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.
Issue 3
Targeting Detached Corporate Intermediaries in the Terrorist Supply Chain: Dial 2339/13224 for Assistance?
The United States has for decades faced persistent and evolving threats from highly agile and adaptable terrorist organizations. Recognizing the need for more robust domestic counterterrorism efforts in the early 1990s, the U.S. government has since made significant use of the legal system to disrupt inchoate plots and degrade terrorists’ support structures. Among the tools most heavily used on this front have been the material support statutes and the International Emergency Economic Powers Act (“IEEPA”), which aim to deprive terrorists of necessary resources by targeting those who support or do business with them. Though used against hundreds of individuals to date, there has been a dearth of organizational prosecutions in this realm. Recognizing the crucial facilitating role corporate actors often play, the Department of Justice (“DOJ”) has long targeted neutral intermediaries to get at underlying crime, from tax evasion to drug trafficking. Recent cases suggest the DOJ is increasingly comfortable pursuing entities that do business with bad actors, including through novel applications of existing laws.
This Note argues that the material support statutes and IEEPA can and should be applied against corporate actors that do business with terrorists, as a means of both disrupting the terrorist “supply chain” and incentivizing greater private sector cooperation. Examining in particular the potential for prosecution of social media and content-hosting companies, encrypted messaging providers, and nontraditional financial intermediaries exploited by terrorists, this Note argues that a credible and carefully wielded threat of terrorism-related charges would be an important addition to prosecutors’ toolkits where appeals to good corporate citizenship fall flat. An effective all-tools counterterrorism strategy requires imagination and adaptation. This Note argues the material support statutes and IEEPA are tools that can be brought to bear against those that play the role of willing supporter or are otherwise indifferent to the harm they facilitate.
Religion Is Special Enough
In ways almost beyond counting, our legal system treats religion differently, subjecting it both to certain protections and certain disabilities. Developing the specifics of those protections and disabilities, along with more general theories tying the specifics together and justifying them collectively, has long been the usual stuff of debate among courts and commentators.
Those debates still continue. But in recent years, increasingly people have asked a slightly different question—whether religion should be singled out for special treatment at all, in any context, for any purpose. Across the board, but especially in the context of religious exemptions from generally applicable laws, many have come to doubt religion’s distinctiveness. And traditional defenses of religion’s distinctiveness have been rejected as unpersuasive or religiously partisan.
This Article offers a defense of our legal tradition and its special treatment of religion. Religious freedom can be justified on religion-neutral grounds; it serves the same kinds of values as other rights (like freedom of speech). And while religion as a category may not perfectly correspond to the underlying values that religious freedom serves, that kind of mismatch happens commonly with other rights and is probably inevitable. Ultimately, religious liberty makes sense as one important liberty within the pantheon of human freedoms. Religion may not be uniquely special, but it is special enough.