Taxing Nudges

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to earn “wellness points” from attendance at a gym, redeemable at various retail establishments, may improve exercise habits.

A successful nudge should make a desired choice as simple and painless as possible. Yet one source of friction may counteract an otherwise well-designed nudge: taxation. Under current tax laws, certain incentives designed to nudge behavior are treated as taxable income. At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It describes the emergence of a disjointed tax regime that exempts private party nudges, but taxes identical incentives that come from the government. What is more, an incentive structured as a government grant may be taxable while an economically identical tax credit is not. The Article then proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. Specifically, lawmakers should reverse the default rule that all government transfers are taxable, and instead exclude government transfers from income unless otherwise provided by the Tax Code.

Introduction

Imagine that every ten years, a flood decimates the banks of a river, destroying homes and other buildings in its wake. Each time, the flood causes millions of dollars of damage and leaves some people homeless or jobless. The local government incurs enormous costs in the aftermath to clean up damage and provide subsidies to victims.

Now imagine that experts determine that a measure can be taken to “flood proof” homes and other buildings. The measure costs several thousand dollars per building, but this pales in comparison to the cost of cleaning up flood damage. Naturally, policymakers would be eager to encourage residents along the riverbank to undertake the improvements. But people tend to be present-biased and discount future harms, and the residents are unmotivated to make the improvements.1.See infra Subsection I.B.6.Show More What can policymakers do?

One option would be to mandate flood proofing and penalize those who do not do it. But this would be politically unpopular and entail enforcement costs. Another option would be simply to pay for the flood proofing for each resident; but this may be cost prohibitive.

There may be a third option, however. Suppose that lawmakers decide to offer a small carrot—a “nudge”—to encourage people to flood proof their homes. They might, for example, offer a modest cash reward—say $300—for doing so. Or they might offer to provide a warranty for any flood damage incurred after the improvement is made. The small nudge may be enough to motivate people to flood proof their homes. If the nudge is effective, the government might succeed in protecting its residents’ homes at a fraction of the cost of using penalties or paying for the improvements outright.

Nudges are an increasingly popular policy tool in many contexts. Insights from behavioral economics reveal that people’s irrational tendencies may lead them to make suboptimal decisions, such as failing to flood proof their homes, opting not to save for retirement, or not applying to college. For example, people’s failure to save for retirement is often just due to sheer inaction—what researchers call “status quo bias,” 2.See infra note 15 and accompanying text.Show More rather than any rational decision about how to spend one’s money. Making retirement savings easier by defaulting people into savings plans is an example of a simple nudge that achieves a desired policy at a low cost.

The term “nudge” was famously coined by Professors Richard Thaler and Cass Sunstein to describe an intervention that “alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.”3.Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009).Show More Nudges might make a desired choice easier or simpler for people, they might help people overcome bad habits like procrastination, or they may simply provide people with better information.4.Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018).Show More Governments around the world have increasingly used nudges to enact cost-effective policies to improve the welfare of their citizens.

Nudges come in many forms: shifting defaults, like in the case of savings plans; sending people text message reminders to apply for college financial aid; or simplifying instructions on forms. Other nudges provide small incentives, like cash rewards or “wellness points” one might earn for achieving health goals. Regardless of the form of a particular nudge, it should make a desired choice as simple and painless as possible.

Yet one source of friction may counteract an otherwise well-designed nudge: taxation.

Under current tax laws, certain incentives aimed at nudging behavior are treated as taxable income. While nudges like defaults or text message reminders do not have tax consequences, nudges that provide an economic benefit to the recipient may be taxable. This is true regardless of whether the benefit comes in the form of cash, property, or services. For example, if a local government offers its citizens a $300 reward for flood proofing their homes, that grant would be subject to federal income taxation.

At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. It may be particularly counterintuitive to people that government grants would be subject to tax. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. For example, homeowners may decide to forego a cash reward for flood proofing their home because they do not want to deal with the hassle of reporting it or because they do not want to attract scrutiny from the IRS. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It first describes the emergence of a disjointed tax regime that often exempts nudges that come from private parties, but taxes identical incentives that come from the government. As a default, the tax law generally treats all economic benefits as taxable income. However, broad exceptions exist for certain incentives provided by employers to their employees, which are often classified as nontaxable fringe benefits. Similarly, incentives paid by nonprofits to individuals are likely to be treated as nontaxable gifts. Nudges provided by businesses to paying customers are also exempt from tax under the judicially created “purchase price adjustment” doctrine.

When it comes to identical incentives provided by governments, however, none of the fringe benefit, gift, or purchase price adjustment exclusions apply. Furthermore, while many government transfers are exempt from tax under other exclusions—for example, welfare assistance, veterans’ benefits, Social Security, and Medicare—those rules do not cover most nudges. Without a special exclusion, incentive-based nudges provided by governments are generally subject to tax under current laws. This regime does not appear to be a product of design, but is more likely the result of a piecemeal system of tax exemptions that has developed over time. Perhaps even more confounding is that an incentive structured as a government grant may be taxable, while an economically identical tax credit is not.

After examining the tax treatment of the most common types of nudges, this Article proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. It argues that lawmakers should reverse the default rule that all government transfers are taxable, and instead provide a rule that government transfers are excluded from income unless otherwise provided by the Tax Code. This would ensure that nudges designed to promote worthy policy goals would be exempt from tax as a default matter, unless Congress specifically decides otherwise. As an alternative to this broad proposal, the Article also proposes legislation that would exempt specific nudges from tax in the areas of health and environmental protection. Under either approach, exempting nudges from tax will make them more effective and should not pose serious revenue consequences.

This Article proceeds in four parts. Part I describes the concept of a nudge and categorizes the most common types of nudges. Part II provides an overview of the tax system and discusses the current tax treatment of nudges. Part III discusses policy implications of the current tax regime, including proposals to reform the tax treatment of nudges. Part IV concludes that the simplest, yet most effective, way to unify the tax treatment of nudges would be for Congress to provide a default of nontaxability for government transfers.

  1. * George R. Ward Term Professor of Law, University of North Carolina School of Law. I am grateful to Andrew Benton for excellent research assistance, and to helpful comments from Ellen Aprill, Peter Barnes, Fred Bloom, Michelle Drumbl, Heather Field, Brian Galle, Brant Hellwig, Andy Hessick, Carissa Hessick, Ed McCaffery, Pat Oglesby, Leigh Osofsky, Gregg Polsky, Katie Pratt, Rich Schmalbeck, Ted Seto, Jay Soled, Sloan Speck, Manoj Viswanathan, Larry Zelenak and workshop participants at University of Colorado Law School, Duke Law School, Loyola Law School, Washington & Lee University School of Law, and UC Hastings College of Law. For Tessie DeLaney.
  2. See infra Subsection I.B.6.
  3. See infra note 15 and accompanying text.
  4. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009).
  5. Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018).
  6. See, e.g., George Loewenstein & Nick Chater, Putting Nudges in Perspective, 1 Behav. Pub. Pol’y. 26, 29 (2017) (“Traditional economic interventions include taxes, subsidies and mandatory disclosure of information . . . .”).
  7. See, e.g., David Halpern, Inside the Nudge Unit: How Small Changes Can Make a Big Difference 4 (2015).
  8. See, e.g., Bruno S. Frey, A Constitution for Knaves Crowds Out Civic Virtues, 107 Econ. J. 1043, 1044–45 (1997).
  9. Cass R. Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 583, 583 (2014) (Nudges “generally cost little and have the potential to promote economic and other goals . . . .”).
  10. Halpern, supra note 6, at 22.
  11. Brian Galle argues that, in some circumstances, nudges are the most efficient choice of instrument. See Brian Galle, The Problem of Intrapersonal Cost, 18 Yale J. Health Pol’y, L., & Ethics 1, 32–50 (2018).
  12. Sunstein, supra note 8, at 585. However, for a critique of savings defaults, see Ryan Bubb & Richard H. Pildes, How Behavioral Economics Trims Its Sails and Why, 127 Harv. L. Rev. 1593, 1607–37 (2014).
  13. Thaler & Sunstein, supra note 3, at 110–11.
  14. Id. at 111.
  15. See, e.g., id. at 111–13 (automatic enrollment increased employee participation in savings plans from 65% to 90%, and could notably increase per-capita contribution percentages); Loewenstein & Chater, supra note 5, at 27.
  16. Daniel Kahneman, Jack Knetsch & Richard Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193, 197–98 (1991).
  17. See About SBST, SBST, https://sbst.gov/#report [https://perma.cc/S3YM-35MC] (last visited June 14, 2019).
  18. William J. Congdon & Maya Shankar, The White House Social & Behavioral Sciences Team: Lessons Learned from Year One, 1 Behav. Sci. & Pol’y 77, 83 (2015), https://behavioralpolicy.org/wp-content/uploads/2017/05/BSP_vol1is2_Congdon.pdf [https://perma.cc/EXF9-RWMV].
  19. Id.
  20.  See About Us, Behavioural Insights Team, https://www.bi.team/about-us/ [https://perma.cc/6BUF-95PA] (last visited Nov. 7, 2020) (“We have run more than 750 projects to date, including 400 randomised controlled trials in dozens of countries.”).
  21. See Christopher Larkin, Michael Sanders, Isabelle Andresen & Felicity Algate, Testing Local Descriptive Norms and Salience of Enforcement Action: A Field Experiment to Increase Tax Collection, 2 J. Behav. Pub. Admin. 1, 9–10 (2019); Dominic King et al., Redesigning the “Choice Architecture” of Hospital Prescription Charts: A Mixed Methods Study Incorporating In Situ Simulation Testing, 4 BMJ Open 1, 8–9 (2014); Peter John, Elizabeth MacDonald & Michael Sanders, Targeting Voter Registration with Incentives: A Randomized Controlled Trial of a Lottery in a London Borough, 40 Electoral Stud. 170, 175 (2015).
  22. See Zeina Afif, William Wade Islan, Oscar Calvo-Gonzalez & Abigail Goodnow Dalton, World Bank Group, Behavioral Science Around the World: Profiles of 10 Countries 6 (2019), http://documents.worldbank.org/curated/en/710771543609067500/pdf/132610-REVISED-00-COUNTRY-PROFILES-dig.pdf [https://perma.cc/JDX2-R9UK].
  23. See, e.g., Congdon & Shankar, supra note 17, at 84 (finding that letters sent to physicians comparing their prescribing rates with those of their peers had no measurable impact on prescription rates).
  24. See Afif et al., supra note 21, at 8–9.
  25. See, e.g., Thaler & Sunstein, supra note 3, at 12, 85.
  26. See, e.g., Johan Egebark & Mathias Ekström, Can Indifference Make the World Greener? 11–13 (Rsch. Inst. of Indus. Econ., IFN Working Paper No. 975, 2013).
  27. Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives? 302 Science 1338, 1338–39 (2003).
  28. See, e.g., Sunstein, supra note 8, at 585.
  29. Eric P. Bettinger, Bridget Terry Long, Philip Oreopoulos & Lisa Sanbonmatsu, The Role of Simplification and Information in College Decisions: Results from the H&R Block FAFSA Experiment 1 (Nat’l Bureau of Econ. Rsch., Working Paper No. 15361, 2009), https://www.nber.org/papers/w15361.pdf [https://perma.cc/XBV6-DL2U].
  30. Id. at 26–27.
  31. Cass R. Sunstein, Empirically Informed Regulation, 78 U. Chi. L. Rev. 1349, 1372–73 (2011).
  32. Id. at 1373.
  33. See, e.g., New Text Message Reminders for Summons Recipients Improves Attendance in Court and Dramatically Cuts Warrants, Ideas42, https://www.ideas42.org/new-text-message-reminders-summons-recipients-improves-attendance-court-dramatically-cuts-warrants/ [https://perma.cc/5SMM-PPFH] (last visited June. 17, 2019) (finding that text message reminders in New York City reduced “failure to appear” rates by 26%).
  34. See Congdon & Shankar, supra note 17, at 83.
  35. See, e.g., Raj Chetty, Adam Looney & Kory Kroft, Salience and Taxation: Theory and Evidence, 99 Am. Econ. Rev. 1145, 1165 (2009).
  36. Lisa L. Shu, Nina Mazar, Francesca Gino, Dan Ariely & Max H. Bazerman, Signing at the Beginning Makes Ethics Salient and Decreases Dishonest Self-Reports in Comparison to Signing at the End, 109 Proc. Nat’l Acad. Sci. 15197, 15197–98 (2012), http://www.pnas.org/content/109/38/15197.full.pdf+html [https://perma.cc/436E-DGL2]
  37. Id. at 15198.
  38. See, e.g., Sunstein, supra note 30, at 1381; Kate Phillips, Applying Behavioral Science Upstream in the Policy Design Process, Behav. Scientist (Sept. 17, 2018), https://behavioralscientist.org/applying-behavioral-science-upstream-in-the-policy-design-process/ [https://perma.cc/UWJ5-BBC7] (describing new laws implemented in Australia, requiring graphic images on cigarette labels, to reduce smoking rates).
  39. Michael Hallsworth, John A. List, Robert D. Metcalfe & Ivo Vlaev, The Behavioralist as Tax Collector: Using Natural Field Experiments to Enhance Tax Compliance 4 (Nat’l Bureau of Econ. Research, Working Paper No. 20007, 2014), https://www.nber.org/papers/w20007 [https://perma.cc/W7LN-F2T2].
  40. Hunt Allcott, Social Norms and Energy Conservation, 95 J. Pub. Econ. 1082, 1082–83 (2011).
  41. Sunstein, supra note 4, at 61 (distinguishing between nudges, which “must preserve freedom of choice,” and subsidies or other interventions, which “impose[] significant material costs on choosers”).
  42. This is assuming economically rational decision making on behalf of the homeowner, without factoring in other (realistic) costs, such as hassle costs and present bias.
  43. Sunstein, supra note 4, at 61.
  44. See Robert Münscher, Max Vetter & Thomas Scheuerle, A Review and Taxonomy of Choice Architecture Techniques, 29 J. Behav. Decision Making 511, 518 (2016) (defining micro-incentives as “changes of the consequences of decision options that are insignificant from a rational choice perspective”).
  45. Id.
  46. The small size of the payment makes it particularly less likely to function as a true subsidy, although it could. For example, if paying for bus fare to a local clinic was the impediment to a person obtaining a free flu shot, the $5 may operate as an economic subsidy free of behavioral considerations. For further discussion of the distinction between nudges and subsidies, see Brian Galle, Tax, Command . . . or Nudge?: Evaluating the New Regulation, 92 Tex. L. Rev. 837, 854–56 (2014) (explaining that “surprising and asymmetric incentives” are one factor distinguishing nudges from subsidies, and using a five-cent tax on plastic bags as an example of a financial consequence that is most likely a nudge, given that alternatives are generally more costly than the bag tax).
  47. Bronwyn McGill, Blythe J. O’Hara, Anne C. Grunseit & Philayrath Phongsavan, Are Financial Incentives for Lifestyle Behavior Change Informed or Inspired by Behavioral Economics? A Mapping Review, 33 Am. J. Health Promotion 131, 131 (2019) (“Since the 1960s, financial incentives (FIs) have been used in behavior change interventions, targeting a broad spectrum of health issues such as blood donation, medication adherence, and health and wellness programs.”).
  48. Soeren Mattke et al., Workplace Wellness Programs Study: Final Report, at xiv (Rand Corp. ed. 2013); see also Laura A Linnan, Laurie Cluff, Jason E. Lang, Michael Penne & Maija S. Leff, Results of the Workplace Health in America Survey, 3 Am. J. Health Promotion 652, 655 (2019) (over 46% of worksites surveyed had wellness programs).
  49. See Ha T. Tu & Ralph C. Mayrell, Employer Wellness Initiatives Grow, But Effectiveness Varies Widely, Nat’l Inst. for Health Care Reform, July 2010, at 2 (concluding that employers offer wellness programs to contain medical costs, to improve productivity, and to “position themselves as ‘employers of choice’”).
  50. Id.
  51. Id. at 2–3.
  52. Id. at 3–4.
  53. Mattke et al., supra note 47, at xv.
  54. Tu & Mayrell, supra note 48, at 5; Bahaudin G. Mujtaba & Frank J. Cavico, Corporate Wellness Programs: Implementation Challenges in the Modern American Workplace, 1 Int’l J. Health Pol’y & Mgmt. 193, 194 (2013) (mentioning gym reimbursements as a part of corporate wellness programs).
  55. See, e.g., Mujtaba & Cavico, supra note 53, at 194 (listing seminars as a part of corporate wellness programs).
  56. These wellness program incentives are regulated by several laws. For example, the Health Insurance Portability and Accountability Act (“HIPAA”) imposes multiple nondiscrimination requirements. See Tu & Mayrell, supra note 48, at 6.
  57. Mattke et al., supra note 47, at 73 fig.5.3.
  58. Tu & Mayrell, supra note 48, at 5; see also Mujtaba & Cavico, supra note 53, at 196 (referencing “[h]ealth insurance discounts and reimbursements for employees who meet health standards and maintain a healthy lifestyle”).
  59. One report found that “[m]ost benefits consultants and wellness vendors believed that $100 is the ‘sweet spot’ for an incentive for a ‘single instance of behavior,’ such as HRA completion or participation in a specific wellness activity.” See Tu & Mayrell, supra note 48, at 5.
  60. John Cawley & Joshua A. Price, A Case Study of a Workplace Wellness Program That Offers Financial Incentives for Weight Loss, 32 J. Health Econ. 794, 795 (2013).
  61. Mattke et al., supra note 47, at xxi.
  62. But see Katherine Pratt, A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes, 87 Tul. L. Rev. 73, 77–94 (2012) (discussing economic, externality-based justifications for anti-obesity taxes and subsidies).
  63. Present bias describes the tendency to value immediate rewards over future rewards, even if the future rewards are larger. See, e.g., Richard Thaler, Some Empirical Evidence on Dynamic Inconsistency, 8 Econ. Letters 201, 201 (1981). In the context of weight loss, it is hard for people to forego immediate benefits (a tasty meal, for example) in exchange for a future benefit (lower weight).
  64. See Cawley & Price, supra note 59, at 794 (“[P]eople may want to do what is in their long-run interest (lose weight), but consistently succumb to the temptation to eat and be sedentary.”).
  65. Id.
  66. Tu & Mayrell, supra note 48, at 5.
  67. Id.
  68. Sahil Gupta, Opinion, Earning Prizes for Fighting an Addiction, N.Y. Times (Mar. 12, 2019), https://www.nytimes.com/2019/03/12/opinion/earning-prizes-for-fighting-an-addiction.html [https://perma.cc/58CN-DT45].
  69. Id.
  70. Id.
  71. Id.
  72. Scott D. Halpern et al., Randomized Trial of Four Financial-Incentive Programs for Smoking Cessation, 372 N. Eng. J. Med. 2108, 2108 (2015). Another intervention explored in the study was a deposit program in which participants would put up their own funds and earn them back if they successfully quit. Although the deposit was very effective for those who chose it, the cash incentive was more successful overall at reducing smoking, because significantly more participants opted for the cash intervention over the deposit. Id. at 2114.
  73. See, e.g., Kevin G. Volpp et al., A Randomized, Controlled Trial of Financial Incentives for Smoking Cessation, 360 New Eng. J. Med. 699, 707 (2009) (finding that a group who received financial incentives to refrain from smoking had “significantly higher” rates of “prolonged abstinence” than did a control group, who did not receive the same incentives).
  74. See, e.g., Jody Sindelar, Opinion, Should We Pay People to Stop Smoking?, CNN (Oct. 5, 2011), https://www.cnn.com/2011/10/05/opinion/sindelar-smoking-medicaid/index.html [https://perma.cc/C3Y6-39H8].
  75. Thaler & Sunstein, supra note 3, at 236.
  76. Joshua Rhett Miller, North Carolina Program Pays Girls a Dollar a Day Not to Get Pregnant, Fox News (June 25, 2009), https://www.foxnews.com/story/north-carolina-program-pays-girls-a-dollar-a-day-not-to-get-pregnant [https://perma.cc/L6JJ-7CVW]. The payment was contingent on attending a ninety-minute lesson each week, where the women learned about abstinence and contraception use. Id.
  77. Id.
  78. Dyan Zaslowsky, Denver Program Curbs Teen-Agers’ Pregnancy, N.Y. Times, Jan. 16, 1989, at A8.
  79.  Economic Incentives, Environmental Protection Agency, https://www.epa.gov/‌environmental-economics/economic-incentives [https://perma.cc/UCT5-4JJB] (last visited Dec. 21, 2020) (explaining that market-based incentives, like taxes and subsidies, are “becoming increasingly popular as tools for addressing a wide range of environmental issues”).
  80. Christian Schubert, Green Nudges: Do They Work? Are They Ethical?, 132 Ecological Econ. 329, 329 (2017).
  81. See Howard Kunreuther & Elke U. Weber, Aiding Decision Making to Reduce the Impacts of Climate Change, 37 J. Consumer Pol’y 397, 397–98 (2014).
  82. See, e.g., Schubert, supra note 79, at 330 (defining green nudges as “nudges that aim at promoting environmentally benign behavior”).
  83. Id.
  84.  See Hunt Allcott & Dmitry Taubinsky, Evaluating Behaviorally Motivated Policy: Experimental Evidence from the Lightbulb Market, 105 Am. Econ. Rev. 2501, 2501–02 (2015) (exploring the phenomenon and finding that moderate subsidies for energy-efficient lightbulbs may be effective in addressing this underinvestment).
  85. Free LED Program, Duke Energy, https://www.duke-energy.com/home/products/free-leds [https://perma.cc/FY93-D5L5] (last visited June 19, 2019); see also Commercial Retrofit, Puget Sound Energy, https://www.pse.com/rebates/business-incentives/commercial-retrofit-grants [https://perma.cc/R578-FS72] (last visited July 5, 2019) (providing coverage for up to 70% of the cost for energy efficient upgrades).
  86. Smart $aver: Home Improvement Rebate Program, Duke Energy, https://www.duke-energy.com/home/products/smart-saver [https://perma.cc/GAT6-GC5L] (last visited June 19, 2019).
  87. HVAC Install, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/hvac-install [https://perma.cc/BE7P-YTJQ] (last visited June 19, 2019).
  88. Insulate & Seal, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/insulate-and-seal [https://perma.cc/RC5K-V89W] (last visited June 19, 2019).
  89. Toshio Fujimi & Hirokazu Tatano, Promoting Seismic Retrofit Implementation Through “Nudge”: Using Warranty as a Driver, 33 Risk Analysis 1858, 1873 (2013).
  90. See id. at 1859–60.
  91. Id. at 1863.
  92. Id. at 1859.
  93. Id. at 1873.
  94. See supra note 62.
  95. See Kathleen DeLaney Thomas, The Modern Case for Withholding, 53 U.C. Davis L. Rev. 81, 124 (2019).
  96. See id. at 114.
  97. See Loewenstein & Chater, supra note 5, at 29–30.
  98. See Fujimi & Tatano, supra note 88, at 1872.
  99. Earthquake Brace + Bolt, https://www.earthquakebracebolt.com [https://perma.cc/‌5WPS-7X73] (last visited June 20, 2019).
  100. See, e.g., Cesarini v. United States, 296 F. Supp. 3, 4 (N.D. Ohio 1969) (“The starting point in determining whether an item is to be included in gross income is, of course, Section 61(a) of Title 26 U.S.C.”).
  101. I.R.C. § 61(a). The statute goes on to provide a non-exclusive list of items of gross income, such as compensation for services, interest, rents, royalties, and dividends. Id.
  102. 348 U.S. 426, 431 (1955).
  103. See, e.g., Cesarini, 296 F. Supp. at 4 (holding that cash found in a used piano constituted taxable income under I.R.C. § 61(a)); Turner v. Comm’r, 13 T.C.M. 462, 463 (1954) (holding that cruise tickets received as a prize from a radio station constituted taxable income, with the only issue being valuation); see also Treas. Reg. § 1.61-14 (as amended in 1993) (expanding § 61(a) definition of gross income to include illegal gains and treasure troves, while clarifying that “[i]n addition to the items enumerated in section 61(a), there are many other kinds of gross income”).
  104. See I.R.C. § 74 (a).
  105.  See Topic No. 420 Bartering Income, IRS, https://www.irs.gov/taxtopics/tc420 [https://perma.cc/4XMQ-EASH] (last visited June 20, 2019).
  106. The discussion omits other exclusions not relevant for this purpose, such as the non-taxation of imputed income under the Code, the realization requirement (§ 1001), and statutory exclusions like § 101 (life insurance proceeds) and § 103 (interest on state and local bonds).
  107. I.R.C. § 102.
  108. 363 U.S. 278, 285 (1960).
  109. Id.
  110. Id. at 280, 291–92 (The transfer was “at bottom a recompense for Duberstein’s past services, or an inducement for him to be of further service in the future.”).
  111. Specifically, Code section 139 and the general welfare doctrine, both of which are discussed below. Rev. Rul. 2003-12, 2003-1 C.B. 283–84.
  112. Rev. Rul. 2005-46, 2005-2 C.B. 120.
  113. See, e.g., Rev. Rul. 2003-12, supra note 110, at 283.
  114. The exception is that certain employee achievement awards are excludable under I.R.C§ 74(c) (2018).
  115. Rev. Rul. 2003-12, supra note 110, at 284–85.
  116. Id. at 283–84.
  117. Rev. Rul. 99-44, 1999-44 I.R.B. 549–50. The matching contributions were gifts even though the savings accounts were established pursuant to a federal government program, which was administered by the charitable organization.
  118. See I.R.S. Priv. Ltr. Rul. 200442023 (Oct. 15, 2004).
  119. I.R.S. Priv. Ltr. Rul. 200529004 (July 22, 2005). Although payments from charities to individuals are likely to receive gift treatment in most situations, the Duberstein standard must still be satisfied for the gift exclusion to apply. For example, the IRS has stated in informal guidance that if a charity makes a payment to a for-profit business, “[t]he IRS will evaluate whether . . . . the payment was made out of a moral or legal obligation, an anticipated economic benefit or in return for services . . . .” Internal Revenue Service, Disaster Relief20, https://www.irs.gov/pub/irs-pdf/p3833.pdf [https://perma.cc/CQ2W-R83D]. Generally, payments made to individuals that are part of a “charitable class” (i.e., “large enough or sufficiently indefinite that the community as a whole, rather than a pre-selected group of people, benefits when a charity provides assistance”) should qualify for gift treatment. Id. at 9. I am grateful to Ellen Aprill for bringing this limitation to my attention.
  120. See, e.g., I.R.C. § 132.
  121. See Jay A. Soled & Kathleen DeLaney Thomas, Revisiting the Taxation of Fringe Benefits, 91 Wash. L. Rev. 761, 770 (2016).
  122. See id. at 766–68.
  123. Id. at 769–70.
  124. I.R.C. § 132(d), (e).
  125. See Soled & Thomas, supra note 120, at 770.
  126. However, if an employee is a shareholder or owner of the employer, payments made to employees may be treated as dividends rather than as compensation. See, e.g., Andrew W. Stumpff, The Reasonable Compensation Rule, 19 Va. Tax. Rev. 371, 377 (1999).
  127. I.R.C. § 132(a)(4), (e).
  128. In a similar context but outside the employment setting, a court allowed for exclusion of an all-expenses-paid business trip to Germany because the payment was made for the convenience of the payer, rather than for the recipient’s benefit. United States v. Gotcher, 401 F.2d 118, 119, 122 (5th Cir. 1968). Neither courts nor the IRS have explicitly extended the line of reasoning in Gotcher to other settings, particularly to non-business settings. However, the line of reasoning in the case could arguably apply to exclude many nudges from income. The argument would be that payments made primarily for the payer’s benefit (e.g., a government grant program) are not taxable income to the payee. Thanks to Ted Seto for this observation.
  129. See, e.g., Pittsburgh Milk Co. v. Comm’r, 26 T.C. 707, 717 (1956); Freedom Newspapers, Inc. v. Comm’r, 36 T.C.M. (CCH) 1755, 1758–59 (1977); Rev. Rul. 76-96, 1976-1 C.B. 23.
  130. See Rev. Rul. 76-96, 1976-1 C.B. 23. The taxpayer must reduce his basis in the property purchased by the amount of the rebate, resulting in a basis of $19,000 in this example.
  131. Freedom Newspapers, 36 T.C.M. (CCH) at 1756–57. But see I.R.S. Priv. Ltr. Rul. 201004005 (Jan. 29, 2010) (ruling that grants paid by a third party were not excludable from income, even when the net effect was to reduce the buyer’s cost on a purchase transaction). In the private ruling, the IRS distinguished payments involving broker commissions, which are dependent upon the sales transactions, from third-party grants that are independent of the transaction. Id.
  132. The taxpayer received “Thank You Points” that were redeemable for airline miles. Shankar v. Comm’r, 143 T.C. 140, 148 (2014). The court also noted that the miles were not earned during business travel, which the IRS has singled out for non-enforcement in Announcement 2002-18, 2002-1 C.B. 621.
  133. Shankar, 143 T.C. at 148.
  134. See I.R.S. Priv. Ltr. Rul. 201027015, at 3 (July 9, 2010) (ruling that cash-back rebates are excluded from gross income as purchase price reductions).
  135. For taxpayers that are corporations, Code § 118 historically exempted “contributions to capital,” which covered many government grants to corporations. However, section 118 was amended in 2017 and currently does not exempt contributions to capital made by “any governmental entity.” I.R.C. § 118(b). Regardless, this Article is concerned with incentives provided to individual taxpayers, not corporations.

