Law Commons^™

True Threats, Public Safety, And Free Speech: An Empirical Analysis Of Counterman's Consequences, Jordan Birnholtz, Matthew B. Kugler

Journal of Criminal Law and Criminology

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role …

An Upside Of Originalism? Jury Size, Meghan J. Ryan

Journal of Criminal Law and Criminology

Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country’s unique history of being founded by British rebels, some practices from the time of the Founding—such as recognizing a strong jury right—advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually …

Revisiting Robinson: How Courts Can Preserve The Status Crimes Doctrine After Grants Pass, Sabina Idriz

Journal of Criminal Law and Criminology

Prior to the Supreme Court’s 2024 decision in City of Grants Pass v. Johnson, legal advocates for the homeless used the status crimes doctrine to successfully argue in multiple cases that anti-homeless laws, which punish life-sustaining acts such as sleeping, camping, or eating in public, are unconstitutional. Under the status crimes doctrine, which comes from the Supreme Court’s 1962 interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause in Robinson v. California, it is unconstitutional to punish individuals for having a status they may have contracted innocently or involuntarily. The Robinson Court struck down a law criminalizing …

Freedom Of Speech And Criminal Solicitation, Nikola R. Hajdin

Journal of Criminal Law and Criminology

Although criminal solicitation is recognized as one of the “historic and traditional categories” of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind “has no social value,” it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm …

Uncharted Waters: Addressing The Shortcomings Of Criminal Liability Under The Clean Water Act By Charging Water Polluters With Assault, Abigail English

Journal of Criminal Law and Criminology

Water pollution incidents pose both acute and long-term risks to human health, yet the Clean Water Act (CWA) ineffectively holds water polluters accountable. By defining criminal violations in terms of technical breaches of the statute, the CWA’s criminal provisions are vulnerable to narrow judicial interpretations, leaving many environmental crimes unpunished. Furthermore, the Environmental Protection Agency (EPA) rarely pursues criminal charges under the CWA, relying instead on civil fines, which fail to impose meaningful consequences. This underinclusiveness and under-utilization allows many polluters to evade serious penalties. Even when pollution incidents are covered by the CWA and the EPA pursues prosecution, the …

Purpose-Driven Compliance, Veronica Root Martinez

Faculty Scholarship

Whether it is a small brokerage firm in Ann Arbor, Michigan, a private university in Cambridge, Massachusetts, or a multinational conglomerate head-quartered in New York City, organizations understand that they are required to fulfill a range of compliance obligations. Compliance programs today tend to have two important characteristics in common. First, the notion that perfect compliance is an impossible goal is a key component of the understandings and expectations of many firms’ compliance programs. Second, organizations have almost uniformly adopted compliance programs in areas where enforcement activity has been significant—like in the areas of antibribery and anticorruption, anti-money laundering, antitrust, …

Criminal Data Function Creep, Sarah E. Lageson

Journal of Criminal Law and Criminology

Automated, data-driven decision-making can create unfair outcomes and lead to discrimination. This Article considers a relatively ubiquitous part of modern life that is increasingly automated: the criminal background check. This Article, with contributions at the intersection of law and technology, antidiscrimination and consumer protection law, and sociological theory, makes the central claim that criminal record data is characterized by function creep—the unintended use of data for another purpose—which leads to a specific set of harms. This Article makes three central contributions. First, it offers an empirical assessment of contemporary, data-driven background screening using data based on in-depth interviews and systematic …

Rebutting The Presumption: A Constitutional Theory Of Pre-Trial Asset Seizures And Procedural Due Process, Benjamin Y. Rabin

Journal of Criminal Law and Criminology

In this Comment, I trace the origins and examine the current state of the doctrine on pre-trial asset seizures, then argue for a new approach grounded in procedural due process and constitutional theory.

The existing frameworks for assessing due process in these cases fall into three categories. The first grants the government broad presumptive validity for pre-trial seizures. The second applies a utilitarian balancing test, following the Supreme Court’s reasoning in Mathews v. Eldridge and Connecticut v. Doehr. The third, illustrated by the recent decision in Culley v. Marshall, relies on comparisons to historical practice.

