Issue 2

Nondelegation and Criminal Law

Although the Constitution confers the legislative power on Congress, Congress does not make most laws. Instead, Congress delegates the power to make laws to administrative agencies. The Supreme Court has adopted a permissive stance towards these delegations, placing essentially no limits on Congress’s ability to delegate lawmaking power to agencies.

In its recent decision, Gundy v. United States, the Court relied on this unrestrictive doctrine to uphold a statute delegating the power to write criminal laws. In doing so, the Court did not address whether greater restrictions should apply to delegations involving criminal law. Instead, it applied the same permissive test that it uses to evaluate other types of delegations.

This Article argues that criminal delegations should be treated differently. A number of legal doctrines distinguish criminal laws from other laws. Examples include the vagueness doctrine, the rule of lenity, and the prohibition on criminal common law. The principles underlying these exceptional doctrines equally support tighter restrictions on criminal delegations. Moreover, the justifications in favor of permitting delegations apply less forcefully to criminal laws. Accordingly, this Article proposes that criminal law delegations be subject to greater restrictions than other delegations.

Introduction

According to the Supreme Court, the nondelegation doctrine forbids Congress from delegating its Article I legislative power to administrative agencies. But the doctrine has more bark than bite. Since 1935, the Supreme Court has consistently affirmed the constitutionality of statutes delegating regulatory power to agencies.1 1.Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (“Only twice in this country’s history (and that in a single year) have we found a delegation excessive . . . .” (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Pan. Refin. Co. v. Ryan, 293 U.S. 388 (1935))); Aditya Bamzai, Comment, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 Harv. L. Rev. 164, 165 (2019) (“[S]ave for two exceptions, both of which occurred in 1935[, the Court] has not used the nondelegation doctrine to find a statute unconstitutional.”).Show More These decisions have spawned many critics who have argued against broad delegations.2 2.David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 195–97 (1993); Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 334 (2002) (arguing for a stronger nondelegation doctrine); Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 Va. L. Rev. 471, 513 (1988) (“Perhaps the greatest departure from the system of government envisioned by the framers is the open-ended delegation of legislative power to administrative agencies that began with the New Deal and continues to this day.”); Sean P. Sullivan, Powers, But How Much Power? Game Theory and the Nondelegation Principle, 104 Va. L. Rev. 1229, 1241 (2018) (calling the doctrine “limp”); Kathryn A. Watts, Rulemaking as Legislating, 103 Geo. L.J. 1003, 1006 (2015) (calling the doctrine “toothless”).Show More

During the October 2018 term, the Supreme Court decided to revisit a particularly important nondelegation question: whether Congress can delegate the power to set the scope of criminal laws. The issue arose in Gundy v. United States, which presented the question of whether the Sex Offender Registration and Notification Act (“SORNA”) unconstitutionally delegated power to the Attorney General to issue regulations about how the Act’s requirements applied to offenders convicted before the Act took effect.3 3.Gundy v. United States, 138 S. Ct. 1260 (2018) (granting certiorari on one of several questions presented in petition for writ of certiorari).Show More

A fractured Court ultimately decided both to uphold the delegation and not to modify the nondelegation doctrine.4 4.Gundy, 139 S. Ct. at 2129–30.Show More But the opinions strongly hinted that the Court might revisit the doctrine in the future. Justice Kagan’s opinion reaffirming the current doctrine garnered only four votes. Justice Gorsuch’s opinion excoriating the current doctrine as unconstitutional had three votes.5 5.Id.at 2131 (Gorsuch, J., dissenting). Chief Justice Roberts and Justice Thomas joined the dissent.Show More And Justice Alito’s concurring opinion explicitly indicated his willingness to revisit the doctrine in a future case.6 6.Id. at 2131 (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”).Show More Moreover, Justice Kavanaugh, who did not participate in Gundy and could have supplied the crucial fifth vote to refashion the nondelegation doctrine, issued a statement dissenting from the denial of certiorari in a later case, stating that Gorsuch’s Gundy dissent “raised important points that may warrant further consideration in future cases.”7 7.Paul v. United States, 140 S. Ct. 342 (2019) (mem.). Justice Kavanaugh went out of his way to make this statement, writing separately in a denial of certiorari for the express purpose of noting that “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.” Id. at 342.Show More

The opinions in Gundy featured extensive analysis of the nondelegation doctrine—its origins, its application, and its wisdom. But something important was missing from those opinions: a discussion of the importance of the criminal consequences flowing from the Attorney General’s regulations. None of the opinions in the case asked whether Congress’s ability to delegate policy decisions ought to be assessed differently when the power being delegated is the power to determine the scope of criminal laws.8 8.Although he did not address the matter in Gundy, Justice Gorsuch argued that delegation should apply differently to criminal laws when he was on the Tenth Circuit. See United States v. Nichols, 784 F.3d 666, 668–70 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc).Show More

