Nevada Law Journal Volume 25 Issue 1 & 2 Article Abstracts and Notes
Issue 1
Will Federal Compassionate Release Survive the Death of Chevron?
Jaden Lessnick, Law Clerk to the Honorable Jay Bybee of the Ninth Circuit Court of Appeals
In early 2023, the United States Sentencing Commission promulgated a compassionate release policy statement that will reverberate throughout the federal sentencing system for decades to come. In resolving an issue that had sharply divided the circuits, the Commission determined that certain nonretroactive changes in sentencing law could constitute “extraordinary and compelling reasons” for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). For the hundreds of people serving astronomical sentences that could not be imposed after the First Step Act of 2018, this amended policy statement holds much promise. Under Chevron and its progeny, the Commission’s policy statement should supersede prior, conflicting judicial interpretations of the compassionate release statute that had foreclosed a consideration of nonretroactive changes in the law. But the potential demise of Chevron deference threatens to revive the circuit split, foreclosing relief in circuits with restrictive interpretations of § 3582(c)(1)(A).
This Article charts an alternate path forward. It offers a theory of compassionate release untethered from the comfortable reliance on Chevron. By parsing the statutory text and tracing the Court’s Sentencing Commission jurisprudence, this Essay shows why the policy statement binds federal courts even in the absence of Chevron deference. On this theory, Chevron has only ever been a secondary justification for the application of the recent policy statement. Whether Chevron lives or dies, courts are duty-bound to yield to the Commission’s determination that some changes in the law are extraordinary and compelling reasons for a sentence reduction.
A Quantum of Privacy
Dr. Anat Lior, Professor at Drexel University School of Law
Quantum technologies are on the brink of becoming the leading technologies in the upcoming years, with forecasts suggesting their imminent commercial availability. In August 2023, Google unveiled a quantum-resistant security key, while NIST is progressing a post-quantum cryptography protocol. This Article sheds light on these highly anticipated advancements, particularly in quantum computing, and explores the potential privacy implications that could arise alongside their development and integration into the commercial market. It proposes a comprehensive, long-term approach to addressing these privacy challenges early on, given the technology’s nascent stage and current lack of readiness for widespread commercial use. This timeframe allows regulators ample opportunities to thoroughly deliberate on an appropriate legislative framework—one that is viable, effective, enforceable, and impactful.
The conversation surrounding the potential privacy risks posed by quantum technologies is in its initial stages. This Article seeks to expand and deepen this discourse, with a particular emphasis on quantum computing. It aims to achieve this by offering an overview of various quantum technologies, outlining the potential harms—focusing on privacy concerns—that these technologies might introduce, and highlighting the deficiencies in the current US framework to counteract these risks. Furthermore, it will delineate three phases of a policy framework that the US could presently adopt to address the potential privacy risks associated with quantum technologies.
The proposed framework consists of three interconnected stages that form a continuous feedback loop. This loop facilitates the implementation of the framework and enhances our understanding of these emerging technologies. The first stage focuses on quantum education to ensure widespread understanding within society and equip present and future policymakers with the essential expertise needed to develop meaningful legislation. Subsequently, as the first stage endeavors to cultivate a diverse cohort of experts in this domain, the second stage concentrates on
promoting robust industry standards through standardization, promoting compatibility and transparency among the few companies operating in this sector. This phase also fosters the emergence of optimal privacy practices and norms in the quantum sphere. Building upon the insights gained from the preceding phases, the third stage advocates for the formulation of nuanced regulations, supplemented by soft regulatory tools such as cloud-based quantum computing and insurance policies. This phase of ‘hard and soft regulation’ does not necessarily entail a comprehensive ‘Quantum Act’ but rather involves refining existing regulations or crafting specific legislation that addresses particular aspects of quantum technologies. Unlike comprehensive AI bills currently under discussion, an all-encompassing quantum act seems impractical in the intricate and unpredictable landscape of quantum technologies.
The Evolution of International Communications Technology and Foreign Intelligence Surveillance Regulation
Shaun Spencer, Professor at University of Massachusetts School of Law
In October 2022, the Biden administration issued an Executive Order imposing limits on its interception of foreign citizens’ communications. This self-imposed limitation came nearly a decade after the Snowden disclosures and the resulting European Union opposition to transferring EU data to the U.S. But prior disclosures of U.S. surveillance practices in the 1970s and 1980s had not produced enough international pressure to prompt the U.S. to impose restrictions on itself.
This Article examines why the outcome was different after the Snowden disclosures. The Article returns to the origins of modern U.S. surveillance law in the 1970s and traces three related stories. The first story shows how international telecommunications pathways migrated from over-the-air satellite transmissions and undersea copper cables in the 1970s to faster and more secure undersea fiber-optic cables today. The second story explores how the explosion of personal communications technologies in the Digital Age changed the composition of international communications and exposed vastly more personal communications to intelligence collection. The third story examines the post-9/11 expansion of U.S. surveillance authorities. The expansion was intended to overcome practical and legal challenges that arose when international communications migrated to undersea fiber-optic cables. However, the expansion did not simply rebalance the scales. Instead, the expanded surveillance authorities gave the
U.S. intelligence community access to far more personal communications of foreign citizens than would have been imaginable in the 1970s. The newfound vulnerability of ordinary citizens’ communications helps explain why the Snowden disclosures generated more significant and sustained international pressure than revelations of U.S. surveillance in the 1970s and 1980s.