I argue that …

Coercion, Trauma, And Grief In The Interrogation Room: Documenting And Analyzing Cases Of False Confessions To Murder Of A Family Member, Steven A. Drizin, Richard A. Leo, Hayley M. D. Cleary, Samara Hoose

Journal of Criminal Law and Criminology

This article examines the phenomenon of false confessions in cases in which individuals were falsely accused of murdering close family members. Drawing on a dataset of twenty-two proven false confession cases, we document how grief, trauma, and coercive interrogation practices intersect to produce highly counterintuitive admissions and narratives of guilt. The study situates these cases within the broader literature on police interrogation and false confessions, highlighting situational risk factors such as lengthy custodial interrogation, sleep deprivation, false evidence ploys, and threats and promises, alongside dispositional vulnerabilities such as youth, mental illness, and trauma exposure. Unlike prior aggregated studies of proven …

Eagle Eyes: How The Chicago Police Department’S Video Surveillance Network Is Used To Fight Crime And Its Fourth Amendment Implications, Joseph Mcinerney

Journal of Criminal Law and Criminology

Chicago, Illinois, is home to over 2.7 million individuals living under the supervision of a vast network of over forty thousand cameras integrated into a network of advanced technology run by the Chicago Office of Emergency Management. With little transparency, the City of Chicago has spent hundreds of millions of dollars in the past two decades rapidly expanding the network throughout the city while incorporating new technologies each year, posing substantial privacy risks for the millions of residents unaware of the ever-present eyes on them. To determine whether the network violates the Fourth Amendment, particularly in the wake of Carpenter …

Police Reform As System Justification, Shawn E. Fields

Journal of Criminal Law and Criminology

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning …

The Influence Of Adverse Childhood Experiences On Female Violent Offending: A Scoping Systematic Review, Alexis M. Wolgemuth

Theses, Dissertations and Capstones

Female-perpetrated violence has exhibited concerning data trends in recent years. Prior scholarship indicates that past victimization and trauma in childhood, known as adverse childhood experiences (ACEs), are highly prevalent among women offenders. However, the research concerning ACEs and violent females is scattered. This thesis provides a scoping literature review using the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) updated 2020 guidelines. A systematic database search was conducted using Academic Search Complete, SAGE Journals, Springer Nature Link, and HeinOnline to identify relevant peer-reviewed journal articles. Inclusion and exclusion criteria are established, focusing on studies published after January 2015. These …

Striking Out Bias: A Path Toward Ending Religion-Based Peremptory Strikes, Catherine King

Journal of Criminal Law and Criminology

Peremptory strikes, while designed to craft fair and impartial juries, carry with them the potential for discriminatory use. Cognizant of this, the Court has imposed limitations on their use, producing over time the Batson line of case law. While Batson and its progeny aimed to eliminate discriminatory peremptory strikes, the consensus forty years later is that this goal remains unfulfilled—largely due to the continued acceptance of ostensibly race-, gender-, and ethnicity-neutral justifications. Religion has emerged as a frequent rationale, creating uncertainty about its permissibility and producing a circuit split.

Despite repeated calls for finality on the question of religion-based peremptory …

Paying Financial Sanctions Via Incarceration: A Case Study Of “Sitting Out”, Beth Colgan, Jordan B. Woods

Journal of Criminal Law and Criminology

This Article provides a comprehensive statewide study of a practice by which courts order defendants to pay financial sanctions—fines, costs, and probation fees—by serving terms of incarceration. Though several states authorize these practices, to date, very little is known about the extent to which payment via incarceration occurs and the different ways it is employed. This Article examines the use of the practice in Nebraska, where it is colloquially referred to as “sitting out.” Our study specifically focuses on all misdemeanor cases in Nebraska county courts with judgments (an adjudication of guilt and/or sentencing) during the year 2019.

This study …

Connecting Mens Rea And Actus Reus: Toward A New Theory Of Correspondence, Elise Sugarman

Journal of Criminal Law and Criminology

The justifiable imposition of criminal liability requires more than possession of mens rea and performance of an actus reus. A defendant’s mens rea and actus reus must also connect in a particular way. While this is a well-recognized principle in Anglo-American criminal law, the nature of the required connection—“correspondence”—is poorly understood.

This Article identifies three conflicting existent theories of correspondence from the criminal legal literature and from judicial reasoning: contemporaneity theory, actuation theory, and normative theory. According to contemporaneity theory, correspondence requires that mens rea overlap in time with the actus reus. According to actuation theory, correspondence requires that mens …

Justice For The Accomplice: Minnesota's 2023 Accomplice Liability Amendment And Its Shortcomings, John M. Thompson

Mitchell Hamline Law Review

No abstract provided.

Premium Injustice: Addressing The Harms That Cash Bail Premiums Inflict On The Non-Convicted, Jeffery L. Young

Mitchell Hamline Law Review

No abstract provided.

The Role Of Prosecutorial Discretion In Criminal Immigration Matters, Brian L. Owsley

William & Mary Journal of Race, Gender, and Social Justice

If the Trump administration’s goal is to remove between fifteen and twenty million undocumented individuals, then it would be far more effective to reduce the incentive of American companies and employers to hire undocumented individuals. Therefore, from a prosecutorial perspective, the federal government should consider whether seeking to charge and prosecute individuals is the most effective approach, or whether they should redirect their effort to the individual’s employer.

