By Colin Ridgell

While recent headlines have been dominated by the Supreme Court’s issued and pending opinions in cases of perceived political moment,[1] the Court has continued deciding questions that will ultimately have a direct impact on the lives and liberty of far more people than Section Three of the 14th Amendment[2] or Chevron[3] ever will.  While drawing less attention than it merits, the Court’s criminal docket has proven to be the source of widespread­—and often unanimous—agreement.  The Court’s recent decision in McElrath v. Georgia[4] provides a useful example of this trend.

Factual Background

The facts of McElrath case could hardly be more tragic.  On July 12, 2012, then 18-year old Damian McElrath killed his adoptive mother by stabbing her over 50 times.[5]  McElrath had struggled with behavioral and disciplinary issues throughout his childhood.[6]  Only a week before his mother’s death, McElrath had been admitted to a mental health treatment facility and diagnosed with schizophrenia, based, among other things, on his recurrent and long-running delusion that his mother was poisoning his food and drinks.[7]  After killing his mother, McElrath called 911, explained that he had killed his mother because she was poisoning him, and “asked the dispatcher if he was wrong to do that.”[8]

McElrath was charged with malice murder, felony murder, and aggravated assault.[9]  In December 2017, the jury returned a verdict of not guilty by reason of insanity on the malice murder charge but found McElrath guilty but mentally ill of felony murder and aggravated assault.[10]  These verdicts presented a seemingly obvious contradiction:

[T]he jury must have determined that McElrath was legally insane at the time that he stabbed Diane in order to support the finding that he was not guilty of malice murder by reason of insanity.  Nonetheless, the jury went on to find McElrath guilty but mentally ill of felony murder based on the same stabbing—a logical and legal impossibility.[11]

Deemed “repugnant verdicts” under Georgia law,[12] the legal and logical impossibility of the jury’s verdicts opened the door for an incredibly skilled piece of lawyering by McElrath’s attorneys.

The Georgia Decisions

McElrath would make two trips to the Supreme Court of Georgia.  He first challenged his felony murder conviction on the basis of the inconsistent verdicts.[13]  The court agreed, but vacated both the guilty but mentally ill verdict for felony murder and the not guilty by reason of insanity verdict for malice murder.[14] This was the first step in McElrath’s efforts to have both murder charges done away with based on the jury’s verdicts.

When the case returned to the trial court on remand, McElrath unsuccessfully moved to have his case dismissed on double jeopardy grounds.[15]  The Supreme Court of Georgia affirmed the denial of this motion, explaining that, although not guilty verdicts are all but sacrosanct in double jeopardy jurisprudence, when “[v]iewed in context alongside the verdict of guilty but mentally ill . . . the purported acquittal [lost] considerable steam.”[16]  In essence, the court held that vacatur of the repugnant verdicts had left McElrath with a blank slate as far as double jeopardy was concerned.[17]

The Supreme Court’s Decision

The Supreme Court of the United States was resoundingly unconvinced that the mark of acquittal could be so easily wiped away.  In Justice Jackson’s unanimous opinion, the Court reaffirmed that, “[o]nce rendered, a jury’s verdict of acquittal is inviolate.”[18]  The Court rejected Georgia’s argument that state law controlled whether a verdict was an acquittal for double jeopardy purposes,[19] explaining that the dispositive question is whether “there has been ‘any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.’”[20]  The reasons for a jury’s verdict of acquittal are final and unquestionable, regardless of the permissibility of that verdict.[21]  Because the jury’s acquittal was accepted by the trial judge, the Supreme Court of Georgia was powerless to vacate it, and therefore the subsequent prosecution of McElrath for felony murder was barred by the Double Jeopardy Clause.[22] 

The Court left for another day, however, the issue of what double jeopardy effect would result from a trial judge’s rejection of inconsistent or repugnant verdicts.[23]  And Justice Alito reiterated the open nature of this question in his brief concurrence.[24] 

McElrath was never likely to be a high-profile case. Although the average American is far more likely to come into contact with the criminal justice system than to have their life permanently altered by the application of the major questions doctrine,[25] the latter cases attract a far greater level of popular attention.[26] It is perhaps unsurprising that so many are convinced that the “high profile” cases at the Court are decided 6-3,[27] when a “high profile” case has been tautologically defined as a case decided on ideological grounds.[28] Hopefully, close observers of the Court’s docket will remember that unanimous and nearly unanimous decisions are the norm rather than the exception.[29]  As important as McElrath is for reinforcing the constitutional limits on double jeopardy, it is equally important as a reminder that things at the Court are working as intended.

[1] See, e.g., Andrew Chung & John Kruzel, Trump wins Colorado ballot disqualification case at US Supreme Court, Reuters (March 4, 2024),; Adam Liptak, Conservative Justices Appear Skeptical of Agencies’ Regulatory Power, The New York Times (Jan. 17, 2024),

[2] U.S. Const. amend XIV, § 3.

[3] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[4] 144 S. Ct. 651 (2024).

[5] McElrath v. State, 839 S.E.2d 573, 574–75 (Ga. 2020).

[6] Id. at 575.

[7] Id.

[8] Id.

[9] Id. at 574.

[10] Id.

[11] Id. at 580.

[12] Id. at 579 (“This case falls into the category of repugnant verdicts, as the guilty and not guilty verdicts reflect affirmative findings by the jury that are not legally and logically possible of existing simultaneously.”).

[13] Id. at 575.

[14] Id. at 582.

[15] McElrath v. State, 880 S.E.2d 518, 519 (Ga. 2022).

[16] Id. at 521.

[17] See id. at 521–22.

[18] McElrath v. Georgia, 144 S. Ct. 641, 658 (2024).

[19] Id. at 559.

[20] Id. at 660 (quoting Evans v. Michigan, 568 U.S. 313, 318 (2013)).

[21] Id. at 659.

[22] Id. at 660.

[23] See id. at n.4.

[24] Id. at 661 (Alito, J., concurring) (“Nothing that we say today should be understood to express any view about whether a not-guilty verdict that is inconsistent with a verdict on another count and is not accepted by the trial judge constitutes an “acquittal” for double jeopardy purposes.”).

[25] Compare Susannah N. Tapp & Elizabeth J. Davis, Contacts Between Police and the Public, 2020, 1 (U.S. Department of Justice, Bureau of Justice Statistics) (2022), with Dr. Adam Feldman, Elites at Cert, Empirical SCOTUS (December 15,2021),,cert%20grant%20is%20around%201%25.

[26] See, e.g., Adam Liptak, The Curious Rise of a Supreme Court Doctrine that Threatens Biden’s Agenda, The New York Times (March 6, 2023),

[27] See, e.g., Vincent M. Bonventre, 6 to 3: The Impact of the Supreme Court’s Super-Majority, New York State Bar Association (October 31, 2023),

[28] E.g., Lawrence Hurley & JoElla Carman, Tracking major Supreme Court cases, NBC News (updated June 30, 2023),

[29] Dr. Adam Feldman, Another One Bites the Dust: End of 2022/2023 Supreme Court Term Statistics, Empirical SCOTUS (June 30,2023),

Jasmine Jaffe

Former President Donald Trump faces a total of 91 felony charges across four separate criminal indictments.[1] Pleading not guilty to all charges against him, all four jurisdictions are gearing up for trial, and the timeline of these legal proceedings carries significant implications for the 2024 Presidential Election.[2] As the very likely Republican nominee, Trump is set to face off against his 2020 opponent, President Joe Biden.[3] If Trump is convicted and sentencing occurs before November 5, there stands a real possibility of the presidential candidate being in a prison cell when Americans cast their votes.

New York Hush Money Indictment

On March 30, 2023, Manhattan District Attorney Alvin Bragg announced that a grand jury had indicted former President Trump on 34 felony charges of falsifying business records concerning hush money payments made to Stormy Daniels.[4] Prosecutors allege that Trump “orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects.”[5] The defense filed multiple motions to dismiss the charges to no avail and as of February 15, Trump’s first criminal trial is set to begin March 25.[6] According to presiding Judge Merchan, the trial is expected to last five or six weeks, ending in late April or early May.[7] If convicted, which is likely considering the New York jury pool and the strength of the evidence, each count could result in a prison sentence of up to four years, to be served consecutively, or the judge could impose no prison sentence.[8] The latter is seen as the most likely result because the accusations against Trump are largely victimless.[9] Consequently, the judge is not likely to sentence him to anything more than fines, or at most, probation and community service.[10]

Florida Classified Documents Indictment

Trump faces his most serious charges in a 40-felony count indictment related to his alleged mishandling of classified documents at Mar-a-Lago.[11] While the trial is technically set for May, Trump filed a motion to dismiss on February 22, claiming he should be shielded from prosecution by presidential immunity.[12] This motion aligns with previous requests to toss out the indictment, citing alleged prosecutorial misconduct and selective and vindictive prosecution.[13] By flooding the court with these motions and the amount of discovery required, it is highly unlikely that trial will occur before the election.[14] If elected and able to pardon himself, Trump may avoid his most damning indictment, which typically carries “prison sentences of several years or more.”[15]

January 6th Election Interference Indictment

Trump’s third indictment stems from special counsel Jack Smith’s investigation into alleged efforts by the former president to overturn the 2020 election. The indictment alleges Trump “attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them . . . to delay the certification.”[16] In October, the Trump defense team filed a motion to dismiss citing presidential immunity under Nixon v. Fitzgerald.[17] After the district court rejected this argument in December, special counsel Jack Smith sought the extraordinary step of bypassing the D.C. Circuit’s appeal process by turning directly to the Supreme Court. Smith argued that the “Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution this case warrants.”[18] The Court was unconvinced and denied the special counsel’s request, sending the case back to the D.C. Circuit.[19] On February 6, the appeals court unanimously affirmed the District Court, with Trump shortly after requesting the Supreme Court to block the appeals court ruling.[20] Twenty-two days later, the Court granted cert and oral argument has been set for April 22.[21] Given the Court’s expected timeline, a decision will likely not be issued until late June.[22] Assuming the former President does not receive immunity, this would push the trial right up to the election.[23] However, most legal commentators believe this is “game over” for Jack Smith, and the trial will not conclude until after November 5.[24]

Georgia Election Racketeering Indictment

The most recent of Trump’s criminal charges occurred on August 14, 2023, when a grand jury in Fulton County, Georgia indicted the former President for violation of state RICO charges, among 12 other charges.[25] Like other prosecutors, Fulton County District Attorney Fani Willis is seeking to secure a conviction before the election.[26] However, she faces her own uphill battle as she is fighting efforts against her disqualification from the case for alleged corruption.[27] Trump co-defendant Michael Roman and several other co-defendants are seeking Willis’ disqualification from the election case on the grounds that she benefited financially from a romantic relationship with an attorney who she hired for the case.[28] Legal observers are split on if presiding Judge Scott McAfee will decide to remove Willis from the case.[29] If she is removed, it would take some time for a new prosecutor to be appointed, and an even longer time for the complex, 15-defendant case to see trial.[30] This delay would likely mean that President Trump, yet again, escapes prosecution until after the election.

In summary, the likelihood of the former President finding himself behind bars before November 5, 2024, appears remote. Even in the event of a conviction in any of the pending criminal cases, legal processes, appeals, and potential delays are likely to extend well beyond the election. The protracted nature of the legal system, combined with the complexity of the charges and the strategic legal maneuvers employed by Trump’s defense team, make the prospect of prompt resolutions improbable.

[1] Gareth Evans, A guide to Donald Trump’s four criminal cases, BBC (Feb. 15, 2024),

[2] Id.

[3] Ken Bredemeier, Trump Moving Closer to Election Rematch With Biden, Voice of America (Feb. 25, 2024),

[4] Indictment, People v. Trump, Case No. 1:23-cv-71543 (S.D.N.Y. Mar. 30, 2023).

[5] Statement of Facts, People v. Trump, Case No. 1:23-cv-71543 (S.D.N.Y. Mar. 30, 2023).

[6] Frank G. Runyeon, Trump Gets March 25 Trial Date in NY Hush Money Case, Law360 (Feb. 15, 2024),

[7] Id.

[8]Ann E. Marimow, Here are the 34 charges against Trump and what they mean, Wash. Post (Apr. 4, 2023),

[9] John Bowden, Will Donald Trump go to prison?, The Independent (Feb. 15, 2024),

[10] Id.

[11] Indictment, U.S. v. Trump, Case No. 23-cr-80101 (S.D. Fla. Jul. 27, 2023).

[12] Perry Stein & Dalvin Barrett, Trump again claims immunity in effort to toss Fla. Classified documents case, Wash. Post (Feb. 23, 2024),

[13] Id.

[14] Alan Feuer & Maggie Haberman, A Trump Judge Under Scrutiny, N.Y. Times (Feb. 22, 2024), Some have called for Judge Aileen Cannon’s removal from the case, characterizing her one of the “far worse of the jurists overseeing these momentous cases” and alleging that her “decisions during the investigative phase of the case strayed widely from precedent.” Norman L. Eisen & Joshua Kolb, Aileen Cannon Might Actually Get Herself Kicked Off the Trump Classified Docs Case, Slate (Feb. 20, 2024),

[15] John Bowden, Will Donald Trump go to prison?, The Independent (Feb. 15, 2024),

[16] Indictment, U.S. v. Trump, Case No. 23-cr-00257 (D.D.C. Aug. 1, 2023), at 41.

[17] Motion to Dismiss Indictment Based on Presidential Immunity, U.S. v. Trump, Case No. 23-cr-00257 (D.D.C. Oct. 5, 2023). Nixon held that the President is entitled to absolute immunity from liability for official responsibilities. Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982).

[18] Petition for Writ of Certiorari, US v. Trump, (No. 23-00357), at 3.

[19] Robert Barnes, Supreme Court won’t expedite ruling on Trump’s immunity claim, Wash. Post (Dec. 22, 2023),

[20] US v. Trump, Case No. 23-cr-00257-1 (D.C. Cir. Feb. 6, 2024).

[21] Trump v. US, cert. granted, No. 23-939 (Feb. 28, 2024).

[22] Adam Liptak, Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April, N.Y. Times (Feb. 28, 2024),

[23] Zach Schonfeld, Trump’s Jan. 6 trial falls into doubt as Supreme Court takes up immunity claims, Hill (Feb. 29, 2024),

[24] Rick Hasen, Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election, Election Law Blog (Feb. 28, 2024),; Kyle Cheney & Josh Gerstein, How the Supreme Court just threw Trump’s 2024 trial schedule into turmoil, Politico (Feb. 28, 2024), (The trial judge has indicated that she would give Trump about three months to prepare for a new trial date, meaning that the trial would likely not begin until, at the earliest, October. The trial itself is expected to last another three months and thus ending in December).

[25] Indictment, Trump v. State, Case No. 23-sc-188947 (Fulton Super. Ct. Aug. 14, 2023)

[26] Jan Wolfe & Cameron McWhirter, Georgia Prosecutors Seek August 2024 Trial Date for Trump, Wall St. J. (Nov. 17, 2023),

[27] David Wicket & Bill Rankin, Meet Mike Roman, the man trying to bring down Fani Willis, Atlanta J. Const. (Feb. 7, 2024),

[28] Id.

[29] See Katie S. Phang, Why Judge McAfee’s Fani Willis decision is a surprisingly easy one, MSNBC (Feb. 21, 2024), See cf. Thomas Kika, Fani Willis’ Decision is ‘Bad Look,’ Ex-Prosecutor Warns, Newsweek (Feb. 5, 2024),

[30] Alison Durkee, Will Fani Willis Be Disqualified? Here’s What Would Happen Next if She’s Removed., Forbes (Feb. 16, 2024),

Antony Robreno 

The Sixth Amendment states that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”[1] The right to a jury trial is one of the more important protections that our founding fathers put in place to ensure that the government cannot deprive its citizens of freedom without showing cause. Despite the Sixth Amendment, criminal trials are not as common as Hollywood makes them out to be.[2] The reality, as recognized by the Supreme Court in Lafler v Cooper, is that “criminal justice today is for the most part a system of pleas, not a system of trials.”[3] In fact, almost 98% of all criminal convictions come from plea deals.[4] However, such reliance on pleas has led to the creation of a new issue, one that courts and legislatures across the nation may have to deal with very soon. This issue is known as the “Trial Penalty.”[5]

What exactly is the Trial Penalty?

The Trial Penalty refers to “the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.”[6] For example, imagine that John is charged with  a felony that carries a maximum sentence of ten years in prison. During plea negotiations, the prosecutor offers to let John plead guilty to a lesser charge that only carries a sentence of two years in prison, but if John decides to go to trial, the prosecutor will pursue the initial charge and its accompanying ten-year penalty. That stark contrast in potential punishment between the plea and trial is what is referred to as the Trial Penalty.

The Current Debate.

Prosecutors very commonly use this practice of offering a plea with significantly less prison time in lieu of going to trial and facing the full penalty of the initial charge.[7]  Until now, courts have not found it to be unconstitutional. As a matter of fact, the Supreme Court has upheld the practice of plea bargaining on multiple occasions over the years.[8] Advocates of the current system say that the result is not a “trial penalty” but rather a “trial privilege,” insinuating that if a defendant accepts a guilty plea, it is because they are guilty and want the mercy of the plea deal.[9] Opponents of plea bargaining insist that that is just not the reality of what truly happens.[10]

Groups such as the National Association of Criminal Defense Lawyers and Fair and Just Prosecution argue that the practice is a draconian punishment for defendants that exercise their rights.[11] They argue that the reality of a criminal proceeding does not fully allow a defendant to think through the consequences and creates a coercive environment.[12] Imagine a defendant facing twenty-five years in prison, who is told by his attorney that he can take a plea deal of only three years, but he must decide in the next fifteen minutes. The pressure surrounding that individual is immense, and it could lead to an innocent person pleading guilty for fear of losing at trial and facing a punishment far worse.

How Do We Fix This?

Even though the Trial Penalty has existed for decades,[13] criminal justice reform has only recently reached the forefront of political discussion, putting this practice into the national limelight.[14] The Trial Penalty has also garnered bipartisan support, with more conservative groups such as the CATO Institute[15] and ALEC (American Legislative Exchange Council)[16] taking up the same position as progressive groups like the Innocence Project.[17] Given the support this issue has across the aisle, state legislatures across the country could be looking at putting protections in place to ensure that defendants are not punished for wanting to go to trial. The question is how will they accomplish this and how will our criminal justice system react to any changes? Advocates against the Trial Penalty have laid out multiple possible solutions they feel will eliminate the punishment for individuals taking a case to trial.[18] These solutions include things like eliminating mandatory minimums, ethical charging practices, open file discovery procedures, and removal of language in pleas that requires defendants to waive certain rights.[19] Judges can also have a big part to play in this effort as they have full discretion to deny a plea deal if they see it fit.[20] Until legislative change comes, judges across the country can defend an individual’s right to trial by rejecting plea deals they feel violated that right given the circumstances.[21]

While those policy changes are a start, they will have significant impacts on our court system. As it is, our criminal courts are backlogged with cases, a situation that was only made worse by the COVID pandemic,[22] and while judicial economy should not be an argument for limiting someone’s constitutional rights, it does pose a valid counter point. The reality of the criminal system is that every criminal case in our country cannot go to trial because there simply is not enough bandwidth in our criminal courts to maintain that volume of trials.[23] The perfect change may not exist, but there must be a start somewhere.


 When our founders drafted the Bill of Rights, they likely did not imagine a world in which the government could punish an individual for choosing to exercise their Sixth Amendment right to a jury trial. The current practice of plea bargaining has put our criminal legal system in a precarious position; the “tough on crime” rhetoric, which produced the creation of mandatory minimums, has led to a reliance on pleas, making the eroding away of constitutional rights almost common practice in our current system.[24]  Defendants in our criminal justice system are afraid to go to trial, even if they are innocent, simply because of the fear of a harsher punishment.[25] With bipartisan support and the emergence of criminal justice reform reentering the national spotlight,[26] perhaps states will begin adopting policies that will lessen or even eliminate the Trial Penalty and give individuals the ability to exercise their Sixth Amendment right without fear of government retribution in the form of a harsher sentence.

[1] U.S. Const. amend. VI.

[2] The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How to Save It, NACDL (July 10, 2018),

[3] Lafler v. Cooper, 566 U.S. 156, 170 (2012).

[4] 2023 Plea Bargain Task Force Report urges fairer, more transparent justice system, American Bar Association (Feb. 22, 2032)

[5] The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How to Save It, supra note 2

[6] Id.

[7] Prosectuorial Overcharging, Memorandum from Paul Bennett to Defense Attorneys in Michigan, (1979) (on file with the National Criminal Justice Reference Service).

[8] See, e.g., Missouri v. Frye, 566 U.S. 134, 143 (2012); Lafler, 566 U.S. at 170; Brady v. United States, 397 U.S. 742, 747 (1970) (all discussing the validity and integral role of the plea-bargaining practice).

[9] Carrie Johnson, Trials have become an endangered species. A new effort is trying to change that, NPR (May 3, 2023, 4:00 PM),

[10] Id.

[11] Id.

[12] Id.

[13] Bennett, supra note 7.

[14] Johnson, supra note 9.

[15] Clark Neily, The Trial Penalty, CATO Institute (Feb. 9, 2018, 9:51 AM),

[16] Resolution on Ensuring the Constitutional Right to Trial by Ameliorating the Trial Penalty, American Legislative Exchange Council (Dec. 23, 2022),

[17] Christinia Swarns, Why the Trial Penalty Must Go, Innocence Project (May 1, 2023),

[18] Sarah N. Lynch, US Criminal Justice Alliance Seeks to Erase ‘Trial Penalty’, REUTERS (May 3, 2023, 4:40 PM),

[19] Id.

[20] Richard Dahl, Can Judges Reject Plea Deals?, FIND LAW (February 2, 2022),

[21] Id.

[22] Patrick Smith, As The Nation’s Courthouses Reopen, They Face Massive Backlogs In Criminal Cases, NPR (July 14, 2021, 1:03 PM),

[23] Id.

[24] Swarns, supra note 17.

[25] Timothy Hogan, Why Would Someone Take A Plea If They Are Innocent?, Hogan Eickhoff (August 26, 2022),,will%20come%20out%20in%20court.

[26] Johnson, supra note 9.

By Jenna White

As we all know, online advertising is almost impossible to escape.  In fact, the average consumer in the United States sees about five thousand advertisements each day.[1]  Even more frustrating to consumers is website publishers’ ever-increasing use of paywalls and subscriptions.[2]  But publishers are not to blame.  Google is.  By monopolizing the digital ad tech market, Google has effectively diminished the monetary value of online advertising, forcing publishers to resort to paywalls and subscriptions to remain afloat.[3]

On January 24, 2023, the Department of Justice (DOJ) filed a Complaint against Google, alleging violations of the Sherman Act,[4] which imposes criminal penalties for monopolistic business practices.[5]  Specifically, DOJ alleges that, through anticompetitive acquisitions and exploitation of its dominance in the tech industry, Google now controls the leading technology used by nearly every publisher and advertiser to buy and sell advertising space.[6]  The Complaint compares Google’s practices to Goldman or Citibank owning the New York Stock Exchange.[7]

Digital Ad Technology

A brief breakdown of how advertisers purchase advertising space from publishers is necessary to understand the breadth of Google’s practices over the past two decades.  Publishers sell space on their websites (referred to as inventory) that advertisers can buy to display their ads.[8]  Inventory is offered by publishers either through direct sales (one-to-one negotiations with advertisers) or indirect sales, where inventory is offered through an intermediary, most commonly an ad exchange.[9]  Ad exchanges are essentially auctions, where publishers offer ad space to advertisers and sell to the highest bidder.[10]

To facilitate these transactions, both advertisers and publishers use ad servers.[11]  When a consumer accesses a website, the publisher’s ad server auctions the ad space through an ad exchange.[12]  Advertisers use ad servers to connect them to these ad exchanges, make bids, and manage their ad campaigns.[13]  Ad exchanges match advertisers and publishers by providing information about the website and the available ad space, and, depending on the scope of the ad exchange and the data available to it, provide information about the individual consumer viewing the website.[14]  The figure below provides a simplified visual of the process, which collectively is referred to as the ad tech stack:[15]

Fig. 1

Google’s Takeover of the Ad Tech Stack

DOJ’s primary allegations rest on Google’s control of the entire ad tech stack.  On the publisher side, Google owns the leading publisher ad server, Google Ad Manager, after its 2008 acquisition of DoubleClick for Publishers (DFP) for three billion dollars.[16]  Google has grown DFP’s market share from sixty percent at the time of acquisition to ninety percent.[17]  On the advertiser side, Google owns the leading advertiser ad servers, Google Ads and Display & Video 360 (DV360), as well as DoubleClick Campaign Manager, which manages advertiser’s ad campaigns.[18]  Most importantly, Google’s 2008 acquisition of DoubleClick included the now-leading ad exchange AdX.[19]  Google’s comprehensive ownership of the ad tech stack, on its own, would be unlikely to trigger violations of the Sherman Act.  Nevertheless, Google has exploited its control over digital ad technology and siphoned an inconceivable fortune from the industry by stifling competition and innovation, depriving publishers of real choice and forcing advertisers to pay far more than they would in a competitive market. 

 Alleged Sherman Act Violations

In its Complaint, DOJ alleges violations under Sections 1 and 2 of the Sherman Act.[20]  Section 1 prohibits contracts, combinations, and conspiracies “in restraint of trade.”[21]  DOJ alleges that Google has engaged in unlawful tying of AdX and DFP in violation of Section 1 by effectively requiring publishers to use both technologies.[22]  The Supreme Court has defined tying as “an agreement by a party [here, Google] to sell one product [here, DFP] on the condition that the buyer [here, publisher] also purchases a different (or tied) product [here, AdX], or at least agrees that he will not purchase from any other seller.”[23]

DOJ argues that Google has unlawfully tied AdX and DFP primarily by offering ad space on Google Ads exclusively through AdX and limiting real-time access to AdX to publishers that use DFP.[24]  Because advertisers cannot afford to forego Google Ads as a revenue stream, virtually all advertisers bid for inventory on AdX.[25]  Therefore, publishers are effectively forced to auction inventory on AdX to reach Google’s advertising demand.[26]  Additionally, AdX is configured to provide lower prices to publishers who access AdX auctions through non-Google (non-DFP) ad servers.[27]  Together, these practices amount to unlawful tying of AdX and DFP, and DOJ will likely argue away any potential defenses or justifications.[28]

Section 2 of the Sherman Act prohibits monopolizing, attempting to monopolize, or conspiring to monopolize.[29]  DOJ alleges that Google has violated Section 2 by monopolizing the publisher ad server market (through DFP), monopolizing or attempting to monopolize the ad exchange market (through AdX), monopolizing the advertiser ad network.[30]  DOJ asserts that Google increased and maintained its monopoly in each of the relevant markets by acquiring DFP and AdX, restricting access to AdX to DFP, manipulating auction bids to benefit AdX, acquiring competitors, and restricting publishers’ ability to transact with competitors or at preferred prices.[31]  DOJ emphasizes that “[a]lthough each of these acts is anticompetitive in its own right, these interrelated and interdependent actions have had a cumulative and synergistic effect that has harmed competition and the competitive process.”[32]

Through these anticompetitive practices, Google has made a fortune.  When advertisers purchase ad space from publishers through AdX, Google skims off some of the purchase price for itself.[33]  Additionally, Google charges advertisers and publishers for use of its ad servers.[34]  Per internal Google documents, Google estimates that it retains about thirty-five cents of every dollar spent on digital ads, primarily through AdX, where it charges twenty percent for ad space bought.[35]  The figure below demonstrates how control of the ad tech stack has proved to be a cash cow for Google:[36]

Fig. 2

Google has constructed this money-grabbing structure through monopolistic practices, which, in turn, have reaped significant harm on advertisers, publishers, and the industry at large.  DOJ alleges that Google has disrupted the sale of inventory, reduced publishers’ profits, harmed advertisers’ and publishers’ profitability by producing lower-quality transactions, and restricted choice and innovation throughout the ad tech stack.[37]  The Complaint also lists the United States as an advertiser harmed by Google’s anticompetitive conduct, alleging that United States departments and agencies, including the Army, have incurred monetary damages as a result of Google’s conduct.[38]  Though the overarching purpose of the Sherman Act is to protect consumers,[39] DOJ failed to identify specific harm to consumers or the general public, beyond stating that “Google’s anticompetitive acts have had harmful effects on competition and consumers.”[40]  The Complaint briefly alludes to publishers’ increased use of subscriptions, paywalls, and alternative forms of monetization,[41] which potentially harm consumers by reducing access to information and Internet services.  However, the Complaints fails to develop this connection between website monetization and consumer harm; rather, the emphasis is on the publishers’ ability to remain profitable through advertising alone.[42]  Nevertheless, given that anticompetitive practices arguably always harm consumers, DOJ’s allegations may be sufficient.  

