Extra Venues for Extraterritorial Crimes? 18 USC § 3238 and Cross-Border Criminal Activity
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The Constitution’s pardon power offers a direct path to protect an ally from federal criminal liability. However, another vehicle for absolution exists—one which simultaneously avoids public scrutiny while securing amnesty. By issuing a discreet, specific nonenforcement directive to the Department of Justice (DOJ), a politically vulnerable President can achieve the result of pardon without signing one. This phenomenon, which this Essay terms the “shadow pardon,” transforms prosecutorial discretion into a covert form of amnesty, invisible to the public and immune from reversal once the relevant crime’s statute of limitations expires.
In 2021, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Notably, the EFAA assigns courts, rather than an arbitrator, the responsibility for determining the sufficiency of a plaintiff’s allegations. This has led to disagreements between federal district courts over the appropriate pleading standard when determining whether the EFAA applies. This Essay argues that courts should adopt the “nonfrivolous” pleading standard because it better ensures access to justice for victims of sexual misconduct.
I would like to thank Jenna Liu, Jack Brake, Alex Moreno, Miranda Coombe, and the rest of The University of Chicago Law Review editors and staff for their thoughtful feedback. I would also like to thank the attorneys in the DVSJA Practice at Appellate Advocates for introducing me to this area of law and advocating tirelessly for incarcerated survivors.
In this Comment, Zoë Lewis Ewing evaluates the implementation of the Domestic Violence Survivors Justice Act (DVSJA), a New York law passed in 2019 to provide shortened sentencing ranges for domestic violence survivors convicted of crimes. It identifies an inconsistency in sentencing courts’ application of the law’s causation standard, which requires that a petitioner’s experience of domestic violence be a “significant contributing factor” to their criminal conduct. Some courts interpret the prong narrowly, while others apply a broad causation standard. This Comment argues that courts should opt for the latter approach and consider causation in the DVSJA satisfied if domestic violence was “sufficiently significant to have likely helped bring about the criminal conduct.”