    There are other special exclusions applicable to businesses not discussed in detail here. For example, Code § 48(d)(3) excludes grants made to developers and producers of renewable energy, pursuant to the American Recovery and Reinvestment Act of 2009.

  136. Greisen v. United States, 831 F.2d 916, 918 (9th Cir. 1987). The Alaska Permanent Fund is funded by the state’s mineral royalties; it distributes earnings in the form of dividends to each resident of the state on an annual basis. Id. at 916–17; see also About Us, Alaska Department of Revenue: Permanent Fund Dividend Division, https://pfd.alaska.gov/Division-Info/About-Us [https://perma.cc/QHG2-M67C] (last visited July 1, 2019) (explaining the Alaska Permanent Fund eligibility and dividend calculation functions).
  137. Greisen, 831 F.2d at 919–20 (“According to the statement of purpose, the 1980 Act was intended: (1) to allow equitable distribution of part of the state’s wealth to Alaskans; (2) to encourage people to remain Alaska residents; and (3) to encourage awareness and interest in the management of the fund.”).
  138. See, e.g., Graff v. Comm’r, 673 F.2d 784, 785 (5th Cir. 1982). For a comprehensive discussion of the doctrine, see Theodore P. Seto & Sande L. Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053, 1106–14 (2006); see generally Robert W. Wood & Richard C. Morris, The General Welfare Exception to Gross Income, 109 Tax Notes 203, 204–08 (2005) (describing the development of the General Welfare Exception and the prongs of the test determining whether a payment qualifies).
  139. Rev. Rul. 2005-46, 2005-2 C.B. 120; see also Rev. Rul. 74-205, 1974-1 C.B. 20 (ruling that housing payments to displaced families qualified under the general welfare exception, and were not includible in gross incomes of the recipients); Rev. Rul. 98-19, 1998-1 C.B. 840 (ruling that a relocation payment made to an individual moving from a flood-damaged residence qualified for the general welfare exception).
  140. I.R.S. Notice 99-3, 1999-1 C.B. 271, 272.
  141. Rev. Rul. 2005-46, supra note 138.
  142. Rev. Rul. 2003-12, 2003-1 C.B. 283; Rev. Rul. 76-144, 1976-1 C.B. 17. However, the IRS has ruled that payments to businesses do not qualify for the doctrine, because the need must be “individual or family” based. See Rev. Rul. 2005-46, supra note 138.
  143. Rev. Rul. 74-74, 1974-1 C.B. 18.
  144. Rev. Rul. 76-395, 1976-2 C.B. 16.
  145. 88 T.C. 1293, 1301 (1987), acq. 1989-2 C.B. 1. The court excluded the grant from income on other grounds, however, finding that the taxpayer “lacked complete dominion” over the funds, which were paid directly to the contractor who did the work.
  146. Id. (noting that the only requirements to receive the grant “were ownership of the property and compliance with the building code”).
  147. The exclusion applies to “qualified disaster[s],” which also includes events involving terrorism or common carrier accidents. See I.R.C. § 139(c). For a critique of limiting the exclusion to qualified disasters only, see Ellen P. Aprill & Richard Schmalbeck, Post-Disaster Tax Legislation: A Series of Unfortunate Events, 56 Duke L.J. 51, 95 (2006).
  148. I.R.C. § 139(g).
  149. I.R.C. § 401(k).
  150. I.R.C. § 61.
  151. I.R.C. § 132(e).
  152. I.R.C. § 106(a).
  153. Rev. Rul. 2002-3, 2002-1 C.B. 316 (“Under §106(a), an employee may exclude premiums for accident or health insurance coverage that are paid by an employer.”).
  154. I.R.C. § 105(b).
  155. See, e.g., Office of Chief Counsel Internal Revenue Service Memorandum 201622031, at 1 (Apr. 14, 2016) [hereinafter “IRS Memo 201622031”].
  156. I.R.C. § 61.
  157. Treas. Reg. § 1.132-6(c) (as amended in 1992).
  158. I.R.C. § 132(e).
  159. Treas. Reg. § 1.132-6(c) (as amended in 1992). The exception to this rule is cash for occasional overtime meals or transportation fare can be excluded as de minimis. See Treas. Reg. § 132-6(d)(2) (as amended in 1992).
  160. Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (“Benefits excludable from income”).
  161. IRS Memo 201622031 at 4.
  162. Id. at 4.
  163. See Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992).
  164. See supra notes 51–53 and accompanying text.
  165. See Treas. Reg. § 1.61-2(d)(1) (as amended in 2003).
  166. I.R.C. § 132(e)(1).
  167. Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992).
  168. See IRS Memo 201622031 at 2, 4–5. “Medical care” is defined in section 105(b) by reference to section 213(d) of the Code, which provides that medical care includes amounts paid “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” I.R.C. § 213(d)(1)(A).
  169. See IRS Memo 201622031 at 2, 5.
  170. See id. For examples of medical care under section 213, including smoking cessation programs, see IRS Publication 502, Medical and Dental Expenses, https://www.irs.gov/‌pub/irs-pdf/p502.pdf [https://perma.cc/3GGF-RMV3] (last visited Mar. 10, 2021).
  171. Medical expenses include payments for a weight-loss program “for a specific disease diagnosed by a physician,” so it is unlikely that a weight-loss program would qualify in the absence of a diagnosis. See IRS Publication 502, supra note 169.
  172. See Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (citing examples of “occasional” events, such as sports games or cocktail parties, as ones that qualify as de minimis).
  173. In an analogous context, it appears many service-type benefits offered by Silicon Valley companies, such as free dry cleaning, haircuts, or yoga classes, are likely not reported as taxable by those employers. See Soled & Thomas, supra note 120, at 779–86.
  174. Treas. Reg. § 1.132-6(e)(2) (as amended in 1992). However, onsite gyms operated by the employer qualify for exclusion. See I.R.C. § 132(j)(4).
  175. See IRS Memo 201622031 at 4–5.
  176. I.R.C. § 132(a)(2).
  177. I.R.C. § 132(c)(4).
  178. It follows that a private gym could offer discounted gym services to its own employees.
  179. See supra note 57 and accompanying text.
  180. See supra note 128 and accompanying text.
  181. See supra note 152.
  182. See IRS Memo 201622031 at 5.
  183. See id. at 2–5.
  184. See Rev. Rul. 2002-3, supra note 152.
  185. See supra note 73 and accompanying text.
  186. See supra notes 75–77 and accompanying text.
  187. See supra notes 67–70 and accompanying text; 75–77 and accompanying text.
  188. See supra note 140 and accompanying text.
  189. See supra notes 141–43 and accompanying text.
  190. See IRS Publication 502, supra note 169. However, the deduction is only available to itemizers (those who do not claim the standard deduction) and is limited to the excess of 10% of the individual’s adjusted gross income. I.R.C. § 213(a).
  191. I.R.C. § 105(b).
  192. I.R.C. § 104(a).
  193. Another exception, which would be irrelevant in this circumstance, is section 102, which would exclude from income medical care paid for by family members or friends. See I.R.C. § 102(a).
  194. See supra notes 84–87 and accompanying text.
  195. See, e.g., supra note 87.
  196. See supra note 129 and accompanying text.
  197. For example, in Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755 (1977), the Tax Court held that even a payment received by a third party broker several years after the original purchase “was sufficiently tied to the purchase that its characterization must be made by reference to the original transaction.”
  198. I.R.C. § 139(g).
  199. See supra note 141 and accompanying text.
  200. See supra note 98 and accompanying text.
  201. I.R.S. Priv. Ltr. Rul. 201816004 (Jan. 11, 2018). See also I.R.S. Priv. Ltr. Rul. 201815005 (Jan. 11, 2018) (describing similar facts).

    One theory that the IRS did not appear to consider is the purchase price adjustment doctrine. See supra Subsection II.A.2. Arguably, a state grant paid to a state taxpayer could be considered a non-taxable adjustment to the amount of taxes owed to the state by the grant recipient. (This assumes the grant recipient earns enough income to owe state taxes in excess of the grant.) While it is hard to distinguish a state grant from a seller rebate on economic grounds, it appears neither courts nor the IRS have extended the purchase price adjustment doctrine to this context. I am grateful to Heather Field for this observation.

  202. I.R.S. Priv. Ltr. Rul. 201816004 (Jan 11. 2018).
  203. See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017).
  204. See Henry C. Simons, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy 50 (1938); Robert Murray Haig, The Concept of Income–Economic and Legal Aspects, in The Federal Income Tax 1, 7 (Robert Murray Haig ed., 1921). The definition is commonly referred to as the Haig-Simons definition of income. See, e.g., John R. Brooks, The Definitions of Income, 71 Tax L. Rev. 253, 262 (2018); Boris I. Bittker, A “Comprehensive Tax Base” as a Goal of Income Tax Reform, 80 Harv. L. Rev. 925, 932 (1967). For a comprehensive discussion of the difficulty of defining income and a description of several other approaches, see generally Brooks, supra; see also Victor Thuronyi, The Concept of Income, 46 Tax L. Rev. 45, 47 (1990) (describing the Haig-Simons definition vis-à-vis the general difficulty in defining income).
  205. See, e.g., Bittker, supra note 203, at 935; Jonathan Barry Forman, The Income Tax Treatment of Social Welfare Benefits, 26 U. Mich. J.L. Reform 785, 799 (1993).
  206. Bittker, supra note 203, at 935–37.
  207. The legal scholarship on this point is too voluminous to cite, but for some of the earliest work, see, e.g., id. at 932; R. A. Musgrave, In Defense of an Income Concept, 81 Harv. L. Rev. 44 (1967); Joseph A. Pechman, Comprehensive Income Taxation: A Comment, 81 Harv. L. Rev 63 (1967); Charles O. Galvin, More on Boris Bittker and the Comprehensive Tax Base: The Practicalities of Tax Reform and the ABA’s CSTR, 81 Harv. L. Rev. 1016 (1968). For a discussion of the debate over the use of a “comprehensive tax base,” see Brooks, supra note 203, at 270–74.
  208. See, e.g., Dep’t of Treasury, Office of Tax Analysis, Tax Expenditures (2017), https://www.treasury.gov/resource-center/tax-policy/Documents/Tax-Expenditures-FY2019.pdf [https://perma.cc/8UVR-9ZKJ] [hereinafter “Tax Expenditures].
  209. Id. at 9, 18.
  210. Although the tax-free receipt of a gift by the donee is not labeled as an expenditure, the carryover basis provided by section 1015 for appreciated gifts is considered a tax expenditure. See J. Comm. on Tax’n, Estimates of Federal Tax Expenditures for Fiscal Years 2018–2022, 26 (Oct. 4, 2018), https://www.jct.gov/publications/2018/jcx-81-18/ [https://perma.cc/33XY-P3EB] [hereinafter “JCT Tax Expenditures”].
  211. See Tax Expenditures, supra note 207, at 3 (“The normal tax baseline also excludes gifts between individuals from gross income.”).
  212. See, e.g., Richard Schmalbeck, Gifts and the Income Tax—An Enduring Puzzle, 73 Law & Contemp. Probs. 63, 65 (2010) (arguing that “although it is intuitively appealing to regard value received by gift as an element of the income of the individual receiving it, it is completely unappealing to regard value received by gift as an increment to income in the aggregate”).
  213. Id. This of course assumes that the donor and the donee have the same tax rate. In reality, donors likely have higher tax rates than donees, in which case the net effect would be revenue loss to the government. For example, if the donor had a 30% marginal tax rate and the donee had a 10% marginal tax rate, the donor’s deduction for a $100 gift would be worth $30 (30% of $100), while the donee’s tax liability would be $10 (10% of $100), resulting in a $20 revenue loss.
  214. For income tax purposes, the gift is a non-event and need not be reported. However, the gift may need to be valued and returns filed if the gift tax applies. Currently, transfers under $15,000 are exempt from the gift tax. See, e.g., Frequently Asked Questions on Gift Taxes, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes [https://perma.cc/23XD-GDZC] (last visited July 11, 2019).
  215. E.g., Schmalbeck, supra note 211, at 65.
  216. The counterargument is that the gift represents consumption purchased by the donor. For a discussion of this theory, see id. at 68–69.
  217. See supra Subsection II.A.2.
  218. For a similar argument, see Charlotte Crane, Government Transfer Payments and Assistance: A Challenge for the Design of Broad-Based Taxes, 59 SMU L. Rev. 589, 611–12 (2006) (pointing out that government transfers do not create new value).
  219. See, e.g., supra notes 134–135 and accompanying text.
  220. See supra note 154 and accompanying text.
  221. Either way, the payment is deductible under Code section 162.
  222. JCT Tax Expenditures, supra note 209, at 27. The characterization of an exclusion as an expenditure depends on how Congress defines the tax base, and this has changed over time. See, e.g., Julie Roin, Truth in Government: Beyond the Tax Expenditure Budget, 54 Hastings L.J. 603, 608–10 (2003) (providing an overview of the development of the federal tax expenditure budget).

    The characterization of scholarships depends particularly on varying definitions of the tax base, and Treasury has noted that:

    From an economic point of view, scholarships and fellowships are either gifts not conditioned on the performance of services, or they are rebates of educational costs. Thus, under the baseline tax system of the reference law method, this exclusion is not a tax expenditure . . . . The exclusion, however, is considered a tax expenditure under the normal tax method, which includes gift-like transfers of Government funds in gross income (many scholarships are derived directly or indirectly from Government funding).

    See Tax Expenditures, supra note 207 at 13.

  223. See, e.g., Joseph M. Dodge, Scholarships Under the Income Tax, 46 Tax Law. 697, 698–99 (1993) (examining arguments for excluding scholarships from the tax base and for making them a tax preference); Charlotte Crane, Scholarships and the Federal Income Tax Base, 28 Harv. J. on Legis. 63, 113 (1991) (same).
  224. The exclusion in section 117 only covers scholarships paid for tuition and related expenses. Although some scholarship funds are conditioned on the performance of services like teaching or research, those funds are explicitly excluded from section 117 and are taxable. I.R.C. § 117(c)(1).
  225. The value of the educational benefit likely exceeds the cost of tuition because higher educational institutions receive substantial funding from other sources besides tuition, including government subsidies. See, e.g., Crane, supra note 222, at 71.
  226. See generally sources cited at note 222 (observing the difficulty of assessing educational value as justification for exempting academic scholarships from taxable income under the federal tax code).
  227. See supra note 221; see also Dodge, supra note 222, at 701–02.
  228. See Dodge, supra note 222, at 711.
  229. See Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755, 1758–59 (1977).
  230. JCT Tax Expenditures, supra note 207, at 27–28.
  231. Because retrofit grants and similar payments must be applied towards the specified property improvements, they are better viewed as the provision of property, rather than as a receipt of cash by the taxpayer. There is precedent for this approach, although it is not the approach the IRS has taken specifically with retrofit grants. For example, in Bailey v. Commissioner, the taxpayer wasn’t taxed on an urban renewal grant for his property because the grant went directly to the general contractor, and the court found the taxpayer never had sufficient control over the funds to warrant taxation. See 88 T.C. 1293, 1301 (1987), acq., 1989-2 C.B. 1.