As to remedies, DOJ seeks a judgment decreeing that Google violated the Sherman Act, damages to the United States for the monetary damages it incurred, the “divesture of, at minimum, the Google Ad Manager suite” (which includes DFP and AdX), and an injunction against further anticompetitive practices.[43]

Google’s anticompetitive practices described in this blog barely scratch the surface of DOJ’s claims.  DOJ alleges a systemic, intentional takeover of the ad tech stack, characterized by tactful acquisitions, exploitation of Google’s customers and consumers, and secret projects that further entrenched Google’s monopoly.  For example, in 2014, the Complaint describes ‘Project Bell,’ which lowered advertisers’ bids, without advertisers’ permission, to publishers who partnered with Google’s competitors.[44]  Project Bell demonstrates the extent of Google’s anticompetitive scheme, which somehow thwarted the Federal Trade Commission (the agency charged with enforcing the Sherman Act, along with DOJ)[45] for nearly two decades.

When Google laid the first brick in its monopoly by acquiring DoubleClick (DFP and AdX), the FTC investigated but ultimately failed to challenge the acquisition, concluding that DFP’s sixty percent market share was insufficient to pose a risk of monopoly.[46]  Had the FTC pursued its initial investigation, Google’s chokehold on digital ad tech may have been avoided.  Nevertheless, the FTC’s failure to act likely gave Google the confidence to openly flaunt its unlawful practices, providing DOJ with ample evidence to bring the Sherman Act down on its monopoly.

[1] Ryan Holmes, We Now See 5,000 Ads A Day . . . And It’s Getting Worse, LinkedIn (Feb. 19, 2019),  

[2] Felix M. Simon & Lucas Graves, Reuters Inst. for the Study of Journalism, Pay Models for Online News in the US and Europe: 2019 Update 1 (May 2019), (finding that almost 70% of publishers in Europe and the US operate some form of paywall).

[3] Complaint at 118–19, United States v. Google, No. 00-108 (E.D. Va. filed Jan. 24, 2023).

[4] Id. at 132-39. 

[5] Sherman Act, 15 U.S.C. §§ 1–38.

[6] Complaint, supra note 3, at 117.

[7] Id. at 3.

[8] Damien Geradin & Dimitrios Katsifis, Tilburg University, Google’s (Forgotten) Monopoly – Ad Technology Services on the Open Web 3 (May 21, 2019),  

[9] Id.

[10] Id.

[11] Id.  

[12] Id.

[13] Id.

[14] Id. at 3–4.

[15] Complaint, supra note 3, at 16 fig. 2.

[16] Id. at 32.

[17] Id. at 45.

[18] Id. at 19–20.

[19] Id. at 18.

[20] Id. at 132–39. 

[21] 15 U.S.C. § 1.

[22] Complaint, supra note 3, at 138–39.

[23] N. Pac. Ry. Co. v. U.S., 356 U.S. 1, 5–6 (1958).

[24] Complaint, supra note 3, at 138.

[25] Id.

[26] Id.

[27] Id. at 43–44.

[28] See, e.g., id. at 138 (alleging that “Google’s exclusionary conduct lacks a procompetitive justification”).

[29] 15 U.S.C. § 2.

[30] Complaint, supra note 3, at  132-39.

[31] Id.

[32] Id. at 133, 135, 137.

[33] Id. at 22.

[34] Id.

[35] Id. at 23.

[36] Id. at 23 fig. 4.  

[37] Id. at 133, 135, 137.  

[38] Id. at 123.

[39] Robert H. Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L. & Econ. 7, 11 (1966) (arguing that “the legislative intent underlying the Sherman Act was that court should be guided exclusively by consumer welfare”).

[40] Complaint, supra note 3, at 138.

[41] Id. at 4, 119.

[42] Id. at 118-119 (alleging that, as a result of Google’s practices, advertisers purchase less inventory from “publishers that internet users rely upon to generate and disseminate important content, and ultimately fewer publishers are able to offer internet users content for free (without subscriptions, paywalls, or alternative forms of monetization)”).

[43] Id. at 138-39.

[44] Id. at 72.

[45] Federal Trade Commission, The Enforcers,  

[46] Federal Trade Commission, Federal Trade Commission Closes Google/Double Click Investigation (Dec. 20, 2007),   

By Gabby Korb

President Biden signed Executive Order 14006 banning the renewal of private prison contracts, stating that “[t]his is the first step to stop corporations from profiting off of the incarcerated—incarceration that is less humane and less safe, as the studies show.”[1]  Although this can be seen as a positive step in the fight against injustice in the criminal system, the impact of this executive order is likely more rhetorical than concrete.  The main issue with Executive Order 14006 is that it only focuses on renewal of “Department of Justice contracts with privately operated criminal detention facilities,”[2] which means it only targets federal prisons.  This leaves a massive loophole for immigration detention centers and state and county-run detention centers.  Additionally, because it is an Executive Order, the policy will likely end up as a fleeting attempt to tackle a major issue because it is subject to the whim of future administrations.  These issues beg the question of what the strongest long-term solution for ending the private-prison industry is.  I believe the answer to this question is a Supreme Court opinion ruling private prisons unconstitutional.  This blog post will briefly explore the injustice of private prisons, how Executive Order 14006 attempts and fails to solve these injustices, and potential avenues for finding private prisons unconstitutional.

The existence of private prisons poses major moral and economic issues that undermine American values.  First, studies have shown that inmates held in private prisons are subjected to longer stays because it increases profit for the corporations.[3]  Private-prison corporations themselves admit that “the demand for [their] facilities and services could be adversely affected by . . . leniency in conviction or parole standards and sentencing practices.”[4]  Second, private prisons are known for their atrocious conditions and untrained workers, which saves money and turns a higher profit.[5]  The two largest private-prison corporations, Core Civic and GEO Group, have combined revenues of $3.5 billion as of 2015.[6]  The business model of private prisons is to reap financial gain from keeping people imprisoned at the lowest cost possible.  Third, private prisons profit off exploiting minority communities.[7]  Private prisons gained traction in the 1980’s during the War on Drugs when federal prisons became overcrowded.[8]  It is now a well-known fact that the War on Drugs had a racially motivated and detrimental impact on minority populations that has persisted with the use of private prisons, and minorities continue to be overrepresented in private prisons.[9]  This all means “that people of color are more likely to be arrested, more likely to be convicted, more likely to be placed in a private prison, and less likely to receive parole.” [10]  The ethical, moral, business, and legal implications of allowing prisons to exist that are less safe, depend on racial discrimination, and profit off of keeping citizens in jail is deeply disturbing, and addressing these implications is vital to uphold the values of freedom and equality that American society holds dear.

Executive Order 14006 was issued by President Biden on January 26, 2021, to pursue the administration’s goal of decreasing incarceration levels.[11]  The Executive Order states that “to decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.”[12]  However, this Executive Order is inadequate in pursuing this goal.  It is likely the executive order will be repealed with a change in who occupies the presidency as was previously seen when President Trump repealed a similar Executive Order put forth by the Obama administration. [13]  Additionally, Executive Order 14006 allows major loopholes that prevent the majority of private prisons from being shut down.  One avenue for private-prison corporations to sidestep the effects of the order is to contract with county or state governments and other federal agencies, and there is evidence that these prison corporations have been doing just that since Executive Order 14006 was signed. [14]

Perhaps the most troubling aspect of this executive order is that it fails to encompass Immigration and Customs Enforcement (ICE) detention centers.  Before the Executive Order was enacted, roughly 80 percent of ICE detention beds were owned or managed by private prison corporations.[15]  With the passage of Executive Order 14006, this number will likely increase because private prison facilities shut down by the Order will take on new life as immigration detention centers.[16]  This is evidenced by one large prison company’s financial statements to its shareholders stating that it was “actively marketing and repurposing” prisons that would be phased out by Executive Order 14006.[17]  Therefore, it is clear that Executive Order 14006 is not a solution to the private prison problem.

I believe the most effective way to end the private-prison industry must come from the Supreme Court.  As of now, the Supreme Court has not touched the private-prison industry, but there are a variety of legal arguments that could be used to find it unconstitutional.  First, prisons are likely unconstitutional under the private nondelegation doctrine.  The private nondelegation doctrine forbids core governmental functions from being delegated and prohibits legal enforcement power from being granted outside the government to private groups over which the executive branch does not exercise control.[18]  Imprisonment is a core governmental function because it is the most severe form of punishment that strips citizens of their most basic liberties.  Second, private prisons could be eliminated under substantive due process.  It is widely held that individuals have the fundamental right to bodily freedom, and so any government interference of this right must meet the strict scrutiny standard.[19]  Strict scrutiny requires that infringement of a fundamental right be supported by a compelling government interest, and the government interference must be narrowly tailored to achieving the government’s compelling interest.[20]  Private prisons are not the most narrowly tailored means of incarceration because the government is fully capable of providing and maintaining prisons without help from private companies whose goal is to profit off incarcerated citizens.

Finally, private prisons could be attacked under the Thirteenth Amendment, which is generally known for prohibiting slavery.  The Thirteenth Amendment further reads that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist”. [21]  On its face, this seems to allow slavery in the prison context.  However, the Thirteenth Amendment has been under-litigated in the past century, and a flurry of scholarship suggests that a modern interpretation of the amendment may allow for the termination of for-profit prisons.[22]  It is undeniable that minorities make up higher rates of the private-prison population.[23]  These prisoners are then subject to work in private facilities for longer periods of time where they make pennies per hour.[24]  These inmates serve longer sentences and make a pittance in wages in order for private prison corporations to be profitable.[25]  This violates the spirit of the thirteenth amendment, and a new and contemporary meaning of slavery could evolve with a present interpretation of the amendment.

The private prisons industry has countless negative effects that the federal government has acknowledged, but change has not been swift.  Executive Order 14006 is an act of acknowledgment, but it is unlikely to drive substantial change.  The private prison industry will continue to thrive unless the Court acts.  There are many strong legal paths that allow true change in the criminal justice system by abolishing the private-prison industry, including the nondelegation doctrine, due process, and the Thirteenth Amendment.  An Executive Order will never be enough to create permanent change in the private-prison system. That change will best be served by the Court system.

[1] Luke Bar, BOP Finalizes Moving Inmates from Private Prisons, ABC News ( Dec. 1, 2022, 4:25 OM),

[2] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[3] Josh Sanburn, Privately-Run Prisons Hold Inmates Longer, Study Finds, TIME (June 19, 2015, 11:44 AM EDT),

[4] Banking on Bondage: Private Prisons and Mass Incarceration, ACLU ( Nov. 2, 2011),

[5]  ACLU, supra note 3.

[6]Kara Gotsch, Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons, The Sentencing Project (Aug. 2, 2018),

[7] Rina Palta, Why For-Profit Prisons House More Inmates Of Color, NPR ( March 13, 2014 , 7:12 AM ET),  

[8] andre douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and the Prison-Industrial Complex, 15 J. Gender Race & Just. 417 (2012).

[9] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021),

[10] Id.

[11] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[12] Id.

[13] Jim Tankersley & Annie Karni, Biden Moves to End Justice Contracts with Private Prisons, NY Times (Jan. 26, 2021),

[14] Lauren-Brooke Eisen, Breaking Down Biden’s Order to Eliminate DOJ Private Prison Contracts, Brennan Ctr. for Just. (Aug. 27,  2021),

[15] Id.

[16] Chris Geidner, A Year After Biden’s Executive Order on Private Prisons, Business Is Still Booming, Grid (Jan. 26, 2022),

[17] Id.

[18] Robert Craig & andre douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 282 (2020).

[19] Salil Dudani, Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences, 129 Yale L.J. 2112 (2020).

[20] Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV. 625, 627 (1992).

[21] U.S. Const. amend. XIII, § 1.

[22] Craig & cummings, supra note 15.

[23] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021),

[24] Comparing Compensation: What Inmates in Private Prisons Would Otherwise Get Paid, Human Trafficking Search (Nov. 13, 2017),

[25] Abood, supra note 9; Comparing Compensation, supra note 24.

By Kendall Carter

Florida has executed more people than just about any other state.[1]  However, Florida also gets it wrong more than anyone else.  Florida has had thirty exonerations from death row, more than any other state, and it’s not even close.[2]

On October 13, 2022, after months of proceedings, a Broward County jury recommended a sentence of life in prison without the possibility of parole for each of Nicholas Cruz’s 17 counts of first-degree murder.[3]  Cruz carried out the February 14, 2018, massacre at Marjory Stoneman Douglas High School in Parkland, Florida, slaying fourteen students and three faculty and staff members.[4]  Cruz had plead guilty to the charges last year, so the jury trial focused solely on the sentencing phase.[5]  Prosecutors submitted seven aggravating factors—circumstances required to make an individual guilty of first-degree murder eligible for the death penalty—including that the offender created a “great risk of death” to many persons, the homicides were especially heinous, atrocious, and cruel, and the homicides were committed in a cold, calculated, and premeditated manner.[6]  The defense submitted forty-one mitigating factors,[7] far more than the seven statutorily defined mitigating factors, relying on the residual provision in Fla. Stat. § 921.141(7)(h) to present “any other factor[s]” that would make the imposition of a life sentence more appropriate.[8]  One statutory factor presented was that “the defendant was under the influence of extreme mental or emotional disturbance” when the crime took place.[9]  One “other factor” presented was that Cruz’s mother’s heavy alcohol use while pregnant “poisoned” Cruz, leading to fetal alcohol spectrum disorder.[10]  While the jurors unanimously determined that the prosecutors had proven seven aggravating factors beyond a reasonable doubt,[11] three of the jurors did not agree that the aggravating factors outweighed the mitigating factors.[12]  As such, the jury could not recommend a sentence of death.[13]

Many of the victims’ families expressed shock and outrage at the verdict, including Linda Beigel Schulman, whose son, Scott Beigel, a geography teacher at Stoneman Douglas, was killed.[14]  After the verdict was read, Ms. Schulman lamented, “If this was not the most perfect death penalty case, then why do we have the death penalty at all?”[15]  Fred Guttenberg, whose 14-year-old daughter, Jamie, was also among the victims, said, “This jury failed our families today.  Seventeen families did not receive justice.”[16]  Surprise, however, was not limited to the victims’ families.  Indeed, “[w]ith the trial being watched worldwide and with ample evidence of the brutality of Cruz’s rampage, many legal observers had believed Cruz’s defense team faced an uphill battle in convincing a jury to spare his life.”[17]  This was the deadliest mass shooting to be adjudicated by a trial in the U.S., yet it still didn’t result in a death verdict.[18]

One may, understandably, feel that a life without parole sentence in such a high-profile case—in a death penalty-friendly state like Florida, no less—might signal a shift in public sentiment against the death penalty.  Certainly, support for the death penalty in the U.S. is at its lowest point (fifty-four percent) since 1972,[19] when the Supreme Court issued, what amounted to, a four-year moratorium on the death penalty in Furman v. Georgia, but this verdict reveals a far more complex picture of where the death penalty stands in America.[20]  On one hand, says Former Miami-Dade senior homicide prosecutor Abe Laeser, defense attorneys will likely use this case as leverage with prosecutors: “[A] lawyer will say, ‘My client didn’t shoot 17 school kids with 139 bullets.  If that guy doesn’t deserve it, my guy doesn’t deserve it.’”[21]  Likewise, Laeser predicts, “Across the board, prosecutors who are pro-death penalty are going to be in a difficult position to make their cases to trial juries and trial judges.”[22]

On the other hand, Cruz’s verdict appears to have galvanized pro-death penalty sentiment in Florida, spurring demands to reform Florida’s death penalty laws.[23]  In recent years, the death penalty has been overhauled in Florida.[24]  First, in 2016, the Supreme Court of the United States ruled that Florida’s death penalty was unconstitutional as it violated the Sixth Amendment’s guarantee of the right to a jury trial.[25]  The Florida sentencing statute at the time “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’”[26]  Additionally, Florida’s capital punishment-specific statute tasks the trial court alone with the finding “[t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”[27]  This effectively meant that the jury’s recommendation was “advisory only,” empowering judges to find that a death sentence was warranted, even if the jury recommended life in prison.[28]

However, during this time, another element of Florida’s sentencing statute elicited questions.[29]  A simple majority vote was all that was required in Florida, one of only three states that permitted nonunanimous jury recommendations in capital sentencing.[30]  Not only could death sentences be overruled by the judge, but also, they need not be unanimous.[31]  Hurst called Florida’s death penalty practices into question, so the legislature amended the death penalty statute to align Florida’s practice with constitutional principles.[32]  First, the March 2016 amendment eliminated judges’ ability to override jury sentencing recommendations.[33]  Second, the amendment mandated that jurors unanimously determine that the prosecution has proven aggravating factors, making the defendant eligible for a possible death sentence.[34]  Finally, the statute no longer permitted a simple majority to impose the death penalty but did not go so far as requiring a unanimous vote, instead requiring that at least ten jurors sign on to the ultimate death sentence.[35]  However, in October 2016, the Supreme Court of Florida struck down the statutory amendment because while aggravating factors must be found by unanimous vote, the statute still did not require a unanimous vote for the ultimate imposition of the death penalty.[36]  As a result, it was not until March 2017 that death sentences in Florida had to be unanimous, after the Florida legislature again amended the statute.[37]  It is this statute that guided the prosecution in Cruz’s case.[38]

With Ron DeSantis securing reelection as governor of Florida in a decisive victory earlier this month,[39] Florida is poised to make a significant change in its death penalty policies.[40]  At a campaign stop on October 16, 2022, Governor DeSantis expressed his frustration at Cruz’s jury verdict, lamenting, “I’m sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment.”[41]  Governor DeSantis also signaled his intentions to work with the Florida legislature to reform the laws governing the death penalty, hinting at Florida’s fickle sentencing statute.[42]  During DeSantis’s first term as governor, as many people were executed as were exonerated from Florida’s death row.[43]  Yet Governor DeSantis looks to return to the prior sentencing regime, specifically sanctioned by the United States Supreme Court, that would allow fewer than twelve jurors or even just one particularly pro-death judge to sentence a criminal defendant to death.[44]  When death verdicts are easier to come by, it is easy to see how innocent people get swept up in the melee. Eliminating the need for unanimous jury verdicts in capital cases would, warns Robert Durham, executive director of the Death Penalty Information Center, “make it more likely innocent people will receive the death penalty.”[45]  Durham directly attributes Florida’s high exoneration rate to its history of relying on nonunanimous juries to sentence its defendants to death.[46]  Given that he plead guilty last year, Cruz’s case is probably not one that elicits concerns of a possible exoneration down the line.  Nonetheless, the high-profile nature of the case opens the door to significant changes in the way Florida juries hand down death sentences.  As a result, future defendants whose guilt is less than certain may have only ten or even seven jurors to decide if they live or die.  If Governor DeSantis keeps his word to make imposing the death penalty easier in Florida, the Broward County jurors may have had more of an impact on the future of the death penalty than they realized when they took their oaths.

[1] Executions Overview, Death Penalty Info. Ctr., Only Texas (577), Oklahoma (118), and Virginia (113) have carried out more executions since 1976.

[2] Florida, Death Penalty Info. Ctr.,; Innocence, Death Penalty Info. Ctr.,  The state with the second highest number of exonerations is Illinois with 22, and then the numbers fall off from there.

[3] Dakin Andone et al., Parkland School Shooter Avoids the Death Penalty after Jury Recommends Life in Prison, CNN (Nov. 9, 2022, 11:47 PM),

[4] Id.

[5] Id.

[6] Id.; Fla. Stat. § 921.141(6).

[7] Andone et al., supra note 3.

[8] Fla. Stat. § 921.141(7).

[9] Patrick J. Lyons & Patricia Mazzei, ‘Mitigating Circumstances’ Spared the Gunman’s Life. What Are They?, N.Y. Times (Oct 13. 2022, 2:21 PM),

[10] Id.

[11] Patricia Mazzei & Nicholas Bogel-Burroughs, The Gunman Will Be Sentenced to Life in Prison Without Parole, N.Y. Times (Oct. 14, 2022),

[12] Andone et al., supra note 3.

[13] Patricia Mazzei & Audra D. S. Burch, Juror Describes Last-Ditch Bid to Deliver Death Sentence in Parkland Trial, NY Times (Oct. 15, 2022),

[14] Patricia Mazzei & Nicholas Bogel-Burroughs, ‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision., N.Y. Times (Oct. 13, 2022, 2:02 PM),

[15] Id.

[16] Id.

[17] David Ovalle & Mary Ellen Klas, What’s Next for the Death Penalty – in Florida? – Legal Experts Predict That the Parkland Verdict for a Life Sentence Will Make It Harder to Secure Death-Penalty Convictions in Florida., Mia. Herald (Oct 14. 2022),

[18] Terry Spencer, Parkland School Shooter Spared from Execution for Killing 17, AP News (Oct. 13, 2022),

[19] Death Penalty, Gallup,

[20] Furman v. Georgia, 408 U.S. 238 (1972).  The moratorium ended four years later with Gregg v. Georgia, 428 U.S. 153 (1976).

[21] Ovalle & Klas, supra note 17.

[22] Id.

[23] Gary Fineout, Parkland Verdict May Reopen Florida Death Penalty Law, POLITICO (Oct. 14, 2022, 7:05 AM),

[24] Hurst v. Florida, Death Penalty Info. Ctr.,

[25] Hurst v. Florida, 577 U.S. 92 (2016).

[26] Id. at 99–100 (quoting Fla. Stat. § 775.082(1) (emphasis added)).

[27] Id. at 100 (quoting Fla. Stat. § 921.141(3)).

[28] Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983).  See James C. McKinley Jr., Why Does Florida Require a Unanimous Jury Decision to Impose a Death Sentence?, N.Y. Times (Oct. 13, 2022),

[29] Hurst v. Florida, supra note 24.

[30] McKinley, supra note 28.

[31] Id.

[32] Hurst v. Florida, supra note 24.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] McKinley, supra note 28.

[39] Anthony Izaguirre, DeSantis Defeats Crist, Wins 2nd Term as Florida governor, AP News (Nov. 8, 2022),

[40] Fineout, supra note 23.

[41] Demie Johnson, Gov. DeSantis Calls on Changes to Death Penalty Law after Parkland Shooter Sentencing Hearing, WFTV (Oct. 16, 2022, 10:29 PM),

[42] Id.

[43] Florida, supra note 2; Innocence Database – Florida, Death Penalty Info. Ctr.,

[44] Bruce Ritchie, DeSantis Says Parkland Shooter Deserves the Death Penalty, POLITICO (Oct. 13, 2022, 2:02 PM),

[45] Greg Allen, Florida Is Poised to Change the Way It Imposes the Death Sentence in Trials, Morning Edition, NPR (Nov. 1, 2022, 5:02 AM),

[46] Id.

Diplomatic Immunity over Globe

Diplomatic Immunity: A Carte Blanche for Misconduct?

By William McEwan

Do “Get Out of Jail Free Cards” exist outside the realm of Monopoly? For Anne Sacoolas—the wife of U.S government employee, Jonathan Sacoolas—one might argue they do.[1] In August of 2019, Mrs. Sacoolas struck and killed Harry Dunn, a nineteen-year-old British citizen, when she was driving on the wrong side of the road outside of an R.A.F army base in Croughton, U.K.[2] Prior to the incident, Mrs. Sacoolas had been living in the U.K for several weeks with her husband while he worked for the U.S government at a British air force base.[3]

In the wake of Harry’s death, the U.S. government invoked diplomatic immunity on Mrs. Sacoolas’ behalf and she fled the U.K.—initiating a three year civil and criminal battle in both the U.S and U.K court system.[4] Over three years later these proceedings are beginning to close; however, questions still remain. Specifically, how did this happen, how can this be prevented in the future, and has diplomatic immunity become more akin to diplomatic impunity?

The Story in the Courts

In 2019, the British Crown Prosecution Service (“BCPS”) charged Mrs. Sacoolas with causing the death of Harry Dunn.[5] However, because of the immunity invoked on her behalf, there was one major problem: Mrs. Sacoolas was not in the U.K. and was under no obligation to return.[6] The BCPS made an extradition request to the U.S. which was summarily denied by the State Department—a decision described as final.[7] The Trump administration supplemented this decision by stating that “granting the request would render the invocation of diplomatic immunity a practical nullity.”[8] This unsatisfactory result left the family of Harry Dunn with little recourse for the death of their son—so they tried their luck on U.S. soil.

On the 9th of September, 2020, the Dunn’s filed a civil wrongful death suit against Mrs. Sacoolas in the United States District Court Eastern District of Virginia. [9] In September 2021, the parties reached an undisclosed settlement and the door closed on the civil chapter in the proceedings.[10] Nevertheless, the Dunn’s, the British Public, and Parliament still felt an overwhelming sense of injustice that Mrs. Sacoolas had yet to face criminal charges in the U.K.[11] This sense of injustice lingered for two years, until a particularly savvy change to the U.K.’s Justice Act of 2003 (the “Justice Act”) opened the door to a potential prosecution in England.[12]

On the 28th June, 2022, the Justice Act was amended to give courts the power to “require or permit a person who is outside England and Wales (whether in the United Kingdom or elsewhere) to take part in eligible criminal proceedings through a live audio link or a live video link.”[13] This change in the law enabled Mrs. Sacoolas to appear before a criminal court in the U.K. via video link, circumnavigating the previous requirement of in-person appearances.[14] On the 20th October, 2022, Mrs. Sacoolas appeared before the Old Bailey Magistrate court via video link and pleaded guilty to the charge of causing death by careless driving.[15] She is due to be sentenced in November.[16] After nearly four years, it appears justice may be close for the Dunn family. Or is it in fact, just smoke and mirrors?

The reality remains that in the absence of extradition, there is nothing compelling Mrs. Sacoolas to travel to the U.K to receive punishment. A fact presiding Judge Cheema Grubb is well aware of, explaining at the hearing “[i]t is agreed that any sentence I pass is unlikely to be enforceable while the defendant remains outside of the United Kingdom. There is no order I can make to compel her appearance at the central criminal court for sentence.”[17] Thus, while the Dunn’s may feel some reprieve to have an official record of their son’s killer’s guilt, they must continue to wait to find out if Mrs. Sacoolas will receive an enforceable punishment. A fate that is entirely in her hands.

Loophole in the Law

The framework of diplomatic immunity rests upon the Vienna Convention of 1961.[18] The agreement between 190 states outlines the protections that family members of state officials enjoy. Specifically, Article 37(2) of the Vienna Convention, 1961 states:

Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or 12 permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.[19]

This article provided the driving force for Mrs. Sacoolas’ enjoyment of diplomatic immunity.[20] However, states can supplement the Convention agreement with their own agreements. When the United States invoked diplomatic immunity on behalf of Mrs. Sacoolas, they utilized what has since been referred to as a “legal loophole” in the agreements between the two states.[21] The U.S. and U.K. agreed to allow the potential prosecution of U.S. staff for crimes committed beyond their duties—but their families had greater protections.[22] This meant that while Mr. Sacoolas may not have enjoyed immunity if he had committed the same crime as his wife, she enjoyed protection under this anomaly in the agreement.

