Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence—the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so. As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate. These cases raise similar concerns and implicate many of the same features of our criminal law system. By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.
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“Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches
“Can we take a look inside your car?” More than half of all roadside searches begin this way. A consent search is a cop’s quickest and easiest way to look for evidence in a car, in a home, or on a suspect’s person. Perhaps because of that, it is not always clear in practice that answering no really means no. The Supreme Court has long held that consent searches must be completely voluntary or evidence stemming from that search may not be admitted against the suspect searched. This rule deters unconstitutional law enforcement tactics. But the Court has not provided the doctrinal tools to keep law enforcement in check. Appellate courts are currently free to review voluntariness only for “clear error” by the trial court, leading to a toothless review. This Note argues that voluntariness in consent searches must be reviewed de novo on appeal. This independent review doctrinally aligns with the Supreme Court’s criminal standard-of-review jurisprudence. In contrast, deferential review leaves criminal defendants with insufficient Due Process surrounding the waiver of constitutional rights. It allows individual trial courts, rather than appellate courts, to determine the substance of the law and allows similar facts to lead to different legal results. It thus leaves law enforcement officers with inadequate guidance on what the Fourth Amendment allows and demands. The inherent psychological pressure of being questioned by the police, cultural fear of law enforcement, and a pattern of discriminatory requests to search create situations likely to result in coercion. Although de novo review of voluntariness would lead to added burdens on the appellate docket, courts should grasp the nettle and take steps to unify the law.
Deregulation and the Subprime Crisis
Many popular and academic commentators identify deregulation as a cause of the 2007–2008 financial crisis. Some argue that the Gramm-Leach-Bliley Act (“GLBA”) and the Commodity Futures Modernization Act of 2000 (“CFMA”) removed barriers to risk-taking by commercial and investment banks, while others contend that these statutes limited regulators’ ability to respond to changing market conditions. A more general argument is that stringent regulation of banking from the New Deal to the late 1970s produced a quiet period in which there were no systemic banking crises, but subsequent deregulation led to crisis-prone banking.
This Article examines the deregulation hypothesis in detail and concludes that it is incorrect. The GLBA and the CFMA did not remove existing restrictions that would have prevented the principal practices implicated in the subprime crisis, but instead codified the status quo. Although the two statutes prevented regulators from banning affiliations between commercial banks and securities firms and curbing over-the-counter derivatives markets, those actions would likely not have prevented the crisis or significantly reduced its severity.
The Article further argues that the era of stable banking was the result of a benign and predictable macroeconomic environment, not regulation of deposit interest rates. That era ended with the severe inflation and interest rate volatility of the 1970s. Policymakers had to either ease restrictions on the interest rates banks could pay their depositors or force savers to lend to banks at negative real rates of return. Interest rate risk caused both bank failures and bank deregulation.