March 19, 2011
Next week's criminal law/procedure oral arguments
Issue summaries are from ScotusBlog, which also links to briefs and opinions below:
Monday, March 21
- Davis v. US: Ordinarily, prosecutors may not use evidence at trial if the evidence was obtained in a way that violated the suspect’s right to be free from unreasonable searches and seizures under the Fourth Amendment. The Court has recognized a “good faith” exception to this “exclusionary rule.” Does the good faith exception apply when a search was lawful under the cases at the time the search occurred, but by the time of the trial the law has changed and made clear that the search was unlawful?
- Tolentino v. New York: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?
Wednesday, March 23
- Turner v. Rogers: Whether an indigent defendant has a right to court-appointed counsel when faced with being sent to jail for violating a state court order, and whether this is the kind of case that the Supreme Court can consider.
- J.D.B. v. North Carolina: Criminal suspects are entitled to Miranda warnings if they are questioned while in police custody. A person generally is considered to be “in custody” if a reasonable person in the same circumstances would believe that he was not free to leave. The question is whether courts should consider the age of a juvenile suspect in deciding whether he is in custody for Miranda purposes.
Lee on Punishing Disloyalty
Despite the special stigma attached to the charge of treason and despite the fact that crimes of espionage and sabotage against the United States attract accusations of disloyalty, infidelity, and betrayal when they are committed by its own citizens, it is mysterious why one’s nationality should be thought to be significant in evaluating one’s culpability. This Article examines the idea of betraying or being disloyal to one’s country as a matter of criminal law by addressing two broad questions: "What does it mean to be disloyal to the country?" and "Is disloyalty morally blameworthy?" In answering the first question, this Article argues that, as a general matter, an American is condemned as a criminal of disloyalty if he or she participates in efforts, either directly or by helping others engaged in such efforts, to directly undermine core institutional resources the United States requires to protect itself or otherwise advance its interests by force. In addressing the second question, this Article asks: Is there a duty not to be disloyal? If so, where does the duty come from, and what exactly is wrong with betraying one’s country? This Article canvasses various arguments for the existence such an obligation and argues that most of the standard accounts fail. This Article further argues that we should reinterpret the wrong of disloyalty crimes as involving not betrayal or disloyalty, but transgression of political boundaries. That is, the relevant wrong here is rooted in the idea of separation of powers between citizens and the state, and we should reconceive crimes of disloyalty as crimes of "political trespass" or "foreign relations vigilantism" and evaluate the moral rights and wrongs of these behaviors accordingly. Thinking of these crimes in this way has the virtue of helping us avoid the confusing and emotional talk of loyalty, patriotism, and fidelity and focus on what is truly at stake, which is power - who has it, what one can do with it, and how its particular allocation and uses are justified.
March 18, 2011
Shuman-Powell on Giles v. California
Robert Shuman-Powell has posted Giles v. California: A Move Toward Equilibrium in Confrontation Clause Jurisprudence on SSRN. Here is the abstract:
In Giles v. California, the Supreme Court of the United States considered whether California’s interpretation of the doctrine of forfeiture by wrongdoing, obviating purposeful intent, was an established exception to the Confrontation Clause at the time of the founding. The Court held that it was not; a defendant who purposely intends and succeeds in preventing a witness from testifying forfeits his right to confront him.
This note discusses the case, the origins of the Confrontation Clause, and its exceptions in English common law. It argues that the Court appropriately resolved historical ambiguity in the common law in favor of a rule that constrains judicial discretion and reverses the erosion of constitutional protections guaranteed to criminal defendants. It further asserts that the Court is willing to find purposeful intent when the forfeiture doctrine is invoked in a domestic violence context.
Through Giles, the Court moved toward resolving an imbalance between two countervailing forces: a constitutional protection afforded criminal defendants and the maxim upon which the forfeiture doctrine rests. On the one hand, the Court ensured that all citizens would enjoy the right of confrontation by refusing to lower the constitutional bar to admitting testimony from an absent witness. On the other, the Court offered flexibility in order to minimize any possible windfall granted to criminal defendants in domestic abuse situations. Only time, and a test case, will tell if the Court fulfills the promise it made in Giles.