In light of the serious diplomatic tensions between the U.K. and U.S. in the years after Harry’s death, and persistent lobbying from the Dunn family, the agreement was amended to strip family members of their diplomatic protections in future cases similar to Mrs. Sacoolas’.[23] Foreign Secretary Dominic Raab claimed the development had “closed the anomaly that led to the denial of justice in the heartbreaking case of Harry Dunn.”[24] While this is progress for future incidents, the amendment does not work retroactively.[25] Nothing changes in the case of Mrs. Sacoolas. The Dunn’s must still wait in anticipation to see if Mrs. Sacoolas makes the trip across the Atlantic to be sentenced next month.

Is Diplomatic Immunity Really a Carte Blanche for Misconduct?

The Government of the Netherlands says no.[26] In part, stating “The Vienna Convention does not give diplomats carte blanche for misconduct. Diplomatic immunity does not place diplomats above the law and diplomats are obliged to conduct themselves in accordance with the laws of the receiving state.”[27] Yet, in cases like this, that hardly seems to be true. Mrs. Sacoolas did not conduct herself within accordance with the laws of the state, and for over three years she has faced no consequences. She has effectively enjoyed impunity, not immunity.

By no way is this article arguing that diplomatic immunity is frivolous or unnecessary. The Vienna Convention is vital to maintaining successful international relations and its importance cannot be underestimated.[28] However—as applied—there are unquestionable flaws. The unpardonable vice of diplomatic immunity, is not that it exists, but that its existence can lead to cases of immense injustice, like the case of Harry Dunn. As such, states must take it upon themselves to rectify loopholes and anomalies in their immunity agreements before tragedy strikes again. Additionally, no harm could occur in reminding state officials and their family members to drive on the correct side of the road.

  1. Complaint at 3, Charles v. Sacoolas, No. 1:20-cv-01052 (E.D. Va. 2020).

  2. Id. at 1.

  3. Id. at 3.

  4. Pete Cooper, Harry Dunn: Justice for family three years after crash death, BBC News (Oct. 20, 2022),

  5. Complaint at 6, Charles v. Sacoolas, No. 1:20-cv-01052 (E.D. Va. 2020).

  6. Harry Dun crash: Anne Sacoolas extradition refusal ‘final’, BBC News (May 12, 2020),

  7. Id.

  8. Id.

  9. Complaint at 1, Charles v. Sacoolas No. 1:20-cv-01052 (E.D. Va. 2020)

  10. Jenny Gross, Family of U.K. Teen Reaches Deal With U.S. State Department Employee After Car Accident, N.Y. Times (Sept. 21, 2021),

  11. Jack Duggan, Harry Dunn injustice ‘only just’ raised with US government by foreign secretary, says prime minister, Northampton Chronicle & Echo (Mar. 3, 2021),

  12. Criminal Justice Act 2003, c. 44, part 8, § 52 (UK),

  13. Id.

  14. Harry Dunn crash: Anne Sacoolas appears in court, BBC News (Sept. 29 2022),

  15. Amanda Holpuch, American Woman Pleads Guilty in Death of British Teenager, N.Y. Times (Oct. 20, 2022),

  16. Id.

  17. Benn Quinn, Anne Sacoolas pleads guilty to causing death of Harry Dunn, Guardian (Oct. 20 2022),

  18. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.

  19. Id. at art. 37(2).

  20. Dunn v. Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC (QB) 3185 (appeal taken from England).

  21. Matthew Weaver, Harry Dunn death: UK closes loophole that let accused claim immunity, Guardian (Wed 22 Jul 2020 09.02 EDT),

  22. Weaver, supra note 18.

  23. Id.

  24. Harry Dunn Death: US immunity rule used by Anne Sacoolas closed, BBC News (Jul. 22 2020),

  25. Id.

  26. Diplomatic immunity, Government of Netherlands,,laws%20of%20the%20receiving%20state.

  27. Id.

  28. Id.

Burdens of Production As Unproductive

R. George Wright[1]*


The placement of a legal burden of proof can be decisive as to the outcome of a case.[2] Considerations of cost, fairness, and pragmatism normally play a role in allocating burdens of proof.[3] Often, burdens of proof—particularly burdens of producing evidence on specific issues—are shifted between the parties as a case develops.[4] All of this is uncontroversial.

While the burden of producing evidence on any given issue can be shifted, it can never be shared, at any given time, between the parties.[5] As it turns out, however, there is actually no reason in logic or policy why a burden of production at a given point cannot be shared, as distinct from being borne exclusively by one party or the other.[6] Of course, a shared burden of production on a specific issue at a specific time cannot possibly mean that if neither party produces legally sufficient evidence on that issue, then both parties somehow lose on that issue. In such a case, the burden sharing process has simply failed, and the legal consequences should be borne by the party that would ordinarily have borne the entire burden of production on that particular issue.

Certainly, a shared burden of production is in many contexts unfair or otherwise inappropriate.[7] But in other contexts, as highlighted herein, a simultaneously shared production burden may not only be fair and technically efficient but may also promote better outcomes than would otherwise be available.[8] This can be true especially whenever the government party’s interests are already mixed and are not entirely opposed to the interests of the nongovernmental party. Among other considerations, a shared burden of production at a given point may incentivize a meaningfully collaborative exploration of the issue. The parties, from their complementary positions of partial knowledge and ignorance, may then arrive at low-cost policy options and judicial resolutions that might not flow from adversarial discovery as it is normally conducted.[9]

While evidentiary production burdens should not always be shared between the parties, there are important contexts in which the overall gains from production burden sharing can be quite substantial. Among such contexts are what we might call the religious freedom cases, focusing on statutory religious freedoms and their possible collisions with compelling governmental interests.[10] Additionally, evidentiary production burdens can be usefully shared, and not merely shifted, between the parties in many Establishment Clause cases.[11] But the possibility of evidentiary production burden sharing should be considered whenever, as in many equal protection, due process, and free speech constitutional right contexts, the relation between the governmental party and the private party is not entirely adversarial.[12]

In such cases, a shared burden of evidentiary production may, for reasons explored below, result in better evidentiary outcomes and better ongoing relations between the parties, than would otherwise have been attainable.[13] In all shared burden cases, the efforts of both parties should be taken into account by the presiding judge. Those efforts should, in turn, be appropriately incentivized in advance and rewarded after the fact in the coin of enhanced credibility. Cooperating parties should be rewarded with appropriate enhancements of their credibility not merely on the particular issue at stake, but, importantly, more generally as well. Immediately below, this Article considers the logic of fixed, shifting, and shared burdens of evidentiary production in general.

I. Burdens of Production: Placed, Shifted, and . . . Shared

Typically, legal cases involve disputes over whether some act or event took place and whether some legal standard of performance was thereby met. One might say that formulating this issue itself precedes any placement of any burden of proof.[14] Perhaps statements of the legal issues and placements of burdens may actually be interdependent as well.[15] In any event, however, the general idea of a burden of proof has long been plagued by “distressing ambiguity.”[16] At a minimum, the law has, rightly or wrongly,[17] distinguished between a burden of production, or a bringing forth of some amount of evidence, and some ultimate burden of persuasion.[18]

A bit more elaborately, one might ask four questions about adjudicative burdens in general. Specifically, one might ask “who bears the burden”;[19] “what or how heavy the burden is”;[20] “what is the effect of failing to carry the burden”;[21] and “what is the effect of succeeding in carrying it?”[22] The question of which party bears, or should bear, some sort of burden of producing evidence in any given context is, unhappily, notoriously vexed.[23]

Thus, it might seem obvious that the burden of producing evidence should rest on the party with easier, or lower-cost, access to the evidence in question.[24] It is generally easier for a plaintiff to prove the existence of a medical bill than for the defendant to prove that the plaintiff never received a medical bill.[25]

Imagine, though, the legal equivalent of a hypothetical raised by Professor James Cargile.[26] Suppose I call Smith on the phone, and that Smith answers by declaring to me that he is indeed Smith. My intention in calling is merely to invite Smith to go bowling. Arbitrarily, though, I now demand that Smith produce at least some evidence that he is in fact whom he affirmatively claims to be. Smith, after all, need not have asserted that he is in fact Smith. And quite likely, Smith has, in the moment, easier and lower-cost ways of supporting his affirmative claim to be Smith than I have supporting any claim that he is not.

Yet in such a case, we do not normally think it incumbent upon Smith to produce any evidence that he is whom he claims to be. Doubtless there are exceptions, or at least some variant cases. Perhaps I am the commanding officer of Smith and everyone else who might have answered the phone. Perhaps I am returning Smith’s phone call, in which he had asked for his credit balance or for a personal loan.[27] Such circumstances might seem to call for shifting the burden of production as to identity.

Thus, “[t]here are no hard-and-fast standards governing the allocation of the burden of proof in every situation.”[28] Instead, the courts are to look, quite vaguely, to “policy and fairness based on experience in the different situations.”[29] The law is, in this respect, open to considerations of ethics and pragmatism in allocating the burden of evidentiary production.[30]

The courts also allow for, if they do not actually mandate, shifts in the placement of production burdens as the adjudicative process unfolds.[31] The possibility of such shifts “means that the balance of considerations relevant to allocations [of the burden of production] . . . may be struck several times during the course of a trial.”[32] Thus, “the burden of going forward with evidence shifts from side to side . . . .”[33] Various forms of the shifting imposition of burdens of production are familiar in First Amendment cases,[34] Title VII civil rights cases,[35] and religious discrimination cases.[36]

The idea of shifts, as between the parties, of the burden of production of evidence is thus well-established in the law.[37] But such shifts leave untouched the unquestioned legal assumption that at any given time, as to any particular element or defense, one party, to the exclusion of the opposing party, has the sole and exclusive burden of evidentiary production.[38]

Therefore, it is accurately reported that

each issue to be litigated, whether it is an element or an affirmative defense, has a burden or production associated with it that requires one party or the other to produce evidence relevant to the particular (hence the name ‘burden of production’).[39]

Under the current law, burdens of evidentiary production can thus be shifted, but generally cannot be simultaneously shared, bilateral, joint, or mutual, in any meaningful respect.[40]

This legal practice is, however, not required by logic, fairness, adversarialism, or pragmatism. The unshared evidentiary burden, at any point, is instead often both unnecessary and generally ill-advised. Courts should, crucially, be permitted by rule to impose, at appropriate points in the adjudicative process, a shared or joint burden of production on the opposing parties.[41] Burdens thus need not be exclusive or binary.

To be clear, the value of imposing a simultaneously shared, and not merely a shifting, burden of production would vary substantially, depending on the nature of the case. The case law referred to below is skewed to illustrate the various contexts in which a jointly shared burden of production tends to have the greatest value.[42] Typically, such cases will involve individual constitutional rights and a less-than-complete opposition of the parties’ interests at stake.[43]

A shared burden of evidentiary production, at an appropriate point in a lawsuit, may generate several sorts of benefits. Most generally, a shared burden of production incentivizes efforts by both parties to creatively, and mutually responsively, enhance the overall credibility of their respective positions. A shared burden in this respect means that a judge can give a variable degree of credit to either side for meaningful effort in developing and clarifying the evidence, above and beyond that which can be attained by formal adversarial discovery processes. The judge’s finding on the issue can properly reflect the judge’s sense of the degree to which each party has constructively and collaboratively contributed to the overall state of the evidence. And enhanced credibility on one element of a case may naturally and perhaps inevitably translate to greater credibility of that party on other elements of the case, including on damages and other remedies.

Thus, the judge will take into account the degree to which both parties have, from their different positions, constructively collaborated and engaged with the opposing party in seeking an optimal resolution of the issue. That is, the judge can reward, and thereby incentivize in advance, the parties’ active cooperation in devising some previously unthought-of set of rules, practices, and behaviors that can accommodate and more fully promote the legitimate interests of the public and of both parties.

More concretely, there are important kinds of constitutional and other cases in which neither party has easier access to all aspects of the crucial facts, or to the crucial evidence.[44] In those cases, one party has better access to some aspects of the crucial evidence, but the opposing party has better access to other aspects of that issue.[45] The optimal resolution may require not just formal discovery and formal negotiations, but a process of creative mutual engagement, initiative, and collaborative exploration by the parties.

In such cases, both parties thus have certain advantages and disadvantages with respect to key issues.[46] The best practical resolution may be one that neither party can envision even after discovery and might not arrive at but for the cooperation incentivized by a shared burden of proof on the issue. As well, neither party’s initial claims are typically so out of the range of what is normally expected, or so outlandish, as to virtually call for an unshared burden of proof.[47] The law is already open to the possibility of shared burdens in such cases, in the sense that that allocations of burdens of proof are typically thought of as involving questions of law, or of mixed questions of law and fact subject to de novo review.[48] Thus, no powers need be snatched by the court from the trier of fact.

In addition, a shared burden of proof can more broadly incentivize treating an opposing party as a respect-worthy potential source of creative insight. The parties may have very different relevant knowledge bases to begin with. But a shared burden of proof incentivizes thinking of an opposing party as, in some respects, an epistemic peer.[49] And this process can lead to better relations as well as better decisional outcomes.[50]

Part of the logic here is that otherwise inefficiently adversarial interactions can be modified. In particular,

the quality of the discussion can be enhanced if the participants behave in a more cooperative way by offering advice to the other party in the form of providing questions or counterarguments that enable the proponent to see the weakness in his argument and improve it as the discussion proceeds.[51]

But much of the value of such a collaborative investigation is not in enlightening one’s opponent, but in discovering workable options not initially envisioned by either party.[52] Below, this Article illustrates these contentions in particularly important religious freedom and Establishment Clause Contexts.

II. The Value of Burden Sharing In Practice

A. The Religious Freedom Context

Across a broad range of religious freedom cases, evidentiary production burdens are placed on the government that is alleged to have impaired the religious practice in question.[53] Typically, the burden is placed on the government not merely to explain its reasoning in substantially burdening the claimant’s religious practice, but to prove that its policy “is the least restrictive means of furthering[54] a compelling[55] governmental interest.”[56]

There is thus a current consensus that the government, rather than the religious claimant, bears exclusively the burden of producing evidence with respect to the narrow tailoring of the religious burden in question.[57] Remarkably, though, the courts vary dramatically with respect to what discharging this burden requires in practice.[58] What the courts do not envision, however, is any sense of a simultaneously shared or jointly held burden with respect to showing the presence or absence of narrow tailoring.[59]

A number of courts allow the government to discharge the burden of showing narrow tailoring on the basis of only rather modest efforts. For example, the Eleventh Circuit has concluded that in this context, the government defendant need consider only the religious claimant’s own proposed alternatives, if any, and their compatibility with the government’s demonstrable compelling interests.[60] Requiring the government to refute every conceivable way in which the religious claimant might be accommodated consistent with the government’s compelling interests would ask the impossible.[61]

Rather than requiring the government to perform the impossible, some courts limit the universe of possible alternative regulations to merely those that the religious claimant is in a position to propose.[62] Thus, it is said that while the relevant statutory burden remains on the government, once the government presents its evidence, the religious claimant “must demonstrate what, if any, less restrictive means remain unexplored.”[63]

What these analyses miss, though, is the range of alternatives between requiring the government to refute innumerable options and requiring the government to refute merely those alternatives, if any, that the religious claimant is currently positioned to recognize and articulate. There may be some limited room for the courts themselves, at trial or on appeal, to try to devise less religiously burdensome alternative policies that still satisfactorily promote the compelling government interests at stake.[64] But there is certainly no guarantee that court-initiated suggestions will be workable in practice, will adequately promote the compelling interests of the government, and will also leave the claimant substantially less religiously burdened.[65]

As well, it seems sensible for a court to ask on its own initiative whether one or more at least apparently comparable governmental institutions manage to promote their compelling interests without substantially burdening religious exercise.[66] But this kind of inquiry merely steers the narrow tailoring inquiry, without reallocating any burden of evidentiary production. The government alone still bears the burden of showing the noncomparability of other, less religiously restrictive institutions.[67] And in this, the government may sometimes be assisted by a rule that the major religious protection statutes do “not pit institutions against one another in a race to the top of the risk tolerance or cost-absorption ladder.”[68]

The problem is that unshared burdens of production, wherever they are placed, do not exploit the possibility that cooperative investigation, incentivized by a shared burden of production, may inspire the recognition of otherwise unavailable improved alternative policies. Typically, the managers of the government institution in question will hold a treasury of tacit understandings,[69] perhaps not commonly articulated, or even brought to conscious awareness, concerning that institution. And they may certainly have blind spots. Religious claimants, on the other hand, may be motivated to see new possibilities, but they may lack knowledge of the workings of the government institution. And religious claimants also may not fully grasp the practical implications of their own religious beliefs and of how they might be accommodated.

In short, both parties may benefit from, and usefully contribute to, a genuinely collaborative investigation into the narrow tailoring of the institutional policy in question. Judicial practice, however, currently falls short of rewarding such collaborative behavior in any systematic way.[70]

Some courts, certainly, have spun the government’s narrow tailoring burden in interesting ways. For example, the government may be demandingly required to “demonstrate[71] narrow tailoring. Or the government may be bound to consider alternative policies of which it becomes aware during the litigation, whether proposed by the religious claimant or not.[72] The government may be demandingly required to show “that it has actually considered and rejected . . . less restrictive measure before adopting the challenged practice.”[73] Or the government may be required to take the initiative of actively seeking out alternative policies in advance.[74]

None of this tinkering, however, capitalizes on the possibilities of incentivized collaborative investigation. Consider a case in which an incarcerated religious claimant seeks a religious accommodation. Presumably, the claimant knows something of the prison as an institution, but far less, even after formal discovery, than do prison officials. So, the claimant’s own proposed accommodation may well be infeasible, or less than optimal, even from that claimant’s own standpoint. But, importantly, the religious claimant may also be on to something, however vaguely. Perhaps some substantially modified version of the claimant’s proposal could meaningfully reduce the experienced religious burdening while having no significant impact on the prison’s compelling interests. After all, government institutions in general have, among their various important interests, the interest in not unnecessarily restricting religious practices.[75]

More generally, collaborative inquiry may teach each party more about the other. And in the best cases, each party may learn more about its own priorities and possibilities. Religious claimants, for example, may not have exhaustively catalogued all of their own theological options and commitments. Their thinking may evolve. And at the very least, the dialogues that are incentivized by a shared burden of production may result in a greater degree of trust, or respect, between the parties.

Consider the circumstances in, for example, the case of Washington v. Klem.[76] At issue was a Pennsylvania Department of Corrections rule permitting only ten books—largely regardless of size—in a prison cell at any given time.[77] More specifically, inmates were allowed a maximum of ten books, ten magazines, and three newspapers.[78] Interestingly, inmates were not permitted to substitute, say, more books, of whatever size, for fewer magazines or newspapers.[79]

The religious claimant Henry Washington had been a long-term adherent of a Pan-Afrikan religion that required practitioners “to read four different Afro-centric books per day.”[80] Apparently, these four books per day had to be unread books.[81] Books stored in or borrowed from a prison library, or from outside sources, could presumably count toward this daily reading requirement.[82]

Now, it is certainly possible to explore narrow tailoring issues through ordinary discovery mechanisms, with the relevant production burden entirely on the government. But it seems questionable that typical defensive posturing in discovery will be no less productive than a collaborative mutual exploration of alternatives available to either or both parties. And on this logic, mere judicial speculation cannot fully substitute for such a collaborative process.

The Washington case seems to suggest that the prison was concerned with issues of safety, sanitation, health, and security.[83] Perhaps the real constraint was not a matter of, say, books versus magazines, but the personal property limit, per cell, of “four storage boxes or their equivalent.”[84] An informal, equality-based, constructive exploration of the possibilities might have led to a quick, less judicially expensive recognition that the ten book maximum could be modified or abolished as a free-standing rule.

And we should not overlook the possibility that the religious claimant’s own requirements may not be set in stone, in all of their particular implications. Not every religious claimant is an exhaustive theologian. Could three large books per day be judged equivalent to four short books, precisely from the claimant’s own perspective? Perhaps not, for doctrinal reasons. But perhaps the claimant may simply not have considered such possibilities, or their religious implications. Could it ever be more desirable to reread an especially valuable book than to devote the same time to a new, unread, but perhaps less valuable book? Again, perhaps not. But perhaps worthy of reflection. Could an Afro-centric single topic magazine or other media count as a book? Are there degrees of justifications for, or legitimate excuses for, falling short on one’s daily reading, or not?

Thus, the religious claimant, or some similarly situated person, could be open to further reflection on these and other questions. The point, though, is that further reflection by the religious claimant is less likely in the course of standard discovery, with the key burdens on the opposing party, than in a less formal, mutually responsive, mutually respectful, and mutually responsible exploratory dialogue. A standard formal discovery process by comparison tends to suppress such positive outcomes, as well as overall morale.[85]

Consider, finally, the intriguing recent case of United States v. Grady.[86] Grady involved an act of civil disobedience by members of a Christian pacifist and antinuclear weapons group.[87] This religiously motivated act was thought of as one of “symbolic disarmament.”[88] The defendants broke into the large Kings Bay Naval Base in darkness, and then engaged in a number of prohibited activities.[89] These included spray painting monuments, pouring donated human blood on base property, and cutting through fencing to enter a relatively secure area.[90]

The motivation underlying this civil disobedience was found to be a religious imperative to “practice peaceful activism and prevent nuclear war.”[91] Criminal prosecution for the acts in question presumably amounted to a substantial after-the-fact burden on the defendants’ religious practices.[92] This left the question of whether the criminal prosecution was the least restrictive means of promoting the presumably compelling government interest at stake.[93]

To begin with, the parties’ apparent agreement on the existence of a relevant compelling government interest in this case is a bit curious. The defendants’ acts amounted to, at worst, vandalism in the context of a naval base “covering approximately 17,000 acres with 26 miles of perimeter fencing and employing approximately 10,500 people as part of the staff or crew.”[94] Presumably, the base would on any given day have any number of higher and broader priorities than attending to the specific physical consequences of the defendants’ acts. This is especially so in religious exercise cases where the government interest at stake cannot be broadly construed.[95] It is only the government interest in, and confined specifically to, the particular circumstances of the defendant’s own case that must be compelling.[96] If the government’s interest in this particular case is deemed genuinely compelling, and of truly overriding importance, then the distinction between compelling government interests and merely ordinary, day-to-day interests is left unclear.

On the issue of narrow tailoring, or least restrictive means, the defendants in Grady took the initiative to propose several alternative, less religiously burdensome government responses to their acts. These proposals included “reducing the number and severity of the charges, . . . not prosecuting and offering instead civil injunctions, civil damages, community service, ‘ban and bar’ letters, or pretrial diversion; and . . . giving the defendants permission to practice symbolic disarmament in a designated area on the base.”[97] It may also be relevant that the defendants apparently declined the opportunity to legally demonstrate at a facility outside of the gates of the naval base.[98]

These proposed alternatives, to the extent they are post hoc, or are entirely after the fact, might or might not have deterred similar future acts, by the defendants or by others. But that is again irrelevant to the least restrictive means test.[99] And any costs or harms of the defendants’ acts were obviously incurred before any later, responsive government decision as to whether, or how vigorously to criminally prosecute those acts.

From this Article’s perspective, it is at least minimally helpful that the defendants took it upon themselves, after the fact, to suggest alternatives, whether satisfactory or not, to the government’s criminal prosecution.[100] Of course, requiring the government to have considered other demonstration possibilities before the government had any notice of the nature of the defendants’ illegal acts would be a bit awkward. And it is always possible, as Zeno’s Paradoxes[101] imply, to imagine reducing any penalty, criminal or civil, in half, in half again, or in half yet again, whether with meaningful deterrent effect or not.

But what is crucially missing in Grady is not after-the-fact suggestions from the defendants, but any sense of a meaningful, collaborative, interactive exploratory discussion between the parties, before or after the civil disobedience and the initiation of the criminal prosecution.[102] We know, from the defendants’ perspective, that their religious beliefs require “symbolic disarmament”[103] and that it is thus incumbent upon the defendants to “practice peaceful activism and prevent nuclear war.”[104] But we do not know how those rather generally formulated principles bear upon any possible religious duty to act more or less precisely than the defendants did, on that occasion or at other times and places, and not in some other licit or illicit manner. Could the gravity of the actual penalty affect the existence or the weight of a religious obligation to engage in more or less similar acts in the future?

Consider, then, a conversation in which naval base officials, or criminal case prosecutors, ask whether the defendants believe that their chosen act of civil disobedience was more likely to prevent nuclear war, or to amount to genuinely peaceful activism, than other legal demonstrations, of any sort, in any designated area. Or more generally, what is “symbolic disarmament” thought to include and exclude, or to require? Is symbolic disarmament thought to require the splashing of human blood,[105] or might other activities be permissibly substituted? By analogy, if one’s religious beliefs require church attendance once a week, on any day of the week, it need not be a substantial burden on one’s religious practice if the government penalizes church attendance on Thursdays, as distinct from any other day.

This is not at all a matter of attempting to pressure, or even persuade, anyone to change their sincerely held religious beliefs. But not all sincere religious believers have fully thought through all their beliefs, let alone the detailed practical implications and permissions entailed by their beliefs. Nor is it certain that the eventual defendants would have fully appreciated all the relevant possibilities associated with a naval base of 17,000 acres, or other arguably relevant sites and facilities.[106]

As the Grady case unfolded, the government wound up successfully claiming that they showed a genuinely compelling interest and that they used the least restrictive means to protect that interest.[107] And the defendants were left with something of an explanatory gap between their articulated general religious beliefs and the specific acts they chose to perform.[108] Ordinary discovery processes plainly failed to catalyze any constructive movement by either party in this context. But a shared burden of producing relevant evidence might have incentivized a meaningful dialogue in which one or both parties came to adjust their prior, perhaps partly undeveloped, assumptions.[109]

B. The Establishment Clause Context

In the Establishment Clause cases, crucial burdens of production may be laid entirely upon the government entity engaging in the challenged practice.[110] As Judge Richard Posner has noted in the Establishment Clause context, the government may well face lower costs than the challenging party in accessing some crucial sorts of evidence.[111] But the comparison in such cases, on the criterion of efficiency, is apparently between placing the burden of production entirely on one party, as distinct from the other.[112] That comparison tells us nothing about the possible efficiencies in shared burdens of production, or more concretely, about the possibility that a shared burden may result, at low cost, in evidence of a quality not otherwise available.[113]

There are of course many kinds of contested Establishment Clause contexts. For purposes of this Article, though, among the most useful are the cases involving prayers, by officials or by outsiders, at the opening of some sort of official public meeting. Some such prayers may be thought of as proselytizing in their nature; as sectarian; as theistic; as merely generally religious; or even as somehow secular.[114] Such prayers are thought to serve a number of purposes. Perhaps an official prayer “lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.”[115] It is also said that “a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”[116] More controversially, it has been claimed that legislative prayer, and the invocation of divine guidance, may legitimately serve not only secular, but also religious purposes.[117]

If we take official public body prayers to amount to any sort of statement at all, we can then say that “[]the meaning of a statement to its audience depends both on the intention of the speaker[118] and on the ‘objective’ meaning of the statement in the community.”[119] More particularly, some such prayers may “send a message to outsiders that they are not full members of the political community . . . .”[120]

Based perhaps on stipulations or on adversarial discovery supervised by judges, the courts seek to resolve such concerns by asking “whether a reasonable observer, apprised of the circumstances and history of the disputed government practice, would conclude that it conveys a message of endorsement or disapproval of religious faith.”[121]

The problem, however, is that the appropriateness, or inappropriateness, of deferring to someone’s largely subjective feelings and emotions may not be optimally resolved through adversarial discovery, or even through the assessment of a conscientious judge. As concurring Judge David Hamilton observes, the “reasonable, objective observer . . . tends to sound a lot like the judge authoring the opinion.”[122] Judges may “deliberately try[] to see the situation from others’ point of view.”[123] But as Judge Hamilton observes, the non-hypersensitive character of an emotional reaction may depend upon one’s status as a religious adherent or nonadherent, or on one’s dominant or subordinate group status.[124]

This Article’s claim in this context is that genuinely interactive dialogue between the most directly affected parties may catalyze possible courses of government action that are not apparent even to the most conscientious judges. The best available answers may well not be the formal positions of either party in isolation, or of the most empathetic judge.

