Law Commons^™

Meet Our New Faculty: Yvette Butler, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Associate Professor Yvette T. Butler joined the Indiana Law faculty this summer. She earned an undergraduate degree from the University of Minnesota, Morris, and her law degree from The George Washington University Law School.

Meet Our New Faculty: Valena Beety, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

You’ve read about some of the amazing students we have starting with us next week. Now we’ll introduce you to some of the new faculty who have joined us over the summer. First up is Valena Beety, the Robert H. McKinney Professor of Law. Prof. Beety was most recently Professor of Law and Deputy Director of the Academy for Justice at theArizona State University Sandra Day O’Connor College of Law.

Why Judges Should Use 18 U.S.C. § 3553 To Assess Prison Sentences Qualitatively In The Context Of Collateral Relief, Luke Doughty

Indiana Journal of Law and Social Equality

No abstract provided.

Standing In Reserve: A New Model For Hard Cases Of Complicity, Nicholas Almendares, Dimitri Landa

Articles by Maurer Faculty

The “hard cases” for the law relating to accomplices deal with the definition of what counts as aiding and abetting a crime. A retailer might sell a murder weapon in the ordinary course of business, while an accomplice might do nothing because their help was simply not needed. How do we distinguish between these cases? The Capitol Riot is a striking example of this sort of hard case because there were so many people involved in so many different and ambiguous ways. Outside of the conceptually easy cases of someone caught on camera making off with property or attacking officers, …

Racializing Algorithms, Jessica M. Eaglin

Articles by Maurer Faculty

There is widespread recognition that algorithms in criminal law’s administration can impose negative racial and social effects. Scholars tend to offer two ways to address this concern through law—tinkering around the tools or abolishing the tools through law and policy. This Article contends that these paradigmatic interventions, though they may center racial disparities, legitimate the way race functions to structure society through the intersection of technology and law. In adopting a theoretical lens centered on racism and the law, it reveals deeply embedded social assumptions about race that propel algorithms as criminal legal reform in response to mass incarceration. It …

Indiana Law Faculty Member’S Book Honored With Ippy, Other Awards, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Nearly a year to the day since it was published, a book from incoming Indiana University Maurer School of Law faculty member has earned an Independent Publisher Book Award (“IPPY.”)

Professor Valena Beety’s Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights won the Gold Medal in Women’s Issues. Since 1997, the Independent Publisher Book Awards have been recognizing the best independently published books each year.

Released on May 30, 2022, Beety’s book has already won two other prestigious awards—the Montaigne Medal and the Sarton Nonfiction Award—this spring.

“Professor Beety is a tremendous teacher and scholar, and we’re proud to see …

Criminogenic Risks Of Interrogation, Margareth Etienne, Richard Mcadams

Indiana Law Journal

In the United States, moral minimization is a pervasive police interrogation tactic in which the detective minimizes the moral seriousness and harm of the offense, suggesting that anyone would have done the same thing under the circumstances, and casting blame away from the offender and onto the victim or society. The goal of these minimizations is to reinforce the guilty suspect’s own rationalizations or “neutralizations” of the crime. The official theory—posited in the police training manuals that recommend the tactic—is that minimizations encourage confessions by lowering the guilt or shame of associated with confessing to the crime. Yet the same …

Second Chances In Criminal And Immigration Law, Ingrid V. Eagly

Indiana Law Journal

This Essay publishes the remarks given by Professor Ingrid Eagly at the 2022 Fuchs Lecture at Indiana University Maurer School of Law. The Fuchs Lecture was established in honor of Ralph Follen Fuchs in 2001. Professor Fuchs, who served on the Indiana University law faculty from 1946 until his retirement in 1970, was awarded the title of university professor in recognition of his scholarship, teaching, and public service. In her Fuchs lecture, Professor Eagly explores the growing bipartisan consensus behind “second chance” reforms in the state and federal criminal legal systems. These incremental reforms acknowledge racial bias, correct for past …

Policing Pregnancy "Crimes", Valena Beety, Jennifer Oliva

Articles by Maurer Faculty

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds …

Guilty Of Probable Cause: Public Arrest Records And Dignity In The Information Age, Nicholas Thompson

