationality review.