    Arguably, any time an individual receives an incentive-based nudge or BBS in the form of cash that must be spent on specified property or services, the taxability of such funds should be based on the ultimate purchase, rather than on the temporary receipt of cash.

  232. For example, if a taxpayer owns an asset that appreciates in value (e.g., a stock or a house), she has a positive change in net wealth. However, the Code will not tax her until she “realize[s]” a gain, such as by making a sale. See I.R.C. § 1001.
  233. For a discussion of the legislative history behind the section 132 fringe benefit rules, see infra notes 261–67 and accompanying text.
  234. See Scott Greenberg, Reexamining the Tax Exemption of Municipal Bond Interest, Tax Found. Fiscal Fact No. 520 (July 2016), https://files.taxfoundation.org/legacy/‌docs/TaxFoundation_FF520.pdf [https://perma.cc/ZY7A-QS3M]. (observing that state and local bonds are justified as a basis for incentivizing investments in projects that benefit nonresidents, but concluding that “[a] tax exclusion is an unideal policy design for subsidizing state and local debt”).
  235. In that case, 20% or $250 would be tax, and $1,000 would remain.
  236. If the federal government increases a federal subsidy from $1,000 to $1,250 to account for federal income tax, it will pay $250 more for the subsidy and collect $250 in tax.
  237. See, e.g., Christopher C. Fennell & Lee Ann Fennell, Fear and Greed in Tax Policy: A Qualitative Research Agenda, 13 Wash. U. J.L. & Pol’y 75, 79 (2003) (“A functional definition of . . . tax aversion . . . is the amount by which one’s aversion to a tax exceeds the economic cost of the tax.”); Edward J. McCaffery & Jonathan Baron, Thinking About Tax, 12 Psych., Pub. Pol’y & Law 106, 117 (2006); Abigail B. Sussman & Christopher Y. Olivola, Axe the Tax: Taxes Are Disliked More than Equivalent Costs, 68 J. Mktg. Rsch. S91, S91 (2011).
  238. See, e.g., Sussman & Olivola, supra note 236, at S93 (describing experiments that found people change their behavior to avoid taxes, but not reacting in a similar manner to comparable non-tax costs).
  239. McCaffery & Baron, supra note 236, at 117–18 (recounting an experiment the authors conducted where individuals were confronted with a policy labeled as a tax or comparable economic policy not labeled as a tax, which “found that labels mattered”); David J. Hardisty, Eric J. Johnson & Elke U. Weber, A Dirty Word or a Dirty World? Attribute Framing, Political Affiliation, and Query Theory, 21 Psych. Sci. 86, 91 (2010) (finding in an experiment that “framing the cost increase as a tax differentially affected the structure and content of thoughts generated by Democrats and Republicans, leading to different preferences”).
  240. Sussman & Oliviola, supra note 236, at S94–96, S100.
  241. Id. at S95.
  242. Id.
  243. Id.
  244. Id.
  245. Id. at S95–96.
  246. Id. at S94.
  247. One source of variation appears to be political affiliation. Studies show that Republicans and Independents are sensitive to “tax” labels in decision making, but Democrats generally are not. See id. at S96–97; Hardisty et al., supra note 238, at 91 (finding “that the power of a framing manipulation can depend on participants’ preexisting individual differences”).
  248. Of course, tax aversion will not deter participants who are unaware of the tax, which may be the case when there is no information reporting required. For incentives subject to information reporting (discussed more below), participants will likely have to provide tax information at the outset (e.g., a Form W-9), and are more likely to be aware of tax consequences. Other programs may disclose tax consequences on their website or in related materials, as is the case with California’s Earthquake Mitigation program. See infra note 272.
  249. See generally Kay Blaufus & Axel Möhlmann, Security Returns and Tax Aversion Bias: Behavioral Responses to Tax Labels, 15 J. Behav. Fin. 56, 63–65 (2014) (finding that people have tax aversion bias toward infrequent, unfamiliar financial decisions).
  250. See I.R.C. § 6041(a).
  251. I.R.S. Priv. Ltr. Rul. 201816004 (Apr. 20, 2018); I.R.S. Priv. Ltr. Rul. 201815005 (Apr. 13, 2018).
  252. Marianne Bertrand, Sendhil Mullainathan, & Eldar Shafir, Behavioral Economics and Marketing in Aid of Decision Making Among the Poor, 25 J. Pub. Pol’y & Mktg. 8, 16 (2006).
  253. Id.
  254. Saurabh Bhargava & Dayanand Manoli, Psychological Frictions and the Incomplete Take-Up of Social Benefits: Evidence from an IRS Field Experiment, 105 Am. Econ. Rev. 3489, 3490 (2015).
  255. Id. at 3524.
  256. Id. at 3492.
  257. See Kathleen DeLaney Thomas, User-Friendly Taxpaying, 92 Ind. L.J. 1509, 1512 (2017).
  258. Tax withholding is required on payments of employee compensation, but not for other payments. See I.R.C. § 3402(a).
  259. See, e.g., Thomas, supra note 94, at 84.
  260. See supra note 249 and accompanying text.
  261. Penalties are up to $270 per information return (up to $550 in the case of intentional disregard) and may be assessed separately for both failure to issue to the payee and failure to file with the IRS. For a summary of these penalties, see Increase in Information Return Penalties, IRS, https://www.irs.gov/government-entities/federal-state-local-governments/‌increase-in-information-return-penalties [https://perma.cc/F2NZ-K4CL] (last visited July 17, 2019).
  262. Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494, 499 (codified as amended in scattered sections of 26 U.S.C.).
  263. See Staff of J. Comm. on Tax’n, 98th Cong., General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984, at 840 (Comm. Print 1984).
  264. Id.
  265. Id. at 841.
  266. Id.
  267. Id.
  268. Id. at 843.
  269. Equally important, but beyond this Article’s scope, are potential federalism and comity concerns that may arise when the federal government seeks to tax state programs, to the extent the tax hinders the state’s ability to implement the program.
  270. See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017).
  271. Id.
  272. Press Release, Senator Dianne Feinstein, Feinstein and Harris Introduce Legislation to Protect Earthquake Loss Mitigation Incentive Ahead of Senate GOP Tax Bill Release (Nov. 9, 2017), https://www.feinstein.senate.gov/public/index.cfm/press-releases?ContentRecord_‌id=78BD9E69-4090-4E62-AE1A-08A01870F3AB [https://perma.cc/L7UZ-BY8G].
  273. The Brace + Bolt program mentions potential consequences in an FAQ on its website, stating, “The homeowner of a retrofit House under the Program will receive an IRS Form 1099, if applicable, reporting the amount of incentive payments as taxable income to the homeowner for federal income tax purposes.” See Earthquake Brace+Bolt FAQs, https://www.earthquakebracebolt.com/FAQ [https://perma.cc/GXF5-HMEU] (last visited July 24, 2019).
  274. Although state tax credits are generally not taxable, to the extent they reduce a taxpayer’s state tax liability, the refundable portion (if any) of a state tax credit is taxable. See, e.g., Ginsburg v. United States, 922 F.3d 1320, 1322 (Fed. Cir. 2019) (holding that the refundable portion of a New York State tax credit was includible in income for federal income tax purposes).
  275. See supra notes 134–35 and accompanying text.
  276. I.R.C. § 85. However, prior to the enactment of section 85, the IRS treated unemployment payments as excludable. See Rev. Rul. 70-280, 1970-1 C.B. 13.
  277. Failing to tax unemployment compensation also favors such compensation over wages, which may distort decisions to work.
  278. See I.R.C. § 86. Previously, the IRS treated all Social Security benefits as exempt from tax. See Rev. Rul. 70-217, 1970-1 C.B. 13.
  279. See, e.g., Forman, supra note 204, at 795. But see Brian Galle, How to Save Unemployment Insurance, 50 Ariz. St. L.J. 1009, 1062–64 (2018) (arguing for repeal of taxes on unemployment benefits).
  280. Professor Charlotte Crane has observed that this appears to have been the IRS’s historical approach prior to the evolution of the general welfare doctrine. Crane, supra note 217, at 594.
  281. Examples include current exclusions for educational grants, veterans’ benefits, and worker’s compensation payments. See, e.g., I.R.C. § 104(a)(1) (worker’s comp), I.R.C. § 117 (scholarships), 38 U.S.C. § 5301 (veterans’ benefits). Similarly, Medicare benefits, which are not specifically excluded by statute but are treated as such by the IRS, would continue to be excluded. See Rev. Rul. 70-341, 1970-2 C.B. 31–32.
  282. See supra note 167.
  283. See supra notes 261–67 and accompanying text.
  284. See supra note 172.
  285. See Soled & Thomas, supra note 120, at 763–64, 776.
  286. Id. at 814–15.
  287. While section 132 contains a list of specific exclusions in the statute, section 132(o) does delegate authority to Treasury to implement the statute and numerous regulations exist, such as those clarifying what types of benefits qualify as de minimis fringes. See Treas. Reg. § 1.132-6 (as amended in 1992).
  288. Cf. Crane, supra note 217, at 612–13 (discussing the exclusion of transfer payments that do not create new value, regardless of source).
  289. Withholding could be set at a default rate (e.g., 5%), or taxpayers could fill out a form that would determine their withholding rate. These possibilities are discussed in Thomas, supra note 94, at 131–34.
  290. See id. at 111.
  291. Id. at 128.

Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law

Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat litigation. But after Terry, the state courts became silent. Since 1968, every state court has lockstepped with Terry in interpreting its own constitutional provisions.

This presents a puzzle, since state courts are free to provide more expansive (or less expansive) rights protections in interpreting their own state constitutions. And in other contexts, they have not been shy in doing so. In roughly a quarter of the Supreme Court’s Fourth Amendment cases, state courts have read their state guarantees to exceed the U.S. Constitution’s protections.

Terry’s suspect pedigree further complicates the puzzle. Over the past few decades, stop-and-frisk has helped spark a breakdown in police-community relations. Multiple federal investigations have uncovered its connection to systemic racism. By many accounts, both the stop and the frisk have disproportionately targeted minorities. Terry has also led to nationwide unrest. A Terry stop precipitated the deaths of Eric Garner, Michael Brown, and Freddie Gray.

This Note proposes a change in perspective: that litigants challenge stop-and-frisk under state law. It also lays the groundwork for such challenges. It examines the history of stop-and-frisk at the state level before Terry. It analyzes the Terry litigation, relying especially on the NAACP’s briefing, which accurately predicted stop-and-frisk’s perverse potential. And it synthesizes this analysis into three arguments that should be raised against stop-and-frisk under state law.

Introduction

In November 2019, former New York City Mayor Michael Bloomberg launched his campaign for the presidency in unprecedented fashion—with an apology.1.Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).Show More Speaking at a predominantly Black evangelical church in Brooklyn, Bloomberg renounced the stop-and-frisk policing strategy that had served as a “pillar of his 12-year mayoralty.”2.Id.Show More “The fact is, far too many innocent people were being stopped while we tried to do that,” Bloomberg said, later adding, “I got something important really wrong.”3.Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].Show More

Despite his contrition, Bloomberg was unable to shake the stigma of the city’s stop-and-frisk policy. “It’s not whether he apologized or not,” argued Joe Biden.4.Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].Show More “It’s the policy. The policy was abhorrent. And it was in fact a violation of every right people have.”5.Id.Show More Elizabeth Warren echoed these sentiments: “It targeted Black and brown men from the beginning . . . You need a different apology here, Mr. Mayor.”6.Id.Show More The denunciations only escalated after a 2015 video emerged in which Bloomberg expounded a racist methodology for targeting minority communities. “[W]e put all the cops in the minority neighborhoods,” he said.7.Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate, NPR (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].Show More “Why’d we do it? Because that’s where all the crime is. And the way you should get the guns out of the kids’ hands is throw them against the wall and frisk them.”8.Id.Show More The soundbite went viral and Bloomberg’s candidacy floundered thereafter.

The repercussions of stop-and-frisk extend beyond Bloomberg’s mayoralty in New York City. In 2015, the Department of Justice released its Ferguson Report, investigating the practices that contributed to riots in the St. Louis suburb. Among the DOJ’s cause-and-effect findings was this: an unchecked “pattern of suspicionless, legally unsupportable stops.”9.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].Show More The Ferguson Police Department “must fundamentally change the way it conducts stops and searches,” the DOJ concluded.10 10.Id. at 91.Show More Other jurisdictions have faced similar controversies. After 250,000 stops in 2009, the Philadelphia Police Department pledged to appoint an independent monitor and retrain officers as part of a settlement agreement with the ACLU.11 11.Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).Show More The ACLU has been similarly assertive in critiquing the “troubling frequency” of stops in Newark, and it has identified “similar controversies” in Miami, Baltimore, Chicago, and Detroit.12 12.Id. at 5–6.Show More

Americans have heard a lot of stop-and-frisk-related apologies from their elected officials over the past decade.13 13.This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.Show More But state court judges—many of whom are elected officials in their own right14 14.See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].Show More—have been conspicuously silent during this time in interpreting their state constitutions. How have they avoided this explosive controversy? In short, they have shielded themselves for decades behind federal precedent. In 1968, the United States Supreme Court constitutionalized stop-and-frisk under the Fourth Amendment in Terry v. Ohio.15 15.392 U.S. 1 (1968).Show More And ever since, state courts have interpreted search-and-seizure protections in their own constitutions in lockstep with Terry.

This Note demands a change. State courts are free to do what they wish, but they should not hide under the umbrella of federal precedent in construing the search-and-seizure guarantees found in their own constitutions. The Supreme Court and state courts alike recognize that “[i]t is an established principle of our federalist system that state constitutions may be a source of ‘individual liberties more expansive than those conferred by the Federal Constitution.’”16 16.State v.Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting PruneyardShopping Center v. Robins, 447 U.S. 74, 81 (1980)).Show More Indeed, over the past few decades, state courts have adopted muscular interpretations of their state provisions to reject controversial criminal procedure decisions like California v. Hodari D.,17 17.499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, seeLaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).Show More Illinois v. Gates,18 18.462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).Show More and United States v. Leon.19 19.468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).Show More As Mayor Bloomberg (and the millions of citizens subjected to stop-and-frisk) can attest to, Terry may be the most controversial of all. And it is time that it receives reassessment in America’s state court systems.

Part I of this Note examines the societal forces that shaped Terry and the state-level decision making that contributed to its enshrinement as Supreme Court precedent. Part II analyzes the Terry litigation, focusing on the problems Terry was designed to solve and the courts’ different methodologies. Part III argues that state courts play a crucial role as guardians of individual rights and, thus, should not lockstep with Supreme Court precedent. Relying upon this analysis, Part IV raises three arguments that could be marshalled against stop-and-frisk under state law. Finally, Part V offers this Note’s conclusion. Michael Bloomberg is on the record. The citizens of New York City, Philadelphia, and other American cities are too. It is time for state courts and state constitutions to have their turn. It is time to reassess stop-and-frisk under state law.

  1. * J.D., University of Virginia School of Law, 2021. I am grateful to Professor Anne Coughlin for her patience and guidance throughout this project. I am also indebted to Louis Capozzi, Justin Aimonetti, Olivia Roat, and the members of the Virginia Law Review for their thoughtful feedback. Thank you to my dear friends Josh Hanley, Drew Mackenzie, Janessa Mackenzie, Blake Page, Anna Cecile Pepper, and Avery Rasmussen for always believing in me. I will miss you next year. Finally, I am deeply blessed to have such a supportive family. John, Margaret, Marlise, Nala, Mom, and Dad, I love you.

    This Note was inspired by and is dedicated to my father, Jeffrey Sutton.

  2. Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).
  3. Id.
  4. Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].
  5. Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].
  6. Id.
  7. Id.
  8. Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate,
    NPR

    (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].

  9. Id.
  10. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].
  11. Id. at 91.
  12. Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).
  13. Id. at 5–6.
  14. This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.
  15. See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].
  16. 392 U.S. 1 (1968).
  17. State v. Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)).
  18. 499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, see LaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).
  19. 462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).
  20. 468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).
  21. The Nat’l Advisory Comm’n on Civ. Disorders (The Kerner Comm’n), The Kerner Report 32 (Princeton University Press 2016) (1968).
  22. Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, at
    194, 267–68

    (2016).

  23. The Kerner Comm’n, supra note 20, at 37.
  24. See, e.g., Marcus Casey & Bradley Hardy, 50 Years After the Kerner Commission Report, the Nation is Still Grappling with Many of the Same Issues, Brookings (Sept. 25, 2018), https://www.brookings.edu/blog/up-front/2018/09/25/50-years-after-the-kerner-commission-report-the-nation-is-still-grappling-with-many-of-the-same-issues/ [https://perma.cc/R3UW-C9S5].
  25. Debra Livingston, Gang Loitering, the Court, and Some Realism About Police Patrol, 1999 Sup. Ct. Rev. 141, 178.
  26. Gisske v. Sanders, 98 P. 43, 44–45 (Cal. Ct. App. 1908).
  27. Id. at 45.
  28. Id. at 44.
  29. State v. Hatfield, 164 S.E. 518, 519 (W. Va. 1932).
  30. 54 P.2d 211, 214 (Okla. Crim. App. 1935).
  31. Hatfield, 164 S.E. at 519; Hargus, 54 P.2d at 213.
  32. White & Fradella, supra note 11, at 36.
  33. A few other cases addressed the stop-and-frisk practice during these decades. In State v. Gulczynski, 120 A. 88, 89 (Ct. Gen. Sess. 1922), a Delaware court held that an officer could stop and question a suspect without probable cause, as cited in John A. Ronayne, The Right to Investigate and New York’s “Stop and Frisk” Law, 33 Fordham L. Rev. 211, 215–16 (1964). See also People v. Henneman, 10 N.E.2d 649, 650–51 (Ill. 1937) (holding that police officers had a right to stop and question the plaintiff even though he was not committing any crime at the time of arrest, nor did the officers have reason to believe he had committed a crime); State v. Zupan, 283 P. 671, 675 (Wash. 1929) (holding that police officers were justified in stopping the plaintiff without probable cause to inquire about his business).
  34. Henry F. Fradella & Michael D. White, Reforming Stop-and-Frisk, 18 Criminology, Crim. Just., L. & Soc’y 45, 46–47 (2017) (citing Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev.

    315, 317 (1942)).

  35. Id. at 47.
  36. Goluboff, supra note 21, at 198 (citing Uniform Arrest Act § 2, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942)).
  37. Uniform Arrest Act § 3, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942).
  38. Warner, supra note 33, at 316–17.
  39. Id. at 317.
  40. Ronayne, supra note 32, at 215 (noting statutes enacted in California, Illinois, Missouri, and Wisconsin).
  41. Frank J. Remington, The Law Relating to “On the Street” Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, 51 J. Crim. L. Criminology & Police Sci. 386, 387 n.4 (1960).
  42. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199.
  43. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199; see also Goluboff, supra note 21, at 198 (noting that a number of scholars argued that “[d]etention was shorter and thereby less liberty depriving or stigmatizing than arrest for vagrancy”).
  44. Remington, supra note 40, at 391.
  45. Warner, supra note 33, at 324.
  46. U.S. Dep’t of Just., Fed. Bureau of Investigation, 18.2 Uniform Crime Reports 75, 122 (1947).
  47. Id. at 124.
  48. U.S. Dep’t of Just., Fed. Bureau of Investigation, 27.2 Uniform Crime Reports 67, 113 (1956). These statistics probably failed to capture the full gravity of “reasonable suspicion” seizures nationwide. As Caleb Foote asked: “What proportion of the total number of arrests is made up of persons abruptly arrested, investigated for minutes or hours or days, and as abruptly released without booking?” Caleb Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J. Crim. L. Criminology & Police Sci. 402, 406 (1960).
  49. William O. Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 12 (1960).
  50. Id. at 13.
  51. White & Fradella, supra note 11, at 40.
  52. Id.
  53. Brief for the NAACP Legal Defense and Education Fund, Inc. as Amicus Curiae at 34, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67) [hereinafter Brief for the NAACP].
  54. So did the pages of law journals. The NAACP’s brief provides nearly two full pages of critiques of stop-and-frisk doctrine. Among those mentioned are Foote, supra note 47, at 406 (arguing for a “reassess[ment]” of “the role the police should play in our society” focused on “stricter compliance with the [F]ourth [A]mendment”); Theodore Souris, Stop and Frisk or Arrest and Search—The Use and Misuse of Euphemisms, 57 J. Crim. L. Criminology & Police Sci. 251, 262 (1966) (arguing that the country should look to other means of preventing crime “which do not require that we tamper with the most fundamental of our constitutional rights as citizens, our right to be free”); Comment, Police Power to Stop, Frisk, and Question Suspicious Persons, 65 Colum. L. Rev. 848, 866 (1965) (contending that “the Court must proceed to develop rules on the power to stop, frisk and question suspicious persons which, based on analysis, will properly protect the individual’s right to be free from unreasonable imposition by the police”). Brief for the NAACP, supra note 52, at 10–11.
  55. 293 P.2d 52, 53 (1956).
  56. Id. Few state court decisions comprehensively addressed the frisk power before People v. Rivera, 201 N.E.2d 32 (N.Y. 1964). In State v. Collins, 191 A.2d 253, 255 (1963) the Supreme Court of Connecticut was unable to squarely address the frisk power because “[n]othing found as a result of the frisking was offered in evidence.” But in dicta, the court adopted a reasonableness approach under the Fourth Amendment of the federal Constitution and Article I, Section 8 of the Connecticut Constitution. Id. And in People v. Jones, 176 Cal. App. 2d 265, 267 (1959), a California appeals court held that “[w]here reasonable under the circumstances, an officer may run his hands over a person’s clothing to protect himself from attack with a hidden weapon.”
  57. Martin, 293 P.2d at 54 (Carter, J., dissenting).
  58. Id.
  59. Id.
  60. Id.
  61. Harvey E. Henderson Jr., Note, Stop and Frisk in California, 18 Hastings L.J. 623, 625 (1967) (citing People v. Davis, 222 Cal. App. 2d 75, 78 (1963), People v. Hilliard, 221 Cal. App. 2d 719, 723 (1963), People v. Beverly, 200 Cal. App. 2d 119, 125 (1962), and People v. Porter, 196 Cal. App. 2d 684, 686 (1961)).
  62. 163 A.2d 244, 247 (Del. 1960).
  63. Id. at 249.
  64. 171 N.E.2d 5 (Ill. 1960).
  65. Id. at 7; see also Wayne R. LaFave & Frank J. Remington, Controlling the Police: The Judge’s Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987, 1005–06 (1965) (noting that the decisions of a judge may vary based upon the nature of the crime. For example, what is reasonable in a narcotics case is different than what is reasonable in a gambling case).
  66. 364 U.S. 253 (1960).
  67. Id.; see also Remington, supra note 40, at 390–91.
  68. Goluboff, supra note 21, at 202.
  69. Evelle J. Younger, Stop and Frisk: “Say It Like It Is,” 58 J. Crim. L. Criminology & Police Sci. 293, 295 (1967).
  70. Goluboff, supra note 21, at 202 (quoting A. Fairfield Dana, ed., New York State Legislative Annual 67 (1964)).
  71. Ronayne, supra note 32, at 211–12.
  72. Goluboff, supra note 21, at 203. The law became effective on July 1, 1964. See Emanuel Perlmutter, New ‘Frisk’ Law Goes into Effect: Police Are Dubious About Curbs That Go with It, N.Y. Times, July 2, 1964, at 52, https://www.nytimes.com/1964/07/02/archives/new-frisk-law-goes-into-effect-police-are-dubious-about-curbs-that.html [https://perma.cc/ZSW8-HK5H]. Only two weeks later, the Harlem and Bedford-Stuyvesant Race Riots “got their impetus from the killing of a black youngster by a police officer.” Daniel J. Monti, Patterns of Conflict Preceding the 1964 Riots: Harlem and Bedford-Stuyvesant, 23 J. of Conflict Resol
    .