Consider, for example, the question of whether a prayer giver is engaging in proselytization, or in the perhaps unintended disparagement of the beliefs of others, above and beyond the admittedly sectarian character of the prayer.[125] Or the question of whether a clear and conspicuous disclaimer of any unconstitutional intent would be genuinely productive.[126] Or whether it might be less religiously objectionable if outsiders, rather than official board members, deliver the prayers in question.[127] Each of these crucial questions is best answered not through, say, a thorough and probing cross-examination, or isolated reflection in chambers, but through genuinely interactive low-cost dialogue in which both parties bear some legal burden and may win deserved credit in the form of enhanced issue-specific and, importantly, more general, across-the-board credibility.

Perhaps the most pervasive issue in several Establishment Clause cases is that of the presence or absence of some form of government coercion.[128] On any occasion in which the court chooses to focus on the idea of coercion in Establishment Clause cases, that court must responsibly attend to a number of subtle considerations. In particular, for cases of alleged coercion, the particularities of context and circumstance matter.[129] Whether the alleged coercion was intended by the government may also matter, as well as what degree of resistance by the allegedly coerced party should have been legally required or expected.[130] Not every verbal activity, even by officials, counts legally as coercive.[131] We expect adults, if not also children, to display at least some minimal baseline level of resistance to verbal manipulations.[132] But in any given case, in any given context, just what degree of such resistance, or fortitude, can fairly be asked?

In many cases of alleged religious coercion, the best we can do may be to require the parties to jointly explore the relevant backgrounds, assumptions, sentiments, purposes, priorities, and any modifications thereto that emerge as possible and appropriate as each learns from the other. There is certainly no guarantee that genuine progress toward better mutual understanding and a superior overall judicial case resolution will in fact ensue.[133] But the familiar formal discovery processes tend to be relatively costly and not especially constructive in the respects explored above. Holding out the incentive of increased party credibility, on the specific issue and more generally, may lead to more constructive overall results.

III. Conclusion

The practice of placing a burden of evidentiary production on one adversarial party, to the exclusion of the other party, is so familiar that we fail to notice its frequent inappropriateness. Consider, by way of contrast, a simple hypothetical domestic incident. A parent returns home to find that the laundry machine has overflowed, leaving sudsy water on the floor. The parent’s child blames the overflow on an earlier negligent repair by a plumber, who in turn claims that the overflow was due to the child’s failure to follow the washing machine manufacturer’s instructions.

Now the parent is interested in determining whether the child or the plumber, or perhaps both, are causally responsible for the mishap in question. The parent has more than one way of proceeding in this setting. But one way of proceeding the parent will assuredly not take is to begin the inquiry by placing the entirety of any burden of producing evidence on either party to the exclusion of the other. The parent will not, in all likelihood, single out either party and declare that unless that party can meet some evidentiary threshold, the other party will be fully absolved of responsibility on the issue in question. Whether the parent chooses some adversarial style of investigation and resolution or not, no such arbitrary evidentiary burden rule is likely to be adopted.

If the parent does impose what roughly amounts to an evidentiary burden in this case, or in any of innumerable other sorts of disputes, the burden is likely to be, in some fashion, simultaneously shared. In this trivial case, admittedly, the benefits of a shared evidentiary burden may well be less than in a case of constitutional rights where the parties’ interests are less than fully adversarial. But even in our laundry overflow case, there may be some limited benefits of a shared burden of production. Perhaps the plumber’s verbal communication skills in future client interaction cases can be broadly enhanced. Perhaps the child can appreciate the value of more carefully attending to instructions, above and beyond the child’s desire for maximum avoidance of personal blame. The benefits of a shared burden of evidentiary production may be much greater, though, in many disputes over the scope of constitutional rights.

  1. *. Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.
  2. . See, e.g., Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (in libel cases, “[t]here will always be instances when the fact finding process will be unable to resolve conclusively whether the speech is true or false; . . . in those cases . . . the burden of proof is dispositive”).
  3. . See infra Part II.
  4. . See id.
  5. . See id.
  6. . See id.
  7. . See id.
  8. . See infra Subparts II.A & II.B.
  9. . See infra Part II
  10. . See infra Subpart II.A.
  11. . See infra Subpart II.B.
  12. . See infra Part II.
  13. . See id.
  14. . See Otis H. Fisk, Burden of Proof, 1 U. Cin. L. Rev. 257, 257 (1927) (“First, the law fixes what is to be proved; then, it proceeds to place upon somebody the burden of proving it.”).
  15. . At a minimum, framing the issue in a case as whether or not a person has possession of a particular document tends to steer a production burden toward that person, as distinct from some opposing party.
  16. . James B. Thayer, The Burden of Proof, 4 Harv. L. Rev. 45, 48 (1890).
  17. . See John T. McNaughton, Burden of Production of Evidence: A Function of a Burden of Persuasion, 68 Harv. L. Rev. 1382, 1382 (1955) (discussing how “‘the duty of bringing forward evidence’ is not so very different from ‘burden of persuasion’”).
  18. . See id. at 1382 (citing Thayer, supra note 15, at 48).
  19. . Lawrence Crocker, Ethics and the Law’s Burdens of Proof, 18 Interdisc. Core Phil. 272, 273 (2008).
  20. . Id. Professor Louis Kaplow interestingly observes that there has been “surprisingly little attention to the rationale for how stringent burdens of proof should be.” Louis Kaplow, Burden of Proof, 121 Yale L.J. 738, 741 (2012).
  21. . Crocker, supra note 18, at 273.
  22. . Id.
  23. . See, e.g., Fleming James, Jr., Burdens of Proof, 47 Va. L. Rev. 51, 58 (1961) (“There is no satisfactory test for allocating the burden of proof in either sense on any given issue.”).
  24. . See id. at 60; Frederick Schauer, Thinking Like a Lawyer 223 (2009).
  25. . Note, by the way, that the act of ‘proving a negative’ need not be either impossible, or even especially difficult. A photograph of a person in their office at noon establishes, to whatever degree necessary, that the person was, in fact, not then at any infinite number of other places.
  26. . James Cargile, On the Burden of Proof, 72 Phil. 59, 62 (1997).
  27. . See generally id. (discussing more in-depth the hypothetical’s implications).
  28. . Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 209 (1973); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1336 (10th Cir. 1982); State v. St. Francis, 563 A.2d 249, 251 (Vt. 1989).
  29. . See, e.g., Keyes, 413 U.S. at 209 (quoting 9 John H. Wigmore, Evidence § 2486 (3d ed, 1940)).
  30. . See id.
  31. . Paul F. Rothstein, Demystifying Burdens of Proof and the Effect of Rebuttable Evidentiary Presumptions in Civil and Criminal Trials, Geo. Univ. L. Ctr. 1, 4 (2017),
  32. . Cargile, supra note 25, at 62.
  33. . Thayer, supra note 15, at 60. See also Douglas Walton, Burden of Proof, Presumption and Argumentation 49 (2014).
  34. . See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
  35. . See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
  36. . See Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022); Spratt v. Rhode Island Dept. of Corr., 482 F.3d 33, 38 (1st Cir. 2007) (discussing evidentiary burden shifting between the parties under the Religious Land Use and Institutionalized Persons Act).
  37. . For what amounts to a distinct class of burden-shifting rules, in effect if not formally, see the so-called “Lone Pine” order cases, including Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1167–68 (11th Cir. 2014); Avila v. Willits Envt’l Remed. Tr., 633 F.3d 828, 833–34 (9th Cir. 2011); In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743–745 (E.D. La. 2008); Antero Res. Corp. v. Strudley, 347 P.3d 149, 151–152 (Colo. 2015).
  38. . Bruce L. Hay & Kathryn E. Spier, Burdens of Proof in Civil Litigation: An Economic Perspective, 26 J. Legal Stud. 413, 415 (1997).
  39. . Ronald J. Allen, Burdens of Proof, 13 L. Probability & Risk 195, 198 (2014) (emphasis added).
  40. . Hay & Spier, supra note 37.
  41. . The burden of initiating a civil or criminal action is usually unshared in an adversarial system. It might be possible for even an ultimate burden of persuasion, or the ultimate burden of proof, to be shared in some fashion, as long as a determinate and unequivocal outcome could still be assured. But this possibility is left unexplored herein.
  42. . See infra Subparts II.A & II.B.
  43. . Cf. State v. Temple, 273 S.E.2d 273, 275–76 (N.C. 1981) (holding no error in shifting burden of production to defendant in part because “the order of presentation [of evidence] at trial is a rule of practice” from which the court may depart whenever it, “in its discretion, considers it necessary”).
  44. . See infra Subparts II.A & II.B.
  45. . Commonly, a defendant manufacturer of a product will have cheaper access to the product risks and alternative design possibilities, but the injured plaintiff may have cheaper access to the kinds and degrees of medical and financial injuries suffered. See, e.g., Barker v. Lull Eng’g Co., 573 P.2d 443, 455 (Cal. 1973).
  46. . See State v. Taylor, 393 S.E.2d 801, 811 (N.C. 1990) (Meyer, J., dissenting in part) (“Without access to the entire file, the State cannot adequately determine whether [defense counsel’s] representation was ineffective.”).
  47. . It is often thought that especially remarkable or implausible claims should bear the burden of proof. See, e.g., Robert Brown, The Burden of Proof, 7 Am. Phil. Q. 74, 74 (1970).
  48. . See, e.g., Knight v. Thompson, 797 F.3d 934, 942 (11th Cir. 2015); Garner v. Kennedy, 713 F.3d 237, 242 (5th Cir. 2013); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996); Dep’t of Soc. Servs. v. Bowen, 804 F.2d 1035, 1037 (8th Cir. 1986).
  49. . For a brief discussion on why broadly extending epistemic peerhood status leads to better and more justified decisional outcomes, see R. George Wright, Epistemic Peerhood in the Law, 91 St. John’s L. Rev. 663, 670 (2018).
  50. . See id. at 670 & nn.39–41.
  51. . Walton, supra note 32, at 25.
  52. . For broad background, see Jürgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification, in The Communicative Ethics Controversy 60, 86 (Seyla Benhabib & Fred Dallmayr eds., 1990); Judith E. Innes & David E. Booher, Collaborative Dialogue as a Policy Making Strategy (UC Berkley, Working Paper No. 2000-05, 2000),; Fiona Robinson, Stop Talking and Listen: Discourse Ethics and Feminist Care Ethics in International Political Theory, 39 Millennium: J. Int’l Stud. 845 (2011); Frisbee Sheffield, Socrates and the Ethics of Conversation, Antigone, (last visited Aug. 6, 2022).
  53. . See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694–95 (2014).
  54. . How much, or how effectively, the government interest must be furthered is often left unspecified. Perhaps some implicit balancing of interests is assumed. For background, see R. George Wright, Free Exercise and the Public Interest After Tandom v. Newsom, 2021 U. Ill. L. Rev. Online 182.
  55. . This Article sets aside questions of how to determine whether the government interest at stake should be thought of as compelling or not. For background, see R. George Wright, The Scope of Compelling Governmental Interests, 97 Notre Dame L. Rev. Reflection (forthcoming 2022),
  56. . See Austin v. U.S. Navy Seals, 142 S. Ct. 1301, 1305 (2022) (Alito, J., dissenting); United States v. Comrie, 842 F.3d 348, 351 (5th Cir. 2016); Ali v. Stephens, 822 F.3d 776, 782–83 (5th Cir. 2016); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 353 (2d Cir. 2007) (under statutory schemes, “once a religious institution has demonstrated that its religious exercise has been substantially burdened, the burden of proof shifts to the municipality to prove it acted in furtherance of a compelling governmental interest and that its action is the least restrictive means of furthering that interest”). See also Holt v. Hobbs, 574 U.S. 352, 364 (2015) (prisoner beard length case).
  57. . See id.
  58. . Compare, e.g., Smith v. Owens, 13 F.4th 1319, 1322 (11th Cir. 2021) (prisoner beard case), with Ramirez v. Collier, 142 S. Ct. 1264, 1281 (2022).
  59. . See generally id.
  60. . See Smith, 13 F.4th at 1322; Knight v. Thompson, 797 F.3d 934, 945–46 (11th Cir. 2015); Hamilton v. Schriro, 74 F.3d 1545, 1556–57 (8th Cir. 1996).
  61. . See Smith, 13 F.4th at 1326–27; United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011); Harris v. Wall, 217 F. Supp. 3d 541, 556 (D.R.I. 2016).
  62. . See, e.g., Walker v. Beard, 789 F.3d 1125, 1137 (9th Cir. 2015); Wilgus, 638 F.3d at 1289; Newland v. Sebelius, 881 F. Supp.2d 1287, 1298 (D. Colo. 2012) (“[t]he government need not tilt at windmills; it need only refute alternatives proposed by Plaintiffs.”). For a brief critique of Wilgus, see Legatus v. Sebelius, 901 F. Supp. 2d 980, 996–97 (E.D. Mich. 2012).
  63. . Hamilton, 74 F.3d at 1556.
  64. . See, e.g., Ramirez, 142 S. Ct. at 1281 (in which the Court itself proposes alternative means of maintaining security while allowing a prison chaplain to have physical contact with a condemned prisoner) (asserting that “Texas does nothing to rebut these obvious alternatives, instead suggesting that it is Ramirez’s burden to ‘identify any less restrictive means’”).
  65. . Consider, for example, the trial court’s proposed policy compromise that was rejected by both parties in Smith. 13 F.4th at 1236.
  66. . See, e.g., Holt v. Hobbs, 574 U.S. 352, 368–69 (2015) (noting that most state and federal prisons have less restrictive policies with regard to beard lengths).
  67. . See id.
  68. . Smith, 13 F.4th at 1332 (quoting Knight v. Thompson, 797 F.3d 934, 947 (11th Cir. 2015)).
  69. . See generally Michael Polanyi, The Tacit Dimension (1966).
  70. . In Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1020–21 (9th Cir. 2021), rev’d, 142 S. Ct. 2407 (2022), the court apparently credited the School District for repeatedly seeking to work with the religious claimant in reaching some mutually acceptable accommodation. No burden sharing was imposed.
  71. . O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (emphasis in original).
  72. . See United States v. Christie, 825 F.3d 1048, 1061 (9th Cir. 2016).
  73. . Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005) (emphasis added).
  74. . See Conestoga Wood Specialties Corp. v. Sec’y of the U.S. Dep’t of Health and Hum. Servs., 724 F.3d 377, 414–15 (3d Cir. 2013).
  75. . See, e.g., Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2000); Religious Freedom Restoration Act, 42 U.S.C. § 2000bb(a)–(b) (1993). As these statutes indicate, government defendants, in general, have duties to, at least minimally, accommodate the relevant constitutional interest of those whom they regulate, as well as to carry out some substantive missions.
  76. . 497 F.3d 272 (3d Cir. 2007).
  77. . See id. at 274.
  78. . See id. at 285.
  79. . See id.
  80. . Id. at 275.
  81. . See id. at 282.
  82. . See id. at 275–82.
  83. . See id. at 274, 285.
  84. . Id. at 285.
  85. . But see Peter J. Smith & Robert W. Tuttle, Civil Procedure and the Ministerial Exception, 86 Fordham L. Rev. 1847, 1876 (2018) (“Those who defend the ministerial exception often argue for a quick resolution of the issue in order to avoid burdening religious organizations with the cost of discovery. They note that the practical implications for a religious organization of having to litigate a ministerial exception claim all the way through full discovery are significant. Not only must churches bear the ordinary costs of defending the suit, but in ordinary discovery their leaders can be examined on questions of church doctrine, their congregations’ consistency with church doctrine, and countless other matters that might chill a religious institution’s articulation of its own faith if it knows that it might face discovery.”).
  86. . 18 F.4th 1275 (11th Cir. 2021).
  87. . See id. at 1280.
  88. . Id.
  89. . See id.
  90. . See id.
  91. . Id. at 1281.
  92. . See id. at 1285.
  93. . See id.
  94. . Id. at 1281.
  95. . See id. at 1286 (citing Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 439 (2006); Holt v. Hobbs, 574 U.S 352, 361–62 (2015)). See also Wright, supra note 54.
  96. . Grady, 18 F.4th. at 1285 (applying the compelling interest standard only to the defendants’ conduct).
  97. . Id. at 1283–84. The significance of any kind of injunction against further civil disobedience would depend upon whether the defendants believe themselves religiously bound to commit identical, similar, or substantially different acts of symbolic disarmament in the future, at the naval base or elsewhere.
  98. . See id. at 1281.
  99. . See id. at 1285.
  100. . See supra note 96 and accompanying text.
  101. . See Nick Huggett, Zeno’s Paradoxes, in Stan. Encyc. Phil. (June 11, 2018),
  102. . See generally Grady, 18 F.4th 1275.
  103. . Id. at 1281.
  104. . Id.
  105. . See supra note 90 and accompanying text.
  106. . See supra note 94 and accompanying text.
  107. . Grady, 18 F.4th at 1288.
  108. . Id. at 1286–87.
  109. . See the routes to persuasion traced in John T. Cacioppo & Richard E. Petty, The Elaboration Likelihood Model of Persuasion, 11 Advances Consumer Rsch. 673, 673–75 (1984),
  110. . For useful discussion, see the opinion of Judge Richard Posner in Metzl v. Leininger, 57 F.3d 618, 622–23 (7th Cir. 1985), and the discussion of that opinion in Martha Minow, Religion and the Burden of Proof: Posner’s Economics and Pragmatism in Metzl v. Leininger, 120 Harv. L. Rev. 1175, 1181–83 (2007). The Metzl case is favorably cited in Bridenbaugh v. O’Bannon, 185 F.3d 796, 798–99 (7th Cir. 1999). The Bridenbaugh case is in turn discussed in Megan E. Kleinfelder, Comment, Good Friday, Just Another Spring Holiday?, 69 U. Cin. L. Rev. 329, 351–52 (2000).
  111. . See Metzl, 57 F.3d at 622 (citing 2 McCormick on Evidence § 337 (4th ed. 1992)).
  112. . Id.
  113. . The parties may, for example, have complementary, or usefully interactive, absolute, or comparative advantages in developing particular dimensions of the relevant evidence. For background, see, e.g., Troy Segal, Absolute v. Comparative Advantage: What’s the Difference?, Investopedia (May 28, 2022),
  114. . See, e.g., the differentiations in Fields v. Speaker of Pa. House of Reps., 936 F.3d 142, 150–52 (3d Cir. 2019); Barker v. Conroy, 921 F.3d 1118, 1125 (D.C. Cir. 2019).
  115. . Town of Greece v. Galloway, 572 U.S. 565, 575 (2014).
  116. . Galloway, 572 U.S. at 587.
  117. . See Fields, 936 F.3d at 150 (“[l]egislative prayer has historically served many purposes both secular and religious.”). See also Stone v. Graham, 449 U.S. 39 (1980).
  118. . Which may be taken to be the literal speaker, the public body itself or the majority thereof, some prior version of the body, or some other enacting body that initiated the practice.
  119. . Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).
  120. . Id. at 688 (O’Connor, J., concurring). See Lund v. Rowan Cnty., 863 F.3d 268, 272 (4th Cir. 2017) (en banc) (“[t]he prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion . . . .”).
  121. . Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 857 (7th Cir. 2012) (en banc) (Hamilton, J., concurring). As an example, consider the Galloway case, in which plaintiff Susan Galloway “admonished board members that she found the [board meeting] prayers ‘offensive,’ ‘intolerable,’ and an affront to a ‘diverse community.’” Galloway, 572 U.S. at 572. The Town of Greece, New York, is apparently only 8.5 miles, or 13 minutes, from the presumably broader range of clerics available in Rochester, New York.
  122. . Elmbrook Sch. Dist., 687 F.3d at 857–58.
  123. . Id. at 858.
  124. . See id.
  125. . See, e.g., Lund, 863 F.3d at 271–72; Bormuth v. City of Jackson, 870 F.3d 494, 512 (6th Cir. 2017) (en banc).
  126. . See, e.g., Lee v. Weisman, 505 U.S. 577, 631, 644–45 (1992) (Scalia, J., dissenting).
  127. . See Lund, 863 F.3d at 272.
  128. . See, for example, the opinions of the majority and the dissenters in Lee, 505 U.S. at 590, 630; Freedom From Religion Found., Inc. v. Chino Valley Unified Sch. Dist., 896 F.3d 1132, 1146–47 (9th Cir. 2018) (per curiam) (school board meetings with integrated children’s performances), as well as the opinions dissenting from the denial of rehearing of the Chino Valley case en banc, 910 F.3d 1297 (9th Cir. 2018). Coercion in the context of high school students is also discussed in Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 911 (9th Cir. 2021) (M. Smith, J., concurring in denial of rehearing en banc), rev’d, 142 S. Ct. 2407 (2022); Bormuth, 870 F.3d at 517 (“we do not agree that soliciting adult members of the public to assist in solemnizing the meetings by rising and remaining quiet in a reverent position is coercive.”).
  129. . See Alan Wertheimer, Coercion 267 (1987). See generally Scott Anderson, Coercion, in Stan. Encyclopedia of Phil., (rev. ed. Oct. 2, 2011).
  130. . See R. George Wright, Why a Coercion Test Is of No Use In Establishment Clause Cases, 41 Cumb. L. Rev. 193, 195 (2011).
  131. . See generally id.
  132. . See id. Similarly, we are not willing to consider just any audience member to inescapably be a captive audience member.
  133. . Consider the ultimate inefficacy of Shylock’s best-known speech in The Merchant of Venice. See William Shakespeare, The Merchant of Venice act 3, sc. 1.

Image of Man Signing Document

Image of Man Signing Document

12 Wake Forest L. Rev. Online 66

Craig S. Lerner[1]

Executive clemency for the dead is not unknown in American history, but it is rare. In recent years, there have been several high-profile instances, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law. Posthumous pardons are inevitably celebrated for repudiating past injustices and restoring faith in the legal system.

This Article views this widely praised phenomenon with skepticism. With the goal of piercing the rhetorical fog that envelops this issue, it considers the legal merits of two recent cases: the “Martinsville Seven,” who were pardoned, and George Floyd, who was not. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered. A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.


On August 30, 2020, Virginia Governor Ralph Northam issued what was touted, in an accompanying press release, as “Posthumous Pardons for the ‘Martinsville Seven’ 70 Years After Unjust Executions.”[2] The document is, however, more ambiguous in what it purports directly to do, and it is even more puzzling in its broader ambitions. The governor’s pardon is, in this regard, emblematic of an incipient trend that figures to grow as Americans become more conscious of, and determined to rectify, past injustices perpetrated under color of law.

Executive clemency for the dead is not unknown in American history, but it is rare. The Department of Justice’s official policy is that it will not even consider applications for posthumous pardons.[3] In 1997, President Clinton issued the first Presidential posthumous pardon—to a black West Point graduate who was convicted of fraud.[4] President George W. Bush issued another to a Florida businessman convicted of smuggling bombers to the fledgling state of Israel.[5] After a lull of over a decade, President Trump issued four posthumous pardons: to Susan B. Anthony, boxer Jack Johnson, and two lesser known persons.[6]

Governors and state clemency boards have been more liberal with posthumous pardons, but for much of American history they were still extraordinary occurrences. In 1893, Illinois Governor Peter Altgeld issued the first such pardon in our nation’s history; the recipients were three of the labor activists convicted of setting off a bomb in Haymarket Square.[7] Over the ensuing decades, posthumous pardons became more common, with some of the most high-profile being those issued to Leo Frank in 1986,[8] John Snowden in 2001,[9] Lenny Bruce in 2003,[10] Timothy Cole in 2010,[11] John Gordon in 2011,[12] Thomas and Meeks Griffin in 2009,[13] and the “Scottsboro Boys” in 2013.[14] In just the past three years, Florida Governor Ron DeSantis pardoned the “Groveland Four” (black men convicted of raping a white woman in 1949),[15] California Governor Gavin Newsom pardoned civil rights activist Bayard Rustin (convicted of a misdemeanor vagrancy violation in 1953),[16] and Louisiana Governor John Bel Edwards pardoned Homer Plessy (the defendant in the famous case, Plessy v. Ferguson).[17]

Besides Governor Northam’s pardon of the “Martinsville Seven,” the issue was thrust most prominently into the national spotlight in October 2021, when the Texas Board of Pardons and Paroles (the “Board”) recommended a posthumous pardon of George Floyd, in connection with his 2004 drug conviction.[18] Under state law, the pardon could not take effect without the governor’s signature; and for months, Governor Greg Abbott declined to do so.[19] His silent rebuke to the Board began to generate controversy, until the Board withdrew the application in December 2021.[20] The grounds for the withdrawal were shrouded in mystery, and the Board left open the possibility of renewing its application this year.[21]

Now is an apt moment, then, to reflect upon the mounting interest in posthumous pardons. In an Atlantic essay last year, “Justice for the Dead,” the author endorsed posthumous pardons for their ability to “repudiat[e] miscarriages of justice, especially those with racial overtones . . . . At their best, they have the potential to restore faith in a judicial system in which many people have lost confidence, and to further the work of building a more just, more tolerant, and more equitable society.”[22] The project was provided academic support in a recent article in the Columbia Law Review.[23] In “The Constitution After Death,” Professor Fred Smith argued that the dead should be conceived as “legally cognizable beings of memory,” and he specifically references the value of posthumous pardons in “protect[ing] the reputational interests of the dead.”[24]

Professor Smith begins his article by drawing upon Sophocles for the proposition that “[i]t is the dead/Not the living, who make the longest demands.”[25] It is an engaging opening; nonetheless, this Article operates on the optimistic hypothesis that Greek tragedy is not a useful guidepost when determining the contours of our law. More specifically, this Article aims to treat the broader issue of posthumous pardons through a close examination of two case studies: the Martinsville Seven and George Floyd. From these examples, the Article draws cautionary lessons on the appropriate uses of pardons to exonerate the dead. In short, the benefits are generally reaped by the politicians issuing them; the costs are borne by the living individuals whose meritorious cases for pardons were never considered.