Hessick & Hessick on Double Jeopardy as a Limit on Punishment
Carissa Byrne Hessick (pictured) and F. Andrew Hessick III (both of Arizona State, Sandra Day O'Connor College of Law and Arizona State University - Sandra Day O'Connor College of Law) have posted Double Jeopardy as a Limit on Punishment
(Cornell Law Review, Vol. 97, No. 3, 2012) on SSRN. Here is the abstract:
One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against Double Jeopardy. They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing. This Article challenges these conclusions. It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition multiple punishments and that allowing recidivism enhancements undermines this principle. The Article further explains that the reasons courts give in rejecting Double Jeopardy challenges to recidivism enhancements directly conflict with the reasons they give in rejecting Eighth Amendment challenges to those same enhancements. The consequence is an inconsistent body of law that maximizes the government’s ability to punish at the expense of individual rights. The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements.
Harel & Winter in defense of discriminatory sentencing
Alon Harel (pictured) and Eyal Winter (Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Department of Economics) have posted) The Case for Discriminatory Sentencing: Why Identical Crimes May Deserve Different Sanctions on SSRN. Here is the abstract:
The traditional premise of criminal law is that criminals who are convicted of similar crimes under similar circumstances ought to be subject to identical sentences. This article provides an efficiency-based rationale for discriminatory sentencing, i.e., establishes circumstances under which identical crimes ought to be subject to differential sentencing. We also establish the relevance of this finding to the practices of sentencing and, in particular, to the Sentencing Guidelines. Most significantly, we establish that the model can explain why celebrities, leaders, or recidivists ought to be subject to harsher sanctions than others. Discriminatory sentencing is optimal when criminals confer positive externalities on each other. If a criminal A who imposes (non-reciprocal) large positive externalities on criminal B is punished sufficiently harshly, B would expect A not to commit the crime and, consequently, he would expect not to benefit from the positive externalities conferred on him by A. Given that B's expected benefits are lower than the sanctions sufficient to deter B are also lower than the ones imposed on A. The result can be easily extended to the case of reciprocal externalities. Assume that a criminal A imposes positive externalities on B and B imposes identical positive externalities on A. If A is subject to a sufficiently harsh sanction and B knows this, B would expect A not to perform the crime and herefore would expect not to benefit from the positive externalities otherwise conferred on B. Consequently, a more lenient sanction than the sanction imposed on A would be sufficient to deter B.
March 17, 2011
Norris on Testimony about Lab Results
Jesse J. Norris (Beloit College) has posted Who Can Testify About Lab Results after Melendez-Diaz? The Challenge of Surrogate Testimony to the Confrontation Clause (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that a certificate presenting forensic lab results was testimonial evidence, and that defendants thus have the Sixth Amendment right to cross-examine the analyst. Despite this ruling, courts remain divided on the question of surrogate testimony: when can an expert witness, such as a lab supervisor or outside expert, testify in place of the analyst? How this question is answered has enormous consequences for the future of the Confrontation Clause and the criminal justice system more generally. Widespread surrogate testimony threatens to undermine confrontation rights and contribute to false convictions, yet banning it altogether could result in defendants going free whenever the forensic analyst is unavailable and the test cannot be repeated.
This Article rejects the main justifications for surrogate testimony. In doing so, it develops four arguments against the common claim that a surrogate’s independent analysis of analyst-generated data precludes Confrontation Clause violations. The Article contends that most surrogate testimony likely violates the Confrontation Clause, and that this is clearest when the surrogate relies on analyst-produced data that is itself testimonial evidence. In addition, the Article presents a test for determining whether the data upon which the surrogate relies is testimonial.
The Article proposes an alternative standard for admitting surrogate testimony in some limited circumstances. Unlike previous proposals, this standard is consistent with the logic of Crawford v. Washington and faithful to the principles of the Confrontation Clause. Surrogate testimony should be admitted when the data relied upon by the surrogate is clearly nontestimonial, and excluded when it is testimonial. Yet when the testimonial status of the data is ambiguous, the analyst is genuinely unavailable, and a second test is impossible, courts should consider several factors in deciding whether to admit the testimony. These include the trustworthiness of the evidence, the nature of the surrogate’s analysis, the degree to which the data’s validity is dependent on the analyst, and the possibility that failure to admit the evidence would endanger public safety by acquitting a factually guilty, dangerous defendant.
