Andrew Manuel Crespo

Morris Wasserstein Public Interest Professor of Law

Griswold 308

617-495-3168

Assistant: Heather Brennan / (617) 384-5427

Biography

Andrew Manuel Crespo is the Morris Wasserstein Public Interest Professor of Law at Harvard Law School, where he teaches criminal law and procedure and serves as the Executive Faculty Director of the Institute to End Mass Incarceration. Professor Crespo's research and scholarly expertise center on the institutional design, power structures, legal frameworks, and political economy of the American penal system. His scholarship has been honored by the Association of American Law Schools and profiled in The New York Times, with his leading articles appearing in the Harvard Law Reviewthe Columbia Law Review, and the Yale Law Journal. Together with John Rappaport, he is the author of Criminal Law and the American Penal System, an innovative forthcoming casebook that recasts the traditionally required criminal law course as a class about the role law and lawyers have played in building and sustaining the pathologies of the modern American penal system.

Nationally recognized for his expertise on a range of legal issues, Professor Crespo's public commentary can be found in The New York TimesThe Washington Post, The Boston Globe, the Journal of the American Medical Association, and online at Lawfare, Just Security and Take Care. At the appointment of President Biden, he serves on the Presidential Commission on the Supreme Court of the United States. In addition, he is a member of the Academic Advisory Board of the American Constitution Society and serves on the Standing Advisory Committee on the Rules of Criminal Procedure for the state of Massachusetts.  

Prior to beginning his academic career, Professor Crespo served as a Staff Attorney with the Public Defender Service for the District of Columbia, where he represented over one hundred adults and juveniles charged with serious felonies, ranging from armed robberies, to burglaries, to homicides. As a member of the Harvard Law School faculty he continues to be active in litigation, authoring merits stage and amicus briefs on various issues, often in close collaboration with his students.   

Professor Crespo graduated magna cum laude from Harvard Law School in 2008, where he served as president of the Harvard Law Review, the first Latino to hold that position.  Following law school, Professor Crespo served for three years as a law clerk, initially to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit, then to Associate Justice Stephen Breyer of the U.S. Supreme Court, and finally to Associate Justice Elena Kagan during her inaugural term on the Court.  Following his time as a public defender, Professor Crespo returned to Harvard as an assistant professor of law in 2015. In 2019, he became the first Latino promoted to a tenured position on the law school's faculty.

Areas of Interest

Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 Colum. L. Rev. 1303 (2018).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Sentencing & Punishment
,
Criminal Justice & Law Enforcement
,
Criminal Defense
Type: Article
Abstract
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.
Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2117 (2016).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
Type: Article
Andrew Manuel Crespo, Unpacking DHS’s Troubling Explanation of the Portland Van Video, Lawfare (July 25, 2020).
Categories:
Constitutional Law
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
Type: Other
Andrew Crespo, The Federal Police in Portland Don’t Even Understand What "Arrests" Are, Wash. Post, July 24, 2020.
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
Type: Other
Abstract
The government cannot lawfully exercise its power of arrest if it doesn’t realize it is, in fact, arresting people in the first place.
Andrew Crespo & Kristy Parker, The Prosecution of Michael Flynn Is Not Over Yet, Bos. Globe, June 26, 2020.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Executive Office
Type: News
Andrew Manuel Crespo, Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn (May 19, 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
National Security Law
,
Politics & Political Theory
,
Executive Office
,
Government Accountability
,
Corruption
,
Separation of Powers
Type: Other
Abstract
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.
I. Glenn Cohen, Andrew M. Crespo & Douglas B. White, Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms, 323 JAMA 1901 (2020).
Categories:
Criminal Law & Procedure
,
Civil Practice & Procedure
,
Health Care
,
Government & Politics
Sub-Categories:
Torts - Negligence
,
State & Local Government
,
Bioethics
,
Medical Jurisprudence
Type: Article
Abstract
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.
Andrew Crespo, Laura Londoño Pardo, Kristy Parker, & Nathaniel Sobel, Judge Sullivan Can Reject the Government’s Motion to Drop Flynn’s Case, Lawfare, May 18, 2020.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Judges & Jurisprudence
,
Executive Office
Type: Other
Andrew Crespo, I. Glenn Cohen & Douglas B. White, Protect the Doctors and Nurses Who Are Protecting Us, N.Y. Times, Apr. 1, 2020.
Categories:
Health Care
,
Government & Politics
Sub-Categories:
State & Local Government
,
Health Law & Policy
Type: News
Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276 (2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Judges & Jurisprudence
Type: Article
Abstract
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.
Andrew Manuel Crespo, The Unavoidably Empirical Fourth Amendment: A Case Study of Kansas v. Glover, 1 Cts. & Just. L.J. 217 (2019).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
Type: Article
Abstract
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.
Andrew Manuel Crespo, Brief of Professor Andrew Manuel Crespo as Amicus Curiae in Support of Affirmance, Kansas v. Glover (No. 18-556), 2019 WL 4256217 (U.S., Sept. 6, 2019).
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Fourth Amendment
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
Type: Other
Abstract
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.
Andrew Manuel Crespo, Impeachment as Punishment, 13 Harv. L. & Pol’y Rev. 581 (2019)(reviewing Laurence Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment (2018)).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
Type: Article
Abstract
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?
Andrew Crespo, Brett Kavanaugh, Take a Polygraph Test, Wash. Post♠, Oct. 1, 2018.
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Supreme Court of the United States
Type: News
Adriaan Lanni, Andrew Manuel Crespo, Benjamin I. Sachs, David J. Barron, Heather K. Gerken, Justice Anthony M. Kennedy, Justice Sonia Sotomayor & Michael C. Dorf, In Memoriam: Judge Stephen Reinhardt, 131 Harv. L. Rev. 2111 (2018).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Andrew Crespo, What Will You Do if Mueller is Fired?, Just Security (Dec. 21, 2017).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Executive Office
,
Legal Ethics
Type: Other
Andrew Crespo, An Open Letter to Joseph Arpaio’s Attorneys, Take Care (Sept. 15, 2017).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Government Accountability
Type: Other
Andrew Crespo, A Special Prosecutor Should Challenge Joe Arpaio’s Special Pardon, Bos. Globe, Sept. 7, 2017.
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Executive Office
Type: News
Andrew Crespo, The Road to United States v. Trump is Paved with Prosecutorial Discretion, Take Care (May 21, 2017).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Executive Office
Type: Other
Andrew Crespo, Recognizing Racism in Trump’s Call for Judge’s Recusal, Bos. Globe, Aug. 21, 2016
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Courts
,
Executive Office
Type: News
Andrew Manuel Crespo, Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court, 100 Minn. L. Rev. 1985 (2016).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Prosecution
,
Criminal Defense
,
Supreme Court of the United States
Type: Article

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Current Courses

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Griswold 308

617-495-3168

Assistant: Heather Brennan / (617) 384-5427