Issues

On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy’s mother and local activists, the district attorney also charged five officers with first-degree manslaughter for this same killing. This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a killing that was a criminal homicide by a police officer. More broadly, it raises the question of whether a felony “participant” can be convicted of felony murder based upon a killing by a “nonparticipant,” who killed while resisting the underlying felony. Killings by “nonparticipants” include killings by responding police officers, as well as by bystanders and victims of the original felony. This is the first Article to address felony murder liability for homicides by nonparticipants. This Article presents a fifty-state survey of American law that determines which states maintain a traditional approach to felony murder (not requiring any culpable mens rea regarding a killing arising from a covered felony), which states are “agency states” (that limit felony murder to killings by participants), which are “proximate cause states” (that allow felony murder convictions for killings by nonparticipants), and which proximate cause states would potentially allow felony murder liability for a criminal homicide by a police officer, bystander, or victim. This Article maintains that even states that have adopted a broad proximate cause approach to felony murder should prevent such liability for killings by nonparticipants that are chargeable homicides and proposes some statutory and doctrinal approaches for doing so in a principled way.

In this Article, we attempt to formulate a new theoretical framework for the analysis of male rape, a phenomenon that has been neglected by legal and jurisprudential scholarship for a long time. We dispute common perceptions of male rape, most notably the centrality of consent in rape discourse, and show how male and female rape myths, while distinct, are upheld by similar paradigms of gender. Although it focuses on male rape, the Article proposes a broad theory of rape and gender. The Article offers a comparative review of the scholarship on male rape in two settings: the community and prison. It collates the various studies on male rape in these settings, classifies the main elements of male rape, and points to the interrelations between the various scholarly works. Based on the comparison, the Article develops a sixfold framework containing three recurring and three missing themes. The recurring themes are otherness—the construction of male rape as something that occurs to others, at the margins of society; masculinity—pivotal for the understanding of male rape; and the embeddedness of male rape in social power relations. The three missing themes are consent—possibly the most discussed aspect in current theories of female rape but hardly elaborated with respect to male victims; racial aspects of male rape in the community; and female perpetrators of male rape. The burgeoning literature on male rape dwells mostly on the first three themes. The Article argues that a meaningful theory of male rape requires further study of the missing themes. The sixfold analytical framework suggested in this Article can assist in identifying blind spots in the academic discourse, accurately conceptualizing this phenomenon, and offering a better general understanding of it. It is also a first step toward the creation of a more inclusive and general theory of rape that accounts for sexual abuse of all victims, regardless of gender, race, sexual orientation, or other social traits.

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. At the same time, many people with felony convictions cannot vote or run for office due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political process problem. As John Hart Ely argued, laws that target a formally disenfranchised group are tainted and deserve heightened constitutional scrutiny. When reviewing habitual offender laws under the Eighth Amendment, however, courts have applied the opposite of heightened scrutiny—they have applied an extreme form of deference for decades. This phenomenon of deference despite disenfranchisement creates a cruel democratic purgatory. It is the institutional equivalent of disenfranchising people with pre-existing health conditions, passing a health insurance law that excludes them, and then declining to hear their constitutional challenges out of deference to the democratic process. Or disenfranchising women, criminalizing abortion, and shutting the courthouse door. This Article describes this dysfunctional dynamic and offers a solution: if a court is reviewing a habitual offender law from a state with felony disenfranchisement, it should apply heightened scrutiny, not deference.

In 2008, the Illinois State Legislature found that “innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law[.]” To correct this injustice, the General Assembly created a petition for a Certificate of Innocence (“COI”), which provides wrongfully convicted individuals the opportunity to obtain financial relief for time spent incarcerated. Petitioners must show that they “did not by [their] own conduct voluntarily cause or bring about [their] conviction.” Notably, the legislature did not supply a definition for “voluntary,” leaving courts free to impart their own. Despite the legislature’s recognition that “substantive and technical obstacles” prevent wrongly convicted individuals from relief, Illinois courts have imposed such obstacles through the term “voluntary.” In some instances, courts ignore this critical term by entirely omitting it from statutory analysis; in others, courts use “voluntary” to deny COIs. In the judiciary’s view, an individual “voluntarily cause[s] or bring[s] about” their conviction when they confess to a crime or accept a plea deal, regardless of the circumstances. This interpretation ignores the innocence of a person whose confession was coerced or accepted a plea deal under circumstances disguised as a rational choice. Although granting a COI is “generally within the sound discretion of a court,” the Illinois judiciary has improperly imposed a condition absent from the text that, carried to its logical conclusion, would deny COIs to innocent people. This Comment explores the purpose of Section 2-702, contemplates “voluntary” conduct, and illuminates the implications of judicial frustration. The case of Wayne Washington exemplifies the judiciary’s abuse of discretion and its imposition of substantive and technical obstacles that the Illinois legislature sought to overcome by enacting Section 2-702. Finally, this Comment argues that COIs are the only adequate remedy for wrongfully convicted individuals and proposes legislative and judicial solutions.

