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I. INTRODUCTION 569 A. RATIONALE 570 B. STATISTICS 571 II. FEDERAL HATE CRIME LEGISLATION 573 A. THE ENFORCEMENT ACTS 574 B. CIVIL RIGHTS ACT OF 1968 575 C. VIOLENCE AGAINST [...]

Introduction 466 I. Political Origins of the Terrorism Enhancement 470 A. Enactment of the Terrorism Enhancement 471 B. The Role of the Sentencing Judge 474 C. Expansion of the Terrorism [...]

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Federal Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, broad criminal statutes), and back end reforms that that seek to lessen the toll of punitive policies (sentencing reform, alternatives to incarceration), markedly fewer have explored how what happens in the middle--adjudication--contributes to mass incarceration. While this oversight makes sense, it is not justified because it is also equally undeniable that plea bargaining happens in the shadow of trial. This Article examines how the shadow of trial--specifically, the shadow cast by evidentiary rulings about the accused person's past--contributes to the perpetuation of an expansive carceral state. It identifies how evidence rules have been relaxed, tweaked, specialized, or unmoored from their foundational principles in ways that facilitate prosecution and conviction or essentially force plea deals--without regard for the truth, fairness, or justice of the outcome. In other words, it identifies ways that evidence law undermines the Rules' primary purpose, which is to advance fair proceedings 'to the end of ascertaining the truth and securing a just determination.', Introduction 354 I. The Promise 356 II. Breaking the Promise 358 A. FRE 413 & 414: Past Acts of Sexual Assault or Child Molestation to Prove a Defendant's Propensity to [...]