In addition to employers engaging in criminal immigration offenses, for several years now, the federal government has notably ignored the action of one person engaged in the smuggling of over 100,000 undocumented …

Reimagining Justice: Transformative Justice Analysis In Adult Felony Cases, Marisa Tramontano

Open Educational Resources

In this sociology final project, students take the role of a sociologist working with a public defender and analyze the records and social history of a client facing sentencing for a felony. They write a report for a judge explaining how structural factors and sociological concepts illuminate the case, then recommend responses that include alternatives to incarceration. A reflective essay examines the limits of the available information, ethical considerations, and how the project shaped their understanding of justice.

Policy Recommendations To Reduce False Confessions By Juveniles In Wrongful Conviction Cases, Rohit R. Iyer

CMC Senior Theses

This research focuses on false confessions by juveniles in the United States justice system. False confessions are statements made by suspects during investigations in which individuals provide statements to investigators admitting to a crime in which they had no part. In these cases, individuals often spend years, if not the entirety, of their lives behind bars for crimes they did not commit. False confessions are the result of a number of systemic factors that will be discussed in this paper. While relatively rare, they are one of the largest blemishes in the U.S. justice system. Juveniles – individuals below the …

The Empirical Double Standard: Opinion Surveys Across The Civil–Criminal Divide, Kay L. Levine, Bernard Chao

Faculty Articles

Across different legal domains, liability doctrines recognize the value of community input. But do courts truly listen to the community’s voice when deciding these sorts of cases? This study is the first to explore how courts treat community opinion survey evidence within both civil and criminal law. To that end, we comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and search cases.

Our research uncovers a significant asymmetry: Courts readily admit survey evidence in civil proceedings but systematically exclude it in criminal cases. This asymmetry does not appear to stem from structural differences between civil and criminal litigation …

Editor's Note, Wyoming Law Review Editorial Board

Wyoming Law Review

No abstract provided.

Women’S Exposure To Incel Content, Perceived Safety, And Gender-Based Violence Risk In The United States, Deja Bledsoe

Criminology & Criminal Justice Theses

The rapid proliferation of incel-related content across digital platforms has raised concerns about online misogyny and its potential impact on women’s perceived safety. However, less is known about how exposure to such content shapes women’s perceptions of risk and emotional responses in everyday digital environments. This study examines the relationship between exposure to incel-related content and women’s perceived risk of gender-based violence and safety-related anxiety. Guided by strain theory, social control theory, hegemonic masculinity, and intersectionality, the study employs an anonymous cross-sectional online survey of women aged 18 and older. Quantitative analyses were conducted to assess whether exposure to incel-related …

Martinez V. State, 328 A.3d 626 (R.I. 2025)., Carter Lee Hazzard

Roger Williams University Law Review

No abstract provided.

Time Out: Mandatory Holds As A Tool For Domestic Violence Response & Prevention In Rhode Island, India Awe

Roger Williams University Law Review

No abstract provided.

Race Conscious Programs After Students For Fair Admissions, Seonwoo Kim

Cardozo Journal of Equal Rights & Social Justice

The note argues that the federal government can legally mitigate geographical segregation and economic oppression by implementing race-conscious infrastructure and procurement policies. It contends that such efforts remain a compelling state interest under the strict scrutiny standards established in Students for Fair Admissions (SFFA), provided they are designed to remedy specific, identifiable past government discrimination.

Breaking Patterns Of Abuse: How Amending The Federal Rules Of Evidence Would Strengthen Domestic Violence Prosecutions, Isabelle Ryan

Roger Williams University Law Review

No abstract provided.

State V Mangru, 337 A.3d 1009 (R.I. 2025)., Stephen Olive

Roger Williams University Law Review

No abstract provided.

A Gap In The Cybertipline: Electronic Service Provider Liability And Child Safety, Brianna Evans-Sheehan

NYLS Law Review

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The online exploitation of children is a widespread problem that requires immediate action. This Note proposes that Congress …

Prisoners And Choice Democracy, Eileen Prescott, Michelle Theer

Journal of Race, Gender, and Ethnicity

This Article considers how eliminating meaningful choices inside prisons harms individuals and obstructs reintegration efforts. While any individual restrictions on incarcerated people may seem minor—such as limitations on the food available in the commissary— they accumulate to a point where people adopt passive, compliant behaviors and attitudes that are adaptive inside yet maladaptive outside the prison walls. Thus, we argue that even modest improvements in prisoner autonomy could reduce recidivism and achieve the public safety goals of incarceration.