Among Western nations, American courts remain uniquely permissive to the routine law enforcement practice of offering witnesses incentives to testify for the State in criminal trials. Despite laws and ethical rules roundly prohibiting the practice and recurrent skepticism of incentivized testimony in the English common law tradition, American judges have excused the practice based on pragmatism, developing legal fictions to exempt prosecutors from the general prohibition. However, basic common sense, backed by recent empirical scholarship, should alarm participants in the criminal legal system to a severely heightened risk of perjury wherever the prospect of reward compels testimony. Whether law enforcement offers these incentives in the form of cash payments, material rewards, reduced sentencing for co-defendants and so-called “jailhouse informants,” or merely relocation, they influence witnesses through unfair inducements. Paradoxically, these inducements are prohibited to the defense and categorically prohibited as bribery in all other legal contexts. Prosecutors and judges often point to existing safeguards in the legal system, including cross-examination and an illusory disclosure requirement, as sufficient to combat the risk of perjury, appealing to the difficulty of securing convictions in complex cases. However, as DNA testing continues to reveal wrongful convictions based on perjured testimony, such optimism must be viewed as misguided. Prosecutors and judges fail to recognize that the system rewards police and prosecutors who shirk their disclosure duties. These failures to disclose are nearly impossible for defendants and their attorneys to uncover once a defendant is convicted. Complicating matters exponentially, the racist and classist history of law enforcement in this country is largely responsible for the underlying reticence of many witnesses to testify in the absence of incentives. Communities of color and immigrant communities, current and historical subjects of abusive police and prosecutorial misconduct, do not trust police and prosecutors to protect their interests. So-called “white-collar” criminals intuit that the system was generally constructed to safeguard capitalist wealth-building—not undermine it. Thus, the State’s difficulty in prosecuting many accused individuals is a problem of its own making. In many areas, criminal law recognizes the extreme burden the State must carry to override the accused’s interest in freedom. In fact, the Due Process Clauses of the Fifth and Fourteenth Amendments were drafted largely to illuminate this heavy burden. For much of American history, the Supreme Court couched this burden in the language of “fundamental fairness.” Over time, however, the Court began balancing the interests of the State with those of criminal defendants as it moved away from using fundamental fairness as the primary tool for extending protections to the accused. This shift was incorrect from both a logical and historical perspective. Fundamental fairness concerns only the rights of the individual accused—not the interests of the State. Thus, this Comment argues that the Court must revive and correct its fundamental fairness jurisprudence, estopping the State from offering incentives to witnesses in criminal trials. This remedy remains the only one among many proposed to effectively combat the risk of perjury inherent to incentivized testimony while simultaneously restoring fairness concerns to their proper target: the accused. After all, the primary duty of the American prosecutor is to seek justice—not convictions.

In 2008, the Illinois State Legislature found that “innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law[.]” To correct this injustice, the General Assembly created a petition for a Certificate of Innocence (“COI”), which provides wrongfully convicted individuals the opportunity to obtain financial relief for time spent incarcerated. Petitioners must show that they “did not by [their] own conduct voluntarily cause or bring about [their] conviction.” Notably, the legislature did not supply a definition for “voluntary,” leaving courts free to impart their own. Despite the legislature’s recognition that “substantive and technical obstacles” prevent wrongly convicted individuals from relief, Illinois courts have imposed such obstacles through the term “voluntary.” In some instances, courts ignore this critical term by entirely omitting it from statutory analysis; in others, courts use “voluntary” to deny COIs. In the judiciary’s view, an individual “voluntarily cause[s] or bring[s] about” their conviction when they confess to a crime or accept a plea deal, regardless of the circumstances. This interpretation ignores the innocence of a person whose confession was coerced or accepted a plea deal under circumstances disguised as a rational choice. Although granting a COI is “generally within the sound discretion of a court,” the Illinois judiciary has improperly imposed a condition absent from the text that, carried to its logical conclusion, would deny COIs to innocent people. This Comment explores the purpose of Section 2-702, contemplates “voluntary” conduct, and illuminates the implications of judicial frustration. The case of Wayne Washington exemplifies the judiciary’s abuse of discretion and its imposition of substantive and technical obstacles that the Illinois legislature sought to overcome by enacting Section 2-702. Finally, this Comment argues that COIs are the only adequate remedy for wrongfully convicted individuals and proposes legislative and judicial solutions.