Clogged Conduits: A Defendant’s Right to Confront His Translated Statements

Each year, more than half of criminal defendants subject to the career offender sentencing enhancement are those with prior drug convictions. Because the goal of the Sentencing Guidelines is to “inject transparency, consistency, and fairness” into federal sentencing, clarity on how courts should assess decriminalized drug offenses as § 4B1.1 predicates is needed to restore uniformity to the system and satisfy the Guidelines’ original goals. This Essay calls upon the Sentencing Commission to clarify its intent, place time limits on decriminalized drug predicates for § 4B1.1, and restore greater uniformity to the system.

The law and political economy (LPE) movement claims concern for marginalized communities as a motivation for its crime agenda. However, efforts to defund police, elect progressive prosecutors, and eliminate prisons are likely to generate large costs for the very communities LPE scholars say they care about. Existing empirical analyses demonstrate that Black individuals benefit disproportionately from the deterrence provided by police. This Essay also provides new evidence that progressive prosecutors have put Black people in lethal danger. Finally, it argues that there are reasons to believe that decarceration would not be costless for the Black community.

Because, unlike natural persons, a corporation does not have a single, unitary mind, the question of how to ascertain mens rea in a prosecution of a corporate entity presents an epistemological conundrum. The recent revival of the field of management cybernetics presents a new lens through which to examine those questions. This Essay draws on several of the central insights of management cybernetics to argue that a collective knowledge instruction is appropriate in cases where certain regulatory systems within the corporation have been attenuated to the point where they cannot operate with the complexity required by law.