    41, 43–44 n.1 (1979).

  73. Perlmutter, supra note 71.
  74. Josh Segal, Note, “All of the Mysticism of Police Expertise”: Legalizing Stop-and-Frisk in New York, 1961–1968, 47 Harv. C.R.-C.L. L. Rev.
    573, 585

    (2012) (citing Nelson A. Rockefeller, Annual Message to the Legislature (Jan. 8, 1964) in Public Papers of Nelson A. Rockefeller: Fifty-Third Governor of the State of New York 17–18 (1964)).

  75. 367 U.S. 643 (1961) (holding that the Fourth Amendment prohibits prosecutors from using evidence obtained through an unconstitutional search or seizure in a state court).
  76. See, e.g., Richard H. Kuh, Reflections on New York’s “Stop-and-Frisk” Law and Its Claimed Unconstitutionality, 56 J. Crim. L. Criminology & Police Sci. 32, 36 (1965); Arlen Specter, Mapp v. Ohio: Pandora’s Problems for the Prosecutor, 111 U. Pa. L. Rev. 4, 42 (1962).
  77. Goluboff, supra note 21, at 203.
  78. Douglas Dales, Rockefeller Signs Bills Increasing Powers of Police; Bar and Civil Rights Groups Call ‘Stop-and-Frisk’ and ‘No-Knock’ Laws Illegal; Harassment is Feared; But Governor Says Judicial Safeguards Are Provided—Calls Bills Imperative, N.Y. Times, Mar. 4, 1964, https://www.nytimes.com/1964/03/04/archives/rockefeller-signs-bills-increasing-powers-of-police-bar-and-civil.html [https://perma.cc/F7YH-WPP2] [hereinafter Rockefeller Signs Bills].
  79. Id.
  80. And where did New York’s state courts look when they faced this constitutional question? They looked to other state courts. Among the decisions cited by the majority and dissent in People v. Rivera include those mentioned earlier: State v. Collins, 191 A.2d 253 (Conn. 1963); People v. Martin, 293 P.2d 52 (Cal. 1956); Hargus v. State, 54 P.2d 211 (Okla. Crim. App. 1935); State v. Hatfield, 164 S.E. 518 (W. Va. 1932); Gisske v. Sanders, 98 P. 43 (Cal. Ct. App. 1908). People v. Rivera, 201 N.E.2d 32, 35–37 (N.Y. 1964).
  81. People v. Rivera, 38 Misc. 2d. 586, 589 (N.Y. Misc. 1963).
  82. Id.
  83. Id.
  84. Rivera, 201 N.E.2d at 34.
  85. Id. at 35–36.
  86. Id. at 35.
  87. Id. at 36. Justice Traynor had used similar language in a 1962 article: “Such a minor interference with personal liberty would touch the right to privacy only to serve it well.” Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States,
    1962

    Duke L.J. 319, 334. After fifty years of stop-and-frisk, one has to imagine the New York state courts would like another look at this constitutional assessment. As Judge Scheindlin lamented in Floyd v. City of New York, “[w]hile it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience.” 959 F. Supp. 2d 540, 557 (S.D.N.Y. 2013).

  88. Rivera, 201 N.E.2d at 37 (Fuld, J., dissenting).
  89. Id. at 38 (citing Douglas, supra note 48, at 12, 13).
  90. Id. at 39.
  91. Id. The ACLU cited Justice Fuld’s “stirring language” as a conclusion to its amicus brief in Terry: “The loss of liberty entailed in authorizing a species of search on the basis of mere suspicion is too high a price to pay for the small measure of added security it promises.” Brief of ACLU, et al. as Amici Curiae, at 33, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67).
  92. Rivera, 201 N.E.2d.
  93. Right to Frisk Gets Supreme Court OK, Cleveland Press, June 10, 1968, at A1, A12, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?‌article=1003&‌con‌text‌‌=‌terryvohio_newspaper [https://perma.cc/LG2Y-VAX7].
  94. Id. at A12.
  95. State v. Chilton, 95 Ohio L. Abs. 321, 325 (1964).
  96. Bus Bergen, Illegal Search is Charged at Concealed Weapons Trial, Cleveland Press, Sept. 22, 1964, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent–.cgi?article=1005&context=terryvohio_newspaper [https://perma.cc/Z5SW-XYT3].
  97. Id.; Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 431 (2004). Accounts dispute the number of times the suspects “repeated this ritual.” Terry v. Ohio, 392 U.S. 1, 6 (1968). The United States Supreme Court believed that “roughly a dozen trips” were taken. Id. But the Court of Appeals of Ohio claimed the suspects walked past the store “two to five times by both men.” State v. Terry, 214 N.E.2d 114, 116 (Ohio Ct. App. 1966). It turns out Officer McFadden’s memory was particularly fuzzy on this point. In his police report from the day of the incident, he claimed they looked into the store “about three times each.” Katz, supra, at 431. Later, at a suppression hearing, he upped the ante to “four or five times apiece” and eventually to “four to six trips each.” Id. Finally, at trial, he confessed “maybe four to five trips, maybe a little more, it might be a little less. I don’t know, I didn’t count the trips.” Id. For some, this pointed to a potential problem with the reasonable suspicion standard. Ambiguous evidence like the number of times a suspect walked by a store or their “mumbled response” to a question could foster suspicion when all an officer had to go on was “they didn’t look right to me.” Id. at 430, 434. Tellingly, these nuances were largely lost on the trial court judge, who noted, “There is no question about the facts in this case.” Chilton, 95 Ohio L. Abs. at 322.
  98. Terry, 392 U.S. at 6.
  99. Id. at 6–7.
  100. Id.
  101. Id.
  102. Id. at 7.
  103. Id. This is a familiar story, so for the sake of brevity I have omitted many of the details. For a more comprehensive account, see, for example, id. at 5–8; Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine, 72 St. John’s L. Rev. 911, 912–14 (1998); Katz, supra note 96, at 430–34.
  104. See Saltzburg, supra note 102, at 914–15.
  105. State v. Chilton, 95 Ohio L. Abs. 321, 322 (1964).
  106. Id. at 323. Indeed, Judge Friedman cited both People v. Rivera and People v. Martin in his opinion, demonstrating that the laboratories of democracy were aware of each other’s precedent. Id. at 324.
  107. Id. at 322.
  108. Id. at 323.
  109. The name of the defendant changed because Richard Chilton was killed in a drug store holdup in Columbus in June 1867. James T. Cox, Bullets Write Finish to Chilton Case, Cleveland Plain Dealer, June 18, 1967, available at https://engagedscholarship.‌csuohio.edu/cgi/viewcontent.cgi?article=1015&context=terryvohio_newspaper [https://perma.cc/C343-P2YJ].
  110. Brian Albrecht, Hough Riot, 50 Years Ago, Couldn’t Destroy a Neighborhood, Cleveland.com (July 24, 2016), https://www.cleveland.com/metro/2016/07/hough_riot_–50_years_ago_couldn.html [https://perma.cc/Z9ZN-ZCZ9].
  111. Marc E. Lackritz, The Hough Riots of 1966, 1, 8 (Apr. 10, 1968) (B.A. thesis, Princeton Univ.).
  112. Id. at 9. Another policeman described the riots as “like the part in an old western where you’re caught in crossfire in a box canyon.” Id. at 8.
  113. State v. Terry, 214 N.E.2d 114, 117 (Ohio Ct. App. 1966). The citations included Gisske, Faginkrantz, Rivera, and Martin. Id.
  114. Id. at 118 (looking to various other state tribunals because “[t]he courts of Ohio do not appear to have been squarely presented with this problem before”).
  115. Id. The NAACP took particular exception to this phrase in its amicus brief. Over the course of five pages, the Association explained how even the most discrete of police encounters—a “hey, there”—might be interpreted as a threat by “the man in the ghetto.” Brief for the NAACP, supra note 52, at 35. Compounding the injustice was the fact that these stops would occur “day in day out, and for the same reasons.” Id.
  116. Terry, 214 N.E.2d at 120.
  117. Id. at 120. See also Saltzburg, supra note 102, at 916 (“The court was careful to distinguish a frisk for dangerous weapons from a ‘search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest.”).
  118. Goluboff, supra note 21, at 200.
  119. Id.; see, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (applying the exclusionary rule against the states); Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963) (mandating the appointment of counsel under the Sixth Amendment in all state court prosecutions); Escobedo v. Illinois, 378 U.S. 478, 479, 484 (1964) (holding that Illinois denied a suspect in custody the assistance of counsel in violation of the Sixth Amendment); Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that a defendant “must be warned prior to any questioning that he has the right to remain silent . . . .”).
  120. Earl Warren, The Memoirs of Chief Justice Earl Warren 316 (Madison Books 2001) (1977); see also Michal R.

    Belknap, The Supreme Court under Earl Warren, 1953–1969, at 218 (2005) (detailing the Warren court’s creation of new constitutional rules of criminal procedure applicable to the states); Paul Moke, Earl Warren and the Struggle for Justice 209–11 (2015).

  121. Jack H. Pollack, Earl Warren: The Judge Who Changed America 267–68 (1979); see also Leo Katcher, Earl Warren: A Political Biography 440 (1967) (noting Chief Justice Warren’s concern about abusive police practices).
  122. Goluboff, supra note 21, at 201 (citing 2 Albert J. Reiss, Studies of Crime and Law Enforcement in Major Metropolitan Areas 112 (1967)).
  123. Goluboff, supra note 21, at 205. McFadden had thirty-nine years of experience at the time of the arrest.
  124. Brief for the ACLU, supra note 90, at 31 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)).
  125. Id. at 31–32.
  126. Brief for the NAACP, supra note 52, at 24.
  127. Id. at 21. Demonstrating its complete distrust of the local officer, the NAACP drew a clear line: “Concerning both the occasions and extent of police intrusion upon the individual, ‘nothing is left to the discretion of the officer.’” Id. (citing Berger v. New York, 388 U.S. 41, 58 (1967)). Part IV addresses the NAACP’s analytical approach to the Fourth Amendment and probable cause in more detail.
  128. Brief for the NAACP, supra note 52, at 22–24. In fact, the NAACP already had evidence of the malleability of the stop-and-frisk framework. Simultaneously, litigation was ongoing regarding whether the police could seize contraband from a suspect “wholly within” an officer’s control, whether a policeman could reach into a suspect’s pocket to grab evidence without first frisking the defendant, and whether a frisk could “encompass the search of an automobile in which the ‘stopped’ suspect is riding.” Id. at 49–50.
  129. Id. at 51, 58.
  130. Id. at 62. The NAACP tried to convey to the Justices how stop-and-frisk played out in practice, citing to specific police manuals and instructions. See, e.g., id. at 45–46. One such manual encouraged officers to: “Be suspicious. This is a healthy police attitude . . . .” Id. at 45. Another provided a list of individual qualities that might justify field interrogation, like “known trouble-makers” or “unescorted women or young girls in public places.” Id. at 46. In case the list was not exhaustive enough, number twenty conferred complete discretion: “Many others. How about your own personal experiences?” Id. Goluboff, supra note 21, at 207 called my attention to this part of the brief.
  131. Brief for the NAACP, supra note 52, at 62. (As the New York Times noted: “[T]he script was familiar. Some minor incident begins it all, often the arrest of a Negro by a policeman.”). Americans outside the ambit of the Court’s briefing also understood the stakes. The Cleveland Plain Dealer would note after oral arguments that the case was heard “against a background of day-by-day stop-and-frisk actions by police that are increasingly resented by Negroes and others in the big-city ghettos.” Sanford Watzman, High Court Sifts Street Search Arguments, Cleveland Plain Dealer 5 (1967), available at https://engagedscholarship.csuohio.edu–/cgi/viewcontent.cgi?article=1004&context=terryvohio_newspaper [https://perma.cc/Y97X-YC6E].
  132. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
  133. Earl C. Dudley, Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk’s Perspective,
    72

    St. John’s L. Rev. 891, 892 (1998).

  134. Id. Title II of the Omnibus Crime Control and Safe Streets Act, which included provisions designed to overturn Miranda, was also passed in 1968. Belknap
    ,

    supra note 119, at 255.

  135. In 1967, the year before Terry was decided, “one out of eight policemen across the country was assaulted.” Goluboff, supra note 21, at 268.
  136. Dudley, supra note 132, at 892.
  137. Katz, supra note 96, at 440 n.88 (citing Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 538).
  138. Belknap
    ,

    supra note 119, at 256.

  139. McCray v. Illinois, 386 U.S. 300, 300 (1967).
  140. Id. at 304.
  141. Warden v. Hayden, 387 U.S. 294, 294, 307–08 (1967).
  142. Goluboff, supra note 21, at 206. Between 1960 and 1965, the national violent crime rate jumped 24.4%. Katz, supra note 96, at 435 n.79. Then, from 1965 to 1970, it spiked 81.6%. Id. This was precisely what the government felt that field interrogations were designed to solve.
  143. Brief for the State of Ohio at 40, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67).
  144. Id. at 15.
  145. Id. at 41.
  146. Id.
  147. Id.
  148. Dudley, supra note 132, at 893.
  149. Goluboff, supra note 21, at 210. Around this time, the Court expressed a similar concern about unbounded police discretion in the context of the vagueness doctrine. See Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 356 (2021) (observing that the Court invalidated an ordinance prohibiting loitering in Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) “because of the excessive authority it granted to police” and “enabled them to make their own decisions about when loitering would and would not be allowed”).
  150. Id.
  151. Terry v. Ohio, 392 U.S. 1, 8–9 (1968).
  152. David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, 3 U. Pa. J. Const. L. 367, 373–74 (2001).
  153. Terry, 392 U.S. at 17. Dudley recalls that Chief Justice Warren was also skeptical of the “scope of the authority claimed by the police.” The power to “detain” on suspicion seemed “susceptible of major abuse” given the Kerner Commission’s reports about “aggressive patrol” tactics and the “political tensions” that “ran high” during the Cold War. Dudley, supra note 132, at 893.
  154. Terry, 392 U.S. at 10.
  155. Id.
  156. Id. at 22.
  157. Id. at 23. As Dean Goluboff notes, “[c]ertainly, the guns McFadden found on Terry and Chilton illustrated the need for the police to have authority to protect their own lives.” Goluboff, supra note 21, at 209–10.
  158. Dudley, supra note 132, at 895; see also Saltzburg, supra note 102, at 922 (“This analysis virtually ignored the potential ‘stop’ aspect of the case . . . . Were they free to leave? Was this a seizure? The Court neither asked nor answered these questions.”).
  159. Terry, 392 U.S. at 26. In other words, the officer had to limit the scope of his search to a protective “pat-down” “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29–30. He could not conduct a full-on search incident to arrest for contraband or evidence relevant to the crime. Moreover, the officer could not “place his hands in their pockets or under the outer surface of their garments until he had felt weapons.” Id.
  160. Terry, 392 U.S. at 28.
  161. Id. at 33 (Harlan, J., concurring); Dudley, supra note 132, at 895.
  162. Terry, 392 U.S. at 32 (Harlan, J., concurring).
  163. Id.
  164. Id. at 33–34.
  165. But see Katz, supra note 96, at 457 n.144. Harlan’s assessment that the right to frisk flowed automatically from the stop has not been adopted by courts. The two remain separate inquiries.
  166. Terry, 392 U.S. at 38 (Douglas, J., dissenting).
  167. Id. at 37, 38.
  168. Id. at 39. In Terry, the Chief Justice cited statistics demonstrating the assaults, injuries, and deaths that policemen had incurred over the past decade. Terry, 392 U.S. at 24 n.21. These were the same type of statistics cited by the law enforcement associations in their briefs.
  169. Id. at 39.
  170. Id.
  171. Dudley, supra note 132, at 893.
  172. While the state courts agreed with the Justices’ evaluation of the frisk, none of them had uncoupled the frisk and the stop like the Chief Justice.
  173. E.J. Kissell, Court Ruling is Gratifying to Detective in Frisk Case, Cleveland Press (June 11, 1968), https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1002&–context=terryvohio_newspaper [https://perma.cc/84MB-XPYU].
  174. Brown v. Allen, 344 U.S. 443, 540. (1953) (Jackson, J., concurring).
  175. U.S. Const., art. III, § 1.
  176. This section draws generally on insights from Jeffrey Sutton, 51 Imperfect Solutions (2018).
  177. Justice Kavanaugh offered this reminder to litigants in a recent Establishment Clause blockbuster, American Legion v. American Humanist Association, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring). Even though the individuals challenging the Bladensburg cross had lost at the federal level, Justice Kavanaugh reminded them that they still could appeal to their state constitution. Maryland courts were free to provide more expansive protections for religious liberty under their founding document. The Supreme Court “is not the only guardian of individual rights in America.” Id. (citing Sutton, supra note 175). Both sides of the Court are in agreement on this point. In Robinette v. Ohio, 519 U.S. 33, 42 (1996) (Ginsburg, J., concurring), a Fourth Amendment case, Justice Ginsburg agreed that “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.” (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)).
  178. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447, 455 (1990).
  179. Id. at 455.
  180. The Michigan Supreme Court reminded litigants that the “appropriate analysis of our constitution does not begin from the conclusive premise of a federal floor.” Sitz v. Dep’t of State Police, 506 N.W.2d 209, 217 (Mich. 1993).
  181. Id. at 225.
  182. Id. at 223–24.
  183. The Federalist No. 51 at 339 (James Madison); see also William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.
    489

    , 504 (1977) (“[W]e may be confident that [Madison] would welcome the broadening by state courts of the reach of state constitutional counterparts beyond the federal model . . . .”).

  184. The Federalist No. 51 at 339 (James Madison); see also The Federalist No. 10 at 61 (James Madison) (“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.”).
  185. Stephen Kanter, Sleeping Beauty Wide Awake: State Constitutions as Important Independent Sources of Individual Rights 15 Lewis & Clark L. Rev. 799, 801–02 (2011). (quoting James Wilson, Of Government, in The Works of the Honorable James Wilson, L.L.D. 383, 398 (1804)).
  186. The Federalist No. 46 at 305 (James Madison).
  187. Id. at 307.
  188. Id. Professor Micah Schwartzman deserves credit for many of the insights in this paragraph. The organization of the virtues of federalism section into the categories of individual choice, competition, experimentation, prevention against tyranny, and protection of liberty stems from one of his class lectures.
  189. The Federalist No. 51 at 337 (James Madison).
  190. The Federalist No 46 at 305 (James Madison).
  191. For instance, one can imagine a jurisdiction that strikes down stop-and-frisk under its state constitution proving particularly appealing for minorities who have been the subject of profiling or allies who hope to live in a jurisdiction that embraces their concern for social justice. Independent interpretation of state constitutions also is neutral, as it applies equally to liberty and property rights, individual rights, and structural rights.
  192. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
  193. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.
    489

    , 503 (1977).