This omission is striking because there are many reasons to think that the power to delegate is different when it comes to criminal laws.9 9.Scholarship on the nondelegation doctrine is vast. See, e.g., Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399, 1402, 1415–31 (2000) (suggesting a theory of nondelegation in which procedural protections advance normative concerns about rule of law and accountability); Lawson, supranote 2, at 345–51 (arguing that the text of Article I of the Constitution constitutes a limitation on the delegation of the legislative power by Congress); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002) (arguing that nondelegation doctrine is no longer enforced; Sullivan, supranote 2 (using game theory to evaluate the nondelegation doctrine). A smaller, but still significant, body of scholarship addresses the interaction of the doctrine with criminal law. See Harlan S. Abrahams & John R. Snowden, Separation of Powers and Administrative Crimes: A Study of Irreconcilables, 1 S. Ill. U. L.J.1, 9, 37–39 (1976) (arguing that the power to make crimes is a core function of the legislature and thus cannot be delegated); Brenner M. Fissell, When Agencies Make Criminal Law, 10 U.C. Irvine L. Rev. 855, 880–906 (2020) (arguing that criminal delegations are inconsistent with the political theories of punishment); Darrell A. Fruth, Touby or Not Touby: The Constitutional Question When Congress Authorizes State and Local Governments to Legislate the Contours of Federal Criminal Law, 44 Env’t L. Rep. 10072, 10074 (2014) (arguing that many criminal delegations would fail a heightened intelligible principle test); A.J. Kritikos, Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment, 82 Mo. L. Rev.441, 477–80 (2017) (arguing that the federal nondelegation doctrine should follow Florida’s doctrine in criminal cases); Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 Ohio St. J. Crim. L. 51, 115 n.367 (2008) (expressing reservations about the delegation in the Adam Walsh Act because “the policy matters in question have unique normative importance affecting the liberty of individual citizens, but they also lack the technical complexity that typically justifies delegation based on agency expertise, not to mention the need for insulation from undue political influence (such as with environmental regulations)”); Logan Sawyer,Grazing, Grimaud, and Gifford Pinchot: How the Forest Service Overcame the Classical Nondelegation Doctrine to Establish Administrative Crimes, 24 J.L. & Pol. 169, 171–99 (2008) (describing the central role that the nondelegation doctrine played in the emergence of administrative crimes); Edmund H. Schwenk, The Administrative Crime, Its Creation and Punishment by Administrative Agencies, 42 Mich. L. Rev. 51, 54 (1943) (arguing that criminal delegations raise no special concerns and therefore should be permitted); Mark D. Alexander, Note, Increased Judicial Scrutiny for the Administrative Crime, 77 Cornell L. Rev. 612 (1992) (arguing that judges ought to review criminal delegations de novo in criminal cases). But none of this scholarship has addressed specifically how the principles underlying the nondelegation doctrine apply to criminal laws. For an argument that other administrative law doctrines should apply differently to criminal law, see Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034–50 (2006).Show More Indeed, in previous opinions, the Court had explicitly acknowledged the possibility that a different test ought to apply to delegations involving criminal laws.10 10.E.g., Touby v. United States, 500 U.S. 160, 165–66 (1991); see also Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 734 (6th Cir. 2013) (Sutton, J., concurring) (observing that the Court had not resolved whether a higher standard applies to criminal delegations).Show More And both parties devoted significant portions of their briefs to the topic.11 11.See Brief for Petitioner at 17–23, Gundy v. United States, No. 17-6086 (2018), 2018 WL 2441585, at *17–23; Brief for the United States at 44–53, Gundy, No. 17-6086, 2018 WL 3727086, at *44–53.Show More But none of the justices in Gundy grappled with those issues.

This Article takes up the task of evaluating the issues that the Justices failed to address. It concludes that Congress’s authority to delegate the writing of criminal laws should be more circumscribed than its power to delegate the writing of other laws. It arrives at this conclusion because criminal laws are generally subject to greater restrictions, because the reasons against delegation have more force in the context of criminal laws, and because the standard justifications for delegations to agencies do not support—or at best only weakly support—delegations in the criminal context.

Since 1812, the Supreme Court has maintained that the defining of crimes and fixing of punishments are the sole province of Congress.12 12.United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812).Show More It also has long required Congress to speak more precisely when enacting criminal laws, employing the rule of lenity to interpret statutes in favor of defendants and striking down vague laws for violating the Due Process Clause.13 13.See, e.g., United States v. Bass, 404 U.S. 336 (1971) (using the rule of lenity to overturn a federal firearms conviction); Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216 (1914) (striking down Kentucky antitrust laws as impermissibly vague on due process grounds).Show More The Court has justified the prohibition against vague laws, in part, as a way to protect individual rights. But it has also said that this prohibition serves the structural purpose of ensuring that Congress, rather than the courts or the executive, defines criminal conduct.14 14.See Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 284–86 & nn.43–54 (2003) (collecting cases); Carissa Byrne Hessick, Vagueness Principles, 48 Ariz. St. L.J. 1137, 1143–45 & nn.31–42 (2016) (collecting articles).Show More These foundational principles weigh heavily against permitting broad delegations of the power to write criminal rules.

Those principles also reveal a deep tension between the nondelegation doctrine and criminal law doctrines, including the constitutional prohibition against vague laws. The prevailing justification for delegations of the power to write rules is that the “law” is the delegating statute, not the regulations themselves.15 15.SeeWhitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); see also Watts, supranote 2, at 1005 (discussing this theory).Show More But if it is the statute that we must treat as law, rather than the agency’s regulations, then the statute itself must satisfy the vagueness doctrine. This is significant because many statutes that delegate criminal rulemaking authority do not satisfy the vagueness test. They offer virtually no guidance on what is illegal; instead, they provide only the loosest set of considerations that an agency must weigh in later declaring what is illegal. Put differently, the statutes do not specify what is illegal; they say only that an agency will later state what is illegal. This incompatibility between the prevailing justification for modern nondelegation doctrine and the vagueness doctrine is a stark illustration of the fundamental problem with treating criminal delegations no differently than other delegations.

In short, criminal law delegations are different from other delegations. They are inconsistent with foundational criminal law doctrine, they present greater threats to the principles underlying the nondelegation doctrine, and they are not supported by the ordinary arguments in favor of delegation. And so we should treat criminal law delegations differently.

