Faculty Bibliography
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John Rappaport & Andrew M. Crespo, Criminal Law and the American Penal System (forthcoming).
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The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a "system of pleas." The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles' heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power. Organized to act together, this community has unique resources. Most notably, they have the power to say "not guilty" when asked "how do you plead?" If done together, this simple but profound act of resistance would bring the penal system to a halt. Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial. This fact is what makes plea bargaining so essential to mass incarceration in the first place. Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially transformative power--a decarceral power, a democratic power--that arises from the penal system's massive overextension. Susan Barton, a formerly incarcerated organizer, floated this idea in the pages of The New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation. This Essay aims to conceptualize and test the limits of Burton's idea, examining both its promise and its hurdles while marking key questions for future exploration.
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The government cannot lawfully exercise its power of arrest if it doesn’t realize it is, in fact, arresting people in the first place.
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This amicus curiae brief is submitted in United States v. Flynn, the criminal prosecution of former National Security Advisor Michael Flynn. It is authored by Professor Andrew Manuel Crespo and attorneys from Protect Democracy, on behalf of former federal prosecutors and high-ranking Department of Justice officials. The brief argues that the court has not only the authority but also the responsibility to review the government's motion to dismiss the case against Flynn with care, and to deny the motion if a dismissal would be contrary to the public interest. The brief analyzes the substantive defects in the government's argument that Flynn's acknowledged lies to the FBI were not "material" within the meaning of 18 USC 1001. And it explains why all of the publicly available evidence to date indicates that the motion to dismiss was motivated by a desire to satisfy the president's personal political interest, and thus contrary to the public interest as a matter of law.
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With an anticipated shortage of ventilators for patients with coronavirus disease 2019 (COVID-19), hospitals, physicians, and nurses may have to make an unprecedented decision: should they withdraw or withhold ventilators from some patients and use them for other patients who have a better chance of survival? It is not uncommon for care teams to decide against initiating or continuing mechanical ventilation when such treatment would not achieve a patient’s goals or directives. COVID-19 presents a different case: patients who do not receive a ventilator could benefit, perhaps living for many additional years, if they receive short-term mechanical ventilation. Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support. Recently developed protocols expressly call for the rationing and reallocation of ventilators, in a manner that aims to save the greatest number of lives.1 These protocols are broadly accepted by medical ethicists.1,2 But ethics aside, there are potential legal ramifications of either withholding or withdrawing a ventilator from a patient who would ordinarily receive such aid in the absence of a public health emergency. In this Viewpoint, we assess the legal risks that physicians, other health care workers, and hospital systems confront in such scenarios and recommend that states explicitly and immediately adopt legal protections for health care workers, modeled on provisions in place in Maryland.
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The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior — a connection assessed by asking whether the search or seizure is supported by probable cause. And yet, central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means, or how it operates. Indeed, the Supreme Court has gone so far as to insist that it is “not possible” to define the term, holding instead that the probable cause inquiry entails no more than the application of “common-sense” to “the totality of the circumstances.” That doctrinal approach is routinely criticized as an “I know it when I see it” mode of jurisprudence that is ill equipped to safeguard civil liberties in the face of competing and weighty law enforcement demands. Viewed charitably, however the Supreme Court’s refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of widely varying law enforcement-civilian interactions. This tension between doctrinal flexibility and structure is the animating dilemma of probable-cause jurisprudence — a dilemma that this Article attempts to navigate, and ultimately to resolve. To do so, it urges a rejection of an often invoked (if not always followed) tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method, judged by the same substantive standard, from one case to another. On close inspection, however, the Supreme Court does not always practice what it preaches. Rather, beneath the surface of its probable cause canon there are seeds of an alternative — and superior — conception of probable cause, which this Article terms probable cause pluralism. On this view, “probable cause” is an open-textured and capacious idea that can comfortably encompass multiple distinct analytic frameworks and multiple different substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable cause, as the case may be, can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses, while treating others with deserved skepticism or disbelief. It can, in short, come to mean something, so long as it gives up on meaning any one thing in all cases. Because probable cause’s pluralism is both nascent and implicit, it is also undertheorized, having escaped sustained or comprehensive analysis by either the Court or its commentators. As a result, probable cause pluralism, in its current form, is at best a stunted and haphazard collection of disparate and disconnected ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should like in practice. Specifically, by organizing probable cause around three central analytic axes — which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments — the Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through all the many and varied cases to come, and better able to assess all the many cases that have come before.
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In Kansas v. Glover, the Supreme Court will consider whether a police officer has reasonable suspicion to believe that a vehicle is being driven by its registered owner — as opposed to some other authorized driver — when the sole fact known to the officer at the time of the stop is that the registered owner is not, in fact, lawfully allowed to drive any vehicle at all. This essay, adapted from an amicus brief filed in the Glover case, argues that the proper Fourth Amendment analysis in that case is unavoidably empirical in nature: The key question in the case can and should be resolved by real-world data, which the State in Glover was well-positioned to collect and present. Because it failed to do so, the State did not satisfy its burden of proof, and injected a narrow but significant error into the case that requires suppression, even if that result would not necessarily obtain in other cases arising in similar circumstances.
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In Kansas v. Glover, the United States Supreme Court will consider whether a police officer has reasonable suspicion to believe that a vehicle is being driven by its registered owner, as opposed to some other authorized driver, when the sole fact known to the officer is that the registered owner has a suspended license. Professor Crespo authored this amicus brief on his own behalf urging affirmance of the Kansas Supreme Court.
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In their recent book "To End a Presidency" Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question ("why impeach?") through the broader lens of criminal jurisprudence, which perennially confronts the related and familiar question: "why punish?" After assessing Tribe and Matz's arguments for and against impeachment along the familiar Benthamite and Kantian axes, the essay ultimately recasts the dilemma of impeachment as a dilemma for reconstructivist accounts of punishment itself: Does punishing a wrongdoer--including potentially the President of the United States--help society heal in the wake of serious criminal acts, or does the prospect of punishment only tear us further apart?
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The American criminal justice system is a system of pleas. Few who know it well think it is working. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law—the two most studied bodies of law in the criminal justice system—neither of which significantly regulates prosecutorial power. The assumption is misguided, however, insofar as it fails to account for a third body of law—the subconstitutional law of criminal procedure—that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed. These hidden regulatory levers are neither theoretical nor abstract. Rather, they exist in strikingly varied forms across our pluralist criminal justice system. This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content. In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform.
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Andrew Crespo, The Road to United States v. Trump is Paved with Prosecutorial Discretion, Take Care (May 21, 2017).
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