Law Commons^™

Web Of Exploitation: The Psychological Need For Comprehensive Federal Law To Combat Cyber Sexual Abuse, Sarah E. Bahrenburg

Journal of Race, Gender, and Equality

Cyber sexual abuse inflicts deep and lasting psychological harm on victims, often exacerbating the trauma of traditional sexual abuse due to the permanence and reach of digital content. Survivors may experience depression, anxiety, PTSD, and suicidal ideation as intimate images, videos, or messages resurface indefinitely online. Despite the severity of its impact, current state and federal legal protections are limited and inconsistent, leaving many victims without adequate criminal or civil remedies. This article argues for the creation of comprehensive federal legislation specifically targeting cyber sexual abuse. Such laws would not only provide clearer paths to justice and accountability but also …

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Role Call: Can A Backbench Legislator Practice As A Criminal Defence Lawyer? A Legal Ethics Analysis, Andrew Flavelle Martin, Brandon Trask

Articles, Book Chapters, & Popular Press

Legislators come from a range of backgrounds. Many legislators happen to be lawyers. Parliamentary rules typically allow legislators who are not members of Cabinet to practice a profession part-time. However, the part-time practice of law poses special legal ethics challenges. In this article, we consider the legal ethics issues that arise when a backbench legislator of the governing party practices criminal defence law part-time. We argue that such a dual role engages three serious, unavoidable, and perhaps even unresolvable legal ethics issues. The first issue is the time constraints imposed by outside interests. The second issue is conflicts of interest, …

Sentencing Vulnerability: Conceptualizing The Incorporation Of Personal Characteristics And Experiences At Sentencing, Adelina Iftene

Articles, Book Chapters, & Popular Press

Social inequalities that lead to criminal conduct are often not considered in sentencing; individuals subject to structural inequities receive the same formal sentence as those convicted of like crimes irrespective of the latter’s social advantage. Individual characteristics may also affect how a sentence will be experienced by an individual. While Characteristics and Experience-Sensitive Sentencing (CESS) already exists in various forms and to various degrees in sentencing theory and praxis, a more cohesive, comprehensive, and principled CESS remains wanting. Building on existing approaches, this article locates CESS as a necessary response to equality-based concerns arising from current mainstream sentencing practice. Thus, …

Secrets Of The Killing State: The Untold Story Of Lethal Injection Introduction, Corinna Barrett Lain

Law Faculty Publications

Three hours. That’s how long it took the state of Alabama to kill Joe Nathan James by lethal injection in 2022, setting a new record for the longest execution in United States history. James’s autopsy showed puncture wounds and bruising at the knuckles and wrists, indicating that executioners had tried (and failed) to insert an IV in those locations. It revealed puncture wounds in his musculature, nowhere near the anatomical vicinity of a vein. And it documented a deep, jagged incision that pathologists suspect occurred when James flinched as executioners were attempting to perform a “cutdown”— a surgical incision used …

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Faculty Articles

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Federal Officer Criminal Case Removal, Jonathan R. Nash

Faculty Articles

Recent events have brought the federal officer removal statute to the fore. The statute allows a defendant to remove a criminal prosecution to federal court, provided that the allegedly criminal behavior was performed by the defendant as a federal officer under color of office and provided that the defendant has a federal defense. Current litigation has exposed several open, important questions under the statute, which this Article confronts. On the question of who qualifies as an “officer” who can remove under the statute, it argues that removal is available both to former officers and to presidents. On the question of …

Criminal Investors, Andrew K. Jennings

Faculty Articles

This Article reassesses the culpability of those who invest in law-breaking firms. Prosecutors currently treat investors as victims of corporate wrongdoing rather than as actors who might bear responsibility for it. This Article observes, though, that investment can facilitate, and even cause, illicit corporate activity. When investors intentionally contribute to those effects, substantive criminal law imposes liability on them just the same as it does on accomplices, conspirators, or principals in other contexts. Despite this formal parity, however, investor criminal liability is more a theoretical proposition than a practical reality.