The Article proceeds in four parts. Part I describes the current nondelegation doctrine and how that doctrine has been applied in cases involving criminal law. It explains that, while the Supreme Court has often suggested that criminal law delegations ought to receive stricter scrutiny under the nondelegation doctrine, it has not actually struck a delegation down on that ground.

Part II explains why criminal law delegations ought to be viewed differently than non-criminal law delegations. It begins by identifying the ways in which the law treats criminal statutes differently from non-criminal statutes. The Supreme Court has repeatedly held that Congress—rather than the executive or the judiciary—must make the criminal law, and it has placed special restrictions on how criminal laws are interpreted and enforced. Part II then explains that the very same concerns that led to the creation of these different criminal doctrines—namely, undue threats to liberty, inadequate government accountability, and insufficient notice of legal requirements—have been cited by delegation’s critics as a reason to forbid broad congressional delegations. Because the need to protect liberty, ensure accountability, and assure notice are heightened for criminal laws, and because these principles are threatened by broad delegations, the delegation of criminal rulemaking power should be viewed with deep suspicion.

Part II also demonstrates that the reasons that are traditionally offered in support of broad delegations—expertise, promoting compromise, and efficiency—are far less convincing when it comes to the enactment of criminal laws. Criminal law questions are largely about moral judgment, which does not turn on technical expertise. And to the extent criminal law raises empirical questions, answering those questions would need to account for many competing costs and benefits across many different areas—requiring a range of expertise that is far broader than what we ordinarily expect from agency officials. Similarly, the ability to compromise and the ability to act efficiently are less pressing in criminal law. Legislators have proven to be far more efficient and cooperative in passing criminal statutes than legislation in other areas.

Part III places the delegation of promulgating criminal laws in context. It acknowledges that some may see criminal law delegations as unexceptional because Congress routinely confers broad discretionary power on law enforcement. In particular, Congress has enacted broad and overlapping criminal statutes. Those enactments leave a large amount of criminal justice policy to prosecutors, who enjoy enormous discretion over which charges to bring. But the policy discretion resulting from those broad and overlapping statutes is not equivalent to the policy power resulting from delegations. The former provides more options to prosecutors in exercising their executive charging power. The latter authorizes the executive to decide what is criminal.

Part IV turns from theory to application. It sketches different ways to implement a stricter nondelegation doctrine for criminal laws that would be consistent with the principles underlying both criminal law and administrative law. It explains that courts could vindicate those principles either by prohibiting all delegations involving criminal law or by adopting a more robust version of the intelligible principle doctrine for statutes that impose criminal penalties. It briefly addresses the benefits and drawbacks of each approach, and it ultimately recommends that, at the least, the Court should use the vagueness doctrine to police criminal law delegations.

The Corrective Justice Theory of Punishment

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The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the degree to which punishment is justified—is why society’s need for general deterrence is an offender’s problem. Why is it his responsibility to scare off would-be future offenders? His past offense does not magically render him accountable for the actions of total strangers. Existing theories of criminal justice are unable to answer this question.

This Article fills the lacuna—justifying state punishment, but, more importantly, establishing its moral limits—with the help of tort law principles. It argues that deterrent punishment can be justified as a means of rectifying an offender’s contribution to “criminality”—not merely the perceived but the objective threat of crime in society. Criminality chills the exercise of our rights, forces us to take expensive precautions, and exposes us to unreasonable risks of harm. By having increased the level of criminality in the past, an offender owes a duty of repair to society as a whole, a duty of “corrective justice” in the language of tort theorists. He can fulfill this duty by decreasing the threat of crime in the future. In this way, deterrent punishment does not merely sacrifice him to limit the problem of future crime, for which he has no personal responsibility. Rather, it forces him to fulfill his own duty of repair.

This novel theory—the corrective justice theory of punishment—entails three sentencing principles. First, punishment must in fact deter crime and must be the most efficient means of doing so. Second, however efficient it may be, punishment must not harm an offender more than is required to repair his criminality contribution. Third, even if it is both efficient and reparative, punishment must not harm an offender to a degree that is entirely out of proportion to the harm prevented by doing so. The Article demonstrates how these three principles, in combination, demand a radical reduction in American sentencing scales. The Article thus concludes that the corrective justice view presents stable moral ground for the de-carceral movement in America.