Forging Future Frontiers: Pioneering Union Progress Through Training Centers
Ciara Alagao
No Really, What Should We Do? An Employer's Guide to Groff v. DeJoy and Juggling Religious Accomodations in the Workplace
Keegan Davis
The Insufficiency of Battered Women's Syndrome Evidence and the Need for Resentencing Legislation for Criminalized Survivors of Domestic Violence
Alice Samberg
Issue 2
Not Demented Enough: Dementia and Competency to Stand Trial
Rashmi Goel, Professor at Sturm College of Law, University of Denver
Although competency to stand trial holds a vaunted position among the due process rights in our criminal justice system, this right has been continually eroded, both doctrinally and practically. Its current application is a shadow of its original promise. As a result, the competency to stand trial right no longer protects the most vulnerable among us.
In Dusky, the Supreme Court provided this two-prong standard to determine if a defendant is competent to stand trial: The question of competence is whether the defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him.” Jurisprudentially however, courts have given little attention to what these two prongs really entail. Subsequent case law applying the Dusky standard has not expounded on the meaning of “rational” or given any content to what is involved in consulting with counsel. Doctrinally, this has left a vacuum. Practically, competency assessments are performed by mental health professionals, but these professionals similarly do not apply the full Dusky standards. Instead, they focus almost exclusively on the “factual understanding of the proceedings” aspect, which tests only whether the defendant knows why he is being charged, the layout of the courtroom, and the roles of the people in the courtroom. Judges rely heavily on these assessments. As a result, the thousands of competency decisions made each year are being decided based only on one small portion of the Dusky standard, and not the two prongs envisioned which are both necessary to protect the due process interests involved.
The application of the diminished test has significant implications from a due process perspective. It has particularly painful implications for defendants with dementia. The number of people diagnosed with dementia is increasing every day. And more people with dementia are coming into contact with the law. The criminal justice system, however, has little experience with this kind of cognitive decline which has particular vulnerabilities. Dementia is different from the mental illnesses more commonly encountered in competency evaluation proceedings. These differences make it more likely that people with dementia will be misunderstood, misdiagnosed, and disbelieved, ultimately leading to their being found competent to stand trial when the requisite abilities to consult with counsel are actually lacking. This is because defendants with dementia will still likely factually understand the proceedings against them. In other words, they would be able to pass the second prong as applied, but not the first prong.
Because however the first prong is neither expounded upon or applied, defendants with dementia will be found competent to stand trial, even though they lack the capacity to consult with counsel. The impact of such a finding on this population can be especially devastating, speeding their deterioration, and leaving them much worse off cognitively than when they entered the system. This turns a constitutional protection, the right to be protected from trial when incompetent, into a weapon against the most vulnerable. In the end, our application of Dusky, and our treatment of people with dementia affected by Dusky, represent a jurisprudential, practical, and moral failure.
Digital Speech and Future Persecution
Liane M. Jarvis Cooper, Former General Counsel for the Executive Office of Immigration Review
Digital dissidents are afraid. Yet, U.S. federal circuit courts have repeatedly upheld federal agency decisions denying asylum to such individuals. Why? This article uncovers and examines courts’ evidentiary and policy reasons for upholding these denials. The article then proposes a more comprehensive approach to determining when digital dissidents’ speech requires asylum protection.
Participatory Defense and the Three Pillars of Criminal Injustice
Isis S. Misdary, Professor at Seton Hall Law School
Three separate but closely related factors have together produced this nation’s epidemic of mass incarceration. First, enforcement of criminal law has become wholly dominated by a caste of repeat players. The chasm between this grouping and outsiders has become far more impor-tant than the prosecution-defense duality that ostensibly dominates the system.
Second, the system’s design and policies have become dominated by central authorities sealed in a “tough-on-crime” echo chamber. This leaves local communities largely powerless to check the devastation being visited upon them.
And third, the system has ruthlessly suppressed the individuality of those facing charges. They are rarely seen, almost never heard, ignored if they try to contextualize events giving rise to the charges and punished severely if they attempt to assert their rights much less their innocence. Robbed of all that makes them human, their fates arouse little sympathy.
Devastated communities have mounted various responses to mass incarceration. None is more exciting than the participatory defense movement. This movement seeks to involve the person facing charges as well as that person’s family and community. Together, they meet regularly with defense counsel, gather evidence for the case, and in mitigation, prepare videos or other testimonials to influence prosecutors’ charging and plea-bargaining decisions, and undertake other efforts to support the person facing charges.
Yet for all its promise, participatory defense faces considerable challenges going forward in each of these areas. As a relatively new movement, it must both resolve significant design challenges and overcome formidable institutional and attitudinal buttresses the current system has erected.
Justice Kavanaugh's Tee: What is the Court Brewing?
Elijah Miller
Real Concerns for an Artificial Threat: Artists, A.I., and the Battle to Script Hollywood's Future
Evan Sommer
Issue 3: Symposium Issue
Shadows of Confinement: Illuminating Public Health Struggles Behind Bars