Ambition and Fruition in Federal Criminal Law: A Case Study

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law—who ultimately gets prosecuted, and for what conduct—diverge, sometimes markedly, from lawmakers’ and enforcers’ aims? This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders—large-scale traffickers, violent dealers, and the worst recidivists—yet has imprisoned large numbers of offenders outside these categories. In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise. These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers. Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim. This insight carries important implications for reform, both within drug enforcement and outside it. Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root. In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

Exorcising the Clergy Privilege

This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions—making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline; courts have lost faith in the privilege. More surprisingly, though, so have clergy. For decades, clergy have recast communications to ensure they fall outside testimonial protection—thus challenging how essential confidentiality actually is to spiritual relationships. This Article discusses both why clergy testimony frequently decides the question of privilege and the corresponding query of why some clergy break confidences. This understanding breathes new life into efforts to revise state statutes to reflect the narrowing privilege rather than perpetuate illusory promises of broad protection.

The Constitutional Right to Collateral Post-Conviction Review

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding—for the first time—that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a prisoner seeks to enforce retroactively a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was grounded in the Constitution, rather than common law or the federal habeas statute—a holding that, as we explain, was both novel and important.

We next consider which courts—state or federal—have the obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts, even if the state has not chosen to provide collateral post-conviction relief for comparable state law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims (and should be presumed to have done so). Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact that this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that should have a significant impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.