Introduction

The American penal system is racist,1 1.See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (10th Anniversary ed. 2020); Desmond S. King & Rogers M. Smith, Racial Orders in American Political Development, 99 Am. Pol. Sci. Rev. 75 (2005); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271 (2004).Show More degrading,2 2.See Jacob Bronsther, Long-Term Incarceration and the Moral Limits of Punishment, 41 Cardozo L. Rev. 2369 (2020); Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America 10 (2014).Show More and inefficient.3 3.See Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (2019); David M. Kennedy, Deterrence and Crime Prevention (2009); Mark A. R. Kleiman, When Brute Force Fails: How to Have Less Crime and Less Punishment (2009); Oliver Roeder, Lauren-Brooke Eisen & Julia Bowling, What Caused the Crime Decline? (2015); Franklin E. Zimring, Gordon Hawkins & Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (2001).Show More We punish too many people too harshly. Nonetheless, we cannot give up on punishment entirely, for Hobbes is still right: social peace and cooperation in the modern world require state punishment for those who break the law.4 4.See Thomas Hobbes, Leviathan 86–129, 183–221 (Richard Tuck ed., Cambridge Univ. Press rev. student ed. 1996) (1651).Show More Not a lot of punishment.5 5.There is considerable evidence that the certainty of receiving some level of punishment is more important for the purpose of deterrence than the severity of the punishment applied. See Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just. 199, 201 (2013); Andrew von Hirsch, Anthony E. Bottoms, Elizabeth Burney & Per-Olof Wikström, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research 25–27, 47–48 (1999); Steven N. Durlauf & Daniel S. Nagin, Imprisonment and Crime: Can Both Be Reduced?, 10 Criminology & Pub. Pol’y 13, 13–14 (2011).Show More Much less than we currently dole out—but some. Whether as an expression of human rationality or selfishness, people behave badly without the threat of the criminal sanction.6 6.See Hobbes, supra note 4, at 86–100 (discussing the limited circumstances in which cooperation is rational); Robert Axelrod, The Evolution of Cooperation 3–24 (Penguin Books 1990) (1984) (same); Robert Sugden, The Economics of Rights, Co-operation and Welfare 36–57 (2d ed. 2004) (same).Show More Indeed, recent examples of societies operating without criminal justice systems—such as Denmark after German soldiers arrested its police force in 1944,7 7.Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 949, 962 (1966) (reporting that during the German occupation of Denmark, when an unarmed watch corps served as a makeshift police force, the frequency of street crimes like robbery rose very sharply).Show More Iraq after U.S. and coalition forces overthrew the Baathist regime in 2003,8 8.Naomi Klein, Baghdad Year Zero: Pillaging Iraq in Pursuit of a Neocon Utopia, Harper’s Mag., Sept. 2004, at 43, 46–53 (reporting widespread lawlessness after the fall of the Baathist regime); John F. Burns, Pillagers Strip Iraqi Museum of Its Treasure, N.Y. Times (Apr. 12, 2003), http://www.nytimes.com/2003/04/12/international/worldspecial/pillagers-strip-iraqi-museum-of-its-treasure.html [https://perma.cc/FN2R-H4U2] (reporting looting).Show More and the Brazilian state of Espírito Santo after its police force went on strike in 20179 9.Paulo Whitaker & Pablo Garcia, Over 100 Dead in Brazil as Police Strike Spurs Anarchy, Reuters (Feb. 9, 2017, 10:21 AM), http://www.reuters.com/article/us-brazil-violence-espirito-santo-idUSKBN15O1ZT [https://perma.cc/993E-JTMS] (reporting widespread violence in the wake of the police strike); Lola Mosanya, ‘Crazy Violence’ in Brazilian State During Police Strike, BBC Newsbeat (Feb. 11, 2017), http://www.bbc.co.uk/newsbeat/article/–38942911/crazy-violence-in-brazilian-state-during-police-strike [https://perma.cc/J7LC-GLZN] (same); Paulo Whitaker, Some Brazil Police Break Strike Following Wave of Homicides, Reuters (Feb. 12, 2017, 11:36 AM), http://www.reuters.com/article/us-brazil-violence-idUSKBN15R0SU [https://perma.cc/W84S-TLFL] (same).Show More—loudly support the thesis that we need some level of general deterrence to maintain civil order.

The question—central to determining the degree to which punishment is justified—is why society’s need for general deterrence is an offender’s problem. How could it be that breaking the law means that the state is entitled to harm you to scare off would-be future offenders?10 10.“Specific” deterrence, whereby an individual’s punishment is meant to discourage his own future offending, does not raise this concern.Show More There is something positively sinister in Reverend Sydney Smith’s statement of the deterrence theory from 1824: “When a man has been proved to have committed a crime, it is expedient that society should make use of that man for the diminution of crime: he belongs to them for that purpose.”11 11.Sydney Smith, The Treatment of Untried Prisoners (1824), reprinted in Essays: Social and Political 236, 249 n.* (London, Ward, Lock & Bowden, Ltd. n.d.) (emphasis added).Show More Consider, by comparison, that if punishing an entirely innocent person happened to deter crime, we still would not do it. It is not that person’s responsibility to scare off would-be future offenders. But why is it the responsibility of an actual offender? His past offense does not magically render him accountable for the actions of total strangers. His punishment would thus seem to merely sacrifice him for the greater good,12 12.See Immanuel Kant, Groundwork of the Metaphysics of Morals (1785), reprinted in Practical Philosophy 37, 80 (Mary J. Gregor ed. & trans., 1996) (1785) (“So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.”).Show More in the specific sense that it would intentionally harm him as a means of mitigating a social problem for which he lacks responsibility.13 13.See Jacob Bronsther, Vague Comparisons and Proportional Sentencing, 25 Legal Theory 26, 48 (2019).Show More In different guises, this question has been raised many times before.14 14.See, e.g., Ted Honderich, Punishment: The Supposed Justifications 53 (1969); Johannes Andenaes, The Morality of Deterrence, 37 U. Chi. L. Rev. 649, 649 (1970); Nigel Walker, The Efficacy and Morality of Deterrents, 1979 Crim. L. Rev. 129, 139; Kent Greenawalt, Punishment, 74 J. Crim. L. & Criminology 343, 353 (1983); Warren Quinn, The Right to Threaten and the Right to Punish, 14 Phil. & Pub. Affs. 327, 330–31 (1985); Wojciech Sadurski, Giving Desert Its Due: Social Justice and Legal Theory 253 (1985); Igor Primoratz, Justifying Legal Punishment 35 (1989); Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law 113–14 (2011).Show More But thus far scholars have ignored or awkwardly side-stepped the issue,15 15.See infra Part I.Show More leaving a justificatory hole at the center of the criminal law.

This Article presents a solution—justifying state punishment, but, more importantly, establishing its moral limits—through a new conception of criminal justice: the corrective justice theory of punishment. On this view, deterrent punishment can be justified, but only to a limited degree, as a means of rectifying an offender’s contribution to the threat of crime in society. Not just an abstract justification of state punishment, but also a set of strict sentencing principles, the corrective justice theory presents stable moral ground for the de-carceral movement in America.