Indiana Journal of Global Legal Studies

The United States is exceptional among Western nations in its treatment of criminal records. Today, an estimated one-third of Americans1 bear the “modern equivalent of branding”: the publicly-accessible criminal record.2 Far from remaining locked in digital limbo, these records serve a variety of purposes, from legitimate law enforcement use to extortion against arrestees seeking to scrub their mugshots from a Google search.3 It would be natural to assume that such records result from an individual’s commission of a crime, for which the individual is duly convicted and then marked with the brand of the state for the transgression. But the …

The Law And Politics Of Ransomware, Asaf Lubin

Articles by Maurer Faculty

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between 20,000 and 30,000 per day in the United States alone. That is a ransomware attack every eleven seconds, each of which cost victims …

The Pathological Whiteness Of Prosecution, India Thusi

Articles by Maurer Faculty

Criminal law scholarship suffers from a Whiteness problem. While scholars appear to be increasingly concerned with the racial disparities within the criminal legal system, the scholarship’s focus tends to be on the marginalized communities and the various discriminatory outcomes they experience as a result of the system. Scholars frequently mention racial bias in the criminal legal system and mass incarceration, the lexical descendent of overcriminalization. However, the scholarship often fails to consider the roles Whiteness and White supremacy play as the underlying logics and norms driving much of the bias in the system.

This Article examines the ways that Whiteness …

Feminist Scripts For Punishment, India Thusi

Articles by Maurer Faculty

Review of:

THE FEMINIST WAR ON CRIME: THE UNEXPECTED ROLE OF WOMEN’S LIBERATION IN MASS INCARCERATION. By Aya Gruber. Oakland, C.A.: University of California Press. 2020. Pp. xii, 288. $29.95.

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul Heaton

Indiana Law Journal

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

Rehabilitating Charge Bargaining, Nancy Combs

Indiana Law Journal

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity—the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant’s …

The Economic Case For Rewards Over Imprisonment, Brian D. Galle

Indiana Law Journal

There seems to be a growing social consensus that the United States imprisons far too many people for far too long. But reform efforts have slowed in the face of a challenging question: How can we reduce reliance on prisons while still discouraging crime, particularly violent crime? Through the 1970s, social scientists believed the answer was an array of what I will call preventive benefits: drug and mental health treatment, housing, and even unconditional cash payments. But early evaluations of these programs failed to find much evidence that they were successful, confirming a then-developing economic theory that predicted the programs …

The Perils Of "Old" And "New" In Sentencing Reform, Jessica M. Eaglin

Articles by Maurer Faculty

This Essay turns attention from actuarial risk assessment tools as a reform to the inclination for a technical sentencing reform more broadly. When situated in the context of technical guidelines created to structure and regulate judicial discretion in the 1980s and beyond, the institutionalization of an actuarial risk assessment at sentencing is both an old and new idea. Both sentencing guidelines and actuarial risk assessments raise conceptual and empirical questions about sentencing law and policy. This Essay drills down on two conceptual issues—equality and selective incapacitation—to highlight that actuarial risk assessments as a reform raise recurring questions about sentencing, even …

Authority And The Globalisation Of Inclusion And Exclusion: Author Meets Readers, Hand Lindahl, Christine Bell Prof, Friedrich Kratochwil, Hans-W. Micklitz, Carlos Thiebaut, Bert Van Roermund

Indiana Journal of Global Legal Studies

Authority is written against the background of intense resistance to globalization processes by a range of political movements and grassroots organizations. These processes are complex and have a variety of dimensions. One of these is the emergence of global legal orders, which I define, in a rough and ready manner, as relatively autonomous legal orders that claim or aspire to claim global validity for themselves. They too-most obviously the World Trade Organization (WTO)-are the butt of resistance. Whatever its forms and aspirations, resistance to globalization is fueled by their peculiar dynamic. Indeed, emergent global legal orders spawn massive exclusion when …

When Freedom Of Speech Comes At A Cost: A Case Study Of E.S. V. Austria, Rachael Taylor

Indiana Journal of Global Legal Studies

In the fall of 2018, the European Court of Human Rights (ECtHR) issued a decision upholding the criminal conviction of an Austrian national (E.S.) in violation of Austria's Criminal Code against the disparagement of religious doctrines. Her initial conviction in the Austrian court was based on statements she made about the Prophet Muhammad while teaching a series of seminars entitled "Basic Information on Islam." In upholding her conviction, the ECtHR found that there had been no violation of the Austrian's right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights (Convention), and …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams

Indiana Journal of Law and Social Equality

No abstract provided.