  194. Id. at 495, 503.
  195. Robert Williams, The Law of American State Constitutions 137 (2009); Goodwin Liu, State Constitutions and the Protections of Individuals Rights: A Reappraisal, 2018 Forum for State Appellate Court Judges, Pound Civil Justice Institute 51 (2019), http://www.poundinstitute.org/wp-content/uploads/2019/04/2018_forum-report_2.26.19.pdf [https://perma.cc/T2QY-AHVR]; see also, State v. Hempele, 576 A.2d 793, 800 (N.J. 1990) (“Cognizant of the diversity of laws, customs, and mores within its jurisdiction, the United States Supreme Court is necessarily ‘hesitant to impose on a national level far-reaching constitutional rules binding on each and every state.’” (citing State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring))).
  196. Furthermore, as Justice Brandeis warned, “[d]enial of the right to experiment may be fraught with serious consequences to the Nation.” New State Ice Co., 285 U.S. at 311. Indeed, one of the benefits of state experimentation is that it would serve as an essential check against tyranny and a separate source of liberty for the people. State courts can prevent tyranny by serving as an intermediary against federal overreach—a separate forum for Americans to air their grievances. And they can protect liberty by enforcing separate state legal regimes to protect Americans from laws passed in excess of governmental power. For a cautionary story of how state courts have served this role, see Sutton, supra note 175, at 84–132 (describing how state courts initially voided a number of early eugenics laws as unconstitutional, before ceding the field to the Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the federal Constitution in Buck v. Bell, 274 U.S. 200 (1927)).
  197. In the words of Jacob Landynski, the Fourth Amendment has “both the virtue of brevity and the vice of ambiguity.” Tracey Maclin, The Central Meaning of the Fourth Amendment 35 Wm. & Mary L. Rev. 197, 247 (1993) (quoting Jacob W. Landynski, Search and Seizure and the Supreme Court 42 (1966)).
  198. Compare Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 759 (1994) (“We need to read the Amendment’s words and take them seriously: they do not require warrants, probable cause, or exclusion of evidence, but they do require that all searches and seizures be reasonable.”); Telford Taylor, Two Studies in Constitutional Interpretation 91–92 (1969) (critiquing the Court for “treat[ing] warrantless searches as disreputable second cousins” while recognizing that “I am swimming against the current of opinion.”); Richard Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 75 (“Probable cause, a phrase from the second clause of the Fourth Amendment, is a limitation on the issuance of warrants; it is not part of the definition of reasonableness”), with Maclin, supra note 196, at 202 (“At a minimum, the Fourth Amendment commands compelling reasons, or at least a substantial justification, before a warrantless search or seizure is declared reasonable.”); United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., dissenting) (“When the Fourth Amendment outlawed ‘unreasonable searches’ and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is ‘unreasonable’ unless a warrant authorizes it, barring only exceptions justified by absolute necessity.”); Harris v. United States, 331 U.S. 145 (1947) (Jackson, J., dissenting) (“[N]o search of premises, as such, is reasonable except the cause for it be approved and the limits of it fixed and the scope of it particularly defined by a disinterested magistrate.”).
  199. Which may not always be a given, although state protections do closely mirror the Fourth Amendment.
  200. In the context of the right to counsel, for instance, states that provided broader protections than the United States Supreme Court cited historical evidence from their state ratifying conventions to justify their interpretation. See Louis J. Capozzi III, Sixth Amendment Federalism, 43 Harv. J.L. & Pub. Pol’y 645, 684 (2020) (observing that the Iowa Supreme Court studied the debates surrounding the state’s right-to-counsel provision to “justify the court’s holding that the state constitution guaranteed the right to counsel to all defendants charged with a jailable offense”). Originalist judges should do the same with respect to their state search and seizure provisions.
  201. People v. Sundling, 395 N.W.2d 308 (Mich. Ct. App. 1986). Many of the state cases I cite in the next few pages were found in: Faulkner & Green, supra note 17.
  202. State v. Quino, 840 P.2d 358, 362 (Haw. 1992).
  203. Id. at 365 (Levinson, J., concurring).
  204. Id.
  205. See, e.g., State v. Guzman, 842 P.2d 660, 671 (Idaho 1992) (rejecting Leon’s deterrence rationale for the exclusionary rule. Under state law “this Court has held that the exclusionary rule does more than merely deter police misconduct.” It is also “a constitutionally mandated remedy for illegal searches and seizures.”); State v. Oquendo, 223 Conn. 635, 651 (Conn. 1992) (“We are persuaded that the distinction made by the United States Supreme Court between an arrest and an attempted arrest at common law does not guide our determination of what constitutes a seizure under . . . our state constitution.”); In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (“[W]e reject [Hodari] because . . . we are not persuaded by the arguments favoring the Hodari approach, and . . . we are persuaded that there is no need to depart from the pre-Hodari approach.”); Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (stating that the Gates totality-of-the-circumstances test “is flexible, but [it] is also ‘unacceptably shapeless and permissive.’ The Federal test lacks the precision that we believe can and should be articulated in stating a test for determining probable cause.” (citation omitted)); State v. Jones, 706 P.2d 317, 324 (Alaska 1985) (“After carefully reviewing the majority’s reasoning in Gates, we conclude [it] does not provide the constitutional protection against unreasonable searches and seizures required by [the Alaska constitution].”).
  206. State courts, after all, can weigh geographic and demographic considerations unique to their jurisdictions. Crime rates and police practices vary between cities and states. For a thoughtful study of this factor in the context of the right to appointed counsel, see Capozzi III, supra note 199, at 709–10, 712–13.
  207. California v. Greenwood, 486 U.S. 35, 37 (1988).
  208. Id. at 36, 43.
  209. In Greenwood, police acquired the garbage from a trash collector. 486 U.S. at 37. In Hempele, the police themselves removed the garbage. State v. Hempele, 576 A.2d 793, 796 (N.J. 1990).
  210. State v. Hempele, 576 A.2d 793, 807–08 (N.J. 1990).
  211. Id. at 808.
  212. Id.
  213. Id.
  214. Id. at 814.
  215. See, e.g., State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019) (quoting State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016)) (“We jealously guard our right to construe a provision of our state constitution differently than its federal counterpart, though the two provisions may contain nearly identical language and have the same general scope, import, and purpose.”); Interest of B.C., 683 A.2d 919, 926 (Pa. Super. Ct. 1996) (“[I]t is well settled that our courts are free to establish greater protection of such rights in the provisions of the Pennsylvania Constitution.”); State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992) (“[W]e have at times determined that the state constitution affords greater protections to the citizens of Connecticut than does the federal constitution, as interpreted by the United States Supreme Court.”).
  216. Faulkner & Green, supra note 17, at 198.
  217. I use Green’s estimate, taken from Harold Spaeth’s databases (available at http://scdb.wustl.edu/index.php), of 342 “Fourth Amendment” cases. Id.
  218. Id. at 200. Faulkner & Green cite one case, State v. Lopez, 896 P.2d 889 (Haw. 1995), in which they contend Hawaii departed from Terry. But the case is not about stop-and-frisk; it is about the unconstitutional search of a home. Moreover, in cases like State v. Ugalino, 107 Haw. 144, 150 (2000), Hawaii courts have “applied the standards set forth in Terry in determining whether police conduct complied with” the Hawaii constitution.
  219. Benjamin Zycher, Michael Bloomberg and the Stop-and-Frisk About Face, Am. Enter. Inst. (Nov. 19, 2019), https://www.aei.org/politics-and-public-opinion/‌michael-bloomberg-and-the-stop-and-frisk-about-face/ [https://perma.cc/B47W-YBEX].
  220. Maclin, supra note 196, at 202.
  221. Terry, 392 U.S. at 17, 26.
  222. Id. at 33 (Harlan, J., concurring).
  223. See Kavanagh v. Stenhouse, 174 A.2d 560, 562 (1961); People v. Rivera, 201 N.E.2d 32, 34–35 (1964).
  224. See Brief for the NAACP, supra note 52, at 26–27.
  225. This is not to say that the NAACP was at all comfortable with the current state of criminal procedure or the functioning of probable cause in American society. Asking if the standard “function[ed] unerringly, or with perfect clarity,” the brief responded sharply: “Of course, it does not.” Even in the progressive sixties, Black and brown Americans were still fighting a rearguard action to protect “the only standard which [the] Court ha[d] ever developed under the Fourth Amendment for judicial regulation of the police.” Id. at 29–30.
  226. Id. at 27.
  227. Id. at 29.
  228. Id. at 39.
  229. Id. at 39–40.
  230. Id. at 40 (citing Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 22 (1958)).
  231. People v. Martin, 293 P.2d 52, 55 (1956) (Carter, J., dissenting) (quoting People v. Simon, 290 P.2d 531, 534 (1955)).
  232. See Rockefeller Signs Bills, supra note 77.
  233. Floyd v. City of New York, 959 F. Supp. 2d 540, 575 (S.D.N.Y. 2013).
  234. Id. at 558–59.
  235. Id. at 578.
  236. Id. at 559. In fact, this trend was only increasing when Floyd was decided. From 2004 to 2009, “the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.” Id.
  237. See, e.g., The National Association for the Advancement of Colored People
    ,

    Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America, (2014), https://www.prisonpolicy.org/scans/naacp/Born_Suspect_Report_final_web.pdf [https://perma.cc/MML3-HUVV].

  238. Floyd, 959 F. Supp. 2d at 559.
  239. Id.
  240. Ashley Southall & Michael Gold, Why ‘Stop-and-Frisk’ Inflamed Black and Hispanic Neighborhoods, N.Y. Times (Nov. 17, 2019), https://www.nytimes.com/2019/11/17/–nyregion/bloomberg-stop-and-frisk-new-york.html [https://perma.cc/F67P-Y29X].
  241. Ray Rivera, Al Baker, & Janet Roberts, A Few Blocks, 4 Years, 52,000 Police Stops, N.Y. Times (July 11, 2010), https://www.nytimes.com/2010/07/12/nyregion/12frisk.html [https://perma.cc/W4EE-8JVB].
  242. Id.
  243. Id.
  244. One reason that state constitutions provide a helpful mechanism to question stop-and-frisk is that the practice’s ramifications differ across the country. The examples below are from major cities, where Black Americans have been disproportionately stopped. Perhaps stop-and-frisk would be more palatable in a rural state where the same discriminatory practices are not as common.
  245. Chad Pradelli & Cheryl Mettendorf, Racial Disparities in Philadelphia Police’s Use of Stop-and-Frisk, Data Shows, 6 ABC Philadelphia (Sept. 9, 2020), https://6abc.com/stop-and-frisk-philadelphia-data-philly/6413942/ [https://perma.cc/8H9R-8ATC].

    Black residents make up 40% of Philadelphia’s population, but roughly 70% of the stops targeted Black Americans. Id.

  246. A.D. Quiq & Sarah Zimmerman, ‘Stop and Frisk’ Still Disproportionately Impacting Black Chicagoans: Study, Crain’s Chicago Business
    (

    Oct

    . 24, 2019)

    , https://www.chicagobusiness.com/government/stop-and-frisk-still-disproportionately-impacting-black-chicagoans-study [https://perma.cc/Z2S7-FPUC]. But see Monu Bedi, Commentary: Stop-and-Frisk Is Not Racist, and We Need to Stop Saying It Is, Chicago Tribune (Mar. 2, 2020), https://www.chicagotribune.com/opinion/commentary/ct-opinion-stop-and-frisk-police-bloomberg-20200302-6skrfrw5ujcppjdmq2jkqwmnya-story.html [https://perma.cc/5YPE-3MZX].

  247. Elliot C. Williams, New Stop-And-Frisk Data Still Shows Wide Racial Disparities in D.C., DCist

    (Mar. 5, 2020), https://dcist.com/story/20/03/05/new-stop-and-frisk-data-still-shows-wide-racial-disparities-in-d-c/ [https://perma.cc/RT5X-F4HJ]. See also Brianne K. Nadeau, Opinion, End Stop and Frisk in D.C., Wash. Post (Feb. 15, 2019), https://www.washingtonpost.com/opinions/localopinions/end-stop-and-frisk-in-dc/2019/02/14/cdd59c2c-2fab-11e9-8ad3-9a5b113ecd3c_story.html [https://perma.cc/FY9F-78YV] (calling on officials to “end the practice of stop and frisk in the District.”). But see Peter Newsham, Opinion, Yes, D.C. Police Use Stop and Frisk, but in a Legal Manner, Wash. Post (Feb. 22, 2019), https://www.washingtonpost.com/opinions/yes-dc-police-use-stop-and-frisk-but-in-a-legal-manner/2019/02/22/b85f6518-35f9-11e9-8375-e3dcf6b68558_story.html [https://perma.cc/GLA2-SFML].

  248. NAACP
    ,

    supra note 236.

  249. See discussion supra Part III.
  250. Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St. John’s L. Rev. 1097, 1125 (1998).
  251. Brief for the NAACP, supra note 52, at 22–23; Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 366 (1974) (“[T]he primary abuse thought to characterize the general warrants and the writs of assistance was their indiscriminate quality, the license that they gave to search Everyman without particularized cause . . .”). For a more in-depth study, see generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009) (surveying the history of unreasonable searches and seizures stemming from the traditional British maxim of privacy within the home and shaped by early use of the general warrant).
  252. See Cuddihy
    ,

    supra note 250, at 602 (“[T]he laws and constitutions of most states abrogated general warrants and searches years before the Fourth Amendment did so.”). Cuddihy also noted,

    Not only did those [state] constitutions disallow general warrants, they also elevated specific warrants, probable cause, and the idea of unreasonable search and seizure to the position of higher law.” Id. at 603. In particular, “John Adams articulated the most far-reaching repudiation of general warrants in the constitutions of 1776–84.” Id. at 609.

  253. Terry v. Ohio, 392 U.S. 1, 17 (1968); see also Brief for the NAACP, supra note 52, at 35–38.
  254. People v. Rivera, 201 N.E.2d 32, 36 (1964) (Fuld, J., dissenting).
  255. Terry, 392 U.S. at 29.
  256. Id. at 27.
  257. A study by the New York Civil Liberties Union showed a frisk occurring in 66% of stops. NYCLU, Stop-and-Frisk in the De Blasio Era 14 (2019), https://www.nyclu.org/–en/publications/stop-and-frisk-de-blasio-era-2019 [https://perma.cc/5U2X-QHAT].
  258. White & Fradella, supra note 11, at 110.
  259. Brief for the NAACP, supra note 52, at 50.
  260. Id. (quoting People v. Taggart, 229 N.E.2d 581, 586 (N.Y. 1967)).
  261. White & Fradella, supra note 11, at 63. A more recent study in the De Blasio era found weapons discovered in 7% of frisks. NYCLU, supra note 256.
  262. White & Fradella, supra note 11, at 104 (citing Report of Jeffrey Fagan, Ph.D., at 4, Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013)).
  263. Id. See also Benjamin Mueller, It Wasn’t a Crime to Carry Marijuana. Until the Police Found a Loophole., N.Y. Times (Aug. 2, 2018), https://www.nytimes.com/2018/08/02/–nyregion/marijuana-police-nyc.html [https://perma.cc/8QE9-VCUV] (describing how “police officers stopping and frisking people [would] ask[] them to empty their pockets, and when marijuana fell out, [the police officers would] arrest[] them because their hidden stash had suddenly become ‘open to public view’”).
  264. Mueller, supra note 262; see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness
    170

    (2010) (noting that stop-and-frisk operations “amount to much more than humiliating, demeaning rituals for young men of color” and “often serve as the gateway into the criminal justice system”).

  265. Stop-and-Frisk: The Facts, ACLU N.J., https://www.aclu-nj.org/theissues/–police‌practices/newark-stop-and-frisk-data/stop-and-frisk-facts [https://perma.cc/KH7K-722K].
  266. Pradelli & Mettendorf, supra note 244.
  267. Eric Flack & Jordan Fischer, DC Police Search and Frisk Black People 6 Times More Often During Stops, Data Shows,
    WUSA9

    (June 15, 2020), https://www.wusa9.com/article/–news/crime/stop-and-frisk/blacks-6-times-more-likely-to-be-searched-in-dc-than-whites-stop-and-frisk-black-lives-matter/65-379ed07f-bc94-45c0-a7a8-2193601c6df0 [http://perma.cc/VH47-V3U2].

  268. Floyd v. City of New York, 959 F. Supp. 2d 540, 559 (S.D.N.Y. 2013) (“In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.”); see also ACLU of Ill., Stop and Frisk in Chicago 23 (2015), https://www.aclu-il.org/sites/default/files/wp-content/uploads/2015/03/ACLU_–StopandFrisk_6.pdf [https://perma.cc/XJL2-ZKHV] (“A study prepared for the ACLU of Southern California found that during a one-year period from 2003 to 2004, black and Hispanic residents were far more likely to be stopped, frisked, searched and arrested than white residents, and that black and Hispanic residents who were searched were less likely to have contraband than white residents.”).
  269. White & Fradella, supra note 11, at 110.
  270. Id. (“88 percent of young people surveyed believe that residents of their neighborhood do not trust the police.”).
  271. Id. at 109.
  272. Center for Constitutional Rights, Stop and Frisk: The Human Impact 5 (2012), https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf [perma.cc/7DEF-WWK4]; see also Jason Meisner, Chicago Sued Over Police Department’s Alleged Stop-and-Frisk Practices, L.A. Times (Apr. 21, 2015), https://www.latimes.com/–nation/ct-stop-and-frisk-lawsuit-met-20150421-story.html (describing alleged constitutional abuses like excessive force) [https://perma.cc/N2G7-2JZG].
  273. Center for Constitutional Rights, supra note 271, at 5. These are a few accounts of NYPD encounters during the Floyd era. “It’s the difference between frisking somebody and going in [their] underwear or like putting gloves on outside, checking other people’s private areas, and people’s rectal area to see if they have drugs in them. It’s just too much, outside—that’s embarrassing.” Id. (alteration in original). Another said:

    My jeans were ripped. I had bruises on my face. My whole face was swollen . . . . I felt like I couldn’t defend myself, didn’t know what to do. No witnesses there to see what was going on. I just wish someone was there to witness it. I felt like no one would believe me. I couldn’t tell anyone. I kept it in till now . . . I still am scared.

    Id. (second alteration in original).

  274. ACLU of Ill., supra note 267, at 21.
  275. Id. at 22–23.
  276. Center for Constitutional Rights, supra note 271, at 5–6.
  277. Id. at 6.
  278. White & Fradella, supra note 11, at 10–11.
  279. 508 U.S. 366, 381 (1993) (Scalia, J., concurring).
  280. Id.
  281. Id. at 380.
  282. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
  283. Brief for the NAACP, supra note 52, at 38.
  284. See Kansas v. Carr, 577 U.S. 108, 118 (2016) (“The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions.”) (citing Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1971–77 (2008)).
  285. Terry, 392 U.S. at 29; see also People v. Faginkrantz 171 N.E.2d 5, 7 (1960) (“What the constitution prohibits is an unreasonable search and seizure, and the circumstances of this case do not establish that the search was unreasonable.”).
  286. See supra note 86 and accompanying text.
  287. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 264 (1984).
  288. Amar, supra note 249, at 1098.
  289. Id.
  290. Id.
  291. Brief for the NAACP, supra note 52, at 45.
  292. See, e.g., Opinion, Stop Talking and Start Listening, White People, Wash. Post (June 9, 2020), https://www.washingtonpost.com/opinions/stop-talking-and-start-listening-white-people/2020/06/09/7071da24-a9a2-11ea-a43b-be9f6494a87d_story.html [perma.cc/Q8J6-M5NU].
  293. White & Fradella, supra note 11, at 10–11.
  294. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring).
  295. Confirmation Hearing on the Nomination of Amy Coney Barrett To Be an Associate Justice on the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2020) (statement of Amy Coney Barrett, Judge).
  296. Id.
  297. Brennan, supra note 182, at 503.
  298. Sutton, supra note 175, at 212.

Invoking Criminal Equity’s Roots

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and specific performance, operate as an unappreciated and underutilized safety valve that protects against the procedural strictures and dehumanization that are hallmarks of our criminal legal system. Less familiar equitable-like legal remedies, such as writs of mandamus, writs of coram nobis, and writs of audita querela, likewise serve to alleviate fundamental errors in the criminal process. Several barriers contribute to the limited use and efficacy of these longstanding remedies. Despite the vast numbers of people caught up in the criminal system, society’s aversion to recognizing errors in the system or to acknowledging the humanity of those charged prohibits greater invocation of these remedies. When taken in conjunction with the historically-based fear of judicial arbitrariness and unchecked discretion associated with equity courts, these barriers can seem insurmountable. This Article highlights the pervasiveness of equitable remedies in the criminal system and advocates for an expanded use of equitable and equitable-like legal remedies in criminal cases. In an era with the odds so overwhelmingly stacked against criminal defendants, equity provides a much-needed check on our criminal system, allowing for the exercise of mercy and justice, not just punitiveness and retribution.

Introduction

The one-sided retributive impulses that govern state and federal criminal legal systems have significantly expanded the substantive criminal law while curtailing the procedural mechanisms aimed at protecting the rights of the accused. Few safety valves remain in place to keep these retributive impulses in check. Equitable remedies remain one such safety valve. Equitable remedies allow a person accused or convicted of a crime to obtain relief from the restrictive criminal procedures states and Congress have implemented over the past half century. Here are a few examples:

Orville Hutton legally came to the United States as a child from his native Jamaica.1.State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015).Show More He became a lawful permanent resident and remained in the U.S.2.Id.Show More At the age of forty-eight, he was accused of assaulting his live-in girlfriend.3.Id.Show More Hutton entered an Alford plea—a plea of guilty without an admission of guilt4.Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).Show More—and was sentenced to a term of imprisonment of one to five years.5.Id. at 624.Show More Ten days before he was to be released, the Department of Homeland Security notified him that he was subject to a federal detainer, as the government had begun deportation proceedings against him.6.Id.Show More Hutton’s trial counsel never told him his guilty plea might have immigration consequences, and he had already waived his right to appeal.7.Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014).Show More After he was transferred into DHS custody, Hutton filed a pro se writ of coram nobis, a little heard of equitable remedy still available in federal courts and many states.8.A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2.Show More Hutton alleged a violation of his Sixth Amendment right to counsel based on his lawyer’s failure to inform him of the likely immigration consequences of pleading guilty.9.Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635.Show More The West Virginia Supreme Court granted the requested equitable relief, allowing him to withdraw his guilty plea and stand trial for the offenses with which he was initially charged.10 10.State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017).Show More

An Arkansas jury convicted Eugene Pitts of capital murder after a masked man broke into the home of a doctor and his wife. The evidence at trial consisted of the wife’s positive identification of Pitts, despite the mask covering much of the assailant’s face; FBI testimony about hair found on the decedent, purportedly belonging to Pitts; and Pitts’ inability to account for his whereabouts at the time of the murder.11 11.Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)).Show More After his conviction, Pitts maintained his innocence and pursued every possible post-conviction remedy.12 12.Id. at 804⁠–05.Show More Subsequent DNA testing of the remaining hair sample was inconclusive, and the court denied a request for further testing.13 13.Id. at 805.Show More The remaining sample was later lost.14 14.Id.Show More Three years later, Pitts received a letter from the Department of Justice, informing him that the work of the FBI lab technician who did the hair analysis in his case “failed to meet professional standards,” resulting in three types of errors in the testimony at Pitts’ trial.15 15.Id.Show More Pitts asked the Supreme Court of Arkansas to reinvest jurisdiction in the trial court to consider a remedy, including a writ of coram nobis and a writ of audita querela.16 16.Id. at 804.Show More The court granted the motion.17 17.Id. at 806.Show More

Maranda ODonnell joined other plaintiffs in a class action suit against Harris County, Texas, alleging that the county’s bail system for indigent misdemeanor arrestees violated both Texas statutory and constitutional law and the Fourteenth Amendment to the U.S. Constitution.18 18.ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018).Show More The Texas district court granted a preliminary injunction after eight days of hearings,19 19.ODonnell, 892 F.3d at 152.Show More finding that “County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so.”20 20.Id. at 153.Show More In various ways, “the imposition of secured bail specifically target[ed] poor arrestees,” resulting in a pretrial system where “an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”21 21.ODonnell, 882 F.3d at 536.Show More The district court found ODonnell had a likelihood of success on the merits of her claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees.22 22.ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152.Show More

In each of these instances, courts alleviated a significant injustice in the criminal legal system that would have remained but for the availability of an equitable remedy.