In developing this view, the Article conceives of the criminal law as a system of protections—against murder, rape, theft, drunk driving, and so forth—upon which all citizens rely for their assured liberty and safety, and that depends for its effectiveness on the deterrent threat of punishment. This, I argue, is the function of the criminal law. We punish not to give wrongdoers a deserved allotment of suffering or condemnation, as on the retributivist view,16 16.See infra notes 35–49 and accompanying text.Show More nor simply to increase the “cost” of offending, as on the utilitarian theory of deterrence,17 17.See infra notes 29–30 and accompanying text.Show More but to help maintain a civil order in which strangers can live together peacefully and productively.

Put differently, the traditional theories understand the criminal law to have only two subjects: offenders and victims. The criminal law either (a) delivers retribution to an offender for creating a victim or (b) prevents the creation of future victims. What these theories have left out, somehow, is everybody else. When it is working, the criminal law is an indispensable source of security for all people, bathing them in protection as they, say, ride a busy subway in the morning and as they sleep in their beds at night. Beyond its protections against violence, the criminal law also helps to regulate cooperative enterprises like the traffic system and the stock market.18 18.See Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order 37–60 (2016); Vincent Chiao, Criminal Law in the Age of the Administrative State 35–70 (2019).Show More Of course, other forms of law, like contract law, and non-legal social norms,19 19.See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991) (arguing that informal norms can enable social cooperation); Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. Chi. L. Rev. 133, 135 (1996) (examining the interactions between the legal and non-legal normative orders).Show More like the norm against cutting a line, also facilitate civil society. But I maintain, following Hobbes, that these more refined means of civilization depend on the underlying threat of the criminal law.

The Article then explains that the criminal law, as a system of protections, rests ultimately not on police intervention, but rather on people self-applying criminal legal norms. This, I argue, is the method of the criminal law. When I walk down a street, I am not relying upon the police to protect me like personal guards, but rather upon other people within the jurisdiction to self-apply the rules that prohibit assaulting me, stealing my wallet, and so forth.

This conception of the criminal law clarifies the nature of the criminal wrong. When an individual offender fails to self-apply the criminal law, then, in combination with other offenders, he contributes to a wider social threat. This is “criminality”—not merely the perceived but the objective threat of crime. The social costs of criminality are reflected in both the completed offenses themselves and the actions taken to prevent or avoid the completed offenses. That is, in addition to subjecting us to unreasonable risks of harm, criminality also chills the exercise of our rights and forces us to take expensive precautions. Thus, the more criminality there is in society, the less worth the criminal law has as a guide to the possible incursions of other people, and the less assured is our liberty. Deterrent punishment, as a means of holding an offender responsible for his criminality contributions, is thereby permissible; that is, it does not merely sacrifice him to mitigate a problem for which he lacks responsibility.

In accordance with the corrective justice theory, we can use an offender via general deterrence as a means of repairing the damage to our assured liberty caused by his past criminality contributions. He increased the level of criminality in the past to some degree, contributing to a threat that makes life in society more difficult, perilous, and expensive; and the way to repair that—as a means of securing what tort law theorists call “corrective justice”20 20.See generally Jules L. Coleman, Risks and Wrongs 324 (1992) (“Corrective justice imposes on wrongdoers the duty to repair their wrongs and the wrongful losses their wrongdoing occasions. . . . losses for which they are responsible.”); Ernest J. Weinrib, Corrective Justice 17 (2012) (“Because the defendant, if liable, has committed the same injustice that the plaintiff has suffered, the reason the plaintiff wins ought to be the same as the reason the defendant loses.”); Jules Coleman, Corrective Justice and Wrongful Gain, 11 J. Legal Stud. 421, 421–22 (1982) (arguing that corrective justice is the foundation of tort law and responding to efficiency-based theories of tort law); Scott Hershovitz, Corrective Justice for Civil Recourse Theorists, 39 Fla. St. U. L. Rev. 107, 109 (2011) (suggesting a conception of corrective justice that is compatible with the civil recourse theory of tort law); Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992) (surveying and critiquing theories of corrective justice).Show More—is to use him to decrease the level of criminality in the future. The state is not merely sacrificing him to limit the problem of future crime. Rather, it is forcing him to fulfill his own duty, owed to society as a whole, to repair his criminality contributions and restore the reliability of the criminal law system. Over time, ideally—with would-be future offenders appropriately deterred—it would be as if he had never contributed to criminality at all, in terms of the average threat of crime faced by society. In this way, the Article justifies general deterrence with the help of tort law principles. It explains that we ought to conceive of the criminal wrong as a tort against society, in the form of a criminality contribution, and then of deterrent punishment as an equitable remedy for that wrong.

Does it matter whether we get this theory (or any such theory of punishment) right? Emphatically yes. As John Gardner writes, “criminalization and criminal punishment are prima facie such abhorrent practices,”21 21.John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law 204 (2007).Show More and so the burden of justifying these practices rests squarely and heavily upon the state. The stakes for offenders are high, even in mild systems of punishment; and the state needs an honest and convincing answer when someone asks, “Why am I being punished?” The corrective justice theory aims to provide that answer.

Further, a society’s theory of punishment is ultimately its theory of criminal sentencing. The reasons that explain why the state can permissibly punish at all will also prescribe how much and what type of punishment is handed down. This Article examines the sentencing implications of the corrective justice theory at length. The basic sentencing principle is as follows: by increasing past criminality by X units, an offender owes a duty to society to decrease future criminality by X units. The Article then develops three subsidiary principles.

First, the infliction of penal harm must be parsimonious, meaning that it must generate deterrence and must be the most efficient means of doing so. Given that the budget for crime prevention is limited, the state should ask, for each dollar spent, whether investments in the community, such as early childhood development programs, would represent a more efficient means of reducing future criminality.