Mann & Shatz on Laws of Torture
Itamar Mann and Omer Shatz have posted The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987-2009 (Unbound: Harvard Journal of the Legal Left, Vol. 6, p. 59, 2010) on SSRN. Here is the abstract:
This article traces the history of the regulation of torture in Israel, and shows how it foreshadowed the legal understanding of torture in the United States in the wake of “The War on Terror.” Part I of the article demonstrates how the celebrated Israeli Supreme Court decision in Public Committee v. Israel, traditionally understood as a bold prohibition of torture, should instead be seen as institutionalizing and managing torture. Since Public Committee, the Israeli executive and the judiciary worked hand in glove to protect this regime, which we label necessity management. Part II of the article revisits the Landau Commission, convened to investigate torture in the Israeli security services, which ultimately legitimated physical interrogation techniques. We argue that the roots of necessity management, which developed after Public Committee, are already spelled out in the Landau Commission report. These rules emerge from the needs of preserving an undemocratic regime of military occupation. Public Committee, in which the Israeli Supreme Court seemingly struck down the Landau Commission’s conclusions, actually cleared the way for implementing these conclusions behind a veil of prosecutorial discretion. Part III articulates some of the theoretical assumptions underlying the regime of necessity management. We argue that this regime, which originated in the undemocratic political context of occupation, foreshadowed protections for torturers under the Bush and the Obama administrations.
Cui on Foreclosure, Vacancy and Crime
This paper examines the impact of residential foreclosures and vacancies on violent and property crime. To overcome confounding factors, a difference-in-difference research design is applied to a unique data set containing geocoded foreclosure and crime data from Pittsburgh, Pennsylvania. Results indicate that while foreclosure alone has no effect on crime, violent crime increases by more than 15% once the foreclosed home becomes vacant. Effects on property crime are similar, but less precisely estimated.
Roots on Grand Juries
The shameful state of contemporary federal grand jury practice has attracted the attention of many scholars. Today’s grand juries (especially at the federal level, but no less so in most states) offer little or no check on government power, and no longer protect Americans from improper or unnecessary prosecutions. Although a number of reforms have been suggested over the years, the author suggests that none of them would wholly restore the institution to its constitutional role, design and purpose. This article advocates a bold reformation of Rules 6 and 7 of the Federal Rules of Criminal Procedure so that prosecutors would be barred from participating in grand jury investigations except when expressly invited by a grand jury to do so. This proposal would be most consistent with grand jury practices of the Founding period and the original intent behind the Fifth Amendment’s Grand Jury Clause.
March 16, 2011
Preview of next week's exclusionary rule argument
The piece, at ScotusBlog, begins as follows:
The exclusionary rule generally suppresses evidence that police have obtained in violation of the Fourth Amendment. On Monday, March 21, in Tolentino v. New York (No. 09-11556), the Court will consider whether the exclusionary rule applies to pre-existing government documents relating to an individual’s identity, such as DMV records, that are obtained as a direct result of unlawful police conduct under the Fourth Amendment.
March 15, 2011
Blume, Johnson & Weyble on Non-Capital Habeas
John H. Blume , Sheri Lynn Johnson and Keir M. Weyble (pictured) (all of Cornell Law School) have posted In Defense of Non-Capital Habeas: A Response to Hoffman and King (Cornell Law Review, Vol. 96, p. 101, 2011) on SSRN. Here is the abstract:
For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers, and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Joseph L. Hoffmann and Nancy J. King added their voices to the exchange, contending that federal habeas corpus review of noncapital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure of money, time, and effort necessary to provide review in such cases is no longer justifiable and that those resources should be redirected to creating a federal initiative for improving trial-level representation in which states could choose to participate.
This Article begins with a systematic examination of Hoffmann and King’s arguments for the abolition of noncapital habeas corpus review. It demonstrates that although state postconviction review systems may have evolved since the 1960s, federal habeas corpus continues to play an important role in encouraging meaningful state court review and providing a safety net for deserving prisoners whom the state courts have failed. It next explains that Hoffmann and King’s proposal for near-abolition of noncapital habeas review would be unlikely to yield substantial net reductions in habeas litigation, both because many prisoners (correctly or incorrectly) would invoke the statutory exceptions and because many others would litigate the adequacy of state postconviction review under the Suspension Clause. This Article then challenges the assumption that states would respond to the abolition of noncapital habeas review by voluntarily improving their own systems for delivering adequate trial-level representation absent an affirmative incentive to do so. Finally, it suggests an alternative set of reforms, beginning with reducing the United States’ extraordinarily high incarceration rate and modifying three areas of existing habeas law, to improve the efficiency and effectiveness of habeas corpus review in noncapital cases.
O'Hear on Indeterminate Sentencing
Michael M. O'Hear (Marquette University - Law School) has posted Beyond Rehabilitation: A New Theory of Indeterminate Sentencing (American Criminal Law Review, Vol. 47, 2011) on SSRN. Here is the abstract:
Indeterminate sentencing - that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board - fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release. Yet, sentencing remained indeterminate most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.