The Violence Of Nosy Questions, Jeannine Bell

Articles by Maurer Faculty

This Essay examines a little-studied aspect of police procedure: police officers’ unfettered power to ask questions of motorists. The questions officers ask after they have stopped a car can run the gamut from questions about the nature of the motorist’s travel plans to nosy personal questions. Such questions are often intrusive, and drivers report feeling degraded by having to answer them. This Essay argues that these questions should be regulated because giving officers complete control over what they ask motorists provides a significant space for racial discrimination in policing, creates resentment, and encourages minorities to distrust the police.

First Amendment “Harms”, Stephanie H. Barclay

Indiana Law Journal

What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …

A Case For Reforming The Anti-Money Laundering Regulatory Regime: How Financial Institutions’ Criminal Reporting Duties Have Created An Unfunded Private Police Force, Christopher Wilkes

Indiana Law Journal

Part I of this Note provides background information outlining the relevant BSA/AML laws that establish financial institutions’ affirmative duties to report financial crimes. Part II analyzes the contours of other laws that create mandatory criminal reporting obligations, including their extent, their underlying justifications, and how stringently government agencies enforce them. Part III demonstrates how financial institutions’ reporting duties are uniquely stringent and punitive compared to those imposed elsewhere in the law, and it questions the justifications of this policy. Lastly, Part IV of this Note argues that the BSA/AML regulatory regime could be reformed to reduce the costs and duties …

Bhopal In The Federal Courts: How Indian Victims Failed To Get Justice, Jayanth K. Krishnan

Articles by Maurer Faculty

Over thirty-five years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (“UCIL”), which had as its parent company the American-based Union Carbide Corporation (“UCC”). Thousands were killed, with many more injured. One hundred forty-five cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the multi-district litigation (“MDL”) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens …

The Legal Fiction Of The Right To Defense In The Colombian Criminal Justice System, Manuel Iturralde

Indiana Journal of Global Legal Studies

In the first section of the article, I will discuss Omar's case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.

In the second section, I will show that Omar's case is a tellingillustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people-in great measure because they lack the financial resources to pay for better and more motivated …

Beyond Policing, India Thusi

Books & Book Chapters by Maurer Faculty

We all deserve to live in communities where we feel safe

And true community safety means feeling safe from violence by the state, which includes the police. Social inequity has systematically and institutionally permeated our country since its founding, becoming more visible at various times in our history. We are now living in one of those moments of tremendous clarity, and it calls on us to look deeply at the efficacy of the reforms and narratives which preceded it . The deadly consequences of political decisions that create health disparities are now a wound that cannot be unseen as the …

Revenge Porn And The Aclu’S Inconsistent Approach, Elena Lentz

Indiana Journal of Law and Social Equality

No abstract provided.

The Categorical Imperative As A Decarceral Agenda, Jessica M. Eaglin

Articles by Maurer Faculty

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Frank Zimring proposes two alternative methods to decarcerate: states can adopt a categorical imperative to reduce prison populations or states can reform the governance of sentencing. This symposium Essay focuses on the first of these options, as proposed in his tentative Chapter Six, wherein Zimring calls for categorically removing drug-addicted offenders from eligibility for prison sanctions and expanding use of jails for categories of offenses or offenders.

These methods, I suggest, exist in tension with numerous popular sentencing reforms being implemented in the states right now. Popular reforms, including the …

The Noisy "Silent Witness": The Misperception And Misuse Of Criminal Video Evidence, Aaron M. Williams

Indiana Law Journal

This Note examines recent developments in the research of situational video evidence biases. Part I examines the current and growing body of psychological research into the various situational biases that can affect the reliability of video evidence and the gaps in this research that require further attention from researchers and legal academics. Because these biases do not “operate in a vacuum,” Part I also examines some of the recent and exciting research into the interaction between situational and dispositional biases. Part II examines the development of camera and video processing technology and its limitations as a means of mitigating such …