Second, punishment must be reparative, repairing only the offender’s wrongdoing, rather than merely being “useful.” The offender does not simply “belong to society,” as on Rev. Smith’s view.22 22.Smith, supra note 11, at 249.Show More When punishing an offender is in fact the most efficient means of crime prevention, the state is entitled to harm him to the degree required to erase his criminality contribution, but no more. Utilitarian deterrence theories, by comparison, lack internal sentencing limits tied to the severity of offenses and would indeed license the punishment of innocent people if it happened to maximize social welfare.

Third, sentences must be equitable. What if the infliction of deterrent harm were parsimonious and reparative, but nonetheless draconian? Imagine that only thirty-year prison sentences could erase the criminality contributions of car thieves. This Article draws insight from the law of equity, examining when courts will grant an injunction in response to a tort or specific performance in response to a breach of contract. The Article concludes that it is impermissible to harm an offender to a degree that is entirely out of proportion to the harm prevented by doing so. A thirty-year sentence for a car thief, even if it were the singular means of generating the requisite amount of deterrence, would be entirely out of proportion to the reparative benefit gained by society.23 23.Cf. Blackfield v. Thomas Allec Corp., 17 P.2d 165, 165 (Cal. Dist. Ct. App. 1932) (holding that removing an overhang at a cost of $6,875 was entirely out of proportion to the $200 in damages suffered by the plaintiff).Show More

Finally, the Article explains how jurisdictions can apply these principles in the real world and demonstrates how they would radically reduce American sentencing scales.

This Article proceeds in four parts. Part I demonstrates that the two dominant schools of criminal law theory—utilitarianism and retributivism—are unable to explain how general deterrence might be consistent with a principled refusal to sacrifice people to limit harms or threats for which they lack responsibility. Part II introduces the conception of the criminal law as a system of protections. It shows how this system depends on people self-applying criminal legal norms and how offenders create the threat of criminality as a byproduct of their unreliability with regard to upholding the criminal law. The analogy is to factories contributing to smog and global warming as a byproduct of their pollution. Part II also defends the empirical premise that this system of protections requires a certain amount of deterrent punishment to function effectively. Part III introduces the “corrective justice” principle that provides an exception to the general prohibition on using people as a means to the greater good. This principle explains that an individual has a duty to rectify the losses or damage caused by his wrongful conduct and that he can permissibly be forced to fulfill this duty. Part III then applies this principle to the conception of the criminal law and criminality detailed above to generate the corrective justice theory of punishment. Part IV develops the corrective justice theory of sentencing.

Redefining the Relationship Between Stone and AEDPA

This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have analyzed Fourth Amendment violations under a different legal regime than that used for other constitutional violations challenged on habeas corpus. This has persisted despite passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which amended the federal habeas corpus statute for state prisoners, 28 U.S.C. § 2254. Federal courts have largely held that AEDPA has not changed the relationship between Stone’s holding and Section 2254. This Note argues that the current conception of federal habeas corpus review of Fourth Amendment claims is fundamentally inconsistent and asserts that the AEDPA standard should be applied to Fourth Amendment claims brought by state prisoners.

Introduction

On June 17, 2013, the Baton Rouge Police Department received an unconfirmed anonymous tip that Cedric Spears was trafficking cocaine and in possession of a firearm in his home.1 1.Spears v. Vannoy(Spears I), Civ. No. 15-495-SDD-RLB, 2018 WL 2423017, *1 (M.D. La. Apr. 30, 2018).Show More Two police officers obtained Spears’s criminal history, confirmed only that he was a convicted felon, and, without a warrant, proceeded to his apartment complex.2 2.Id.Show More The officers waited in the parking lot until just before midnight to approach the apartment, when, coincidentally, Spears opened the door.3 3.Id.Show More The officers spotted a gun in his apartment.4 4.Id.Show More After officers gathered Spears and the apartment’s other occupants into a central location and patted them down, Spears was handcuffed and read his rights.5 5.Id.Show More

Spears admitted to owning the gun.6 6.Id.Show More On November 4, 2013, he was convicted on one count of felon in possession of a firearm and was sentenced to eighteen years of hard labor without benefit or probation, parole, or suspension of sentence.7 7.Id.Show More Spears filed a pro se appeal to the Louisiana Court of Appeal for the First Circuit, arguing that the trial court wrongly denied his motion to suppress the evidence resulting from the illegal warrantless search.8 8.Id.Show More His appeal was denied.9 9.Id.Show More He then petitioned for supervisory review in the Louisiana Supreme Court.10 10.Id.Show More His petition was denied.11 11.Id.Show More Spears then filed a pro se petition for federal habeas corpus relief in the Middle District of Louisiana.12 12.Id.Show More This petition was denied, as well.13 13.Spears v. Vannoy(Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018) (adopting the magistrate judge’s report and recommendation).Show More

In denying Spears’s habeas petition, the federal court simply stated that Fourth Amendment violations are “generally not cognizable on federal habeas review.”14 14.Spears I,2018 WL 2423017, at *2.Show More This categorical denial is based on the Supreme Court’s 1976 decision in Stone v. Powell,15 15.428 U.S. 465 (1976).Show More which held that a state prisoner may not be granted federal habeas corpus relief based on a Fourth Amendment violation “where the State has provided an opportunity for full and fair litigation of [that] Fourth Amendment claim.”16 16.Id. at 482, 494.Show More Despite Spears’s claim of a “defective warrant”—or lack of a warrant—the court held that the Fifth Circuit only requires the trial court to provide “an opportunity” to litigate one’s claim, nothing further.17 17.Spears I, 2018 WL 2423017, at *2–3.Show More A mere opportunity to litigate a Fourth Amendment claim in state court is all that is required for a federal court to refuse to even consider a state prisoner’s habeas petition.18 18.Id.at *2 (citing Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)).Show More In Spears’s case, the federal district court went on to deny him a certificate of appealability, terminating his one remaining option.19 19.Spears v. Vannoy(Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018).Show More Despite no search warrant and arguably no probable cause to approach the house, Cedric Spears was searched, tried, convicted, and sentenced to eighteen years in prison.20 20.Spears I,2018 WL 2423017, at *1, *3–4.Show More And the federal court would not even entertain his petition for habeas corpus.