These are not isolated cases. Although equitable remedies in criminal cases remain largely undiscussed in scholarly literature and public dialogue,23 23.But seeCortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g.,Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998).Show More they provide a critical safeguard in the criminal legal system worthy of deeper scholarly attention. Amidst a frustrating lack of progress toward reforming our criminal legal system, equitable remedies address some of the inadequacies and gaps in this lop-sided system. As I have noted previously, pretrial detainees have successfully challenged local bail systems, securing release from confinement through the equitable remedy of a preliminary injunction.24 24.SeeLollar, supranote 23, at 327–48.Show More Individuals convicted of a crime but unable to pay the fines, fees, and costs imposed at sentencing have avoided continued incarceration through injunctions as well. When prosecutors renege on promises made as part of a plea agreement, courts have relied on the equitable remedy of specific performance to insist on fulfillment of those promises.25 25.Id. at 342⁠–44.Show More In short, equitable remedies play a valuable role in providing a modicum of balance to the criminal legal process.

This Article suggests that equity can and should play a larger role in criminal cases. Using equitable remedies such as injunctions and specific performance as a jumping-off point, this Article examines several equitable-like legal remedies whose pre-equity roots are grounded in similar notions of fairness and which, like equitable remedies, compel action, not just monetary compensation.

“Special and equitable”26 26.I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”).Show More legal remedies in the form of writs of mandamus, writs of coram nobis, and writs of audita querela already play a role in addressing inequities in criminal cases, but as with injunctions and specific performance, they can play a broader role in balancing out the inequities in the current legal system.27 27.See infra Section I.B.Show More Writs of mandamus, for example, more often assist prosecutors in limiting a lower court’s authority to challenge their actions than they aid a defendant in obtaining the personnel file of a police officer with a history of excessive force complaints. Writs of coram nobis historically have been available to a person claiming an error of “the most fundamental character” in that person’s criminal conviction.28 28.See infra notes 169–73 and accompanying text.Show More But the availability of these writs in the federal system has been limited by prevailing precedent requiring the person to show an ongoing harm that is “more than incidental.”29 29.See infra notes 180–85 and accompanying text.Show More Courts have discounted claims of continuing financial penalties and an inability to obtain certain professional licenses as ongoing harms sufficient to bring a claim for a writ of coram nobis.30 30.Id.Show More

Embracing a reinvigorated use of equitable and equitable-like legal remedies would serve a crucial function in our criminal legal system. For example, writs of audita querela are an ideal equitable-like legal mechanism to request release from incarceration post-conviction due to the presence of COVID-19 in the prison or jail where one is serving a sentence. Writs of audita querela can issue when “it would be contrary to justice” to allow a criminal judgment “to be enforced, because of matters arising subsequent to the rendition thereof.”31 31.Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).Show More In states that have not limited the remedy’s application, a request for release under audita querela due to the extraordinary and unpredicted consequences of COVID-19 could be an effective method of obtaining perhaps otherwise unattainable relief. These remedies can be an antidote to some of the criminal system’s ills, responding to the narrowing of procedural protections for those charged with a crime, challenging the staggering expansion of criminal sentences, and addressing the metastatic collateral consequences that attach to a criminal conviction.

This broad remedial conception is grounded in equity’s historical roots, yet limited in a manner that prevents unchecked, ad hoc judicial discretion. Focusing on judicially granted remedies,32 32.Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23.Show More this Article proposes ways in which equitable remedies can begin to effectively challenge certain aspects of the criminal legal system in an effort to make the system fairer and more balanced.

This is the second of two articles addressing the use of equitable remedies in the criminal system. My first article, Reviving Criminal Equity,33 33.SeeLollar, supranote 23.Show More identified that courts are relying on equitable remedies, such as preliminary injunctions and specific performance, to counter inequities in the criminal legal system. Reviving Criminal Equity explored the use of the narrow category of remedies deemed equitable by early English courts in recent criminal cases. This Article takes off where Reviving Criminal Equity ends.

After beginning with a brief examination of the concept of equity and how it applies in the criminal legal system, Part I discusses the distinctions between equitable remedies and “special and equitable” legal remedies and describes how these “special and equitable” legal remedies are being effectively employed in a manner similar to equitable remedies in modern criminal cases. Part II recognizes the conceptual barriers to expanding the use of these equitable remedies, including a lack of familiarity with the remedies in a criminal context, and a societal and legal reluctance to give the benefit of the doubt to those accused of crimes. It then responds to these barriers by articulating a vision of a bounded equity. Pulling from historical equity principles that relied on an objective moral conscience quite different from this modern era’s subjective ideas of conscience, Part II argues for the use of equitable remedies grounded in existing remedial principles rather than relying on a theory of shared morality. Finally, Part III provides specific examples of how a re-envisioned, expansive equity might look on the ground. Returning to the individual remedies outlined in Part I, Part III illustrates how courts could use equity to obtain a fairer and more just process and result in the face of a system full of procedural hurdles and punitive impulses.

  1. * James and Mary Lassiter Associate Professor, University of Kentucky J. David Rosenberg College of Law. Thank you to Joshua Barnette, Valena Beety, Christopher Bradley, Erin Collins, Joshua Douglas, Ion Meyn, Anna Roberts, Caprice Roberts, Paul Salamanca, Kate Weisburd, and Ramsi Woodcock for sharing their invaluable thoughts and ideas throughout the writing of this piece. I am also grateful to the editorial staff of the Virginia Law Review, particularly Alexander Heldman, Chloe Fife, and Paige Whitaker, for their careful and thoughtful editing of this piece, and to Arjun Ogale for ensuring the editorial process ran smoothly from start to finish.

  2. State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015).

  3. Id.

  4. Id.

  5. Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).

  6. Id. at 624.

  7. Id.

  8. Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014).

  9. A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2.

  10. Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635.

  11. State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017).

  12. Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)).

  13. Id. at 804⁠–05.

  14. Id. at 805.

  15. Id.

  16. Id.

  17. Id. at 804.

  18. Id. at 806.

  19. ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018).

  20. ODonnell, 892 F.3d at 152.

  21. Id. at 153.

  22. ODonnell, 882 F.3d at 536.

  23. ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152.

  24. But see Cortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).

    Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g., Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998).

  25. See Lollar, supra note 23, at 327–48.

  26. Id. at 342⁠–44.

  27. I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”).

  28. See infra Section I.B.

  29. See infra notes 169–73 and accompanying text.

  30. See infra notes 180–85 and accompanying text.

  31. Id.

  32. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  33. Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23.

  34. See Lollar, supra note 23.

  35. See, e.g., Lollar, supra note 23, at 317–19.

  36. Id. at 313–14, 327–48.

  37. Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Affs. 83, 87 (1993).

  38. See Lollar, supra note 23, at 316⁠–17.

  39. Nussbaum, supra note 36, at 85. Nussbaum identifies the ability of equity to both be lenient and flexible by the term epieikeia. Id. at 85⁠–86.

  40. Id. at 96.

  41. Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England

    13, 24 (2010).

  42. Irit Samet, Equity: Conscience Goes to Market 11 (2018) (citing Carleton Kemp Allen, Law in the Making 389 (6th ed. 1958)).

  43. Id. (quoting Lift Capital Partners Pty. Ltd. v Merrill Lynch Int’l (2009) 253 ALR 482, 507 (Austl.)).

  44. Klinck, supra note 40, at 31; accord Mike Macnair, Equity and Conscience, 27 Oxford J. Legal Stud. 659, 661–62 (2007).

  45. Klinck, supra note 40, at 25. Dennis Klinck notes, however, that some “dissident[]” scholars disagree with this “probably predominant position.” Id. at 26.

  46. Id

    .

    at 3–4; Macnair, supra note 43, at 674. Although some were concerned about the subjectivity inherent in “conscience” as early as the sixteenth century, see Klinck, supra note 40, at 3–4, according to Klinck, “it is clear that at least pre-Reformation accounts of conscience included a significant objective dimension,” id. at 3, that “would ostensibly be easier to reconcile with its status as a juristic principle, a measure of law,” id. at 4.

  47. Klinck, supra note 40, at 31.

  48. Id

    .

    at 2, 5, 32–35 (discussing how conscience was initially grounded in a “divinely ordained and objective moral order,” resulting in a particular moral judgment where conscience provides the governing rule and the facts are applied to that rule); Macnair, supra note 43, at 661 (“Synderesis is the faculty of moral reasoning, and conscience is the application of this faculty to particular cases.”); Macnair, supra note 43, at 667 (“[T]here are some fairly clear indications that [in the 1450s] there was a fairly definite conception of what ‘conscience’ implied.”); Timothy A. O. Endicott, The Conscience of the King: Christopher St. German and Thomas More and the Development of English Equity, 47 U. Toronto Fac. L. Rev. 549, 552, 553 (1989) (noting how in the twelfth century, Thomas à Becket “made the Chancery into an office which set the law of the Church as the standard for the king’s conscience,” such that ecclesiastical chancellors “would resort to a conscience informed by the principles of the Church”); Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429, 441–42 (2003); Irit Samet, What Conscience Can Do for Equity, 3 Juris. 13, 21 (2012) (discussing medieval perception that conscience has a universal presence with objective principles that inform it based on the divine law of reason).

  49. Macnair, supra note 43, at 661.

  50. Id. at 662.

  51. David W. Raack, A History of Injunctions in England Before 1700, 61 Ind. L.J. 539, 555–58, 563 (1986); Lollar, supra note 23, at 327–48.

  52. Raack, supra note 50, at 560 n.131; Edwin S. Mack, The Revival of Criminal Equity, 16 Harv. L. Rev. 389, 392 (1903).

  53. Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 390.

  54. Mack, supra note 51, at 390.

  55. Klinck, supra note 40, at 169 (quoting Earl of Northumberland v. Bowes (1621), in 2 Cases Concerning Equity and the Courts of Equity 1550–1660 489 (W.H. Bryson ed., 2000)).

  56. Cf. Macnair, supra note 43, at 663 (describing how a “defendant in Chancery could demur to the plaintiff’s bill because there was no equity in it”).

  57. See, e.g., Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 391–92; Note, Developments in the Law–Injunctions, 78 Harv. L. Rev. 994, 1013–14 (1965); John Norton Pomeroy, Jr., Equity, in 7 Modern American Law 61 (Eugene Allen Gilmore & William Charles Wermuth eds., 1914); F.W. Maitland, The Origin of Equity (II), in Equity: Also the Forms of Action at Common Law: Two Courses of Lectures 19–20 (A.H. Chaytor & W.J. Whittaker eds., 1910).

  58. Lollar, supra note 23, at 322 (quoting Mack, supra note 51, at 391).

  59. Id. (quoting 30A

     

    C.J.S. Equity

     

    § 66 (2018)).

  60. Id. (quoting Graham v. Phinizy, 51 S.E.2d 451, 457 (Ga. 1949)).

  61. See, e.g., id. at 320–21; In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”).

  62. Lollar, supra note 23, at 322–23.

  63. See, e.g., id. at 313–14, 327–48; Samet

    ,

    supra note 41, at 5; Caprice L. Roberts, Supreme Disgorgement, 68 Fla. L. Rev. 1413, 1415–20 (2016); Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 999–1000 (2015); Mark P. Gergen, John M. Golden & Henry E. Smith, The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203, 204 (2012).

  64. Lollar, supra note 23, at 327–48.

  65. Id.

  66. Samuel L. Bray, Equity and the Seventh Amendment 6, 10 & n.48 (Feb. 1, 2019) (unpublished manuscript), (available at https://papers.ssrn.com/sol3/papers.cfm?‌abstract_id=3237907 [https://perma.cc/5E2C-JNRN]).

  67. Raack, supra note 50, at 544.

  68. Id.

  69. Id. at 541–42.

  70. Id. at 544–45.

  71. John Norton Pomeroy, A Treatise on Equity Jurisprudence (Students’ Edition)

    § 175 (1907).

  72. Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 540–42, 546, 559 n.141 (2016).

  73. Id. at 535.

  74. Id. at 559.

  75. Id. at 551–53.

  76. Id. at 562–63.

  77. In re El Mujaddid, 563 F. App’x 874, 874 (3d Cir. 2014).

  78. Kerr v. U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394, 402 (1976) (quoting Will v. United States, 389 U.S. 90, 95 (1967)).

  79. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (quoting Kerr, 426 U.S. at 403).

  80. See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam).

  81. 18 U.S.C. § 3771(e)(2)(A).

  82. Id. § 3771(a).

  83. Id. § 3771(d)(3), (e)(2).

  84. Id. § 3771(d)(3).

  85. See, e.g., Lewis v. U.S. Att’y Gen., No. 10-1624, 2010 WL 4069151 (D.D.C. Oct. 15, 2010).

  86. See, e.g., In re Linlor, 713 F. App’x 228 (4th Cir. 2018).

  87. These are so common that a Westlaw search for “writ of mandamus” within the same paragraph as 18 U.S.C. § 3771, the Crime Victims Rights Act, returned 10,000 hits; a similar search but with 18 U.S.C. § 3771 within a sentence of “writ of mandamus” returned similar results.

  88. United States v. Binkholder (Binkholder II), 909 F.3d 215, 216 (8th Cir. 2018).

  89. United States v. Binkholder (Binkholder I), 832 F.3d 923, 928 (8th Cir. 2016).

  90. Id.

  91. Id.

  92. Id.

  93. Id. at 928–29. The Eighth Circuit later clarified, however, that being declared a crime victim under the CVRA “is not necessarily dispositive of who is a victim under the Sentencing Guidelines” and instructed the lower court to make separate inquiries based on the respective definitions before enhancing Binkholder’s sentence based on the amount of the M.U.’s losses. Id. at 929–30. On remand, the district court reached the conclusion that M.U. was a crime victim both under the CVRA and under the relevant sentencing guidelines and sentenced Binkholder accordingly. Binkholder II, 909 F.3d at 217.

  94. Kenna v. U.S. Dist. Ct. for C.D. Cal., 435 F.3d 1011, 1012–13 (9th Cir. 2006).

  95. Id. at 1013.

  96. Id.

  97. Id.

  98. Id.

  99. Id. at 1016, 1018.

  100. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States, 486 U.S. 153, 159 (1988). That right does not extend to those who cannot afford to hire counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (quoting Wheat, 486 U.S. at 159) (“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. ‘[A] defendant may not insist on representation by an attorney he cannot afford.’”).

  101. United States v. Santos, 201 F.3d 953, 957 (7th Cir. 2000).

  102. Id.

  103. Id. at 957–58.

  104. Id. at 958.

  105. Id. at 957.

  106. Id. at 958.

  107. Id. at 957–58.

  108. Id. at 960–61.

  109. Id.

  110. Id. at 959.

  111. Bridgers v. Kent, No. WR-45,179-03, 2006 WL 8430864, at *1 (Tex. Crim. App. Nov. 13, 2006).

  112. Id.

  113. Id. See also Tex. Code Crim. Proc. Ann. art. 11.071 (West 2005) (requiring the court of criminal appeals to “adopt rules for the appointment of attorneys as counsel” in death penalty cases and the convicting court to appoint an attorney as counsel “only if the appointment is approved by the court of criminal appeals in any manner provided by those rules”).

  114. Bridgers, 2006 WL 8430864, at *1.

  115. Id. at *1 n.1.

  116. See, e.g., State ex rel. Garvey v. County Bd. Of Comm’rs of Sarpy Co., 573 N.W.2d 747 (Ne. 1998); Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016) (seeking writ of mandamus to require the county to fund the public defender office; in this case, however, the former chief public defender, along with several former defendants, sought the writ).

  117. See, e.g., Hurrell-Harring v. State, 930 N.E.2d 217, 219, 222 (N.Y. 2010); Kuren, 146 A.3d at 718; Church v. Missouri, 913 F.3d 736, 741–42 (8th Cir. 2019); Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1123–24 (W.D. Wash. 2013).

  118. Twenty-Fourth Jud. Dist. Indigent Def. Bd. v. Molaison, 522 So. 2d. 177, 177–78 (La. Ct. App. 1988).

  119. Id. at 178.

  120. Id. at 181.

  121. Id.

  122. Rachel Moran, Contesting Police Credibility, 93 Wash. L. Rev. 1339, 1340–42 (2018).

  123. See, e.g., State ex rel. Glover v. Lashutka, No. 96APD10-1433, 1996 WL 751548 (Ohio Ct. App. Dec. 31, 1996); In re Willard, No. 07-16-00274-CR, 2016 WL 4158024 (Tx. App. Aug. 3, 2016).

  124. Moran, supra note 121, at 1368.

  125. Id. at 1370–76.

  126. Id. at 1372.

  127. Id. at 1373.

  128. See, e.g., Tex. Gov’t Code Ann. § 552.103 (West 1999); State ex rel. Coleman v. City of Cincinnati, 566 N.E.2d 151, 152 (Ohio 1991) (per curiam) (discussing Ohio’s exemption of records containing information related to an anticipated or ongoing case from the state’s general public records rule).

  129. Moran, supra note 121, at 1373.

  130. Long v. Municipal Ct., 128 Cal. Rptr. 918, 918 (Ct. App. 1976).

  131. Id.

  132. Id. at 919.

  133. Id.

  134. Id. at 919–20.

  135. State ex rel. Caster v. City of Columbus, 89 N.E.3d 598, 599–601 (Ohio 2016).

  136. Id. at 600.

  137. Id.

  138. Id. at 599–600.

  139. Id. at 601.

  140. Id. at 600.

  141. Id. at 602.

  142. Id. at 609. The court continued to recognize exceptions, such as the protection of the identity of confidential informants or specific confidential investigatory techniques. Id.

  143. Flipping the script, in one instance, the police department and city of Austin, Texas, obtained a conditional writ of mandamus challenging a lower court’s denial of their motion to quash a capital defendant’s subpoena for police personnel records. In re Moore, 615 S.W.3d 162 (Tx. Crim. App. 2019).

  144. See, e.g., Giovanni B. v. Superior Ct., 60 Cal. Rptr. 3d 469, 476 (Ct. App. 2007) (denying writ because the trial court was judged not to have abused its discretion in rejecting an in camera review of police records); State ex rel. Donovan v. Portage Cnty. Sheriff’s Dept., No. 90-P-2166, 1991 WL 260193, at *1–2 (Ohio Ct. App. Dec. 6, 1991) (granting writ related to information that purportedly would endanger the safety of law enforcement officers, but denying writ as to confidential investigatory techniques); Whittle v. Munshower, 155 A.2d 670, 671 (Md. 1959) (dismissing appeal as premature but addressing merits of the writ of mandamus claim); cf. Moran, supra note 121, at 1368–74 (discussing range of state statutes governing disclosure of police records).

  145. State ex rel. Keller v. Cox, 707 N.E.2d 931, 934 (Ohio 1999) (per curiam).

  146. Cf. Moran, supra note 121, at 1374–77 (discussing how even potential constitutional implications of failing to disclose police personnel files do not necessarily render the records disclosable under state statutory law).

  147. U.S. Const. amend. V (“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”).

  148. United States v. Dean, 752 F.2d 535, 540 (11th Cir. 1985) (quoting United States v. Denson, 588 F.2d 1112, 1126 (5th Cir. 1979), aff’d in part and modified in part en banc, 603 F.2d 1143 (5th Cir. 1979)).

  149. 18 U.S.C. § 3731.

  150. United States v. Wilson, 420 U.S. 332, 337 (1975).

  151. See, e.g., United States v. Choi, 818 F. Supp. 2d 79, 84, 87 (D.D.C. 2011).

  152. In re United States, 397 F.3d 274, 278, 287 (5th Cir. 2005) (per curiam).

  153. District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008) (per curiam), amended on denial of reh’g, 964 A.2d 1281 (D.C. 2009) (per curiam).

  154. Choi, 818 F. Supp. 2d at 82.

  155. See generally United States v. Fei Ye, 436 F.3d 1117 (9th Cir. 2006) (granting writ after trial judge ordered that defendants could depose the government’s expert witnesses prior to trial); United States v. Vinyard, 539 F.3d 589 (7th Cir. 2008) (granting writ after trial judge sua sponte ordered defendant’s release from incarceration and vacated his plea agreement and sentence); United States v. U.S. Dist. Ct. for E. Dist. Cal., 464 F.3d 1065 (9th Cir. 2006) (per curiam) (granting writ after trial judge granted defense motion for a bench trial without government’s consent); United States v. Amante, 418 F.3d 220 (2d Cir. 2005) (granting writ after judge sua sponte bifurcated trial on the elements of a single count charged).