I. The Martinsville Seven

The Martinsville Seven attracted considerable publicity at the time of the crime,[26] but rapidly vanished from Virginia’s and the nation’s consciousness. Not a single law review article mentioned the case until 1996,[27] which was prompted by the publication of a book devoted to the case.[28] It is only in the past few years that the memory resurfaced, culminating in a pardon that Governor Northam announced with much fanfare, but which his successor apparently thought of so little consequence that the official government link to the document was subsequently broken.[29]

A. The Crime and Investigation

Reconstructing a crime in its immediate aftermath can be a perilous undertaking; doing so at a temporal distance of seventy years defies confident judgments. The following reconstruction of events tries to disentangle the facts known beyond peradventure with surmises of less certain probability.[30]

To begin with the certainties: On the afternoon of January 8, 1949, Ruby Stroud Floyd, a white thirty-two year old woman, walked into the predominantly black area of Martinsville, Virginia, seeking the house of a woman who owed her six dollars.[31] Several men accosted her as she asked for directions.[32] Around 7:30 that night, she knocked on the door of Mary Wade and announced that she had been raped by thirteen men.[33] According to Wade, she appeared frantic, had scratches on her arms, and her thighs were “red-rubbed.”[34] Around 8:15 p.m., Martinsville police arrived at Wade’s house and Floyd repeated her story.[35] That night, doctors examined her and found scratches on her knees, inner thighs, and buttocks, a large amount of twigs and dirt in her pubic hair, and “active, motile sperm” in vaginal smears.[36] The doctors did not discover any vaginal trauma at that time, however, and Floyd declined their recommendation to spend the night in the hospital.[37] The following morning, she checked herself into the hospital, where she spent much of the next few weeks; she was eventually diagnosed with an “‘inflammatory mass’ on the left side of her pelvis near the uterus caused by a rupture of thin-walled blood vessels.”[38]

The search for the offenders began immediately, on the evening of January 8, and concluded, except for one defendant, by dawn the following morning.[39] Police interviewed several witnesses and promptly picked up two men (Booker T. Millner and Frank Hairston, Jr.) suspected of participating in the crime.[40] Initial denials of involvement evolved within hours to signed confessions.[41] Four more men (John Clabon Taylor, James Luther Hairston, Howard Lee Hairston, and Francis DeSales Grayson) were picked up in the early hours of the morning.[42] The final confession, by Grayson, is noteworthy, as his case has figured prominently in the recent reconsideration of the case.[43] Unlike the other defendants, who were young men, Grayson was married, a U.S. Army veteran, and in his late thirties.[44] He was employed and had never been convicted of any crime.[45] According to the police report, after denying knowledge of the crime, a police detective told him that “some of the boys have told us their part in the case.”[46] After several minutes of silence, police records state that he said: “I’ll tell you the truth about it.”[47] He recounted a tale that coalesced, in almost all material respects, with what the other defendants had reportedly said: Four men (Joe Henry Hampton, Howard Hairston, Jr., Millner, and Frank Hairston) participated in an initial assault of Floyd.[48] When she tried to crawl away, three men joined the fray (Taylor, James Luther Hairston, and Grayson) and participated in a second phase of the sexual assault.[49] Hampton turned himself in on January 10.[50] Although he had had no contact with the other six over the prior forty-eight hours, he told a story that largely corroborated their collective account.[51]

The stories the seven men told included some mitigating and possibly even exonerating details. A few of the men suggested that Floyd consented,[52] which, if true, would have been a complete defense; but this seems, with full allowance for the uncertainty created by temporal distance, to be sufficiently incredible to be discounted. Some men, particularly in the first assault, pointed to their intoxication.[53] This was almost certainly true but would pose no barrier to a rape conviction then or now.[54] Finally, some men suggested that they were unable to penetrate Floyd.[55] This might be a defense to rape, but not to attempted rape, and a rape conviction would even be possible without penetration on a theory of accomplice liability.[56]

It should be emphasized that the confessions were secured through police practices that did not remotely conform to contemporary standards. None of the defendants were Mirandized, nor were any provided a lawyer until January 22.[57] That said, there is little indication that the pressure brought to bear on the suspects violated due process. The first six confessions were given in the middle of the night, with police engaging in miscellaneous “Inbau & Reid” techniques (good cop, bad cop; the cat is out of the bag; the train is leaving the station, etc.) that have been criticized but almost never result in a court holding a confession inadmissible.[58]

Legitimate questions were raised at trial, discussed below, about the reliability of the confessions.[59] Furthermore, there are also many indications that the crime triggered extraordinary passions.[60] The local jailor stated that had a lynch mob demanded the seven defendants, he would have acquiesced.[61] It is also striking that the Martinsville police chief thought it necessary to scatter the defendants to distant jails: only thus, he stated, was the risk of mob violence averted.[62]

What can we say happened on January 8, 1954? That Floyd was the victim of a sexual assault is incontestable, but by whom? It is possible that some of the defendants were not involved at all, or to the extent that they allegedly confessed, but complete confidence is not possible one way or the other. As already suggested, uncertainty about past crimes is entirely expected—a function of temporal distance. It would be the unusual case in which complete confidence about distant events is possible. The infamous Scottsboro Boys case provides a useful contrast. There, the putative victims of a sexual assault, when examined by a doctor, exhibited no injuries, nor was there even any evidence of recent sexual intercourse.[63] In the case of the Martinsville Seven, at a distance of over seventy years, we are inevitably in doubt about sundry crucial issues. Ordinarily, we would simply defer, absent compelling evidence, to the legal system’s contemporaneous judgment. This brings us to the fairness of the trials in this case.

B. The Trials

The Martinsville Seven trials can be viewed from two perspectives. When considered in the context of other criminal trials of black defendants in the pre-modern era, one understands the self-congratulatory tone taken by several Virginia public officials.[64] Indeed, compared with the trials in the Scottsboro case—an admittedly very low bar—the Martinsville Seven trials come to light as exquisitely fair.

First, each of the defendants had his own lawyer; and for some defendants, including Grayson, those lawyers were among the most skilled in the county.[65] The contrast with the Scottsboro case could not be more pronounced.[66] In addition, the judge severed the case into seven trials, thus taking steps to minimize cross-contaminating evidence.[67] The judge also cautioned the lawyers to avoid raising any racially divisive arguments, and the prosecutors apparently complied.[68] Defense lawyers filed a motion to change the venue, as a concession to the notoriety of the crime; and the judge held a hearing in which twenty-five witnesses appeared, including prominent local black citizens, several of whom testified that a fair trial was possible in Henry County.[69] The judge’s denial of the motion was not clearly wrong, even under contemporary standards.[70]

Several prosecution witnesses testified at the trial, including local individuals, police officers, medical examiners, and Floyd herself.[71] As already discussed, the evidence was not irrefutable, but it was incomparably more compelling than the flimsy evidence that produced convictions in other high-profile cases involving black defendants.[72] The defense lawyers conducted several effective cross-examinations, including of the victim herself.[73] And with respect to the police officers, defense lawyers drew attention to discrepancies and inaccuracies.[74] The defendants all took the stand in their own defense, and each repudiated his confession in some respect.[75] Finally, character witnesses took the stand for many of the defendants.[76] One would be hard-pressed to fault the defense lawyers for ineffective assistance of counsel—again, in stark contrast with the Scottsboro case.[77]

Yet if we view the Martinsville Seven trial from the perspective of 2022, the variations with modern practice are glaring. We should, however, distinguish between the respects in which those distinctions reflect legitimate differences in priorities and those differences that undermine confidence in the verdict. The brevity of the trial belongs in the former category. In the latter category, however, belong the composition of the jury and the sentence imposed. The jury pools in each case included between two and four blacks.[78] Again and again, some were excused by the judge for cause, and the remaining were peremptorily challenged by the prosecutor.[79] The result: seven all-white juries.[80] Undoubtedly, those challenges would not survive scrutiny under the modern understanding of a right to an impartial jury.[81] There is, furthermore, the sentence imposed. Rape was punishable in 1949 from five years to life in prison, or by death.[82] Of course, under the contemporary understanding of the Eighth Amendment, capital punishment is foreclosed for any crime other than homicide and possibly treason.[83] But it is anachronistic to impose our “standards of decency” in judging the constitutionality of capital punishment when imposed in prior eras.[84]

The problem is not that the jury and judge imposed a sentence that was, at law, possible. The problem is that the sentence was exclusively reserved for convicted black rapists—a fact that was brought to the attention of then Virginia Governor John S. Battle when he was considering a clemency petition.[85] White rapists, especially when the victim was black, often received lenient sentences.[86] Consider the case of Carl Burleson and Leonard Davis, two white police officers convicted of raping a black woman in Richmond in 1947.[87] Convicted of rape, they were each sentenced to seven years in prison.[88] Notwithstanding contemporaneous claims that race played no role in the trial, the sentence imposed by the jury on the Martinsville Seven fuels suspicion that the effectual truth is that race most certainly did.

The lingering question is whether any respect is owed the jury verdict and sentence. Does the composition of the jury and the sentence it imposed command us not simply to question, as an academic matter, the accuracy of the verdict but also to repudiate, as a formal legal matter, the judicial system that promulgated it?

C. The Pardon

Governor Northam answered that question with a resounding “maybe” in an eleven-paragraph pardon. The analysis below is quite critical of that pardon; the principal objections arise from defects in the reasoning and the overall sloppiness. That sloppiness is immediately apparent. After the first paragraph correctly recites the names of the seven defendants, the second paragraph jumbles the names of three defendants.[89] Even more disconcertingly, starting in paragraph three, the pardon focuses almost exclusively on one defendant: DeSales Grayson.[90] Although the names of the others are recited in paragraph seven, the legally dispositive paragraphs—in which the governor actually extends a pardon—mention only Grayson.[91] This is baffling insofar as the press release that accompanied the pardon refers to all seven.[92]

Key links in the chain of reasoning that culminates in that pardon are clumsily presented. The third paragraph pronounces that “race played an undeniable role during the identification, conviction, and the sentencing of Francis DeSales Grayson and the six other men.”[93] As already discussed, race almost certainly played a role in the death sentence imposed, but can one as confidently say that it played a role in the conviction and identification? Perhaps one can infer from the racial bias reflected in the sentence that racial bias was also evident in the finding of guilt—that is, that jurors’ prejudices played a role in their weighing of the evidence. It is unclear, moreover, what is intended by the pardon’s claim that race played a role in the identification of the defendants.[94] To be sure, the white victim identified her attackers as black men, and the defendants are black men: Is the pardon’s implication that Ruby Stroud Floyd falsely identified the defendants because of mistaken cross-racial bias? Is there any support for this claim? This is a grave source of error in the criminal justice system, and one that psychological studies have confirmed, and that the legal system should address;[95] however, the historical record is devoid of evidence that Floyd’s identification of her attackers was contaminated by cross-racial bias. The curiously allusive phrasing in the third paragraph points to a glaring absence in the pardon: none of the defendants are ever said to be innocent of the rape of Ruby Stroud Floyd.[96]

In the absence of such a finding, the pardon’s fourth through sixth paragraphs retreat to procedural questions and legal formalisms.[97] As the pardon observes, the voir dire process, which culminated in all-white juries, violated the Sixth Amendment requirement of an “impartial jury,” at least as that phrase has been understood since 1985.[98] The same objection can be raised, however, to the vast majority of convicted black defendants through the modern era: Are they all entitled to pardons?

The fifth paragraph further raises the question of the appropriateness, at least for purposes of extending pardons, of deploying contemporary constitutional standards when evaluating past criminal convictions.[99] The pardon observes that “capital punishment for crimes such as rape” violates a number of post-1972 Supreme Court cases.[100] But the Eighth Amendment prohibition on cruel and unusual punishments has been held to reflect “evolving standards of decency.”[101] Implicit is the acknowledgment that those standards could evolve, and that a punishment that was consistent with standards in 1949 and constitutional at that time might be inconsistent with those standards in 2022 and unconstitutional today.[102] Given the rarity of states imposing capital punishment for nonhomicide offenses today, its imposition for rape can be said to violate the Eighth Amendment in 2022, but no such confidence is possible in 1949, when roughly half of the states reserved the possibility of death sentences for rape.[103]

Later paragraphs of the pardon trail off into rhetoric that does little to justify the extension of a pardon to Grayson or the other defendants.[104] The pardon observes that “discriminatory Jim Crow laws” disfigured Virginia’s legal system for decades, which is indisputably true, but its connection to the innocence of the Martinsville Seven is opaque.[105] The pardon also observes that the seven defendants can no longer “share their truth.”[106] This formulation, whatever its merits in contemporary discourse,[107] is woefully out of place here.

Indeed, at the risk of sounding flippant, one is inclined to ask: Did anyone run the pardon past legal before it was issued? As already noted, the bizarre conclusion focuses exclusively on one of the Martinsville Seven:

Now, Therefore, I, Ralph S. Northam, Governor of the Commonwealth of Virginia, by virtue of the authority vested in me, posthumously grant Francis DeSales Grayson a Simple Pardon.[108]

But what about the other six defendants: Was their outcome not also unjust? And note that the pardon is a Simple Pardon, and not an Absolute Pardon.[109] The latter is reserved for those whom the governor is convinced are actually innocent.[110] Are we to infer from the form of the pardon that the governor doubts that the Martinsville Seven were actually innocent? If so, what was the point of insinuating skepticism about Ruby Stroud Floyd’s identification of her assailants?

II. Lessons from the Almost-Pardon of George Floyd

The death of George Floyd on May 25, 2020, in Minneapolis, convulsed the nation.[111] In the buildup to Officer Derek Chauvin’s murder trial, Floyd’s life came under intense scrutiny.[112] There were reports that, between 1997 and 2007, Floyd had been arrested nine times and served multiple jail terms.[113] One of those convictions, in 2004, was for the sale of a rock of crack cocaine.[114] The testimony of the arresting officer, Gerald Goines, was the only incriminating evidence.[115] Although Floyd denied the accusation, he agreed to a plea bargain, his attorney later claimed, because he faced twenty-five years in prison.[116] After serving a ten-month sentence, he was released and then committed an armed home invasion for which he was sentenced to five years in prison.[117]

Floyd’s 2004 conviction was among several hundred that were revisited years later, in the wake of revelations of police misconduct.[118] Specifically, Goines, the same officer who had arrested Floyd in 2004, participated in a drug raid in 2019 that resulted in the death of two of the house’s occupants.[119] It subsequently came to light that Goines had perjured himself in the warrant application.[120] Harris County District Attorney Kim Ogg ordered her office to review hundreds of cases that had been brought based on Officer Goines’s testimony.[121] With the District Attorney’s acquiescence, at least two convicted defendants succeeded in having their convictions overturned through judicial decree.[122]

In April 2021, Allison Mathis, the public defender who had represented Floyd in the 2004 charge, submitted a pardon application on behalf of Floyd.[123] Days later, District Attorney Ogg filed a letter expressing support.[124] And in October 2021, the Texas Board of Pardons and Paroles (the “Board”) unanimously recommended that Floyd receive a posthumous pardon.[125] The pardon sat on Governor Abbott’s desk for several months, eventually attracting speculation as to the cause of delay.[126] Then, in December 2021, the Board withdrew its recommendation.[127] In a letter addressed to Governor Abbott’s office, the Board’s presiding officer wrote that it was in the process of examining its own procedures and discovered some “departures” from its rules.[128] As a result, the Board withdrew its recommendation for Floyd and twenty-four others but indicated that it would review those applications in 2022.[129] Thus, according to the governor’s press secretary, the governor “did not have the opportunity to consider” Floyd’s petition.[130]

All of this was puzzling, but as is so often true, unravelling the puzzle may further our understanding. Mathis said the application had gone through a compliance review, and none of the Board’s members had raised any issues.[131] What, then, were the late-discovered “departures”? Compounding the mystery is a mismatch between the provisions of Texas law cited in Floyd’s application for a pardon and in the Board’s cryptic statement of its withdrawal of the recommendation.[132] Floyd’s application had been made pursuant to Section 143.13 of the relevant Texas Code, but the Board’s withdrawal suggested deficiencies under Section 143.2.[133] Floyd’s application plainly failed to meet the exacting standards set forth in Section 143.2, which governs “pardons for innocence.”[134] Such relief is permissible only when the Board receives either (a) the “written recommendation of at least two of the current trial officials of the sentencing court” that, on the basis of newly discovered evidence, the petitioner is actually innocent; or (b) a judicial order pronouncing the petitioner actually innocent.[135] Neither condition was satisfied in Floyd’s case.[136]

Floyd’s petition, however, was filed under Section 143.13, entitled “Posthumous Pardon,” which provides, in full: “Upon request from a person acting on behalf of a deceased person who was convicted of a felony offense, the Board will consider recommending a full pardon for the deceased person.”[137] Floyd’s application for a pardon, through his lawyer, satisfied the sparse terms of Section 143.13. It is, therefore, unclear why the Board decided, apparently in retrospect, that the requirements of Section 143.2 also apply to petitions filed under Section 143.13.[138]

The contrast between the rigor of Section 143.2 and the laxity of Section 143.13 nonetheless puts in bold relief the question before us: What should be required for the issuance of a posthumous pardon? Texas’s scheme can at least be credited with recognizing that special rules should apply to posthumous pardons. It would be absurd to condition a posthumous pardon on evidence submitted by “two of the current trial officials” who heard the case.[139] For defendants convicted long ago, those officials may themselves be dead or unable to give credible evidence.

On the other hand, is it not possible to channel the decision-making with respect to posthumous pardons more than Section 143.13? Indeed, the only limitation on the issuance of posthumous pardons cited in that section—that the request be by one “acting on behalf of a deceased person”[140]—is ill-chosen. Who is authorized to “act[] on behalf”? If the moving party must be a legal descendant, then circumstances could arise in which a dead person, however deserving of a pardon, would be ineligible, because there are no next of kin. Or does any Texan (or American? or person?) have standing to request a pardon on behalf of a deceased? And if so, on what basis are such pardons to be issued? Must “actual innocence” be established, even for those whose trials occurred long ago and as to which the facts are shrouded in the mists of time?

In short, Texas’s pardon scheme is preferable to Virginia’s in at least three ways: first, it provides a transparent screening process, in which pardon applications are processed by an independent board; second, at least for ordinary pardons, the board operates within relatively clear guidelines; and third, posthumous pardons are carved out as special cases. The principal defect is the failure to specify or even hint at what rules should govern posthumous pardons. What those rules might be is the issue to which this Article now turns.

III. Legally Exonerating the Dead: Costs and Benefits

Academic discussions of pardons in America tend to take one of two tracks—either lamenting their rarity or condemning their frivolity.[141] Both criticisms are well-founded. There are doubtless many people languishing in prison for crimes of which they are wholly innocent, excessively punished, or genuinely repentant; this reality is all the more intolerable when one reflects that the mere stroke of a president’s or governor’s pen could often remedy the injustice. [142] And yet when that pen is wielded, alas, how randomly it seems to select its beneficiaries.[143] The catalog of manifestly unmerited pardons is long. When governors and even presidents have been left to their own devices, pardons often seem recklessly granted, for personal or partisan gain.[144]

Posthumous pardons are likewise not exempt from criticism. Consider President Trump’s posthumous pardon of Susan B. Anthony.[145] She was charged with violating New York state law in 1872, when she illegally voted in the presidential election.[146] She was afforded zealous counsel and the opportunity to speak her mind after the guilty verdict, which she emphatically did, in a speech that did much to launch the women’s suffrage movement.[147] Indeed, the trial was a boon to Anthony’s cause, in giving her an abundance of free and overwhelmingly favorable publicity.[148] No effort was ever made to collect the penalty (a $100 fine) that was imposed—which was doubtless a good thing, as Anthony repeatedly said that she would never pay it.[149] The Susan B. Anthony Museum rejected the pardon, saying in the same spirit as Anthony herself, that accepting the pardon would have validated the trial.[150] Some observers mused that the president issued the pardon as a cynical ploy to attract women voters.[151]

Or consider President Trump’s pardon of boxer Jack Johnson.[152] Johnson aroused racial animosity throughout his career, and his prosecution in 1913 under the much-denigrated Mann Act was at least in part the result of prejudice.[153] Nonetheless, the Act remains on the books (used most recently against Ghislaine Maxwell).[154] There were other notorious prosecutions under the Act, such as that of F. Drew Caminetti, also in 1913, for crossing state lines with his mistress.[155] That conviction was upheld in a 1917 Supreme Court decision that held that consensual, nonmarital sex fell within the statute’s definition of “immoral sex.”[156] In light of Lawrence v. Texas,[157] should Caminetti be pardoned? Of course, the ceremony accompanying such a pardon would not be attended by celebrities such as Sylvester Stallone and Deontay Wilder, nor would it attract praise from far-flung political quarters.[158] Curiously, President Obama resisted the many calls to pardon Johnson, with his Attorney General, Eric Holder, reportedly saying: “To know the way in which he treated women, physically abused women, gives me pause.”[159]

Other high-profile posthumous pardons also raise concerns. When New York Governor George Pataki pardoned comedian Lenny Bruce, who had been convicted of obscenity, the applause was universal.[160] Bruce’s case was supported at the time (and after) by many celebrities, such as Woody Allen, Norman Mailer, and James Baldwin.[161] But what was achieved? Although Bruce was sentenced to four months for obscenity, he died, as the result of a drug overdose, in the pendency of the appeal; and so technically, his conviction was abated.[162] In any event, he was almost certain to prevail on appeal, as his co-defendant did, and as Bruce himself did in several related cases.[163] One can celebrate Bruce’s pardon as a vindication of the First Amendment,[164] but one might more cynically observe that such proclamations are easy ways for politicians to burnish their own reputations, even if the pardon does nothing to burnish the reputation of the putative beneficiary: Has anyone’s opinion of Lenny Bruce changed as the result of the pardon? And, why just Lenny Bruce? Why not Mae West, who actually served ten days in a New York prison for obscenity, but who, alas, has fewer living acolytes to rally to her cause?[165]

One might respond that even if very little good is accomplished by such posthumous pardons, what is the harm? Indeed, those wary of government actors might applaud posthumous pardons on the premise that every minute an elected politician devotes to such matters is a minute not spent on matters likely to harm the public interest. But let us discount such cynicism and operate on the opposite hypothesis—that a public official’s time is both finite and valuable. Are posthumous pardons the best use, or even a good use, of that time? Before weighing the supposed benefits, are there costs to posthumous pardons? In the category of actuals costs, any pardon undoes the finality of a verdict. The consequent uncertainty—and controversy—can fuel an appreciation of the wisdom in the adage about letting sleeping dogs lie. The several-decade saga involving the exoneration of Leo Frank is illustrative.

Cornell-educated, Frank was the Jewish factory manager of a pencil factory in Atlanta in 1913, when fourteen-year-old Mary Phagan was found murdered in the factory basement.[166] Jim Conley, the illiterate black nightwatchman who had discovered the victim, initially proved a convenient suspect, but prosecutors soon focused on a more luscious defendant: the rich Yankee factory manager.[167] Frank’s trial was far from a model of perfection, but it was not a mockery of justice.[168] Even after the U.S. Supreme Court issued an opinion affirming the conviction,[169] doubts continued to mount, intensified by a campaign on Frank’s part by the Jewish community in Atlanta and throughout the nation.[170] Governor Slanton commuted Frank’s sentence to life imprisonment, but the reprieve was brief. [171] On the evening of August 16, 1915, twenty-five armed men broke into the prison, abducted Frank, and lynched him the following morning.[172]

In 1986, the Georgia Board of Pardons and Paroles sought to correct the injustice and issued what was described as a pardon of Frank.[173] And yet, what one might expect to have brought a measure of “closure” to this unfortunate episode in history has accomplished exactly the opposite. The pardon was careful not to absolve Frank of the crime; it simply regretted the State’s failure to protect him while in custody and expressed misgivings about some of the trial’s procedures.[174] This has not satisfied many, who have continued to push for, and even demand, the full exoneration that Frank’s memory demands.[175] And yet, if Frank is innocent, then Conley was almost certainly guilty. Is it fair, after a century, on the basis of shaky evidence, to hold him responsible for murder? And then there is the family of Mary Phagan, who continue to insist on Frank’s guilt and have strenuously opposed a pardon.[176]

Let us reconsider the Martinsville Seven pardon in light of the ongoing Frank-pardon saga. Ruby Stroud Floyd was raped, almost certainly by more than one man, on January 8, 1949.[177] Recall that according to Governor Northam’s pardon, the Martinsville Seven each have a “truth.”[178] Even allowing the post-modern possibility of a multiplicity of truths, does Ruby Stroud Floyd not also have a truth? She testified—seven times—to the guilt of the Martinsville Seven.[179] Does the pardon repudiate her truth? Or is the pardon preserving respect for her truth, but only allusively suggesting the possibility that the Martinsville Seven were innocent, without actually saying so? Threading that needle would have required a more skillful rhetorician than was apparently employed in the former governor’s office.

In her essay on the Martinsville Seven, Professor Barbara Holden-Smith is very critical of a legal system that singled out black men for capital punishment, but a respect for the complexity of the case leads her to this observation:

There are two compelling stories here. On the one hand resides the horror of the South’s history of putting black men to death-first by mostly extra-legal lynching and later by state-sanctioned executions. On the other hand sits the horror of rape itself and all it symbolizes about the unjust treatment of women in our society.[180]

As with Leo Frank, a pardon of the Martinsville Seven, if approached with any legal rigor, presupposes a reassessment of the entire case; to do so requires a fuller investigation and accounting than was even begun. For starters, were Ruby Stroud Floyd’s descendants consulted before the pardon was issued? Furthermore, the curious phrasing of the pardon itself, singling out Grayson, raises the question: Were the other defendants equally exonerated? As in the Frank controversy, excusing one person of a crime may be an oblique way of accusing another; in the absence of newly discovered evidence, what justifies this remarkable step?

Pardoning George Floyd for drug possession might be said to be a less nettlesome enterprise, because there is no crime victim whose truth would be denied, or co-defendants whose guilt would be affirmed. But again, there is the hidden cost. The Texas Board of Pardons and Paroles has a stunningly large docket.[181] There are now over 150,000 people behind bars in Texas.[182] Hundreds of thousands more people labor under the miscellaneous burdens of a felony conviction.[183] In addition to clemency recommendations, the Board is responsible for which prisoners to release on parole, what the conditions of parole should be, and when revocation of parole is appropriate.[184] Is the best use of the Board’s time to debate what happened in 2004, when Officer Goines claimed to witness Floyd sell a $10 rock of crack cocaine?[185] Goines, we may assume, lied in a warrant application that resulted in a disastrous search in 2019,[186] but presumably at various points in his earlier life he told the truth. Harris County District Attorney Kim Ogg joined in the request to issue Floyd a posthumous pardon,[187] but it is unclear what steps, if any, were taken to arrive at any confidence of George Floyd’s innocence. Said Goines’s attorney in June 2020: “this is a transparent and opportunistic effort to capitalize on Floyd’s murder.”[188]

Ogg was narrowly reelected in November 2020.[189]


Posthumous pardons are emblematic of what has become a large and growing part of our government’s docket: symbolic legislation and executive orders.[190] The attraction of such gestures is straightforward: it allows public officials to associate themselves with noble causes at relatively little risk of offending anyone, or at worst, by offending only the incorrigibly dyspeptic.

This Article might seem to fall within the latter camp, but the aim is to persuade the reader that a measure of skepticism about posthumous pardons is appropriate. First, the costs to unraveling a long-ago conviction are often understated. Second, given the finitude of a public officials’ time and attention, the benefits conferred by the posthumous pardon are secured only at the expense of other pardons that might confer tangible benefits.

Viewed from this perspective, posthumous pardons are less clearly to be celebrated. In Floyd’s case, the Harris County District Attorney appropriately ordered a comprehensive review of every case Officer Goines brought over the course of his twenty-year career,[191] but surely priority should be assigned to living convicted defendants. Floyd’s tragic death sixteen years later and over 1,000 miles away cannot be undone by the pardon.

The Martinsville Seven pardon is almost a case study in how not to exonerate the dead. The pardon sloppily mixes insinuations that the victim misidentified the defendants, with implications that some, but not all, defendants might really have been guilty. The death sentences imposed on all seven defendants in that case were plainly the consequence of their race. That should have been the straightforward statement of Governor Northam, without the embellishments and flowery rhetoric that complicated the message and undermined its power.

The communal impulse to recognize past errors committed under the color of law is praiseworthy. At times, it is even appropriate to solemnize that impulse in the legal form of a pardon. But that impulse can take many other nonlegal forms—most notably, declarations of contrition by heads of state.[192] Such apologies can, and often should, be joined by monetary relief. Illustrative is the Civil Liberties Act of 1988, in which the U.S. Government not only apologized for the internment of Japanese Americans but also created a $1.25 billion compensation fund.[193] A pardon is a legal remedy designed to achieve concrete objectives, such as the liberation of a wrongly convicted, excessively punished, or genuinely repentant person. Except in extraordinary circumstances, involving the most clearly proven and outrageous injustices, when the putative beneficiary is already dead, a pardon is an ill-chosen vehicle for the delivery of nebulous symbolic benefits.