In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment. In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. The Article explores the implications of this model for prison and parole administration and for punishment theory.
Papachristos, Braga & Hureau on Social Networks and Gunshot Injury
Andrew V. Papachristos , Anthony A. Braga and David Hureau (University of Massachusetts at Amherst - Department of Sociology , Harvard University - Harvard Kennedy School (HKS) and Harvard University - Harvard Kennedy School (HKS)) have posted Six-Degree of Violent Victimization: Social Networks and the Risk of Gunshot Injury on SSRN. Here is the abstract:
Objectives: This study investigates the relationship between an individual’s position in a social network and the probability of being a victim of a fatal or non-fatal gunshot wound.
Methods: This study combines detailed observational data from the police with records of fatal and non-fatal gunshot injuries among 763 individuals in Boston’s Cape Verdean community. After creating the social networks of these high-risk individuals, logistic regression is used to uncover the relationship between the odds of being a victim of a gunshot injury and various network characteristics.
Results: The probability of gunshot victimization is directly related to one’s network distance to other gunshot victims - i.e., the closer someone is to a gunshot victim, the more likely that person is to also be a gunshot victim. This social distance to gunshot victims operates above and beyond other types of exposure to gun violence. Younger individuals, gang members, and individuals with a high density of gang members in their interpersonal networks are also at increased risk of being a gunshot victim.
Conclusions: Risk of gunshot injuries in urban areas is more greatly concentrated than previously thought. While individual and neighborhood level risk factors contribute to the aggregate rates of violence, this study suggests that most of the actual risk of gun violence is concentrated in a small social network of identifiable individuals.
Hafetz on Detaining Suspected Terrorists
Jonathan Hafetz has posted Terrorism as Crime: Toward a Lawful and Sustainable Detention Policy (Jonathan Hafetz, HABEAS CORPUS AFTER 9/11: CONFRONTING AMERICA'S NEW GLOBAL DETENTION SYSTEM, Chapter 12, NYU Press, 2011) on SSRN. Here is the abstract:
The book from which this chapter is excerpted traces the history of the habeas corpus litigation after 9/11 that challenged the military detention and trial of prisoners in the "war on terror." Preceding chapters make the case for a broad conception of habeas corpus review, discussing the gaps left by the Supreme Court's decision in Boumediene v. Bush and arguing why habeas jurisdiction should extend to any detention by or at the behest of the United States. This chapter explains why habeas corpus review also is, in many respects, the start, not the end, of the conversation about law and national security. The chapter thus addresses a question at the heart of much of the habeas corpus litigation: who may be detained as a combatant and what is the legitimate scope of the government's military detention power. The chapter advocates a criminal law model rather than a military model in the treatment of suspected terroists. The chapter thus considers and rejects arguments for indefinite executive detention, military commissions, or other alternative forums to the criminal justice system, such as national security courts. Finally, the chapter describes how the criminal justice system provides an important check not only against unlawful detention but also against torture and other mistreatment.
March 14, 2011
Oberman on Teen Sex and the Law
Michelle Oberman (Santa Clara University - School of Law) has posted Two Truths and a Lie: Stories at the Juncture of Teen Sex and the Law on SSRN. Here is the abstract:
Contemporary laws governing adolescent sexuality are internally incoherent and chaotically enforced, and contemporary legal scholarship on the subject shies away from the core problem of addressing and remedying adolescents’ vulnerability in sexual encounters. In order to posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about the nature of adolescent sexuality both from the academic literature on the subject and also from the perspective of the adults who control the criminal justice system’s response to teens’ sexual interactions. This essay illuminates the intersection between coercive adolescent sexual encounters and the criminal justice system via an in-depth study of a 2003 rape prosecution involving two seventeen year-olds. Using the case as a map, I explore the broader implications of the prosecution by interviewing a variety of experts and by analyzing the contemporary literature on sexual norms among youth. Against this backdrop, I relate a series of interviews conducted with the major players involved in the prosecution: the prosecutors, the defense lawyer, the trial court judge and both appellate lawyers. Examining this single case from a variety of perspectives permits a deeper understanding of how the law endeavors to regulate adolescent sexual encounters and of why it fails.