  156. See, e.g., In re United States, 397 F.3d at 278; Choi, 818 F. Supp. 2d at 82.

  157. Choi, 818 F. Supp. 2d at 83–87.

  158. United States v. Farnsworth, 456 F.3d 394, 396 (3d Cir. 2006).

  159. In re People, 49 V.I. 297, 300 (2007).

  160. 28 U.S.C. § 2241; see also Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Executive Summary: Habeas Litigation in U.S. District Courts

     

    1 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219558.pdf [https://perma.cc/D9HU-35DA].

  161. Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C., including §§ 2254, 2255).

  162. See, e.g., Teague v. Lane, 489 U.S. 288 (1989).

  163. See, e.g., Eve Brensike Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-Court Criminal Convictions, 61 Ariz. L. Rev.

     

    291, 293 (2019); Eve Brensike Primus, Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Am. Const. Soc’y Issue Brief (July 2018), https://acslaw.org/wp-content/uploads/2018/07/July-2018-Primus-Issue-Brief-Habeas-Corpus.pdf [https://perma.cc/TM4T-WXT5]; Leah M. Litman, Legal Innocence and Federal Habeas, 104 Va. L. Rev. 417 (2018).

  164. David Wolitz, The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009 BYU L. Rev.

     

    1277, 1287 (2009) (explaining that coram nobis is the “companion writ to habeas corpus . . . in essence, habeas for those not in federal custody”).

  165. William G. Wheatley, Coram Nobis Practice in Criminal Cases, 18 Am. Jur. Trials 1, § 1 (1971; updated 2020) (footnote omitted).

  166. Wolitz, supra note 163, at 1283.

  167. United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007).

  168. Wolitz, supra note 163, at 1283.

  169. 7 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 28.9(a) at 378 (4th ed. 2015) (citation and internal quotation marks omitted); Wolitz, supra note 163, at 1287 (“[In United States v. Morgan, 346 U.S. 502 (1954)], the Court effectively created a companion writ to habeas corpus. Coram nobis became, in essence, habeas for those not in federal custody.”).

  170. Wolitz, supra note 163, at 1283–84; Kathleen M. Bure, Note, Coram Nobis and State v. Stinney: Why South Carolina Should Revitalize America’s Legal “Hail Mary,” 68 S.C. L. Rev. 917, 923 (2017).

  171. United States v. Denedo, 556 U.S. 904, 912–13 (2009); United States v. Morgan, 346 U.S. 502, 512 (1954) (indicating writ is available for “errors of the most fundamental character”) (citation and internal quotation marks omitted); LaFave et al., supra note 168, at 378; Wolitz, supra note 163, at 1286 (“[Morgan] transformed coram nobis from its traditional function as a means for curing factual errors, unknown to the trial court, to a new function of curing any error of ‘the most fundamental character,’ including legal error.”).

  172. See, e.g., United States v. Akinsade, 686 F.3d 248, 256 (4th Cir. 2012) (ineffective assistance of counsel is a “fundamental error necessitating coram nobis relief”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (granting relief after the Supreme Court found mail fraud statute did not cover acts for which defendants were convicted); Wolitz, supra note 163, at 1289–91 (discussing federal circuit courts’ application of Morgan and the type of claims these courts tend to consider as triggering coram nobis relief).

  173. See, e.g., State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015) (granting writ based on ineffective assistance of counsel); State v. Sinclair, 49 A.3d 152, 157–58 (Vt. 2012) (concluding coram nobis can be used to challenge defective criminal convictions); Magnus v. United States, 11 A.3d 237, 246 (D.C. 2011) (“[E]ven if the error claimed by Magnus was a legal one . . . he still may pursue coram nobis relief.”); Skok v. State, 760 A.2d 647, 660 (Md. 2000) (holding that the scope of coram nobis includes errors of a constitutional or fundamental nature on public policy grounds); Chambers v. State, 158 So. 153, 158–59 (Fla. 1934) (holding that coram nobis can be used where there is evidence of coerced confessions); Bure, supra note 169, at 929 (noting court granted coram nobis relief based on coerced confession, ineffective assistance of counsel, failure to select an impartial jury, and execution of a minor).

  174. 346 U.S. at 512 (citation and internal quotation marks omitted).

  175. Wolitz, supra note 163, at 1284.

  176. Id.

  177. Id. at 1289; see also United States v. Doe, 867 F.2d 986, 988, 990 (7th Cir. 1989) (denying petition for writ because defendant could not show erroneous jury instructions would have justified habeas relief); Pitts v. United States, 763 F.2d 197, 199 n.1 (6th Cir. 1985) (per curiam) (noting the standards for granting relief under a habeas statute and through a writ of coram nobis are “substantially the same”); United States v. Little, 608 F.2d 296, 299 (8th Cir. 1979) (interpreting defendant’s appeal from denial of coram nobis relief to be a petition under a habeas statute since he remained in custody and the two remedies were “substantially equivalent”).

  178. Wolitz, supra note 163, at 1290.

  179. See, e.g., Sibron v. New York, 392 U.S. 40, 55, 57 (1968).

  180. See, e.g., Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987).

  181. United States v. Keane, 852 F.2d 199 (7th Cir. 1988); United States v. Bush, 888 F.2d 1145 (7th Cir. 1989); United States v. Craig, 907 F.2d 653 (7th Cir. 1990).

  182. Wolitz, supra note 163, at 1292–99.

  183. Keane, 852 F.2d at 203 (“[Petitioner] must demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences).”).

  184. Craig, 907 F.2d at 658.

  185. Keane, 852 F.2d at 203; Bush, 888 F.2d at 1148–50.

  186. See United States v. Castano, 906 F.3d 458, 463 (6th Cir. 2018); United States v. Hernandez, 94 F.3d 606, 613 n.5 (10th Cir. 1996); Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993); Nicks v. United States 955 F.2d 161, 167 (2d Cir. 1992); United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992); United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989); see also Stewart v. United States, 446 F.2d 42, 43–44 (8th Cir. 1971) (per curiam) (denying coram nobis relief for defendant who did not demonstrate “present adverse consequences”).

  187. Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. New York, 392 U.S. 40, 55–57 (1968)).

  188. Id. at 606.

  189. Id.

  190. Korematsu v. United States, 584 F. Supp. 1406, 1409 (N.D. Cal. 1984); Hirabayashi, 828 F.2d at 592.

  191. Margaret Chon, Remembering and Repairing: The Error Before Us, In Our Presence, 8 Seattle J. for Soc. Just. 643, 646 (2010).

  192. Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943). Cf. Ex parte Endo, 323 U.S. 283 (1944) (declining to address the constitutional arguments, the Court ultimately ruled in favor of Endo’s challenge on statutory grounds).

  193. Hirabayashi, 320 U.S. at 100–01; Korematsu, 323 U.S. at 219–20.

  194. Korematsu, 584 F. Supp. at 1409–10; Hirabayashi, 828 F.2d at 593.

  195. Korematsu, 584 F. Supp. at 1410. See also Hirabayashi v. United States, 627 F. Supp. 1445, 1447 (W.D. Wash. 1986) (detailing the evidence in Hirabayashi’s case), aff’d in part, rev’d in part by Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). The newly discovered evidence was a suppressed draft of a wartime report that specified the real rationale behind the curfew and exclusion orders aimed at Japanese Americans during the war: racial prejudice, not military exigency. Hirabayashi, 828 F.2d at 598; Wolitz, supra note 163, at 1300. In fact, contrary to the representations made to the Supreme Court during the war-era cases, there was no military basis for the exclusion order. Hirabayashi, 828 F.2d at 598; Korematsu, 584 F. Supp. at 1416–17.

  196. Korematsu, 584 F. Supp. at 1419.

  197. Hirabayashi, 828 F.2d at 608.

  198. United States v. Peter, 310 F.3d 709, 715–16 (11th Cir. 2002) (per curiam) (quoting Spencer v. Kemna, 523 U.S. 1, 12 (1998)) (“[I]t is an obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (“[P]etitioners . . . would face the remainder of their lives branded as criminals . . . .”).

  199. Mandel, 862 F.2d at 1075 n.12 (discussing how “[c]onviction of a felony imposes a status upon a person” that makes him “vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities”).

  200. Hirabayashi, 828 F.2d at 606–07. The U.S. Court of Appeals for the Eleventh Circuit has never addressed this issue.

  201. Steven J. Mulroy, The Safety Net: Applying Coram Nobis Law to Prevent the Execution of the Innocent, 11 Va. J. Soc. Pol’y & L. 1, 7 & n.33 (2003); see also Sinclair v. Louisiana, 679 F.2d 513, 514–15 (5th Cir. 1982) (discussing the scope of the prohibition on using coram nobis to attack state criminal judgments); Brooker v. Arkansas, 380 F.2d 240, 244 (8th Cir. 1967) (same); Rivenburgh v. Utah, 299 F.2d 842, 843 (10th Cir. 1962) (same).

  202. State v. Sinclair, 49 A.3d 152, 156 (Vt. 2012) (quotations and citation omitted); see also Skok v. State, 760 A.2d 647, 658–59 (Md. 2000) (explaining that while it was not binding on them, most state appellate courts that have considered Morgan have followed it).

  203. Sinclair, 49 A.3d at 156.

  204. Bure, supra note 169, at 927–29.

  205. Id. at 927.

  206. Id.

  207. Id.

  208. Id. at 928.

  209. Id.

  210. Id.

  211. Id. at 927–28.

  212. Id. at 928.

  213. Id.

  214. Id. at 927–28. Stinney’s siblings had standing to assert their brother’s rights under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991). See Bure, supra note 169, at 925 & n.58.

  215. Bure, supra note 169, at 929.

  216. Id.

  217. See, e.g., Magnus v. United States, 11 A.3d 237, 246–47 (D.C. 2011); State v. Ledezma, No. IK83-09-0062-R1, 1989 WL 64151, at *2 (Del. Super. Ct. May 3, 1989).

  218. J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley, and the Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 561 & n.1 (2011).

  219. An Alford plea allows a defendant to enter a guilty plea without admitting guilt. See North Carolina v. Alford, 400 U.S. 25 (1970).

  220. State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). Specifically, Mr. Hutton’s trial counsel failed to inform him of the deportation consequences of his criminal conviction. Id.

  221. Ira P. Robbins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643, 645, 647 (1992).

  222. Caleb J. Fountain, Note, Audita Querela and the Limits of Federal Nonretroactivity, 70 N.Y.U. Ann. Surv. Am. L. 203, 211–14 (2014).

  223. Id. at 207.

  224. Robbins, supra note 220, at 650.

  225. Id. at 650–51, 653.

  226. Id. at 653.

  227. Id. at 656.

  228. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *6 (D. Utah Apr. 18, 2006); United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. 1988); United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988); United States v. Khalaf, 116 F. Supp. 2d 210 (D. Mass. 1999); cf. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004) (granting a petition for writ of audita querela for a legal immigrant INS sought to deport to Nigeria, though the opinion was later vacated), reh’g en banc granted, opinion vacated, No. 01-3928, 2004 U.S. App. LEXIS 15581 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004).

  229. Villafranco, 2006 WL 1049114, at *7.

  230. Id. (quoting United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir. 1994)).

  231. Doe v. I.N.S., 120 F.3d 200, 204 (9th Cir. 1997).

  232. United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990).

  233. United States v. Holder, 936 F.2d 1, 5 (1st Cir. 1991); Ayala, 894 F.2d at 426.

  234. See, e.g., Robbins, supra note 220, at 681–82; Ejelonu v. I.N.S., 355 F.3d 539, 546–47 (6th Cir. 2004); Villafranco, 2006 WL 1049114, at *11.

  235. Villafranco, 2006 WL 1049114, at *11 (quoting United States v. Reyes, 945 F.2d 862, 866 (5th Cir. 1991)).

  236. Id.; Ejelonu, 355 F.3d at 548.

  237. Villafranco, 2006 WL 1049114, at *10 (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  238. Villafranco, 2006 WL 1049114, at *11.

  239. 543 U.S. 220 (2005).

  240. Id. at 246.

  241. Robbins, supra note 220, at 672.

  242. United States v. Ghebreziabher, 701 F. Supp. 115, 116–17 (E.D. La. 1988).

  243. Id. at 116.

  244. Remarking that “[i]t is apparent that he was approached by the other individual involved to accept the food stamps initially,” the court continued:

    Mr. Ghebreziabher has been an industrious member of this community for almost ten years. He has four United States citizen children who will be deprived of his support if he should be deported. He has realized the American dream, owning his own home . . . . Except for these 3 incidents, he has no convictions. His former employer, a subsidiary of a shipyard where he worked as a carpenter and joiner, thought well of him and found him to be hard-working . . . . It is also likely that his family will suffer tremendously should he be deported and removed from the home.

    Id. at 116–17.

  245. United States v. Salgado, 692 F. Supp. 1265, 1268 (E.D. Wash. 1988).

  246. Id.

  247. Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified in scattered sections of 8 U.S.C. and 18 U.S.C., including at 8 U.S.C. §§ 1229, 1366–74).

  248. One other person initially received audita querela relief even after the passage of IIRIRA, as her request for immigration relief was quite distinct from the circumstances of the three individuals discussed above. Ijeoma Ejelonu petitioned for relief after the Immigration and Naturalization Service (now Immigration and Customs Enforcement) inexplicably delayed processing her application for citizenship until after her eighteenth birthday, denying her citizenship and threatening to begin deportation proceedings against her. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004), rehearing en banc granted, opinion vacated, appeal dismissed. Ejelonu, originally from Nigeria, legally immigrated to the U.S. at age six with her parents and two younger sisters, all of whom were granted citizenship. Ejelonu graduated with honors from her high school, began college at Wayne State University, and maintained steady employment until the time of her arrest on criminal charges. Id. at 541–42. At age seventeen, she was charged as a juvenile with two counts of embezzlement. Id. at 542. She entered into a youthful offender program that permitted her to plead guilty to the charge, but without a judgment of conviction being entered. Id. at 542–43.

    Despite her record being sealed, someone at INS obtained a copy of the record and began deportation proceedings against Ejelonu. Id. at 543. Authorities raided the Ejelonu home, seized Ejelonu, and held her for weeks, without any way to contact her family. Id. at 543. An immigration judge found her deportable for having a “conviction” for a crime of moral turpitude, and the Bureau of Immigration Appeals dismissed her appeal. Id.

    Ejelonu petitioned the U.S. Court of Appeals for the Sixth Circuit for relief from deportation proceedings, which the court construed as a petition for audita querela. Id. at 544. The court found, “[w]e have no trouble concluding that the equities in this case overwhelmingly favor Petitioner—not just to the point where a reasonable person might sympathize with her plight, but to extent that to deport her under such circumstances would shock the conscience.” Id. at 550. It continued, “Audita querela is appropriate because it would be contrary to justice[] to allow the collateral consequences of Petitioner’s Youthful Trainee status to justify her deportation.” Id. at 551–52 (quotations and citation omitted). The writ prohibited the Department of Homeland Security from using Ejelonu’s youthful trainee status in determining her eligibility for deportation. Id. at 552.

    Ultimately, the record is unclear as to what happened with Ejelonu. After granting a motion for rehearing en banc and vacating the panel’s opinion, the en banc court dismissed Ejelonu’s appeal by stipulation of the parties ten months after the initial decision. Ejelonu v. I.N.S., No. 01-3928, 2004 U.S. App. LEXIS 15581, at *1 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004); Sanchez-Montes v. Dept. Homeland Security, No. 8:08-CV-157-T-27-TBM, 2008 WL 298967 n.10 (M.D. Fl. Jan. 31, 2008) (noting the appeal was dismissed by stipulation of the parties). Little is in the record that provides any indication as to why the parties decided to proceed in this manner.

  249. Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *1 (W.D. Wash. Jan. 18, 2008).

  250. Id.

  251. Id. at *1–3.

  252. Id. at *3.

  253. Id. at *2 (quotations and citation omitted).

  254. Id. at *5 (quotations and citation omitted).

  255. Id. (quotations and citation omitted).

  256. Id. at *6–7.

  257. United States v. Kenney, No. 99-cr-0280, 2017 WL 621238, at *1 (M.D. Pa. Feb. 15, 2017).

  258. Id.

  259. Id.

  260. Id.

  261. Id.

  262. Id. at *2.

  263. Id.

  264. Id. at *4.

  265. See, e.g., State v. Rosenfield, 142 A.3d 1069, 1076 n.6 (Vt. 2016) (“There is also a strong possibility that the related doctrine of audita querela can be utilized to collaterally attack defendant’s conviction.”); Commonwealth v. Mubarak, 68 Va. Cir. 422 (2005) (granting audita querela petition); Pitts v. State, 501 S.W.3d 803, 804 (Ark. 2016) (granting petitioner’s request to reinvest trial court with jurisdiction to pursue writ of audita querela or writ of coram nobis); Balsley v. Commonwealth, 428 S.W.2d 614, 616–17 (Ky. 1967) (explaining that audita querela and coram nobis are preserved in Kentucky law).

  266. See, e.g., State v. Hinson, 2006 WL 337031, at *2–3 (Del. Super. Ct. Feb. 10, 2006); State v. Ali, 32 A.3d 1019, 1024 (Me. 2011); State v. Davis, No. 96,688, 2007 WL 2080461, at *1 (Kan. Ct. App. July 20, 2007) (per curiam); Huston v. State, 272 S.W.3d 420, 421 (Mo. Ct. App. 2008); State v. Myers, No. 2017-UP-260, 2017 WL 4641444, at *1 (S.C. Ct. App. June 28, 2017).

  267. See, e.g., In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”).

  268. Compare Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History, 86 Fordham L. Rev. 697 (2017) (discussing how crafters of the Federal Rules of Criminal Procedure made the intentional decision to ground them in legal rules and principles rather than equitable ones), with Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987) (discussing how the Federal Rules of Civil Procedure were crafted to embrace equitable rules and principles).

  269. Meyn, supra note 267, at 699; Ion Meyn, Constructing Separate and Unequal Courtrooms, 63 Ariz. L. Rev. (forthcoming 2021) (on file with author), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3657250 [https://perma.cc/VA7S-D8C9] [hereinafter Meyn, Separate and Unequal].

  270. See Meyn, Separate and Unequal, supra note 268 (discussing why and how federal criminal procedure rules ended up diverging from civil procedural rules to the advantage of the prosecution and disadvantage of the defense).

  271. According to several recent studies, fewer than 3% of state and federal criminal cases result in a jury trial. Nat’l Assoc. Crim. Def. Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 5 & n.2 (2018); see also Hon. Robert J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash. L. Rev. 99, 102–04 (2018) (arguing that what were once trial judges and criminal trial attorneys now function more as “sentencing judges” and “sentencing advocates,” respectively).

  272. See, e.g., Meyn, supra note 267, at 732 (noting a “historical resistance to considering the rights of a criminal defendant”); Meyn, Separate and Unequal, supra note 268, at 3.

  273. See, e.g., Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019); James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account, 94 N.Y.U. L. Rev. 1465 (2019); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010).

  274. Dennis Childs, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary

    77 (2015);

    Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II 99 (2008); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 99–100 (1998).

  275. Blackmon, supra note 273, at 64, 66.

  276. Pope, supra note 272, at 1528–29.

  277. Id. at 1529; Meyn, Separate and Unequal, supra note 268, at 3.

  278. Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, Mass Incarceration: The Whole Pie 2020 (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.‌cc/Q7PB-A4H6].

  279. See, e.g., Nazgol Ghandnoosh, The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (Sept. 3, 2014), https://www.sentencingproject.org/publications/race-and-punishment-racial-perceptions-of-crime-and-support-for-punitive-policies/ [https://perma.cc/GD4R-J86L].

  280. See, e.g., Rafael Prieto Curiel & Stephen Richard Bishop, Fear of Crime: The Impact of Different Distributions of Victimisation, Palgrave Comm (Apr. 17, 2018), https://doi.org/10.1057/s41599-018-0094-8 [https://perma.cc/T6G6-NSGG].

  281. Id at 2.

  282. Ghandnoosh

    ,

    supra note 278.

  283. See, e.g., Meyn, supra note 267, at 722 (quoting Hearing Before the Advisory Committee on Rules of Criminal Procedure, United States Supreme Court at 466 (Sept. 8–9, 1941) (statement of Asst. Att’y Gen. Holtzoff)).

  284. Jerome Hall, Objectives of Federal Criminal Procedural Revision, 51 Yale L.J. 723, 730 (1942).

  285. Id. at 728.

  286. Id.

  287. See Anna Roberts, Convictions as Guilt, 88 Fordham L. Rev. 2501 (2020); Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014).

  288. Bowers, supra note 286, at 997.

  289. Id. at 999. Bowers takes the accuracy of the guilt determination as the key; Roberts, meanwhile, draws even the accuracy of guilt determinations into question. See Roberts, supra note 286.

  290. Any doubt about this should be put to rest by the judicial and legislative responses to the so-called “progressive prosecutors” who have been elected in recent years. See, e.g., Richard A. Oppel Jr., These Prosecutors Promised Change. Their Power Is Being Stripped Away, N.Y. Times (updated Dec. 2, 2019), https://www.nytimes.com/2019/11/25/us/prosecutors-criminal-justice.html [https://perma.cc/54YQ-2FT5]; John Pfaff, A No-Holds-Barred Assault on Prosecutors, Appeal (Aug. 13, 2019), https://theappeal.org/bill-barr-prosecutors/ [https://perma.cc/8SNZ-P4DU]; Soares v. State, 121 N.Y.S.3d 790, 799–800 (N.Y. Sup. Ct. 2020).

  291. I am drawing here on Anna Roberts’s definitions of “legal guilt” and “factual guilt.” She defines “legal guilt” as “a procedurally valid conviction.” Anna Roberts, Arrests as Guilt, 70 Ala. L. Rev. 987, 994 (2019). By contrast, “factual guilt” requires a person to have committed the crime, meaning the person had the requisite actus reus and mens rea and no defense that would negate her guilt. Id. at 990.

  292. See, e.g., Blackmon, supra note 273, at

    7, 67

    (noting the lack of process, including the pretrial practice of “confess[ing] judgment” for Black men who were dubiously convicted of crimes and then subjected to forced labor)

    .