  1. . Professor of Law, Scalia Law School, George Mason University. The author thanks Thomas Coleman for research assistance.
  2. . Press Release, Governor Ralph Northam, Governor Northam Grants Posthumous Pardons for ‘Martinsville Seven’ 70 Years After Unjust Executions (Aug. 31, 2021) (available at [hereinafter Northam Press Release]; Simple Pardon, Commonwealth of Virginia, Executive Department, Martinsville Seven Grant (Aug. 31, 2021), [hereinafter Martinsville Seven Pardon].
  3. . Policies, Off. of the Pardon Att’y, (last updated Dec. 23, 2020).
  4. . Darryl W. Jackson et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 Ind. L.J. 1251, 1251 (1999).
  5. . Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush, N.Y. Times (Dec. 23, 2008),
  6. . Policies, supra note 2.
  7. . Stephen Landsman, When Justice Fails, 84 Mich. L. Rev. 824, 829 (1986).
  8. . Jackson, supra note 3, at 1288.
  9. . John Snowden (1890-1919), Archives of Md., (last visited Apr. 5, 2022).
  10. . John Kifner, No Joke! 37 Years After Death Lenny Bruce Receives Pardon, N.Y. Times (Dec. 24, 2003),
  11. . The Innocence Project & Maurice Possley, Timothy B. Cole, Nat’l Registry of Exonerations, (last updated Mar. 10, 2015).
  12. . Press Release, Off. of the Governor, Governor Lincoln D. Chafee Pardons John Gordon, (Jun. 29, 2011) (available at
  13. . Frank James, Tom Joyner’s Wrongly Executed Relatives Cleared ­– 94 Years Too Late, NPR (Oct. 14, 2009, 8:15 PM),
  14. . Verna Gates, Alabama Pardons Scottsboro Boys in 1931 Rape Case, Reuters (Nov. 21, 2013, 11:20 AM),
  15. . Jacey Fortin, Florida Pardons the Groveland Four, 70 Years After Jim Crow-Era Rape Case, N.Y. Times (Jan. 11, 2019),
  16. . Samantha Schmidt, Decades After His Arrest For Having Sex With Men, A Gay Civil Rights Leader Is Pardoned, Wash. Post (Feb. 5, 2020),
  17. . Press Release, Off. of the Governor, Gov. Edwards Signs the First and Historic Posthumous Pardon of Civil Rights Leader Mr. Homer A. Plessey (Jan. 5, 2022) (available at
  18. . Kevin Reynolds, Texas Board Recommends George Floyd Receive a Posthumous Pardon for 2004 Houston Drug Arrest, Tex. Trib. (Oct. 4, 2021, 7:00 PM),
  19. . Jolie McCullough, Texas Gov. Greg Abbott Remains Silent on Posthumous Pardon for George Floyd, Tex. Trib. (Nov. 29, 2021, 7:00 PM),
  20. . Kate McGee, Texas Board Rescinds Recommendation for Posthumous Pardon of George Floyd, Tex. Trib. (Dec. 23, 2021, 6:00 PM),
  21. . Id.
  22. . Scott D. Seligman, Justice for the Dead, Atlantic (Oct. 26, 2021),
  23. . Fred O. Smith, The Constitution After Death, 120 Colum. L. Rev. 1471 (2020).
  24. . Id. at 1472, 1513.
  25. . Id. at 1473 (quoting Sophocles’ Antigone).
  26. . Carol S. Steiker, Remembering Race, Rape, and Capital Punishment, 83 Va. L. Rev. 693, 695 (1997).
  27. . Barbara Holden-Smith, Inherently Unequal Justice: Interracial Rape and the Death Penalty, 86 J. Crim. L. & Criminology 1571, 1574 (1996).
  28. . See generally Eric W. Rise, The Martinsville Seven: Race, Rape, and Capital Punishment (1995).
  29. . The link that was active when Ralph Northam was governor is now broken. The document is now accessible only through Wayback Machine Internet Archives. See Martinsville Seven Pardon, supra note 1.
  30. . The facts of the following two paragraphs are drawn from Rise, supra note 27, at 7–20, and Hampton v. Commonwealth, 58 S.E.2d 288, 289–90 (Va. 1950).
  31. . Rise, supra note 27, at 7.
  32. . Id. at 8.
  33. . Id. at 9.
  34. . Id.
  35. . Id. at 10.
  36. . Id. at 11.
  37. . Id.
  38. . Id. at 17, 19–20.
  39. . Id. at 10, 16.
  40. . Id. at 10.
  41. . Id. at 12–15.
  42. . Id. at 14.
  43. . See id. at 16; Martinsville Seven Pardon, supra note 1.
  44. . Rise, supra note 27, at 15.
  45. . Id.
  46. . Id.
  47. . Id. at 16.
  48. . Id.
  49. . Id.
  50. . Id. at 17.
  51. . Id. at 18.
  52. . See id.
  53. . Id. at 13.
  54. . Under Virginia law, voluntary intoxication is only a defense to premediated murder. Lawlor v. Davis, 764 S.E.2d 265, 276 (Va. 2014).
  55. . Rise, supra note 27, at 15–17.
  56. . Technically, the conviction would be for rape as a principal in the second degree. Sutton v. Commonwealth, 324 S.E.2d 665, 671 (Va. 1985).
  57. . Rise, supra note 27, at 19.
  58. . See, e.g., Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by Police, 76 Or. L. Rev. 775, 785 (1997).
  59. . See infra Subpart I.B.
  60. . Rise, supra note 27, at 18–19.
  61. . Id. at 18.
  62. . Id. at 19.
  63. . Michael J. Klarman, Scottsboro, 93 Marq. L. Rev. 379, 385 (2009).
  64. . Hampton, 58 S.E.2d at 294 (quoting trial judge: ‘The public in this community should be congratulated upon the way they have conducted themselves”).
  65. . Rise, supra note 27, at 29 (the defense lawyers included a state legislator, a former commonwealth’s attorney, and “one of the foremost defense lawyers in this entire area”).
  66. . See Klarman, supra note 62, at 383 (defense lawyers included a “local septuagenarian” and an alcoholic who “could scarcely walk straight in the morning”).
  67. . Rise, supra note 27, at 29.
  68. . Id. at 30.
  69. . Id. at 31–32.
  70. . Compare Hampton, 58 S.E.2d at 293–94 with Skilling v. United States, 561 U.S. 358, 378 n. 11, 382 (2010).
  71. . Rise, supra note 27, at 38–40.
  72. . See, e.g., Ellis Cose, The Saga of the Scottsboro Boys, ACLU (July 27, 2020),
  73. . Rise, supra note 27, at 38–45; Hampton, 58 S.E.2d at 296–97.
  74. . Rise, supra note 27, at 43–45.
  75. . Id. at 43.
  76. . Id. at 45.
  77. . Compare Rise, supra note 27, at 38–45, with Klarman, supra note 62, at 383.
  78. . Rise, supra note 27, at 36.
  79. . Id. at 36–37.
  80. . Id.
  81. . See Batson v. Kentucky, 476 U.S. 79, 79–80 (1986).
  82. . Rise, supra note 27, at 47.
  83. . Kennedy v. Louisiana, 554 U.S. 407, 473 (2008).
  84. . See Trop v. Dulles, 356 U.S. 86, 100–01 (1958).
  85. . Dale M. Brumfield, Seven Black Men, Seven Death Penalties, Medium (June 5, 2019), See generally David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004).
  86. . Baldus & Woodworth, supra note 84, at 1415–17.
  87. . See Davis v. Commonwealth, 45 S.E.2d 167, 169 (Va. 1947).
  88. . Id. at 168.
  89. . “James Luther Taylor” in the second paragraph is a curious amalgam of two of the defendants: James Luther Hairston and John Clabon Taylor. See Martinsville Seven Pardon, supra note 1. Also, the second paragraph refers to “James (Joe) Henry Hampton,” which apparently corresponds to “Joe Henry Hampton” in the first paragraph. Id. At no point in any of the legal filings was this defendant referred to as “James (Joe),” so it is unclear what inspired the pardon’s author to adopt this formulation. See, e.g., Hampton, 58 S.E.2d at 288–92, 299, 301–02 (referring to “Joe Henry Hampton” throughout).
  90. . See Martinsville Seven Pardon, supra note 1.
  91. . Id.
  92. . Northam Press Release, supra note 1.
  93. . Martinsville Seven Pardon, supra note 1.
  94. . Id. at ¶ 3.
  95. . See, e.g., John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207, 214 (2001).
  96. . Martinsville Seven Pardon, supra note 1.
  97. . Id.
  98. . See Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 Md. L. Rev. 107, 109 (1994) (discussing the Batson doctrine, which “hinders both sides in a criminal case from the use of racially based peremptory strikes in jury selection”).
  99. . Martinsville Seven Pardon, supra note 1.
  100. . Id.
  101. . Trop v. Dulles, 356 U.S. 86, 101 (1958).
  102. . See Kennedy v. Louisiana, 554 U.S. 407, 422–24 (2008) (relying on fact that between 1930 and 1964, 455 people convicted of rape were executed, whereas death sentences for rape became rare thereafter).
  103. . Herbert L. Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1073 (1964).
  104. . See Martinsville Seven Pardon, supra note 1.
  105. . Id.
  106. . Id.
  107. . See Conor Friedersdorf, The Difference Between “Your Truth” and “The Truth,” Atlantic (Jan. 8, 2018),
  108. . See Martinsville Seven Pardon, supra note 1.
  109. . Id.
  110. . Types of Pardons in Virginia and Eligibility Information, Sec’y of the Commonwealth, (last visited Apr. 3, 2022).
  111. . See Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020, 6:49 AM),
  112. . See Luis Andres Henao et al., A Long Look at the Complicated Life of George Floyd, Chi. Trib. (June 11, 2020, 11:17 AM),
  113. . Some of the more extravagant claims of Floyd’s criminal history are meticulously fact-checked in Gabrielle Settles, A Post Exaggerates George Floyd’s Criminal History, Politifact (Jul. 28, 2021), That article includes a screenshot of the nine offenses listed in the County database. Id.
  114. . See Juan A. Lozano, Texas Board Recommends Posthumous Pardon for George Floyd in 2004 Drug Arrest; Request Awaiting Governor’s Approval, USA Today (Oct. 5, 2021, 2:29 P.M.),
  115. . See Michael Daly, The Monster Cop Who Encountered George Floyd in Houston, U.S. News (Jun. 11, 2020),
  116. . St. John Barned-Smith, George Floyd Should Receive Posthumous Pardon in 2004 Goines Arrest, State Board Recommends, Hous. Chron., (last updated Oct. 4, 2021, 6:50 PM).
  117. . Arelis R. Hernandez, George Floyd’s America: A Knee On His Neck, Wash. Post, (last updated Oct. 26, 2020, 7:54 AM) (noting that after arrest, Floyd faced up to forty-years in prison but, due to circumstantial evidence, was offered a twelve-year plea deal and then the ultimately accepted five-year plea deal).
  118. . Chloe Alexander, Texas Parole Board Recommends Posthumous Pardon for George Floyd in 2004 Conviction, KHOU 11, (Oct. 4, 2021, 6:30 PM).
  119. . Letter from Kim Ogg, Harris Cnty. Dist. Att’y, to Texas Bd. of Pardons & Paroles (Apr. 28, 2021) (available at [hereinafter Ogg Letter].
  120. . ‘Procedural Errors’ Mean No Posthumous Pardon For George Floyd Regarding 2004 Drug Arrest In Houston, CBS DFW 21 (Dec. 24, 2021, 7:35 AM),
  121. . Ogg Letter, supra note 118.
  122. . Ex parte Otis Mallet, 602 S.W.3d 922 (Tex. Crim. App. 2020); Ex parte Steven Mallet, 620 S.W.3d. 797, 798 (2021).
  123. . See Reynolds, supra note 17.
  124. . Ogg Letter, supra note 118.
  125. . Reynolds, supra note 17.
  126. . See McCullough, supra note 18.
  127. . Letter from David Gutiérrez, Presiding Officer, Texas Bd. of Pardons & Paroles, to James Sullivan, Gen. Couns., Off. of the Governor (Dec. 16, 2021), [hereinafter Gutiérrez Letter]
  128. . Id.
  129. . Id.
  130. . Press Release, Off. of the Texas Governor, Governor Abbott Grants Clemency To Eight Texans Recommended By Texas Board Of Pardons And Paroles (Dec. 23, 2021) (available at
  131. . Kate McGee, Texas board rescinds recommendation for posthumous pardon of George Floyd, Tex. Trib. (Dec. 23, 2021),
  132. . Compare Ogg Letter, supra note 118 (request for pardon filed under 37 Tex. Admin. Code § 143.13), with Gutiérrez Letter, supra note 126 (finding “departures” under §§ 143.2, 143.6, 143.10).
  133. . See Ogg Letter, supra note 118; Gutiérrez Letter, supra note 126.
  134. . See 37 Tex. Admin. Code § 143.2 (2018).
  135. . Id.
  136. . See Ogg Letter, supra note 118 (agreeing with pardon recommendation because arresting officer later found to be unreliable but not attaching any recommendation from trial officials or a judicial order).
  137. . 37 Tex. Admin. Code § 143.13 (2018).
  138. . See Gutiérrez Letter, supra note 126.
  139. . 37 Tex. Admin. Code § 143.2.
  140. . 37 Tex. Admin. Code § 143.13.
  141. . See, e.g., Paul J. Larkin, Guiding Presidential Clemency Decisionmaking, 18 Geo. J. L. & Pub. Pol’y 451 (2020); Chet Flanders, Pardons and the Theory of the Second Best, 65 Fla. L. Rev. 1559 (2013); Robert L. Misner, 41 Wm. & Mary L. Rev. 1303 (2000).
  142. . In some states, governors can only issue pardons after first receiving a recommendation by a parole board; in a minority of states, the legislature has delegated the power to issue pardons exclusively to a parole board. See Kristen H. Fowler, Comment, Limiting the Federal Pardon Power, 83 Ind. L.J. 1651, 1662–64 (2008).
  143. . See, e.g., Sarah Schindler, Pardoning Dogs, 21 Nev. L.J. 117 (2020).
  144. . A recent, notably ill-conceived pardon was issued by Kentucky’s Governor Matt Bevin in his final days in office to a convicted killer, whose family had hosted a political fundraiser for him. Pardoned Kentucky Killer Sentenced to 42 Years in Prison, NBC News (Jan. 19, 2022, 6:18 AM), Federal charges were subsequently brought, and the pardoned individual was convicted in federal court for the same offense. Id.
  145. . Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Posthumous Pardon of Susan B. Anthony (Aug. 18, 2021) (available at
  146. . For the details of Anthony’s trial, see Rayne L. Hammond, Trial and Tribulation: The Story of United States v. Anthony, 48 Buff. L. Rev. 981, 982 (2000).
  147. . See id. at 1029–31.
  148. . Id. at 1032.
  149. . See id. at 1031–32.
  150. . See Neda Ulaby, Susan B. Anthony Museum Rejects President Trump’s Pardon of the Suffragist, NPR (Aug. 20, 2020, 2:45 PM),
  151. . Libby Cathey, Critics Pressure Trump to Rescind Susan B. Anthony Pardon, ABC News (Aug. 19, 2020, 4:15 PM),
  152. , Executive Grant of Clemency, Donald J. Trump: President of the United States of America, Unconditional Pardon of John “Jack” Arthur Johnson (May 4, 2018) (available at
  153. . See Denise C. Morgan, Jack Johnson: Reluctant Hero of the Black Community, 32 Akron L. Rev 529, 549–55 (1999); see also 18 U.S.C. § 2421.
  154. . Melissa Gira Grant, The Law Was Never Meant for Ghislaine Maxwell, New Republic (July 10, 2020),
  155. . See Caminetti v. United States, 242 U.S. 470, 482–83 (1917).
  156. . Id. at 491–93.
  157. . 539 U.S. 558, 578 (2003) (“The State cannot demean [petitioners’] existence or control their destiny by making their private sexual conduct a crime.”).
  158. . See John Eligon & Michael D. Shear, Trump Pardons Jack Johnson, Heavyweight Boxing Champion, N.Y. Times (May 24, 2018),
  159. . Kelefa Sanneh, Donald Trump, The Fighter-in-Chief, Pardons Jack Johnson, New Yorker (May 26, 2018),
  160. . Kifner, supra note 9.
  161. . Obscenity Case Files: People v. Bruce (The Lenny Bruce Trial), CBLDF, (last visited April 2, 2022).
  162. . See Kifner, supra note 9; Durham v. United States, 401 U.S. 481, 482–83 (1971) (holding that death during the pendency of an appeal “abates not only the appeal but also all proceedings had in the prosecution from its inception”).
  163. . Ronald K.L. Collins, Lenny Bruce and the First Amendment: Remarks at Ohio Northern University Law School, 30 Ohio N.U. L. Rev. 15, 30 (2004).
  164. . Id. at 31.
  165. . Charlotte Burns, Sex: The Play That Put Mae West in Prison Returns to New York, Guardian (Sept. 29, 2016),,of%20success%20wrong%20by%20wrong%E2%80%9D.
  166. . The account here relies on Steve Oney, And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank (2004).
  167. . See Oney, supra note 165, at 118–44.
  168. . The issue is still hotly debated, but Oney’s elaborate discussion of the trial, id. at 190–344, does much to undercut the narrative implicit in Justice Holmes’s dissenting opinion in Frank v. Mangum, 237 U.S. 309, 345–50 (1915). Oney makes clear that Frank had extraordinarily diligent counsel, a fair judge, and attentive jurors; he implies that the case was crucially lost because Frank, although honest, was an unappealing witness—cold, humorless, repetitive. Oney, supra note 165, at 300–03.
  169. . See Frank, 237 U.S. at 345 (1915).
  170. . Oney, supra note 165, at 474–80.
  171. . Id. at 503–12.
  172. . See Clement Charlton Mosely, The Case of Leo M. Frank 1913–1915, 51 Ga. Hist. Q. 42, 54 (1973); Oney, supra note 165, at 561–72.
  173. . Georgia Pardons Victim 70 Years After Lynching, N.Y. Times (Mar. 12, 1986),
  174. . See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 74 n.274 (1987).
  175. . Our View – The Pardon, Atlanta Jewish Times (Aug. 24, 2015),
  176. . On the ongoing controversy, see Steve Oney, Did Leo Frank Kill Mary Phagan? 106 Years Later, We Might Finally Find Out for Sure, Atlanta (May 31, 2019),
  177. . See supra text accompanying notes 31–51.
  178. . See Martinsville Seven Pardon, supra note 1.
  179. . See Rise, supra note 27, at 36–38.
  180. . Holden-Smith, supra note 26, at 1581.
  181. . See Exec. Serv., Texas Dep’t. of Crim. Just., Fiscal Year 2019 Statistical Report 6 (2020).
  182. . Incarceration Trends in Texas, Vera Inst. of Just., (last visited May 13, 2022).
  183. . See supra note 180, at 6.
  184. . See About Us: Texas Bd. of Pardons and Paroles, (last visited Apr. 5, 2022).
  185. . See supra notes 113–15.
  186. . See supra notes 113–15.
  187. . See Ogg Letter, supra note 118.
  188. . Jack Bleiberg, Texas Prosecutors Probe Irregularities in 2004 Floyd Arrest, AP News (June 13, 2020),
  189. . See Kim Ogg, Ballotpedia, (last visited May 20, 2022).
  190. . William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 531–32 (2001); Andrew Cohen, Symbolic Legislation to Nowhere, Atlantic (Feb. 23, 2012),
  191. . See Ogg Letter, supra note 118.
  192. . See Hugh Mulligan, Better Late Than Never—Sephardic Jews Savor Spain’s Apology, L.A. Times (May 17, 1992, 12:00 AM),
  193. . Civil Liberties Act of 1988, Pub. L. No. 100–383 (codified at 50 U.S.C. § 1989).

By Cameron Bray

On April 20, 2022, attorneys and Justices of the United States Supreme Court sparred over whether Miranda warnings[1] are a constitutional right or a “judicially crafted prophylactic rule,”[2] as lawyer Roman Martinez argued in open court.  In the case of Vega v. Tekoh, the Court granted certiorari[3] of “whether a plaintiff may state a claim for relief against a law enforcement officer under Section 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda.”[4]The case centers around the Fifth Amendment right against self-incrimination[5] and the Civil Rights Act of 1871, 42 U.S.C. § 1983, which grants a damages remedy for violations of constitutional and statutory civil rights.[6]  At issue is the precedent case Dickerson v. United States,[7] which upheld Miranda in spite of Congress[8] in 2000 but described the doctrine as “constitutionally based”[9] and having “constitutional underpinnings”[10] rather than as a true-born, fundamental constitutional right, like the right to remain silent at trial.[11]

The facts of Vega v. Tekoh are in controversy, but the New York Times reports that respondent, Terence B. Tekoh, is “a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI.”[12]  On the flip side, petitioner, Carlos Vega, is a sheriff’s deputy in Los Angeles County who interrogated Mr. Tekoh in connection with a “credible report of sexual assault.”[13]  Accounts differ as to the nature of the interrogation—whether it was coercive or not[14]—but by all accounts, Deputy Vega did not Mirandize Mr. Tekoh prior to questioning, Mr. Tekoh signed a confession, a California trial court admitted the statement in evidence, and a jury acquitted Mr. Tekoh on the merits.[15]

The federal district court, in ruling on Mr. Tekoh’s § 1983 suit against Los Angeles County, held that the use of an un-Mirandized statement was insufficient to show a violation of his right against self-incrimination.[16]  However, the Court of Appeals for the Ninth Circuit, in a published opinion, reversed and held that a plaintiff may state a claim against the State under § 1983 where “the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding.”[17]  In so ruling, Judge Wardlaw on behalf of the panel vacated the court’s judgment and remanded for a new trial with orders to include Mr. Tekoh’s instruction on un-Mirandized confessions.[18]  The court of appeals then denied en banc review, with seven judges dissenting.[19]

Based on oral argument in Vega v. Tekoh, it remains to be seen whether the Supreme Court will rule Miranda a constitutional “right” or mere prophylactic rule under the Fifth Amendment.[20]  Either way, with police interrogations and misconduct increasingly under scrutiny, the decision will have a major impact on § 1983 lawsuits moving forward beyond the current Term.[21]  A rule in favor of Mr. Tekoh could create a world in which an un-Mirandized statement in evidence gives rise to liability not just in a few federal circuits, but in all courts across the United States.[22]

[1] In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Warren, C.J.), the Court held that “[p]rior to any questioning, the [arrestee] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  This American policing practice, as seen on shows like Cops and Law & Order, has come to be known as a “Miranda warning” or “Mirandizing” the suspect.

[2] Jordan S. Rubin, Miranda Warnings Probed by Supreme Court in Police-Suit Case, Bloomberg L. (Apr. 20, 2022),

[3] Vega v. Tekoh, 142 S. Ct. 858 (2022) (reviewing judgment of the Court of Appeals for the Ninth Circuit).

[4] Petition for Writ of Certiorari, Vega, 142 S. Ct. 858 (No. 21-499), 2021 WL 4553767.

[5] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added).  The relevant provision for Miranda warnings is called the Self-Incrimination Clause of the Fifth Amendment.

[6] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .” 42 U.S.C. § 1983.  Section 1983 is the go-to cause of action for civil rights plaintiffs against state actors such as police officers and sheriff’s departments.

[7] 530 U.S. 428 (2000).

[8] In the wake of Miranda, two years later, Congress enacted 18 U.S.C. § 3501 (1968), which made the admissibility of a custodial statement, or “confession,” turn solely on whether it was voluntarily given by the suspect.  This went against Miranda’s holding that an arrestee must be warned prior to questioning of his Fifth Amendment rights.

[9] Id. at 441 (Rehnquist, C.J.).

[10] Id. at 440 n.5.

[11] During oral argument, Justice Barrett observed that Dickerson “didn’t ever use the word ‘constitutional’ right.”  See Rubin, supra note 2.  The defendant’s right to silence as a constitutional matter was established by Griffin v. California, 380 U.S. 609 (1965), which held that neither the trial court nor the prosecutor may comment on the defendant’s failure to testify before a jury.  Id. at 615.  Chief Justice Rehnquist’s view of Miranda as a constitutional “rule” (not a “right”) was later endorsed by a plurality in Chavez v. Martinez. 538 U.S. 760, 763 (2003), which ruled against respondent because of qualified immunity.  Chavez, to be clear, is non-binding, and the federal circuits are split in whether they regard Miranda warnings as a constitutional right for purposes of § 1983 liability.  See Petition for Writ of Certiorari, supra note 4, at *2.

[12] Adam Liptak, Supreme Court Debates Whether Miranda Warnings Are a Constitutional Right, N.Y. Times (Apr. 20, 2022),

[13] Petition for Writ of Certiorari, supra note 4, at *4.

[14] According to Deputy Vega, “Tekoh quickly confessed to the assault, and later stood trial, where his confession was admitted into evidence.  A jury nevertheless acquitted Tekoh.” Id. at *4–5.  By contrast, Mr. Tekoh claims that: “Petitioner Vega investigated this allegation at the hospital.  He interrogated Respondent in a small windowless, soundproof room . . . [A]fter about an hour in the room with the door shut, Respondent wrote a vague, apologetic confession . . . While Petitioner insists that the statements Respondent gave were voluntary and immediate, Respondent testified to an interrogation replete with profanities and threats to have Respondent and his family deported, and refusing to allow Respondent to speak to a lawyer or one of his supervisors.”  Brief in Opposition, Vega v. Tekoh, 142 S. Ct. 858 (2022) (No. 21-499), 2021 WL 5864537, at *3.

[15] David G. Savage, Los Angeles Police Dispute at Center of Supreme Court Case on Miranda Warnings, L.A. Times (Apr. 20, 2022),

[16] See Tekoh v. Cty. of Los Angeles, 985 F.3d 713, 717 (9th Cir. 2021) (noting that the District of Central California failed to instruct the jury “that it should find in [plaintiff’s] favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him.”).

[17] Id. at 715.

[18] Id. at 726.

[19] 997 F.3d 1260 (9th Cir. 2021).

[20] Chief Justice Roberts, who once clerked for the Dickerson Court, noted that, “[former Chief Justice Rehnquist] was somebody careful with his words, he didn’t say Miranda is in the Constitution.  He talked about constitutional underpinnings, constitutional basis.”  Rubin, supra note 2.  However, he also asked petitioner’s attorney, Mr. Martinez, “So why isn’t that right one secured by the Constitution?”  Id.  By contrast, Justice Kagan said that Dickerson “understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution” and that undermining Miranda could hurt the Court’s legitimacy.  Id.

[21] LastWeekTonight, Police Interrogations: Last Week Tonight with John Oliver (HBO), YouTube (Apr. 18. 2022),

[22] In dissent, the late Justice Scalia dared the Dickerson Court to take the opinion “out of the realm of power-judging and into the mainstream of legal reasoning” by simply declaring that Miranda was in fact a federal constitutional right recognized by the Supreme Court.  Dickerson, 530 U.S. at 445–46 (Scalia, J., dissenting).


12 Wake Forest L. Rev. Online 45

Joshua S. Ha*

“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”[1]  That is how Chief Justice Marshall described the rule of lenity in United States v. Wiltberger.[2]  The doctrine is rooted in seventeenth-century England, where it arose to counteract the increasingly widespread imposition of the death penalty for felonies.[3]  The rule traveled to America, and today, courts typically justify the rule on three grounds: (1) fair notice to the defendant, (2) separation of powers, and (3) a presumption in favor of liberty.[4]

Today’s rule of lenity is far removed from its English origin.  Though it remains a tool of statutory construction, it is now employed “at the end of the process of construing what Congress has expressed,”[5] making it difficult to conceptualize as a principle of strict construction.  And even if its utility—as a tiebreaker reserved for instances of “grievous ambiguity”[6]—is extremely limited, it is nonetheless difficult to apply.