As displayed in Spears’s case, federal courts currently hold Stone v. Powell to be controlling when state prisoners allege a Fourth Amendment violation on habeas. All other constitutional violations, on the other hand, are adjudicated under a different standard provided by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).21 21.Pub. L. No. 104-132, 110 Stat. 1218. AEDPA amended 28 U.S.C. § 2254, the sole statute governing habeas corpus review for state prisoners; thus, “the AEDPA standard” refers to the standard of review enacted as a result of the passage of AEDPA and is codified at 28 U.S.C. § 2254(d).Show More The two regimes have at least one primary difference. While Stone restricts the cognizance of such habeas petitions, AEDPA at least allows federal courts to review the petitioner’s claim. Fourth Amendment violations are the only constitutional violations not litigated under the AEDPA standard. Therefore, if Spears was alleging a due process violation or bringing a claim for ineffective assistance of counsel, his case would at least have been heard by a federal court rather than dismissed as not cognizable.

This Note argues that the current approach adopted by the federal courts is incorrect in light of AEDPA. Instead of looking to Stone for guidance, federal courts should adopt the AEDPA standard for habeas review in the context of alleged Fourth Amendment violations. This presents a rare opportunity to right the current course of the federal courts. With this approach, federal courts would treat Fourth Amendment violations the same as every other constitutional violation with respect to federal habeas petitions, instead of relegating Fourth Amendment claims to a lower tier.

Adopting the AEDPA standard will provide four primary benefits. First, this change will simplify the process for state prisoners. This is especially important for those representing themselves pro se, like Cedric Spears. Holding alleged Fourth Amendment violations to a different standard than all other constitutional harms only further complicates an already complex area of law that affects many criminal defendants.22 22.According to a study funded by the United States Department of Justice, state prisoners file about 16,000 to 18,000 habeas petitions every year. Unfortunately, a breakdown by constitutional violation is not available. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study, 2000–2006, at ii, iv (2013), https://doi.org/10.3886/ICPSR21200.v1 [https://perma.cc/Z7RS-AECM].Show More Second, it would resolve a split among the federal circuits as to how to interpret the meaning of the Court’s language in Stone, and thereby create a uniform, national standard of review. A uniform, national standard is vitally important because where one’s claim is brought should not determine whether that state prisoner has access to federal habeas review. Third, adopting the AEDPA standard will allow state prisoners to actually have their federal habeas petitions reviewed, rather than denied without consideration, as Spears’s was. As a matter of procedural justice, all habeas petitioners deserve the right to be heard, regardless of the nature of their claim. Litigants, especially pro se litigants, can use this Note as a roadmap to challenge the current legal regime and, hopefully, have their petitions heard by the federal courts.

Finally, adopting this approach will allow any future statutory reform to current habeas corpus law to include claims alleging violations of the Fourth Amendment, rather than continue to leave them behind. Fourth Amendment violations are treated differently than all other constitutional violations. While all other constitutional violations are governed by AEDPA, Fourth Amendment violations are treated as outside the statutory scheme. Adopting this approach, however, brings Fourth Amendment violations back into the fold of AEDPA alongside all other constitutional violations. If federal courts continue to treat Fourth Amendment violations as outside of the AEDPA statutory scheme,23 23.See infra Part III.Show More then future habeas reform will not affect habeas petitions alleging Fourth Amendment violations. Thus, if the language of AEDPA is amended, under this proposed approach, the statutory reform would not further widen the gap between how Fourth Amendment claims are treated and how all other constitutional claims are treated.

As explained below, the two regimes—review under AEDPA and review under Stone—currently produce similar outcomes;24 24.See infra Section II.C, Part III.Show More however, future changes to the AEDPA standard could yield different outcomes for Fourth Amendment violations and all other constitutional violations. Adopting the AEDPA standard will have truly tangible benefits to defendants, practitioners, and judges even if it may not have an enormous impact on the number of federal habeas petitions ultimately granted for state prisoners.25 25.See infra Part III.Show More As one commentator has put it, habeas corpus has played an “important role . . . as a postconviction remedy” and has the “unique nature and suitability . . . to bring about transformative change.”26 26.LeRoy Pernell, Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions,69 Mercer L. Rev. 453, 453 (2018).Show More

Surprisingly, despite the significant academic attention dedicated to federal habeas corpus, little attention has been focused on the collateral review of alleged Fourth Amendment violations. Much of the post-AEDPA academic literature identifies and defines the standard set forth in AEDPA,27 27.See e.g.,John H. Blume, AEDPA: The “Hype” and The “Bite,” 91 Cornell L. Rev. 259, 272–73 (2006); Evan Tsen Lee, Section 2254(d) of the Federal Habeas Statute: Is It Beyond Reason?, 56 Hastings L.J. 283, 283 (2004); Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA’s Standard of Review Operate After Williams v. Taylor?, 2001 Wis. L. Rev. 1493, 1495.Show More further defines the standard set forth in Stone independent from AEDPA, 28 28.See e.g.,Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 141 (2012); Justin F. Marceau, Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications, 62 Hastings L.J. 1, 17, 26–27 (2010).Show More or argues for an overhaul of the current federal habeas system altogether.29 29.See e.g.,Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 797 (2009).Show More Some of the nation’s leading federal courts textbooks do not even specifically address this issue.30 30.See, e.g., Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation 141–50 (2013) (failing to discuss the issue); Peter W. Low et al., Federal Courts and the Law of Federal-State Relations 966 (9th ed. 2018)(speculating only that AEDPA “may have introduced a subtle but not fundamental change in the meaning of Stone v. Powell”).Show More