  293. See, e.g., House v. Bell, 547 U.S. 518, 522 (2006) (finding that a convicted man claiming actual innocence had met the stringent requirements necessary to proceed with a habeas appeal despite the procedural default rule); Herrera v. Collins, 506 U.S. 390, 400 (1993) (noting that claims of actual innocence based on newly discovered evidence do not give ground to federal habeas relief without an independent constitutional violation because the purpose of federal habeas is to remedy constitutional violations, not factual errors).

  294. Yet, as Roberts cogently points out,

    Our system for determining legal guilt, which sets up various processes and protections that must be honored in order to permit a valid declaration of legal guilt, is the primary proxy that we have for factual guilt. For all its imperfections, it is the best that we currently have. Only an all-seeing, all-knowing entity could speak with absolute accuracy and authority on factual guilt, and as mentioned earlier, even she would be unable to provide a definitive answer regarding certain charges that have an inescapably subjective component.

    Roberts, supra note 290, at 994–95 (footnotes omitted).

  295. See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007); John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017).

  296. 543 U.S. 220 (2005).

  297. See, e.g., Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration, 101 Yale L.J. 2043, 2044 (1992).

  298. Booker, 543 U.S. at 236–39, 244.

  299. See, e.g., William Rhodes, Ryan Kling, Jeremy Luallen & Christina Dyous, Federal Sentencing Disparity

    : 2005

    –20

    12

    at 67–68 (Bureau of Just. Stats., Working Paper, WP-2015:01, 2015) (noting that racial disparity in sentencing between Black and White males has increased since Booker).

  300. Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 111–22 (2014).

  301. Klinck, supra note 40, at 5.

  302. Id.

  303. Id. at 34.

  304. Id. at 33.

  305. Id. at 38.

  306. Id. at 268 (“If conscience relates, more or less exhaustively, to one’s whole spiritual condition, to whether one is in a state of grace or not, then it fits awkwardly with a concept of law as essentially general, externally-dictated rules.”).

  307. Id. at 207.

  308. Id. at 208.

  309. Id.

  310. Id. at 224.

  311. In order to ensure equity’s survival, the chancery had to effectively respond to these criticisms. The chancery had to “present what it dispensed as being more like regular law.” Id. at 225. “[R]egular equity,” in the words of Lord Nottingham, had to “speak as much to order and consistency of process” as common law, which meant that equity needed to follow some rules, both procedural and substantive. Id. at 253. Thus arose a distinction between “regular” or “chancery” equity and a broader conception of equity. “Regular equity,” or “chancery equity” became regulated and ruled, less strictly than the common law initially, id. at 253–54, but ultimately, in a manner not so different.

  312. Samet

    ,

    supra note 41, at 2.

  313. Id. at 10.

  314. Id. at 11.

  315. Id. at 44.

  316. Id. at 46.

  317. Id. at 49.

  318. Id. at 52.

  319. Id. at 57 (quoting Jeremy Waldron, Inhuman and Degrading Treatment: The Words Themselves, 23 Can. J. L. & Juris. 269, 284 (2010)).

  320. Id. at 58–59.

  321. Id. at 61.

  322. 572 U.S. 701, 708 (2014) (citing Weems v. United States, 217 U.S. 349, 378 (1910) & Trop v. Dulles, 356 U.S. 86, 101 (1958)) (internal quotations omitted).

  323. Of course, many would assert that the Supreme Court has abdicated its moral duty with regard to its Eighth Amendment “evolving standards of decency” jurisprudence. Cf. United States v. Higgs, No. 20-927, slip op. at 1–2, 5–8, 10 (U.S. Jan. 12, 2021) (Sotomayor, J., dissenting) (criticizing the Court’s recent decisions not to intervene in cases involving federal exactions, including in a case involving a likely successful Eighth Amendment challenge).

  324. Romar v. Fresno Cmty. Hosp. & Med. Ctr., 583 F. Supp. 2d 1179, 1186 (E.D. Cal. 2008) (citing Richardson v. Kier, 34 Cal. 63, 75 (1867)).

  325. Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev.

     

    99, 112–13 (2015) (discussing empirical evidence that judges still tend to be White, male, older than the average American, and much more educated).

  326. Pope, supra note 272, at 1527.

  327. 163 U.S. 537 (1896).

  328. 323 U.S. 214 (1944).

  329. Plessy, 163 U.S. at 543.

  330. Id. at 550–51 (emphasis added).

  331. Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954).

  332. Korematsu, 323 U.S. at 216, 218.

  333. Korematsu v. United States, 584 F. Supp. 1406, 1416–19 (N.D. Cal. 1984).

  334. Id. at 1419.

  335. Id. at 1413.

  336. Samet

    ,

    supra note 41, at 61.

  337. See, e.g., Susan A. Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law, Culture & Humans 293, 295–97 (2007); Michael Tonry, Rethinking Unthinkable Punishment Policies in America, 46 UCLA L. Rev. 1751, 1781–86 (1999); Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke & Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order 3–28 (1978); Stanley Cohen, Folk Devils & Moral Panics: The Creation of the Mods and Rockers (Routledge Classics 2011) (1972).

  338. Bandes, supra note 336, at 294 (footnotes omitted).

  339. Tonry, supra note 336, at 1787 (footnotes omitted).

  340. Id. at 1787–88.

  341. Id. at 1788.

  342. Bandes, supra note 336, at 294.

  343. Id. at 301.

  344. Id. at 294.

  345. Id. at 310 (quoting Scott Turow, Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty 34 (2003)).

  346. Id. at 309–10, 312.

  347. Id. at 313–14.

  348. Id. at 296.

  349. Tonry, supra note 336, at 1753.

  350. Id. at 1756.

  351. Bandes, supra note 336, at 296, 315–16.

  352. In the criminal legal system, morality will almost always be at play because the criminal law is anchored in morality; it is a “functional mechanism that helps set and then illuminate the boundaries of acceptable behavior.” Tonry, supra note 336, at 1764.

  353. Samet

    ,

    supra note 41, at 6 (“[A] clear division between Equity and Common Law in the US is mostly restricted to the area of remedies . . . .”). This is distinct from England and Wales, where equity affects large areas of substantive private law. Id.

  354. Id. at 16–17.

  355. Bey v. United States, Crim. No. 03-18-1, 2009 WL 1033655, at *1 (D. Del. Apr. 16, 2009).

  356. The Second Chance Act of 2007, 18 U.S.C. §§ 3621, 3624.

  357. Bey, 2009 WL 1033655, at *3 n.1.

  358. Id. at *3.

  359. Id. Although Bey’s juvenile charges included attempted robbery, assault on a mail carrier, and obstructing passage of the U.S. mail, he asserted the obstructing passage charge was the only count of conviction. Id.

  360. Id.

  361. Id.

  362. Id. (quoting United States v. Dunegan, 251 F.3d 477, 480 (3d Cir. 2001)).

  363. As the court noted:

    A federal court invokes ancillary jurisdiction as an incident to a matter where it has acquired jurisdiction of a case in its entirety and, as an incident to the disposition of the primary matter properly before it. It may resolve other related matters which it could not consider were they independently presented. Thus, ancillary jurisdiction permits a court to only dispose of matters related to the original case before it. The doctrine of ancillary jurisdiction does not give district courts the authority to reopen a closed case whenever a related matter subsequently arises. The Supreme Court in recent years has held that ancillary jurisdiction is much more limited.

    Dunegan, 251 F.3d at 478–79 (internal citations omitted).

  364. Id. at 479–80.

  365. Id. at 480 (quotations omitted).

  366. See, e.g., United States v. Sumner, 226 F.3d 1005, 1010–11 (9th Cir. 2000). But see United States v. Smith, 940 F.2d 395 (9th Cir. 1991) (listing cases where the Ninth Circuit recognized equitable power of the court to grant expungements in rare cases).

  367. United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977).

  368. Id. (quotations omitted).

  369. Id.

  370. Id. (quotations omitted).

  371. Id. (quoting United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975), cert. denied, 423 U.S. 836 (1975)).

  372. Id. at 540.

  373. Id. (citing Sullivan v. Murphy, 478 F.2d 938, 968–71 (D.C. Cir. 1973)).

  374. Id. (citing United States v. McLeod, 385 F.2d 734, 737–38 (5th Cir. 1967)).

  375. Id. (citing Wheeler v. Goodman, 306 F. Supp. 58, 66 (W.D.N.C. 1969)).

  376. Id. (citing Kowall v. United States, 53 F.R.D. 211, 212 (W.D. Mich. 1971)).

  377. Id. at 539.

  378. United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993).

  379. Id.; see also Geary v. United States, 901 F.2d 679, 679–80 (8th Cir. 1990) (holding that a federal court may only exercise its inherent equitable power to expunge in cases of extraordinary circumstances); Allen v. Webster, 742 F.2d 153, 154–55 (4th Cir. 1984) (same); Menard v. Saxbe, 498 F.2d 1017, 1023–25 (D.C. Cir. 1974) (same).

  380. United States v. Meyer, 439 F.3d 855, 859 (8th Cir. 2006) (emphasis added).

  381. 18 U.S.C. § 3607; 21 U.S.C. § 844.

  382. See, e.g., United States v. Travers, 514 F.2d 1171, 1175, 1179 (2d Cir. 1974) (granting expungement of a federal conviction after the Supreme Court rejected the statutory interpretation under which the conviction was affirmed; the court concluded that the defendant’s actions simply were not illegal). This author was unable to find any state cases where a court granted a writ of mandamus to expunge a criminal record.

  383. Interestingly, that was not always the case. In 1950 Congress passed the Federal Youth Corrections Act, which allowed eighteen- to twenty-six-year-olds to set aside their convictions if the court released them early from probation. As Margaret Colgate Love wrote in Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1709 & n.15, 1710 (2003):

    [T]he basic idea was to have a court grant relief that would be more complete than a pardon, and more respectable than an automatic or administrative restoration of rights. The purpose of judicial expungement or set-aside was to both encourage and reward rehabilitation, by restoring social status as well as legal rights.” Id. at 1710. The statute was repealed in 1984.

    Id. at 1716.

    In 1962, the National Council on Crime and Delinquency (“NCCD”) proposed a model statute that would give the court statutory authority to “annul” convictions. Id. at 1710. The intended effect was to restore a person’s civil rights and allow them to state that they had not been convicted when filling out applications. Id. The NCCD proposal also would have required employers and licensing boards to ask applicants: “Have you ever been arrested for or convicted of a crime which has not been annulled by a court?” Id. (footnote omitted).

    That same year, a provision of the American Law Institute’s Model Penal Code (“MPC”) empowered the sentencing court, “after an offender had fully satisfied the sentence, to enter an order relieving ‘any disqualification or disability imposed by law because of the conviction.’ After an additional period of good behavior, the court could issue an order ‘vacating’ the judgment of conviction.” Id. at 1711 (citing MPC § 306.6) (footnotes omitted). According to Love, the MPC provision “intended to accomplish the maximum by way of legal and social restoration for rehabilitated ex-offenders. But it was specifically not intended to remove the conviction from the records, or indulge the fiction that the conviction had somehow never taken place.” Id. at 1712 (footnotes omitted).

    The House Committee on the Judiciary undertook another sentencing reform bill that included provisions unreasonably restricting eligibility for public benefits and employment based on a federal conviction, extending the Youth Corrections Act to all first-time offenders so that all those records would be sealed for most purposes and the individual could deny the conviction. Id. at 1715–16. “The goal of the legislation was to restore the convicted person to the same position as before the conviction.” Id. at 1716 (quotations omitted). This bill was ultimately defeated by the competing Senate bill, the Sentencing Reform Act of 1984. Id.

  384. Gabriel J. Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions, 102 Marq. L. Rev.

     

    233, 234–35 (2018); Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 627 (2006).

  385. Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 302 (2015).

  386. Chin, supra note 383, at 235; Lollar, supra note 299, at 123–30; Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103, 1104–09 (2013).

  387. J. McGregor Smyth, Jr., From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings, Crim. Just., Fall 2009, at 42, 42.

  388. The need for such writs would likely be minimized if the legal system were to adopt I. Bennett Capers’s recommendations for returning some prosecutorial authority to the people. I. Bennett Capers, Against Prosecutors, 105 Cornell L. Rev. 1561 (2020).

  389. Petition for Peremptory Writ of Mandamus (In the First Instance) at 2, State ex rel. Vernon v. Adrine, No. 103149 (Ohio Ct. App. 2015), https://www.scribd.com/document/2690‌46322/Writ-of-Mandamus-Peremptory-in-Tamir-Rice-case [https://perma.cc/LS58-QVZH].

  390. Ohio Rev. Code Ann. § 2935.09(D) (LexisNexis 2006).

  391. Petition for Peremptory Writ, supra note 388, at 2–3.

  392. Id. at 3.

  393. Ohio Rev. Code Ann. § 2935.10(A) (LexisNexis 1973).

  394. Id.

  395. State ex rel. Vernon v. Adrine, No. 103149, 2015 WL 4389579, at *1 (Ohio Ct. App. 2015).

  396. Id. at *3.

  397. Id. at *4 (Laster Mays, J., dissenting).

  398. 477 F.2d 375 (2d Cir. 1973).

  399. Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy 153–­54, 170 (2016) (citations omitted).

  400. Jeff Z. Klein, Niagara Frontier Heritage Project, Heritage Moments: The Attica Prison Uprising – 43 Dead and a Four-Decade Cover-Up, NPR (Sept. 10, 2018), https://news.wbfo.‌org/post/heritage-moments-attica-prison-uprising-43-dead-and-four-decade-cover [https://perma.cc/TL3L-M94T]. The eleven included prison guards and civilian workers. Id. Although one prison guard and three of those incarcerated appear to have been killed prior to state police entering the prison, id., the remainder of the deaths were at the hands of state police. Thompson, supra note 398, at 230–31, 238–39.

  401. Inmates of Attica, 477 F.2d at 378.

  402. Id. at 377.

  403. Id. at 379 (quoting United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968)).

  404. Id.

  405. Id.

  406. Id. at 379–80 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)).

  407. Id. at 380.

  408. Id. The court went on:

    At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e.g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws?

    Id.

  409. Id. at 380–81 (internal citations omitted).

  410. Id. at 382.

  411. See, e.g., Sanders-El v. Commonwealth, No. 2010-CA-001964-MR, 2011 WL 2935854, at *1–2 (Ky. Ct. App. July 22, 2011); Konya v. Dist. Att’y of Northampton Cnty., 669 A.2d 890, 892–93 (Pa. 1995); Bartlett v. Caldwell, 452 S.E.2d 744, 744 (Ga. 1995); Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir. 1987) (per curiam); Powell v. Katzenbach, 359 F.2d 234, 234 (D.C. Cir. 1965) (per curiam).

  412. State ex rel. Capron v. Dattilio, 50 N.E.3d 551, 553 (Ohio 2016); State ex rel. Evans v. Columbus Dept. of Law, 699 N.E.2d 60, 61 (Ohio 1998) (per curiam).

  413. Cf. Capron, 50 N.E.3d at 553.

  414. Under Ohio’s law, a judge does not abuse her discretion if she refers the case to the prosecutor’s office for further investigation; such a referral discharges the judge’s duty under the statute. See, e.g., State ex rel. Brown v. Nusbaum, 95 N.E.3d 365, 367–68 (Ohio 2017); State ex rel. Strothers v. Turner, 680 N.E.2d 1238, 1239 (Ohio 1997) (per curiam).

  415. Relatedly, courts almost always deny writs of mandamus when the defendant has cooperated in a criminal case after sentencing and seeks to have the court require the government to recommend a reduction in sentence for providing “substantial assistance” under Rule 35(b). See, e.g., United States v. Mells, 481 F. App’x 563, 564–66 (11th Cir. 2012) (per curiam); United States v. Duncan, 280 F. App’x 901, 903–04 (11th Cir. 2008) (per curiam); United States v. Tadlock, 346 F. App’x 977, 978 (4th Cir. 2009) (per curiam); United States v. Murray, 437 F. App’x 103, 105 (3d Cir. 2011) (per curiam).

  416. See, e.g., United States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007). But see Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir. 2000) (finding violation of due process when state prosecuted two different defendants on factually contradictory theories); Thompson v. Calderon, 120 F.3d 1045, 1050–51 (9th Cir. 1997) (en banc) (noting that “a serious question exists as to whether [the defendant] was deprived of due process of law by the prosecutor’s presentation of flagrantly inconsistent theories . . . to the two juries that separately heard” the two co-defendants’ cases), rev’d on other grounds, 523 U.S. 538 (1998).

  417. See supra Subsection I.C.1.b.

  418. 548 U.S. 140 (2006).

  419. Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 545–47 (2007).

  420. Gonzalez-Lopez, 548 U.S. at 145.

  421. Id.

  422. Id. at 147–48 (footnotes omitted).

  423. Id. at 146.

  424. Id. at 148.

  425. Id. at 151.

  426. Id. at 152 (citations omitted).

  427. Justice Scalia wrote:

    We have little trouble concluding that erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds,’—or indeed on whether it proceeds at all.

    Id. at 150 (citations omitted).

  428. Norman Lefstein, In Search of Gideon’s Promise: Lessons from England and the Need for Federal Help, 55 Hastings L.J. 835, 917 (2004).

  429. Id. at 918.

  430. Id. at 919.

  431. Id. at 863, 886.

  432. Id. at 863.

  433. Compare id. at 868 (“[T]here is little retained criminal defense work in England.”) with Hoeffel, supra note 418, at 545 (“[O]nly . . . ten percent of criminal defendants . . . retain counsel . . . .”).

  434. Lefstein, supra note 427, at 893.

  435. Id.

  436. Id. at 915.

  437. Id.

  438. Id.

  439. Hoeffel, supra note 418, at 540–42.

  440. Id. at 543–44.

  441. Id. at 544–45.

  442. Id. at 548; United States v. Gonzalez-Lopez, 548 U.S. 140, 146–48 (2006).

  443. Moran, supra note 121, at 1341–42.

  444. In re United States, 397 F.3d 274, 286–87 (5th Cir. 2005).

  445. District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008).

  446. United States v. Choi, 818 F. Supp. 2d 79, 82 (D.D.C. 2011).

  447. Wolitz, supra note 163, at 1292–99.

  448. United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988) (requiring the petitioner to “demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences)”).

  449. Id. at 203; United States v. Bush, 888 F.2d 1145, 1148–50 (7th Cir. 1989).

  450. See supra Subsection I.C.2.

  451. United States v. Craig, 907 F.2d 653, 658 (7th Cir. 1990).

  452. Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. United States, 392 U.S. 40, 55–57 (1968)).

  453. Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *2 (W.D. Wash. 2008) (internal quotations omitted).

  454. Id. at *5.

  455. Id. (internal quotations omitted).

  456. Id. at *6.

  457. Fountain, supra note 221, at 241–45; Teague v. Lane, 489 U.S. 288, 310 (1989) (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”).

  458. Fountain, supra note 221, at 239 (quoting Carrington v. United States, 503 F.3d 888, 893 (9th Cir. 2007)).

  459. Ejelonu v. I.N.S., 355 F.3d 539, 548 (6th Cir. 2004); Fountain, supra note 221, at 239.

  460. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  461. A State-by-State Look at Coronavirus in Prisons, Marshall Project (updated Nov. 12, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/YRN2-NPXR].

  462. Id.

  463. Brie Williams et al., Correctional Facilities in the Shadow of COVID-19: Unique Challenges and Proposed Solutions, Health Affs. Blog (Mar. 26, 2020), https://www.health‌affairs.org/do/10.1377/hblog20200324.784502/full/ [https://perma.cc/H6FV-TNT5].

  464. Id.

  465.  Kelly Davis, Coronavirus in Jails and Prisons, Appeal (July 30, 2020), https://theappeal.org/coronavirus-in-jails-and-prisons-36/ [https://perma.cc/E6AP-Q2XR].

  466. Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).

  467. Numerous thoughtful and consequential proposals abound, including discussions about abolishing prisons, see, e.g.,

     

    Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California

    (2007);

    Angela Y. Davis, Are Prisons Obsolete?

    (2003);

    defunding the police and putting that funding into other resources, such as housing and education, see, e.g., Keeanga-Yamahtta Taylor, How Do We Change America?,

     

    New Yorker (June 8, 2020), https://www.newyorker.com/news/our-columnists/how-do-we-change-america?itm_content=footer-recirc [https://perma.cc/J6GB-2PWC]; Amna A. Akbar, How Defund and Disband Became the Demands, N.Y. Rev. Books (June 15, 2020), https://www.nybooks.com/daily/2020/06/15/how-defund-and-disband-became-the-demands/ [https://perma.cc/UZ2P-B82Q]; investing in restorative justice programs, see, e.g., Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair

    (2019);

    and democratizing criminal justice processes, see, e.g., K. Sabeel Rahman & Jocelyn Simonson, The Institutional Design of Community Control, 108 Calif. L. Rev. 679 (2020); Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249 (2019); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405 (2018); Janet Moore, Marla Sandys & Raj Jayadev, Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Alb. L. Rev. 1281 (2014/2015).

  468. Despite the typically slow pace of change, sometimes an event triggers unusually rapid systemic change. The killing of George Floyd by a police officer in Minneapolis appears to have been one of those triggers. Since his death on May 25, 2020, numerous states have initiated police conduct and criminal procedure reforms that typically occur after years of work. See, e.g., Weihua Li & Humera Lodhi, The States Taking on Police Reform After the Death of George Floyd, FiveThirtyEight & Marshall Project (June 18, 2020, 3:00 PM), https://fivethirtyeight.com/features/which-states-are-taking-on-police-reform-after-george-floyd/ [https://perma.cc/DT4D-T55V]; Orion Rummler, The Major Police Reforms Enacted Since George Floyd’s Death, Axios (updated Oct. 1, 2020), https://www.axios.com/police-reform-george-floyd-protest-2150b2dd-a6dc-4a0c-a1fb-62c2e999a03a.html [https://perma.‌cc/4NTE-QYL3]. Perhaps, then, systemic changes are on the horizon, making the need for the proposals in Part III of this Article less essential. Yet even in a world of reduced funding for police and less incarceration, equitable remedies play an important role in seeking and obtaining justice.