This Article argues that we can avoid that difficulty by excluding certain criminal statutes from the rule’s grasp altogether.  In particular, this Article claims that courts erred by applying the rule of lenity to the First Step Act—a statute governing whether already-sentenced criminals are eligible for resentencing.[7]  Part I discusses the history of the rule of lenity in England and argues that the rule strictly construed criminal statutes to frustrate—not discern—legislative intent.  Part II considers the rule of lenity as it is applied today and argues that its placement at the end of the interpretive process is incompatible with the rule as conceived in England.  Part III concludes that there are certain criminal statutes to which no rationale for the rule of lenity applies and that the rule of lenity should therefore not be used when interpreting such statutes. 

I. A History of Lenity

Courts and scholars generally accept that the rule of lenity arose as a response to the severity of English penal law—and specifically, laws carrying the death penalty.[8]  Such laws were commonplace.  Sir William Blackstone noted that it was “difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures.”[9]  Although occasionally the relative mercy of “transportation”—i.e., an arrangement by which the criminal would voluntarily leave the country[10]—might excuse a robber from execution, the death penalty remained pervasive.[11]

The rule of lenity took form against this backdrop.  It is received wisdom that the rule of lenity can be traced to legal developments surrounding the benefit of clergy.[12]  That privilege provided for the “[e]xemption of the persons of clergymen from criminal process before the secular judge” and could be claimed either at the time of arraignment or after conviction.[13]  The benefit of the clergy was once limited to those who had the “habitum et tonsuram clericalem”—that is, the “clerical habit and tonsure.”[14]  But eventually, the benefit was extended to “every one that could read,” though he be “neither initiated in holy orders, nor trimmed with the clerical tonsure.”[15]  Over time, the benefit became widespread, as “learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly.”[16]

Perhaps because it was never meant to extend so far, or perhaps as a favor to clergy dismayed at the loss of this once-exclusive privilege,[17] the benefit of clergy was gradually limited by statute.  In the late fifteenth century, a statute was enacted that permitted a layman to use the benefit only once, whereupon he would be branded.[18]  And it appears that one of the earlier instances of withdrawing the benefit of clergy from an offense altogether was in 1496, when a statute was passed providing that “if any layperson hereafter . . . murder their lord, master, or sovereign immediate, that they hereafter be not admitted to their clergy.”[19]  Instead, that person would “be put in execution as though he were no clerk.”[20]  That practice of removing the benefit of clergy from specific offenses continued, until, at the time of Blackstone, 160 felonies were statutorily exempted from the benefit of clergy.[21]  For those crimes from which the benefit of clergy was withdrawn, the death penalty was no longer easily avoidable.[22]

The classic narrative is that the rule of strictly construing penal statutes was the courts’ response to the widespread elimination of the benefit of clergy.[23]  Whatever the exact mechanics of the rule’s genesis, it was “firmly established” by the mid-seventeenth century.[24]  Thus, while the benefit of clergy itself was completely abolished in 1827,[25] the rule of lenity had already taken on a life of its own.  But while the rule of lenity, and even its impetus, may be straightforward, its exact justification remained unclear.  Was it a good-faith attempt of courts to apply the intent of the legislature, coupled with a disbelief that the legislature could truly desire its strict laws to be liberally applied?  Or was it an instance of judicial obstruction, of courts hampering—by technicality—a legislature that meant what it said?

History tends to support the latter.  The debate is nicely framed by comparing the two most-cited sources as to lenity’s origins: Sir Peter Benson Maxwell and Professor Livingston Hall.[26]  Maxwell was among the first to explicitly link the rule of lenity to the benefit of clergy, and he described the rule of lenity as one faithful to legislative intent.[27]  According to Maxwell, the rule was based on the “reasonable expectation that, when the Legislature intends so grave a matter as the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges,” it “will express [its intention] in terms reasonably plain and explicit.”[28]  Thus, in Maxwell’s view, the rule of lenity is also constrained by the legislature’s intent.  Maxwell’s lenity did not allow “the imposition of a restricted meaning on the words, for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language,” because that “would be to defeat, not to promote, the object of the statute.”[29]  In short, “no construction is admissible which would sanction an evasion of an Act.”[30]

Hall thought the rule of lenity served a different purpose.  He described the rule as an offspring of a “conflict . . . between the legislature on the one hand and courts, juries, and even prosecutors on the other.”[31]  The legislature, either from “inertia” or “pressure from property owners,” pursued “a policy of deterrence through severity,” while the courts “tempered this severity with strict construction carried to its most absurd limits.”[32]  In other words, the courts were not using the rule of lenity to determine the legislature’s intent, but rather in direct opposition to whatever policy the legislature was pursuing.  Simply, it was a “veritable conspiracy for administrative nullification.”[33]

Hall’s account of the rule of lenity originating as a tool to counteract the legislature’s purpose appears to be the prevailing one.[34]  It also seems more historically grounded than Maxwell’s theory of the rule of lenity as a means of effectuating the legislature’s purpose.  To start, there is little evidence that the legislature ever intended any of its statutes to be narrowed to oblivion.  English legal reformer Samuel Romilly observed that “[t]here probably never was a law made in this country which the legislature that passed it did not intend should be strictly enforced.”[35]  For support, Romilly noted that even a strange law “which made it a capital offence for any person above the age of fourteen to be found associating for a month with persons calling themselves Egyptians” was vigilantly enforced “down to the reign of King Charles the first.”[36]  According to Romilly, who was writing in 1810, it was “only in modern times that this relaxation of the law has taken place.”[37]

The handful of vignettes from that era also seem to support that the rule of lenity produced results contrary to the legislature’s intent—and, more importantly, that courts were not concerned by that possibility.[38]  One example is the courts’ construction of a 1740 statute on cattle-stealing.[39]  That statute provided that the stealing of “sheep, or other cattle” was a “felony without benefit of clergy.”[40]  As Blackstone tells it, the courts considered the words “or other cattle” to be “much too loose to create a capital offense,” and so “the act was held to extend to nothing but mere sheep.”[41]  It is hard to find in such an interpretation an attempt to give effect to the legislature’s intent.  Perhaps—depending on what else “cattle” might have entailed back then—the phrase “other cattle” might have been narrowed by the explicit reference to “sheep.”  But to render “other cattle” surplusage runs afoul of the spirit of another rule of construction: the command to read a statute in such a way that the “whole may (if possible) stand.”[42]  And sure enough, the legislature passed a law the next year “extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.”[43]  It appears that the phrase “other cattle” was written, and meant, to be expansive.

A more ambivalent example that was closer in time to the rule of lenity’s inception is the judicial treatment of the horse-stealing felony.[44]  During the reign of Henry VIII, a 1545 statute withdrew the benefit of clergy from “the stealing of any Horse Geldinge Mare Foole or Filley.”[45]  After Edward VI succeeded to the throne, a new statute was enacted in 1547 that withdrew benefit of clergy from a long list of felonies,[46] including the “felonious stealing of horses geldings or mares.”[47]  It also purported to abrogate the 1545 statute, providing that “in all other cases of felony, other than such as be before mentioned,” all persons “shall have and enjoy the privilege and benefit of his or their clergy . . . in like manner and form as he or they might or should have done before the Reign of the said late King Henry the Eighth.”[48]  Because the 1545 statute referred to “any Horse” while the 1547 statute referred to horses in plural, Lord Matthew Hale noted that the 1547 statute “made some doubt, whether it were not intended to enlarge clergy, where only one horse was stolen.”[49]

The courts responded by interpreting the 1547 statute to permit the benefit of clergy for stealing a single horse, and the story goes that this is yet another instance of the courts thwarting the legislature’s intent.[50]  But that narrative is significantly weaker here.  For one, the courts had a textual hook in relying on the plural form of “horses,” “geldings,” and “mares.”  And unlike the interpretation of the phrase “other cattle,” here the courts did give effect to the words of the statute (indeed, every letter).[51]  Ultimately, though, it appears that the courts once again failed to effectuate the legislature’s intent.  The next year, the legislature clarified that “all and singuler p[er]son and p[er]sons felonyously takinge or stealinge any horse geldynge or mare shall not be admytted to have or enjoye the p[ri]viledge or benefyte of his or their Clergy.”[52]

Overall, then, in the absence of a systematic study, it seems that the early uses of the rule of lenity largely led to results counter to the legislature’s intent.  Thus, we may consider Maxwell’s conception of lenity as a tool for discerning the legislature’s “true” (as opposed to expressed) intent as a post hoc legitimization of the rule.  Such a lens explains why the rule of lenity has survived the abandonment of previous draconian laws and why the rule now applies to laws that do not impose capital punishment.  An actual wresting of authority from the legislature to enact criminal punishments as it sees fit can only be justified—if at all—by a penalty as drastic as death.  But once the rule was conceived as fitting within the usual judicial system, where legislatures enact and judges faithfully interpret those enactments, it could apply, as Maxwell suggested, regardless of “whether the proceeding prescribed for the enforcement of the penal law be criminal or civil.”[53]

II. Our Rule of Lenity

The rule of lenity thus originated in England.[54]  When Chief Justice Marshall described the rule in Wiltberger as being “not much less old than construction itself,”[55] he could only have been incorporating a rule older than the Republic.  Wiltberger was the first case in which the rule of lenity was explicitly applied by the United States Supreme Court.[56]  It concerned the Crimes Act of 1790.[57]  That Act provided for a crime punishable in federal court “[i]f any person or persons, shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder.”[58]  In another section, the Act provided for punishment “[i]f any seaman, or other person, shall commit manslaughter on the high seas.”[59]  Wiltberger involved manslaughter on a river.[60]

Because the manslaughter provision only referred to the “high seas,” the Court held that “the offence charged in this indictment is not cognizable in the Courts of the United States.”[61]  That holding was reached because “Congress has not . . . inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court.”[62]  Thus, while the language of the rule of lenity appears throughout the opinion, this case seems much more akin to the “horses” example than the “other cattle” one: a strange and arguably wrong conclusion, but a conclusion that at least has a textual basis.[63]  It is fitting that it is unclear how much work this most nebulous doctrine did in the Supreme Court’s first case applying it by name.

Today, our rule of lenity is oft-summarized as “the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”[64]  And whether a statute is ambiguous is determined by using the other methods of statutory interpretation.[65]  According to the Supreme Court, “the rule applies if at the end of the process of construing what Congress has expressed, there is a grievous ambiguity or uncertainty in the statute.”[66]  It is “reserved for cases where, after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.”[67]  The rule is not one of general strict construction of penal statutes—where “[t]he statute is clear enough,” we do not “rely on the rule of lenity” at all.[68]  The rule is, in effect, a tiebreaker.

At the same time, the rule of lenity remains a tool of statutory construction—it is just the last one applied.[69]  That is why, where a statute is given a certain meaning on account of lenity, it retains that meaning even in a noncriminal context.[70]  In Leocal v. Ashcroft,[71] the Supreme Court held in the immigration context that a DUI was not a “crime of violence” under 18 U.S.C. § 16.[72]  Under the Immigration and Naturalization Act, if a DUI were a “crime of violence,” then petitioner Josue Leocal would be deportable.[73]  In reaching its conclusion, the Court noted that “[e]ven if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor.”[74]  Even though this case arose in the immigration context, “[b]ecause we must interpret [§ 16] consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”[75] 

That leads to an interesting conundrum where the statute is ambiguous as to a particular criminal defendant but resolving the ambiguity in the defendant’s favor may not benefit criminal defendants generally.  The rule would not fit its name if, to avoid a particular result for one criminal defendant, the rule ended up extending to impose penalties on more defendants overall.  Some courts of appeals have recognized that the rule of lenity must be applied with an eye toward defendants in general.[76]  For instance, in United States v. Olvera-Cervantes, the Ninth Circuit considered the application of U.S.S.G. § 2L1.2, which penalized illegal reentry differently if the previous deportation followed a felony conviction.[77]  The question before the court was “whether the district court should look to the maximum penalty authorized by the state statute under which the defendant was convicted or whether it should look to the maximum penalty authorized by the analogous federal statute.”[78]  The more favorable outcome to Olvera-Cervantes in particular would have been to look to the federal statute, but the court found that “the rule of lenity . . . is of little use here because we do not know whether the defendant’s interpretation of section 2L1.2 would end up benefitting defendants in general.”[79]  Indeed, it is hard to conceive how a court would be able to measure either interpretation’s benefit to defendants, given how federal and state statutes are mutable.

The most straightforward scenario, then, for applying the rule of lenity is when the criminal statute defines conduct and one of the dueling interpretations is narrower than the other.  Such a narrow interpretation, completely included within the broader one, will always be beneficial to criminal defendants overall and would not require any hypothesizing by the court.  This conception of the rule of lenity—as choosing the narrow over the broad interpretation—resembles strict construction.

But it seems well settled that the rule of lenity comes at the end of the analysis.[80]  Only at the end, if two interpretations are in “equipoise,”[81] does the court apply the rule of lenity and therefore choose the narrower construction.[82] Given how few times two interpretations will ever be in true “equipoise,” only rarely will the narrower construction be preferred over the broader one merely by reason of narrowness.  That is a sharp contrast to the rule of lenity described in the early English treatises, which treated the rule of strictly construing penal statutes as a general one.[83]  In that sense, according to our rule of lenity, penal statutes will rarely be strictly construed.

In sum, the rule of strict construction of penal statutes has survived in American law insofar as the rule of lenity embodies a built-in bias (however slight) for the narrower interpretation.  But by giving that bias effect only at the very end of the interpretive process—and only in the limited scenario of “equipoise”—our rule of lenity is significantly less applicable than the historic rule.

III.  Lenity’s Limits: A Case Study on the First Step Act

Given the foregoing, applying the rule of lenity is difficult.  As a prerequisite to even consider its use in a given case, one must first apply all other tools of statutory construction.[84]  Even then, it remains a mystery what counts as “equipoise.” It is therefore unsurprising that in United States v. Hansen,[85] then-Judge Scalia, referring to the rule of lenity, remarked, “It is, quite frankly, difficult to assess the scope of this accepted principle.”[86]  Pessimistic as it may sound, these application problems may prove to be intractable.  Concepts such as interpretive “equipoise” and narrowing constructions have little capacity to be clarified for easy application.[87]

Looking to the rationales given over time for the rule of lenity might be a decent way to boil down those concepts into something more concrete.  Below, this Article considers the three usual rationales provided for the rule of lenity.  This Article concludes that most of them are in tension with the origin of the rule and that none tells us when a statute is ambiguous enough that we must make an assumption in favor of the defendant.  That leads to the final conclusion of this Article: perhaps the rationales for the rule of lenity do not provide clear rules—but when none of the rationales are applicable, the rule of lenity itself should not apply to the criminal statute.

A. Lenity’s Rationales

Courts and commentators generally give three rationales for the rule of lenity.  The first is fair notice; as Justice Holmes observed,


[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.[88]  


The second is the separation of powers:  “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.”[89]  And third, “the rule of lenity serves our nation’s strong preference for liberty.”[90]

The first two rationales are inconsistent with the rule of lenity’s origins.  To start, the fair notice and separation of powers rationales seem to be post hoc rationalizations.  After all, neither logically should have been triggered by the withdrawal of the benefit of clergy.  If the scope of conduct criminalized by a seventeenth-century felony was so uncertain as to raise fair notice concerns, that uncertainty would have existed before the legislature decided to make the felony unavoidably punishable by death.  Indeed, the vagueness doctrine—another doctrine animated by fair notice—applies beyond the penal context.[91]  A similar critique applies to the separation of powers rationale.  The legislature is the only branch empowered to enact any statute, not just criminal ones, and not just criminal ones that may impose the death penalty.[92]  Furthermore, the separation of powers rationale is a particularly odd fit given that the rule of lenity originated to defeat the legislature’s intent.

The preference for liberty, on the other hand, does match the origin of the rule of lenity, at least superficially.  If the death penalty is the most severe deprivation of liberty a state can effect, it makes sense that the rule of lenity only appeared once the benefit of clergy began to be taken away.  Underlying this last rationale is a normative assumption—that the criminal penalty is a severe sanction, and that the state must therefore speak clearly if it wants to deprive a citizen of liberty.[93]  We might question whether those assumptions hold in the context of many cases where the rule of lenity is applicable; if a defendant had committed some sort of morally culpable act (even if that act is not clearly cognized by the criminal statute), a reasonable person might consider it unfair to add another thumb to the scale in the defendant’s favor.[94]  In any event, this rationale is also a relatively good fit with the practice of applying lenity.  As Maxwell described the rule in England, “[t]he degree of strictness applied to the construction of a penal statute depends in great measure on the severity of the statute.”[95]  A few states––and federal courts now and then––seem to do the same when they differentiate between felony statutes and misdemeanor statutes.[96]

But the liberty rationale too is imperfect.  If the liberty rationale is meant to require legislatures to speak clearly, why does lenity only apply when there is grievous ambiguity, as opposed to just ambiguity?[97]  More importantly, a sliding scale of lenity adds yet another variable to an already-unclear equation.  How much stricter should a felony statute be interpreted?  What about a statute that provides a ten-year maximum sentence versus a fifteen-year maximum sentence?  The liberty rationale’s capaciousness makes it a decent justification for the rule.  But it is also a poor guiding principle for the rule’s application.

One might ask, why should we care whether the rationales for the rule of lenity—all of which are widely cited[98]—are consistent with the rule’s origin?  After all, that a rule sprung up in response to a particular confluence of events does not necessarily mean that we should keep the rule bound to that scenario.  Be that as it may, Wiltberger itself described the rule of lenity as not just merely old, but “perhaps not much less old than construction itself,”[99] and courts have consistently picked up on and repeated that phrase.[100]  It would be odd to abandon any attempt to keep lenity moored to its past, considering the courts’ constant reminders of its ancient roots.

In any event, at the very least, it seems that no single rationale can claim supremacy over the other.  And even if one could, each rationale alone does not shed much light on how to apply the rule to a particular statute.  At what point is a statute ambiguous enough to raise fair notice concerns?  Our other doctrine that responds to the need for fair notice relies on such concepts as what a “person of ordinary intelligence” could “reasonably understand”[101]—hardly a hopeful ground upon which to find a clear rule.  As for the separation of powers rationale, scholars have noted that courts are accepted to have, in certain criminal matters, vast discretion.[102]  Thus, if violating the separation-of-powers principle by giving too much discretion to courts in criminal matters is merely a matter of degree, that rationale is also unlikely to lead to any clear rule.

None of this is to suggest that a lack of a clear rule means that lenity should be discarded altogether.  Law does not always give clear rules, and it might be especially odd to require clarity from a doctrine designed to enter the legal analysis in response to ambiguity.  Just because a doctrine cannot be reduced into bright-line rules does not make it invalid—far from it.  Rather, this Article concludes only that, insofar as this Article attempts to find a clear way to apply lenity in at least some cases, there probably will be none based on balancing various of the three rationales for the rule.

B. A Proposed Limit on Lenity

This Article argues that there may be some categories of penal laws to which none of the rationales of the rule of lenity apply, and that lenity should therefore be inapplicable to those statutes.  The rule of lenity has generally been described in terms referring to “penal laws,” without any suggestion that some penal laws might not be proper subjects of the rule.[103]  But considering the rule of lenity’s rationales in order to define a class of statutes to which the rule does not apply is not unheard of.  Emlin McClain, former Chief Justice of the Iowa Supreme Court, in a late-nineteenth century treatise of American criminal law, noted the view that, because the rule “was adopted at the common law in favor of life, or the liberty of the citizen,” it “has never been observed in the construction of statutes enacted for the punishment of mere misdemeanors.”[104]  For that reason, McClain described several categories of criminal law to which the rule was not applied, including “statutes for the prevention of fraud and suppression of public wrong” and “statute[s] relating to procedure.”[105]

With that in mind, one potential limit on the scope of lenity starts with the observation that every rationale for lenity is, in effect, a prohibition on what the legislature can do.  The legislature may not criminalize conduct without providing fair notice to potential defendants.[106]  The legislature may not pass such an open-ended statute that it effectively delegates lawmaking to the courts.[107]  The legislature may not infringe upon a person’s liberty without clearly stating its intent to do so.[108]  Put another way, there are limits to how a legislature may enact a statute used to the detriment of the defendant.  If those are fair characterizations of the rationales underlying the rule of lenity, then the rule should not be applied in instances of legislative grace.

One recent example of so-called legislative grace is the First Step Act of 2018.[109]  Before 2010, distributing 5 and 50 grams of crack triggered mandatory minimum sentences of five and ten years, respectively.[110]  The Fair Sentencing Act of 2010 raised those threshold amounts to 28 and 280 grams.[111]  Eight years later, the First Step Act made already-sentenced criminals potentially[112] eligible for the lower penalties of the Fair Sentencing Act, even though they had committed their crimes before the Fair Sentencing Act was passed.[113]  Eligibility for relief under the First Step Act depended on whether the criminal had committed a “covered offense.”[114]  And a “covered offense” was defined in the First Step Act as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.”[115]

Predictably, the definition of “covered offense” led to questions, often raised by criminals seeking resentencing.[116]  One of the most significant questions was whether the term referred to the actual conduct that the criminal committed or merely the statutory elements of the offense.[117]  That distinction matters for someone who distributed, say, a kilogram of crack.  If actual conduct mattered, then he would not be eligible for resentencing, because someone who sold a kilogram of crack today would be subject to the same penalties as someone who did so before 2010.  On the other hand, if only the statutory elements mattered, then the criminal would be eligible for resentencing because the penalty for selling fifty grams of crack has been modified.

From the beginning, most district courts adopted the categorical approach.[118]  For many of these courts, whether actual conduct mattered depended on what the phrase “statutory penalties for which were modified” was in reference to and what the term “violation” meant.[119]  And time and time again, those courts would invoke the rule of lenity to say that whether a covered offense was committed did not depend on the actual underlying conduct.[120]  Even district courts that reached the conclusion that eligibility for resentencing depended on actual offense conduct dismissed the use of lenity because the statute was unambiguous,[121] not for some other reason.

This Article argues that the rule of lenity should never have applied in construing eligibility under the First Step Act—even if there were a “grievous” ambiguity—because none of the rationales for the rule apply here.  To begin with, the fair notice concern is irrelevant in this context.  Whatever applicability that doctrine has in the sentencing context in general, it has no relevance when discussing a criminal statute that alters the penalties for a crime after the sentence has already been handed down.  To say that fair notice concerns are implicated here would be to say that the criminal should be given the benefit of the doubt in case he was misled by the ambiguous wording of a statute that had not yet been passed.

Neither does it make sense to apply the rule in the name of separation of powers.  In fact, that rationale would suggest that the court should resolve ambiguities against the criminal.  Sentence modifications “are not constitutionally compelled,”[122] and courts themselves “lack[] the inherent authority to modify a term of imprisonment.”[123]  If it is in Congress’s domain, then, to permit resentencing, the separation of powers principle would have courts decline—not expand—the invitation to find the ability to do so unless Congress spoke clearly.

Even the vague preference for liberty rationale is especially weak here because the legislature did speak clearly under the old sentencing regime.  As the Eighth Circuit noted in analyzing a different sentence modification statute, “[n]o new deprivation of liberty can be visited upon [a prisoner] by a proceeding that, at worst, leaves his term of imprisonment unchanged,” when “[h]is liberty is already deprived by virtue of a sentencing which gave him all the process the Constitution required.”[124]

Looking forward, the same analysis may apply—but with less weight—when the statute or rule providing a potential resentencing was in place before the criminal’s initial sentence.  For instance, in United States v. Puentes,[125] the Eleventh Circuit considered whether a district court could reduce a defendant’s obligation to pay restitution under the Mandatory Victim’s Restitution Act (“MVRA”) through Federal Rule of Criminal Procedure 35(b), which provides that “the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”[126]  The MVRA was enacted after Rule 35(b), and both were in place well before Puentes committed his crimes.[127]  Puentes argued that “[the court is] bound to apply the rule of lenity if [it] find[s] any ambiguity in the [MVRA], Rule 35(b), or the interplay between the two.”[128]  The court assumed for the sake of argument that the rule of lenity could apply to Rule 35(b) but decided that there was no grievous ambiguity that would support applying lenity there anyway.[129]

Putting aside whether lenity should apply to procedural provisions at all, it is a harder question whether lenity should apply here compared to the First Step Act example analyzed above.  Unlike a defendant under the First Step Act, Puentes in theory could have depended on the possibility of a Rule 35(b) sentence reduction at the time of his conduct.  It is true that the fair notice concern is already weak in the sentencing context and the resentencing context is even a step further removed,[130] but at least it would be temporally possible for a defendant to be misled by the wording of Rule 35(b).  It also might make some sense under the framework mentioned above that views lenity as a constraint upon Congress: if Congress wants to deny an avenue for relief available to potential criminals, it must speak clearly.  On the other hand, Rule 35(b) remains an exception to the usual inability to change an already-imposed sentence.  In recognition of that general rule, courts often refer to 18 U.S.C. § 3582(c)(2)—which authorizes sentence-modification proceedings[131]—as an “act of lenity.”[132]  If we consider Rule 35(b) itself to be a similar “act of lenity,” to apply the rule of lenity to it almost seems like double-counting.

So, it may not be as easy as saying all resentencing statutes should be excluded from the rule of lenity.  But at the very least, an approach of narrowing which criminal laws are subject to our rule would be theoretically grounded and simple to administer.  Unlike the usual approach, where courts always must consider “how much ambiguousness constitutes an ambiguity,”[133] once a particular statute is found to be outside lenity’s ambit, a court will no longer need to engage in that last step of the interpretive process at all.


The rule of lenity has largely been unmoored from its English origins.  And though it is an old doctrine that has rarely been questioned, its inconsistent application has prompted even Justice Scalia to suggest that “[i]f [the rule of lenity] is no longer the presupposition of our law, the Court should say so, and reduce the rule of lenity to an historical curiosity.”[134]  Even if a court seeking to apply the rule were to look to what rationales have been used to justify the modern American version of lenity, it would be confronted with three—all distinct, and none perfect.

It seems, then, that the easiest way to clarify the rule of lenity’s application is to start with considering its scope.  Although the rule is taken to mean that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,”[135] this Article argues that the rule’s reference to “criminal statutes” should not be taken hyperliterally.  Especially now that the term “criminal statutes” may fairly be read to mean any statute that touches upon criminal law, the rule of lenity—even in its expanded form—does not reach every such statute.  Where none of the rationales for the rule of lenity apply, that old doctrine should have no role to play in interpreting the statute, atmospheric or otherwise.

      *.   Law clerk to Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit, 2021–22, and to Judge Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit, 2020–21.  J.D., Harvard Law School, 2020; M.A., State University of New York at Stony Brook, 2016; B.S., State University of New York at Stony Brook, 2015.  Thanks to Aaron Gyde, Joshua Hoyt, Aaron Hsu, and DJ Sandoval for helpful comments and advice.  This Article represents the views of the author alone.

      [1].   18 U.S. (5 Wheat.) 76, 95 (1820).

      [2].   Id.

      [3].   David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo L. Rev. 523, 526 (2018).

      [4].   Id. at 524–25.

      [5].   Callanan v. United States, 364 U.S. 587, 596 (1961).

      [6].   Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).

      [7].   First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; see also Nathan James, Cong. Rsch. Serv., R45558, The First Step Act of 2018: An Overview (Mar. 4 ,2019).

      [8].   Romantz, supra note 3, at 526.

      [9].   4 William Blackstone, Commentaries on the Laws of England 18 (4th ed. 1770).

