Issues

This Article explains how the Foregone Conclusion exception to the Fifth Amendment’s privilege against self-incrimination applies to compelled passcode production. The Supreme Court fashioned the Foregone Conclusion exception in connection with the compelled production of documentary evidence. It facilitates government access to real evidence despite the implicit factual communications inherent in a target’s act of producing it (i.e., that the real evidence exists, is accessible, and is what the state demanded). Engaging with the ‘real evidence’ limitation for compelled acts of production, the Article shows that focusing on unlocked devices and/or stored passcodes as the real evidence to be produced in compelled passcode entry cases can resolve splits among courts and commentators while protecting targets from compelled revelation of mere information. This Article goes beyond the technological nuances of encryption to consider realness based on the average user’s experience of a passcode as something that exists outside the mind. Applying Act of Production first principles to the real evidence of unlocked devices and stored passcodes clarifies that the government need not demonstrate pre-production knowledge of the contents of a locked device to satisfy the Foregone Conclusion exception. It further confirms that the reasonable particularity standard often associated with the exception and the Foregone Conclusion exception’s authentication requirement play only limited roles in passcode cases. The Article concludes with a brief explanation of how the first- principles approach to compelled passcode production can also demystify compelled use of biometrics to unlock digital devices.

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight. This Article catalogues four different state approaches to regulating confession law: procedural protections, substantive restrictions, rules of adjudication, and changes in police approaches to training. It then draws conclusions about the relative effectiveness of these different approaches in light of currently available empirical, psychological, and sociological research. It argues that substantive restrictions on interrogation practices through rules with robust remedies are the best way to promote lasting change and restore legitimacy to what is currently a broken system. Recognizing that policymakers in different states and localities face different political climates, the Article concludes by outlining a graduated set of reforms that permits policymakers to identify what would be most feasible and effective in their respective jurisdictions.

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging. Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. The consequences are arbitrariness in sentencing and unwarranted disparities across offenders. In 2007, the Supreme Court permitted appellate courts to presume the reasonableness of guideline sentences, largely insulating those sentences from judicial review. Much has changed since then, and it is time for the presumption to go. The findings of the original data analysis presented in this Article, as well as developments since the Court’s decision, show that the claims made in support of the presumption are unfounded. In fact, some of the related case law rests upon provably false empirical premises. Today, most sentences are not within the range set by the guidelines. Favoring the minority of sentences that are within the range results in a sentencing regime incompatible with the overriding statutory aim of avoiding unwarranted sentencing disparities. Rather than presuming the reasonableness of within-guideline sentences, the courts can chart a course correction by prioritizing the data on actual sentences from the Sentencing Commission. Such a shift would achieve more consistent sentences across offenders convicted of similar crimes.