Dubber on the MPC and European Criminal Law
Markus D. Dubber (University of Toronto - Faculty of Law) has posted The American Law Institute’s Model Penal Code and European Criminal Law on SSRN. Here is the abstract:
It has been suggested that the American Law Institute’s Model Penal Code might serve as a model for a European Model Penal Code, or at least for the project of assembling general principles of European criminal law. This paper presents a critical analysis of the Model Penal Code project, paying particular attention to the form of the project, rather than its substance, on the assumption that the idea, and the drafting, of the Model Penal Code would be of greater interest to a European criminal law project than its content, a systematic and comprehensive general part and a representative special part of “American criminal law.”
Fagan & Kupchik on Juvenile Incarceration
Jeffrey Fagan (pictured) and Aaron Kupchik (Columbia Law School and University of Delaware, Department of Sociology and Criminal Justice) have posted Juvenile Incarceration and the Pains of Imprisonment on SSRN. Here is the abstract:
As a result of the movement to criminalize youth crime in the 1980s and 1990s, large numbers of incarcerated youth serve their sentences in adult correctional facilities. In an effort to understand the ramifications of this practice, prior research studies have compared the correctional experiences of youth in juvenile and adult facilities. Yet this research tends to minimize the pains of imprisonment for youth in juvenile facilities, based on the contrast to adult facilities and the toxic conditions of confinement within them. In the following article, we contribute to this literature by analyzing data from interviews with 188 young men incarcerated in juvenile and adult facilities across two states. Our results show that although inmates in adult facilities (surprisingly) give better reports than youth in juvenile facilities on several measures (including criminal activity and victimization), they also fare much worse on other measures. Importantly, the inmates in adult facilities report substantially and significantly greater rates of PTSD and mental illness symptoms, and are much more likely to be afraid for their safety, compared to those in juvenile facilities. Based on these results, we argue that incarceration should be used only as a last resort for juveniles, regardless of institutional auspice, but that when it is deemed necessary, juvenile correctional facilities represent the lesser of two evils.
Mikos on the DOJ and Medical Marijuana
Robert A. Mikos (Vanderbilt Law School) has posted A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana (Stanford Law & Policy Review, Vol. 201, p. 101, 2011) on SSRN. Here is the abstract:
The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy. First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable. It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing - or enabling others to impose - a wide range of civil and private sanctions on medical marijuana users and their suppliers. The problem is the NEP doesn’t repeal the federal ban on marijuana. Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties. For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes. Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.
March 13, 2011
Said on Material Support Prosecutions of Terrorism Suspects
Wadie E. Said (University of South Carolina School of Law) has posted The Material Support Prosecution and Foreign Policy (Indiana Law Journal, Vol. 86, No. 2, 2011) on SSRN. Here is the abstract:
Since September 11, 2001, the chief statute for charging terrorism suspects in federal court has been 18 U.S.C. § 2339B, which criminalizes the provision of material support to designated foreign terrorist organizations (FTOs). Where previous terrorism prosecutions revolved around punishing offenders for acts of violence that had already occurred, the new focus on material support-type prosecutions was engineered to aid in preventing terrorism activity from taking place in the future. What has been left largely unexplored is what § 2339B litigation reveals about the United States' position on political violence and the groups that carry it out.
Although the federal courts have consistently narrowed the framework in which a criminal defendant accused of engaging in or supporting terrorism can make arguments rooted in political or religious belief, the nature and conduct of terrorism prosecutions themselves have the potential to make such arguments relevant nonetheless. A review of the process by which groups are designated as FTOs reveals that the government has taken a de facto position that all political violence perpetrated by nonstate actors is terrorism. There are currently no standards or guidelines defining when nonstate political violence can be justified or even excused. Further, § 2339B prosecutions operate under the theory that "money is fungible," and that support sent to terrorist groups for charitable purposes frees up money for violence. This theory, when coupled with the current vagueness of the FTO designation process, has profound implications for the Fifth Amendment due process rights of defendants charged under the statute.
This Article advances two main recommendations. First, the government should have to articulate when and under what conditions, if any, nonstate groups might be allowed to engage in violence. Such an explicit standard would provide a more legitimate legal basis for prosecutions of individuals charged with supporting FTOs and prevent such prosecutions from selective and inappropriate attempts to create or assert foreign policy. Second, the "money is fungible" theory should be subjected to a more extensive review. While the theory seems to make sense on an abstract level, the prosecution should have to make a specific showing that humanitarian support to a given organization does in fact facilitate violence. This showing is necessary in cases where the government never contends that the defendant planned or carried out any violent activity. Otherwise, the courtroom risks being turned into a forum in which to have a foreign policy debate that might lead to the unjust conviction of § 2339B defendants.
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