Only one scholar has touched on the relationship between Stone and AEDPA. In a 2006 article, Professor Steven Semeraro argued that the historical changes in the treatment of the exclusionary rule, which is the primary vehicle by which courts remedy Fourth Amendment violations, coupled with the changes to habeas practice generally, require that Stone be overruled.31 31.Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, 58 Rutgers L. Rev. 983, 1016–18 (2006). Professor Semeraro also notes that “there has been remarkably little historical analysis directed at the judicial treatment of collateral search-and-seizure claims.” Id. at 984–85.Show More Professor Semeraro’s argument is primarily focused on Stone’s deficiencies in modern litigation and the reasons that decision should be overturned rather than, as this Note argues, the reasons why AEDPA specifically should replace it.32 32.See id. at 986.Show More This Note examines the various possible solutions to reconciling the language of Stone with the text of AEDPA and argues for a clear, simple, statutory text-based rule for the federal courts to follow.

Part II of this Note reviews the legal history of the availability of habeas corpus relief for violations of the Fourth Amendment. It summarizes the evolution of federal habeas corpus law from the Supreme Court’s landmark decision in Brown v. Allen,33 33.344 U.S. 443 (1953).Show More to its Fourth Amendment carve out in Stone v. Powell, to the enactment of AEDPA. Part III describes the current approach taken to federal habeas petitions brought by state prisoners alleging a violation of the Fourth Amendment and why there is a need for change. Part IV analyzes two possible solutions to reconciling the standard set forth by AEDPA with the Stone decision. Finally, Part V proposes that federal district courts adopt a third solution and hold that the AEDPA standard replace Stone’s framework with respect to Fourth Amendment claims going forward.

  1. * J.D., University of Virginia School of Law, 2019. I would like to extend a special thanks to Professor Peter W. Low for supervising my research, for without his help, this would not be possible. Thanks are also owed to Olivia Vaden, Zachary Ingber, Spencer Ryan, and Jessie Michelin for their helpful feedback and unwavering support throughout this process. ↑

  2. Spears v. Vannoy (Spears I), Civ. No. 15-495-SDD-RLB, 2018 WL 2423017, *1 (M.D. La. Apr. 30, 2018). ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. ↑
  9. Id. ↑
  10. Id. ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. Spears v. Vannoy (Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018) (adopting the magistrate judge’s report and recommendation). ↑
  15. Spears I, 2018 WL 2423017, at *2. ↑
  16. 428 U.S. 465 (1976). ↑
  17. Id. at 482, 494. ↑
  18. Spears I, 2018 WL 2423017, at *2–3. ↑
  19. Id. at *2 (citing Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)). ↑
  20. Spears v. Vannoy (Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018). ↑
  21. Spears I, 2018 WL 2423017, at *1, *3–4. ↑
  22. Pub. L. No. 104-132, 110 Stat. 1218. AEDPA amended 28 U.S.C. § 2254, the sole statute governing habeas corpus review for state prisoners; thus, “the AEDPA standard” refers to the standard of review enacted as a result of the passage of AEDPA and is codified at 28 U.S.C. § 2254(d). ↑
  23. According to a study funded by the United States Department of Justice, state prisoners file about 16,000 to 18,000 habeas petitions every year. Unfortunately, a breakdown by constitutional violation is not available. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study
    , 2000–2006,

    at ii, iv (2013), https://doi.org/10.3886/ICPSR21200.v1 [https://perma.cc/Z7RS-AECM]. ↑

  24. See infra Part III. ↑
  25. See infra Section II.C, Part III. ↑
  26. See infra Part III. ↑
  27. LeRoy Pernell, Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions
    ,
    69

    Mercer L. Rev.

    453

    , 453 (2018). ↑

  28. See e.g., John H. Blume, AEDPA: The “Hype” and The “Bite,” 91 Cornell L. Rev. 259, 272–73 (2006); Evan Tsen Lee, Section 2254(d) of the Federal Habeas Statute: Is It Beyond Reason?, 56 Hastings L.J. 283, 283 (2004); Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA’s Standard of Review Operate After Williams v. Taylor?, 2001 Wis. L. Rev. 1493, 1495. ↑
  29. See e.g., Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 141 (2012); Justin F. Marceau, Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications, 62 Hastings L.J. 1, 17, 26–27 (2010). ↑
  30. See e.g., Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 797 (2009). ↑
  31. See, e.g., Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation
    141–50

    (2013) (failing to discuss the issue); Peter W. Low et al., Federal Courts and the Law of Federal-State Relations

    966

    (9th ed. 2018) (speculating only that AEDPA “may have introduced a subtle but not fundamental change in the meaning of Stone v. Powell”). ↑

  32. Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus,
    58

    Rutgers L. Rev. 983, 1016–18 (2006). Professor Semeraro also notes that “there has been remarkably little historical analysis directed at the judicial treatment of collateral search-and-seizure claims.” Id. at 984–85. ↑

  33. See id. at 986. ↑
  34. 344 U.S. 443 (1953). ↑
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