     [10].   Frederick Howard Wines, Punishment and Reformation: A Study of the Penitentiary System 106 (1910) (“[M]ultitudes of prisoners under sentence of death were given the alternative, of which they hastened to take advantage, of voluntarily leaving the realm, if pardoned.  Herein was the germ of English transportation.”).

     [11].   4 Blackstone, supra note 9, at 18 (“[I]n England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers.”).  In fact, this differing punishment for crimes earned commendation from Blackstone, who remarked that “[w]here men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt.”  Id.

     [12].   Romantz, supra note 3, at 526.

     [13].   4 Blackstone, supra note 9, at 358.  As a historical matter, then, the benefit of clergy was usually claimed after conviction.  As Blackstone observed, “it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.”  Id. at 359–60; see also McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d 1066, 1076 (5th Cir. 2020) (Oldham, J., dissenting from the denial of rehearing en banc).

     [14].   4 J. W. Jones, A Translation of All the Greek, Latin, Italian, and French Quotations Which Occur in Blackstone’s Commentaries on the Laws of England 245 (1823).  The clerical tonsure was a hairstyle. See 4 Blackstone, supra note 9, at 360.

     [15].   4 Blackstone, supra note 9, at 360.  It appears that this literacy test was a judicial misinterpretation of the legislature’s extension of the benefit to “secular” clerks.  See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 515 n.22 (2002) (“[That] statute was intended to clarify that benefit of clergy would be afforded to ‘inferior Orders’ of the clergy, as well as bishops, priests, and deacons, but . . . the intent was not to extend clergy to lay persons.” (quoting 2 Sir William Hawkins, A Treatise of the Pleas of the Crown 338 (2d ed. 1724))).  That misinterpretation was arguably deliberate.  See Romantz, supra note 3, at 526 (“As Parliament and the king continued to proliferate capital felonies in the coming centuries, the courts responded by expanding the benefit of the clergy rule to include any citizen who could read.”).

     [16].   4 Blackstone, supra note 9, at 360.

     [17].   William L. Rushton, Shakespeare: A Lawyer 16 (1858) (“[A]s many laymen as clergymen enjoyed this privilege, which excited the jealousy of the clergy, in whose favour, therefore, a further distinction was made . . . .”).

     [18].   That statute was titled “Concerning the allowance of benefit of clergy,” and it provided that “every person, not being within orders, which once hath been admitted to the benefit of his clergy, eftsoons arraigned of any such offence, be not admitted to have the benefit or privilege of his Clergy.”  4 Hen. 7 c. 13.

     [19].   12 Hen. 7 c. 7; see Spector, supra note 15, at 515–16 (“At first, benefit of clergy was stripped from murder and certain particularly nasty cases of robbery, but by the middle of the sixteenth century benefit of clergy had been withdrawn from the most trivial of felonies, including ‘stealing horses,’ pickpocketing, and ‘burning a dwelling or barn having grain therein.’” (footnotes omitted) (citing 12 Hen. 7 c. 7)).

     [20].   12 Hen. 7 c. 7.

     [21].   4 Blackstone, supra note 9, at 18 (“It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.”).  To be sure, “a large number of capital offenses on the statute book is no test for severity,” but it remains the case that “by the nineteenth century, the government had so limited the [benefit of clergy] that it had fallen into disuse.”  Newman F. Baker, Benefit of Clergy—A Legal Anomaly, 15 Ky. L.J. 85, 111 (1927).

     [22].   Spector, supra note 15, at 517.

     [23].   Romantz, supra note 3, at 527.

     [24].   Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 n.13 (1935) (“By the time Hale wrote (he died in 1676), the doctrine of strict construction was firmly established.”); see also 1 William Blackstone, Commentaries on the Laws of England 88 (4th ed. 1765) (“Penal statutes must be construed strictly.”); 2 Sir Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 335 (1736) (“That where any statute . . . hath ousted clergy in any of those felonies, it is only so far ousted, and only in such cases and as to such persons, as are expressly comprised within such statutes, for in favorem vitae & privilegii clericalis such statutes are construed literally and strictly.”).

     [25].   Baker, supra note 21, at 111.

     [26].   Spector, supra note 15, at 514 n.16 (“Sir Peter Benson Maxwell and [Livingston] Hall were the first to trace the rule of lenity back to the benefit of clergy cases.  Their accounts have been accepted and recited by modern rule of lenity scholars.” (citations omitted)).

     [27].   Id.; Peter Benson Maxwell, On the Interpretation of Statutes 237 (1875).

     [28].   Maxwell, supra note 27, at 237.

     [29].   Id. at 238.

     [30].   Id.

     [31].   Hall, supra note 24, at 751.

     [32].   Id.  Perhaps this state of affairs—presumably not all too displeasing to the legislature, which could reap the benefits of passing such statutes without any of the political downsides—could eventually lead to a “sort of prescriptive validity.”  See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Rsrv. L. Rev. 581, 583 (1989).  After the charade has gone on long enough, “the legislature presumably has [it] in mind when it chooses its language.”  Id.  But that does not clarify the justification for the rule of lenity at its inception.

     [33].   Hall, supra note 24, at 751.

     [34].   See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985) (“Faced with a vast and irrational proliferation of capital offenses, judges invented strict construction to stem the march to the gallows.”); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 897 (2004) (“The rule of lenity has its oldest origins in the efforts of common law courts in the seventeenth and eighteenth centuries to limit the brutality of English criminal law.”); Romantz, supra note 3, at 527 n.12 (“The rule of lenity first developed in England with the decided goal of frustrating the intent of the legislature.  English courts resolved to chart a more humane path despite the legislature’s facility to enact capital crimes.”); Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 87 (1998) (“The courts, doing what they could to frustrate the legislative will, developed the principle that penal statutes were to be construed strictly.”).  In fact, as mentioned above, the legislature’s abrogation of the benefit of clergy might have itself been a move in this tug-of-war, a response to the courts’ improper extension of the benefit to all literate citizens in the first place.  See Romantz, supra note 3, at 526–27 (“Keenly aware that the courts were frustrating its legislative prerogative to kill the nation’s criminals, Parliament responded by enacting more and more capital felonies, while excluding increasing numbers of felonies from the benefit of the clergy.”). 

     [35].   Sir Samuel Romilly, Observations on the Criminal Law of England as it Relates to Capital Punishments, and on the Mode in Which it is Administered 5 (1811).

     [36].   Id.

     [37].   Id.; see also id. at 6 (“In the long and sanguinary reign of Henry VIII, it is stated by Hollinshed that 72,000 persons died by the hands of the executioner, which is at the rate of 2,000 in every year.”).  To be sure, Romilly had an agenda of his own, as an advocate for repealing the death penalty for various crimes.  See generally Charles Noble Gregory, Sir Samuel Romilly and Criminal Law Reform, 15 Harv. L. Rev. 446 (1902) (providing an example of Romilly’s advocacy against the death penalty).

     [38].   See e.g., Sir William David Evans, A Collection of Statutes Connected with the General Administration of the Law 29­–30 (Anthony Hammond & Thomas Colpitts Granger, 3d ed. 1836).

     [39].   Id.  Among others, Blackstone and Justice Scalia have referenced the judicial treatment of this statute, the latter somewhat scornfully.  See Scalia, supra note 32, at 582 (“I doubt, for instance, that any modern court would go to the lengths described by Blackstone in its application of the rule that penal statutes are to be strictly construed.”).

     [40].                                                               Scalia, supra note 32, at 582.

     [41].   4 Blackstone, supra note 9, at 88.

     [42].   Id. at 89.

     [43].   Id. at 88.

     [44].   37 Hen. VIII c. 8.

     [45].   Id. (emphasis added).

     [46].   Other felonies from which the benefit of clergy was withdrawn was the “robbing of anny Parsone or parsons in the highe waye or nere to the highe waye,” and the “felonious taking of anny good out of anny pishe Churche or other Churche or Chapell.”  1 Edw. VI c. 12.  That the statute made the distinction between “Parson” and “parsons” might have also cast doubt on whether the term “horses” should be read to also include a single horse.

     [47].   The Statutes at Large from the First Year of King Edward the Fourth to the End of the Reign of Queen Elizabeth 448 (2d ed. 2010).  

     [48].   Id.

     [49].   Sir Matthew Hale Knt., The History of the Pleas of the Crown 365 (2003).

     [50].   See, e.g., Solan, supra note 34, at 87–88.

     [51].   Id. at 88.

     [52].   2 & 3 Edw. VI c. 33.  But even then, the legislature seemed to admit that the initial statute was unclear.  The preface to its clarifying act stated that it was made necessary because “it is and hathe been ambyguous and doubtfull . . . whether that any p[er]son being in due fourme of the lawes found gyltye . . . [of] felonyous stealinge of one horse geldynge or mare ought to be admytted to have and enjoye the priviledge and benefyte of his Clergie . . . .”  Id.

     [53].   Maxwell, supra note 27, at 238–39.

     [54].   Romantz, supra note 3, at 526.

     [55].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

     [56].   Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420, 2422 (2006).

  1. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 357 (1994).  That statute, according to Professor Kahan, was “the very first piece of criminal legislation enacted by Congress.”  Id.

     [58].   [2 The Justices on Circuit 1790–1794] The Documentary History of the Supreme Court of the United States, 1789–1800, at 529 (Maeva Marcus et al. eds., 1988).

     [59].   Id. at 530.

     [60].   Wiltberger, 18 U.S. at 77.

     [61].   Id. at 99, 105.

     [62].   Id. at 104.

     [63].   See supra text accompanying notes 39–49.

     [64].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).

     [65].   See generally Valerie C. Brannon, Cong. Rsch. Serv., R45153,  Statutory Interpretation: Theories, Tools, and Trends (2018).

     [66].   Shaw v. United States, 137 S. Ct. 462, 469 (2016) (internal quotation marks and citation omitted); see also United States v. Shabani, 513 U.S. 10, 17 (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”)

     [67].   Smith v. United States, 508 U.S. 223, 239 (1993) (alteration adopted) (internal quotation marks and citation omitted).

     [68].   Shaw, 137 S. Ct. at 469.

     [69].   See Reno v. Koray, 515 U.S. 50, 65 (1995) (“The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (internal quotation marks and citation omitted)); see also Brannon, supra note 65, at 31 n.317 and accompanying text (“Consequently, most courts will not apply the substantive canons [such as the rule of lenity] unless they conclude that after consulting other interpretive tools, the statute remains ambiguous.”).

     [70].   See infra note 75 and accompanying text.

     [71].   543 U.S. 1 (2004).

     [72].   Id. at 4.

     [73].   See id.

     [74].   Id. at 11 n.8.  This discussion of the rule of lenity in Leocal is dicta.  Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting).  But from the viewpoint of the lower courts, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”  Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

     [75].   Leocal, 543 U.S. at 11 n.8; see also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011) (“[W]e have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.”); Martinez, 543 U.S. at 380 (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.”).

     [76].   See, e.g., United States v. Olvera-Cervantes, 960 F.2d 101, 103 (9th Cir. 1992).

     [77].   Id. at 102.

     [78].   Id. (emphasis in original).

     [79].   Id. at 103; see also United States v. Beck, 957 F.3d 440, 450 (4th Cir. 2020) (noting that “lenity doesn’t support [Beck’s] interpretation,” because his interpretation “would generally be against defendants’ interests”).

     [80].   See Shular v. United States, 140 S. Ct. 779, 787 (2020) (Kavanaugh, J., concurring) (“[A] court may invoke the rule of lenity only after consulting traditional canons of statutory construction.” (internal quotation marks and citation omitted)); id. at 787 n.1 (listing cases).

     [81].   Johnson v. United States, 529 U.S. 694, 713 n.13 (2000).

     [82].   Id.

     [83].   See Maxwell, supra note 27, at 238 (rule of strict construction requires ensuring that no cases outside the “spirit and scope of enactment” fall within a statute).

     [84].   Barber v. Thomas, 560 U.S. 474, 488 (2010).

     [85].   772 F.2d 940 (D.C. Cir. 1985).

     [86].   Id. at 948.

     [87].   See id. (noting that “the Supreme Court’s advice that it only serves as an aid for resolving an ambiguity . . . provides little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity”).

     [88].   McBoyle v. United States, 283 U.S. 25, 27 (1931); see also id. (“To make the warning fair, so far as possible the line should be clear.”).

     [89].   United States v. Bass, 404 U.S. 336, 348 (1971); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“The rule that penal laws are to be construed strictly . . . is founded . . . on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.”).

     [90].   United States v. Nasir, 17 F.4th 459, 473 (3d Cir. 2021) (Bibas, J., concurring).  On this point, courts repeatedly cite to Judge Henry Friendly’s observation of “our ‘instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’”  Id. (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)); see, e.g., United States v. R.L.C., 503 U.S. 291, 305 (1992) (plurality opinion); United States v. Pembrook, 609 F.3d 381, 391 (6th Cir. 2010); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006); United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir. 1993).

     [91].   Sessions v. Dimaya, 138 S. Ct. 1204, 1244 (2018) (Thomas, J., dissenting) (“[T]he vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal.”).

     [92].   See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.) (“It is the peculiar province of the legislature to prescribe general rules for the government of society.”).

     [93].   See Marinello v. United States, 138 S. Ct. 1101, 1108 (2018) (explaining that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

     [94].   As one commentator noted:

Two reasons can be found for the decline in importance of the lenity canon.  First, the criminal law has been used more and more, not just to condemn evil behavior, but to regulate economic activity.  Jail sentences and stigmas are less likely to attach, either by law or in practice.  In that setting, a generalized tilt toward the accused loses some of its attraction.  Second, as public concern about crime increases, the inclination to adopt an across-the-board presumption in favor of the accused weakens.

William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 204 (1999).

     [95].   Maxwell, supra note 27, at 239.

     [96].   See, e.g., Maine v. Millett, 203 A.2d 732, 734 (Me. 1964) (quoting Maine v. Blaisdell, 105 A. 359, 360 (Me. 1919)) (noting that a statute declaring a felony “calls for a more strict construction than one which declares an act to be a misdemeanor”); Mo., K. & T. Ry. Co. v. State, 100 S.W. 766, 767 (Tex. 1907) (“It is a well-established principle of statutory construction that penal statutes must be strictly construed in determining the liability of the person upon whom the penalty is imposed, and the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such person and against the enforcement of such law.”).  In United States v. Plaza Health Laboratories, 3 F.3d 643 (2d Cir. 1993), the Second Circuit declined to construe the Clean Water Act (“CWA”) in the same way that it did the Rivers and Harbors Act (“RHA”).  Id. at 647–48.  The court “view[ed] with skepticism the government’s contention that [it] should broadly construe the greatly magnified penal provisions of the CWA based upon RHA cases that did so in the context of strict-liability and misdemeanor penalties.”  Id. at 648.  See generally 1 Wayne R. LaFave, Substantive Criminal Law § 2.2(d) (3d ed. 2021) (footnote omitted) (citing Millett, 203 A.2d 732) (“No doubt some criminal statutes deserve a stricter construction than others.  Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes; those with severe punishments more than those with lighter penalties.”).

     [97].   See, e.g., United States v. Davis, 139 S. Ct. 2319, 2352 (2019) (Kavanaugh, J., dissenting).

     [98].   See, e.g., Massachusetts v. St. Hilaire, 21 N.E.3d 968, 979 (Mass. 2015) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)); United States v. Gallaher, 624 F.3d 934, 941(9th Cir. 2010) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006) (quoting Bass, 404 U.S. at 348)).

     [99].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

   [100].   See, e.g., Dowling v. United States, 473 U.S. 207, 213 (1985); United States v. Boston & M. R.R., 380 U.S. 157, 160 (1965) (“A criminal statute is to be construed strictly, not loosely.  Such are the teachings of our cases from United States v. Wiltberger down to this day.” (citation omitted)); United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016); United States v. Valle, 807 F.3d 508, 527 (2d Cir. 2015); United States v. Parker, 762 F.3d 801, 807 (8th Cir. 2014); United States v. Winchester, 916 F.2d 601, 607 (11th Cir. 1990) (“Lenity, the quality of being lenient or merciful, is an application of the common law principle that criminal statutes are to be strictly construed, a rule which ‘is perhaps not much less old than construction itself.’” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)).

   [101].   United States v. Harriss, 347 U.S. 612, 617 (1954).

   [102].   Spector, supra note 15, at 545–46.

   [103].   See, e.g., Rule of Lenity, Black’s Law Dictionary (11th ed. 2019).  But see, Popkin, supra note 94, at 204.

   [104].   1 Emlin McClain, A Treatise on the Criminal Law as Now Administered in the United States § 83 (1897).

   [105].   Id.

   [106].   Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (quoting United States v. Aguilar, 515 U.S. 593, 600 (1931)).

   [107].   See United States v. Komzinski, 487 U.S. 931, 951 (1988) (denouncing “the arbitrariness and unfairness of a legal system in which the judges would develop the standards for imposing criminal punishment on a case-by-case basis”).

   [108].   See Marinello, 138 S. Ct. at 1108 (stating that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

   [109].   Pub. L. No. 115-391, 132 Stat. 5194.

   [110].   21 U.S.C. § 841(b) (2009) (amended 2010).

   [111].   Pub. L. No. 111-220, § 2, 124 Stat. 2372.

   [112].   Under § 404(b) of the First Step Act of 2018, whether a sentence was ultimately reduced remained within the court’s discretion.  See Pub. L. No. 115-391, 132 Stat. 5194, 5222.

   [113].   Id.

   [114].   First Step Act § 404(b).

   [115].   Id. § 404(a).

   [116].   See United States v. Davis, 961 F.3d 181, 183 (2d Cir. 2020).

   [117].   See id.

   [118].   See United States v. King, 423 F. Supp. 3d. 481, 484 (M.D. Tenn. 2019) (“To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court[s] to have addressed the matter have concluded that the count of the conviction controls . . . .”).

   [119].   See, e.g., United States v. Henderson, 399 F. Supp. 3d 648, 653–54 (W.D. La. 2019).  The Supreme Court has since clarified that the phrase “statutory penalties” refers to “a violation of a Federal criminal statute.”  Terry v. United States, 141 S. Ct. 1858, 1862 (2021).

   [120].   See Henderson, 399 F. Supp. 3d at 654; see also King, 423 F. Supp. 3d at 484–85; United States v. Hardnett, 417 F. Supp. 3d 725, 737 (E.D. Va. 2019); United States v. Willis, 417 F. Supp. 3d 569, 575 (E.D. Pa. 2019); United States v. Williams, 402 F. Supp. 3d 442, 448 (N.D. Ill. 2019); United States v. Askins, No. CR-02-00645-001, 2019 WL 3800227, at *3 (D. Ariz. Aug. 6, 2019); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *4 (S.D. Tex. July 17, 2019); United States v. Martin, No. 03-CR-795, 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019); United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019); United States v. Allen, 384 F. Supp. 3d 238, 242 (D. Conn. 2019); United States v. Pierre, 372 F. Supp. 3d 17, 22 (D.R.I. 2019).

   [121].   See, e.g., United States v. Jackson, No. 03-0642, 2019 U.S. Dist. LEXIS 109993, at *7–8 n.3 (E.D. Pa. June 26, 2019) (“To the extent the Government suggests that the meaning of ‘violation’ in § 404(a) is ambiguous, the Court disagrees.  As a result, the Court’s interpretation of ‘violation’ in the First Step Act is not subject to the rule of lenity, which requires courts to construe ambiguities in criminal statutes in favor of defendants.” (citation omitted)).

   [122].   Dillon v. United States, 560 U.S. 817, 841 (2010).

   [123].   United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020); see also United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015) (“The law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule.”).

   [124].   United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013).

   [125].   803 F.3d 597 (11th Cir. 2015).

   [126].   See id. at 598; Fed. R. Crim. P. 35(b).

   [127].   Pub. L. 104–132, §§ 201–11, 110 Stat. 1214, 1227–41 (1996).

   [128].   Puentes, 803 F.3d at 609.

   [129].   Id. at 610.

   [130].   Johnson v. United States, 576 U.S. 591, 630 (2015) (Alito, J., dissenting) (noting that fair notice concerns “have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question”).

   [131].   See 18 U.S.C. § 3582(c)(2).

   [132].   Dillon v. United States, 560 U.S. 817, 828 (2010); see also United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017) (“As acts of lenity, such sentence reductions are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.”); United States v. Maiello, 805 F.3d 992, 1000 (11th Cir. 2015); United States v. Johnson, 703 F.3d 464, 469 (8th Cir. 2013).

   [133].   United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985).

   [134].   Holloway v. United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting).  This statement is especially striking from Justice Scalia, who along with Bryan Garner has been credited with maintaining the rule of lenity’s significance in our law.  See Intisar A. Rabb, Response, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179, 180 (2018) (“Justice Scalia and Professor Bryan Garner have helped elevate the rule of lenity by including it in a set of fifty-seven recommended canons of construction in their widely read treatise on interpretation.”).

   [135].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (internal quotation marks omitted).

By Morgan Kleinhandler

There is no doubt that the advance of modern technology has allowed for an increase in the interconnected nature of American society.[1]  Specifically, the popularity of smartphones has allowed for a new level of immediate interconnectedness that was previously impossible. [2] With this rise in technology has come a new form of human interaction that can lead to dangerous and irreparable consequences[3]—for example, encouraging the suicide of another through text messaging.  A new legal precedent has been set in Massachusetts to deter this type of encouragement, making it a criminally punishable offense to encourage suicide through texting.[4]  In many states, it is illegal to assist in the suicide of another, and being found guilty of doing so will result in criminal liability.[5]  As technology has evolved, the state of Massachusetts has made national headlines for including the encouragement of suicide through text message as an illegal and punishable form of assisting in a suicide.[6]

In 2017, Michelle Carter was found guilty in Massachusetts state court for encouraging her boyfriend, Conrad Roy, to commit suicide through thousands of text messages.[7]  Similarly, this past month, on December 23, 2021, Inyoung You pleaded guilty in Massachusetts to assisting in the suicide of her boyfriend, Alexander Urtula, through about 47,000 text messages.[8]  Both cases have grabbed national attention[9] and have opened Americans’ eyes to the way that communication through technology can lead to dire consequences.

The Supreme Court has established that the right to suicide is not a fundamental or liberty interest protected by the Constitution, and governmental impairment to the right to suicide will receive the lowest level of scrutiny from the courts.[10]  However, the First Amendment establishes the right to free speech for all citizens,[11] which the Supreme Court has long interpreted.[12]  The Supreme Court has held that the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,”[13] establishes a “fundamental personal right[]”[14] to free speech which can only be impaired by the government if such impairment survives strict scrutiny.[15]  Because the right to suicide is not constitutionally protected and receives minimal scrutiny[16] whereas government impairment on freedom of speech receives the highest level,[17] some courts have held that encouraging another’s suicide will be punishable only if strict scrutiny for such punishment is met.[18]  For these reasons, the Minnesota Supreme Court held that verbal encouragement to another person before that person’s suicide is constitutionally protected speech that could not be criminally punishable because it does not survive strict scrutiny.[19]

The State of Massachusetts interpreted the situation differently, however, finding that when speech constitutes the crime of involuntary manslaughter, First Amendment rights are not affected.[20]  In the case of Michelle Carter, the court clarified that it was not simply Carter’s words that were being punished; it was “reckless or wanton words causing death” that constituted a crime.[21]  The court held that even though Carter committed the crime of involuntary manslaughter using just words, she could not “escape liability” through First Amendment protection.[22]  Thus, because Carter’s illegal conduct was being punished, and not Carter’s speech alone, her First Amendment right to free speech was not violated.[23] 

Massachusetts also concluded restriction of verbal encouragement of suicide could pass strict scrutiny even if the First Amendment applied because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.”[24]  On appeal, the court affirmed that the state had a justifiable reason to restrict Carter’s speech, holding that the state has a “compelling interest in preserving life.”[25]  Through Massachusetts’s reasoning, because states have a compelling interest in deterring citizens from committing suicide, especially with the encouragement of others leading to the suicide,[26] the constitutional protections provided by the First Amendment may be overcome in cases like Michelle Carter and Inyoung You.

The Massachusetts court in Carter did point out, however, that the elements of involuntary manslaughter charges must be met on a case-by-case basis to rightfully prove that charge in the case of encouraging suicide through text message.[27]  In Massachusetts specifically, in order to prove involuntary manslaughter, the state must prove that the defendant caused the death of another through wanton or reckless behavior or failure to act.[28]  These elements align with many other states’ laws on involuntary manslaughter.[29] In Carter’s case, the court found that her text messages were enough to prove she committed involuntary manslaughter.[30]  The court reasoned that because Carter had such a close relationship with her boyfriend and because her text messages were so supportive and temporally close to Roy’s suicide that they were a probable cause of his suicide.[31]  Carter’s case was appealed to the United States Supreme Court, but the Court denied the petition for writ of certiorari,[32] suggesting that the Court may agree with Massachusetts’s analysis on the matter.

Michelle Carter’s sentence was the first time an American has been punished for encouraging the suicide of another using only text messaging.[33]  A few years later, Inyoung You’s sentencing following a guilty plea for a near-identical situation shows a trend in punishing text messages which explicitly encourage the suicide of another.[34]  Although both Carter and You’s cases occurred in Massachusetts, this trend of punishing those who actively encourage and contribute to the suicide of another using technological communication could very well become a trend throughout the states.

[1] Ray Zinn, The Interconnectedness of Things, Forbes (Dec. 15, 2017, 9:00 AM),

[2] Christian Jarrett, How Are Smartphones Affecting Our Relationships?, World Econ. Forum (Nov. 3, 2015),

[3] See generally Melissa Locker, Two Young Women Have Been Accused of Persuading Their Boyfriends to Kill Themselves—but Why?, Health (Jan. 24, 2020), (discussing how texting can lead to more detached feelings and judgments).

[4] Commonwealth v. Carter, 115 N.E.3d 559 (2019), cert. denied 140 S. Ct. 910 (2020).

[5] Sierra Taylor, Comment, Kill Me Through the Phone: The Legality of Encouraging Suicide in an Increasingly Digital World, 2019 BYU L. Rev. 613, 627 (2020).

[6] Locker, supra note 3.

[7] Carter, 115 N.E.3d at 561–62, 574.

[8] Marisa Sarnoff, Inyoung You Pleads Guilty in Boston Manslaughter-by-text Case, Can’t Profit from Story, Bos. Herald, (Dec. 23, 2021, 8:11 PM); Locker, supra note 3.

[9] Sarnoff, supra note 8; Locker, supra note 3.

[10] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] U.S. Const. amend. I.

[12] See, e.g., Gitlow v. New York, 268 U.S. 652, 666–69 (1925); Cohen v. California, 403 U.S. 15, 23–26 (1971); Reno v. Am. C.L. Union, 521 U.S. 844, 870–74 (1997).

[13] U.S. Const. amend. I.

[14] Gitlow, 268 U.S. at 666.

[15] Id.

[16] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[17] Gitlow, 268 U.S. at 666.

[18] State v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014); cf. Commonwealth v. Carter, 115 N.E.3d 559, 572 (Mass. 2019), cert. denied 140 S. Ct. 910 (2020).

[19] Melchert-Dinkel, 844 N.W.2d at 24.

[20] Carter, 115 N.E.3d at 572.

[21] Id.

[22] Id. at 570.

[23] Id. at 571.

[24] Commonwealth v. Carter, 52 N.E.3d 1054, 1064 n.17 (Mass. 2016), aff’d, Carter, 115 N.E.3d 559.

[25] Carter, 115 N.E.3d at 572.

[26] Id.

[27] Carter, 52 N.E.3d at 1063.

[28] Carter, 115 N.E.3d at 569.

[29] See 40 C.J.S. Homicide § 127 (2021) (describing broad elements of involuntary manslaughter statutes).

[30] 568.

[31] Id.

[32] Carter v. Massachusetts, 140 S. Ct. 910 (2020).

[33] Locker, supra note 3.

[34] Id.

Post image by Helen Harrop on Flickr