This Article questions that status quo by asking whether and …

Searching For A Big Score: Analyzing Drug Yield From Search Warrant Executions, Elizabeth Griffiths, Walter Campbell, Kay L. Levine, Joshua C. Hinkle

Faculty Articles

In this study, we investigated the extent to which law enforcement efforts predicted drug and other kinds of illicit yield in search warrant executions. The data are drawn from one major metropolitan police department during 2005, 2009, and 2012. Using multilevel random intercept logistic regression models and multilevel random intercept multinomial logistic regression models, we regress high yields of various kinds of drugs and other illicit items seized during searches on the investigative activities that led to search warrant applications and the enlistment of teams of officers or other agencies in executing the search. Investments in high-effort search warrant work …

Time For A New War Crimes Commission?, Diane Marie Amann

Scholarly Works

This essay begins by exposing gaps in accountability in the wake of Russia’s full-scale invasion of Ukraine in 2022. It explains why neither the International Criminal Court nor any other body is authorized to pursue all the crimes of that war, and then considers whether a more comprehensive approach might be found in the United Nations War Crimes Commission. In its five years of operation  (1943–1948) that multilateral institution gathered information on tens of thousands of potential suspects, and helped to coordinate trials against many of them – not only the Nuremberg proceedings, but also in Allied zones of occupation …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

Faculty Scholarship

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Victim-Offender Relationships And Their Influence On Crime Brutality And Sentencing Outcomes In Capital Homicide Cases, Samantha Jane Trowbridge

Graduate Theses/Dissertations

This study examines capital murder cases in Missouri from 1976 to 2022 to explore how victim-offender relationships relate to both the brutality of homicides and sentencing outcomes. It addresses three main questions: What are the different types of victim-offender relationships in these cases, and how frequently does each type occur? How do these relationships influence sentencing outcomes, particularly the likelihood of receiving the death penalty versus life without parole? And which types of relationships are associated with the highest and lowest levels of brutality? The study uses official court records and applies a coding process to analyze relationship type, sentencing …

Introduction To Perspectives On The International Criminal Court And International Criminal Law And Procedure: A Symposium In Memory Of Megan Fairlie, Howard Wasserman

FIU Law Review

No abstract provided.

Sex Crimes And Progressive Prosecution: Reimagining Sex Offenses And Sorn Laws As An Opportunity For Criminal Justice Reform, Kana Turley

Journal of Criminal Law and Criminology

As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender …

How Grand Jury Secrecy And Bias Protects And Perpetuates Police-Suspect Impunity, Ilana M. Friedman

Law Faculty Scholarly Articles

This Article proceeds in four parts. Part I introduces the theoretical frameworks for various questions involving police-suspect grand juries, including the structure and function of contemporary grand juries, the law surrounding examinations into an officer’s use of force, modern prosecutorial influences, findings from social psychologists on the impacts of diversity on jury decision-making practices, and how police-suspect grand juries implicate unique political pressures.

Part II presents a description of original methods of data collection. To investigate this setting, forty-seven in-depth, semi-structured interviews with twenty-one respondents in five field sites around the country was conducted. Respondents included civilians and legal

professionals …

The Migration Of Abolition Theory, Matthew Boaz

Law Faculty Scholarly Articles

This Article considers whether and how theories of abolition developed by criminal law scholars are transferrable to the realm of immigration enforcement. A key question is how abolitionist principles might be employed in support of critiques of the United States’ immigration regulatory regime in the same way that these principles have been deployed in denouncing racialized policing and an injurious, industrialized prison system.

This Article makes two contributions: First, it identifies and illuminates a methodology adopted by critical and decarceral criminal law scholars: (i) denouncing the harms of a structural system, (ii) identifying the normative justification(s) for this system, and …

The 'Realness' Key To Compelled Passcode Production, Gabriel Pell

Journal of Criminal Law and Criminology

This Article explains how the Foregone Conclusion exception to the Fifth Amendment’s privilege against self-incrimination applies to compelled passcode production. The Supreme Court fashioned the Foregone Conclusion exception in connection with the compelled production of documentary evidence. It facilitates government access to real evidence despite the implicit factual communications inherent in a target’s act of producing it (i.e., that the real evidence exists, is accessible, and is what the state demanded). Engaging with the ‘real evidence’ limitation for compelled acts of production, the Article shows that focusing on unlocked devices and/or stored passcodes as the real evidence to be produced …

The State[S] Of Confession Law In A Post-Miranda World, Eve B. Primus

Journal of Criminal Law and Criminology

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.

This Article catalogues four different state approaches to regulating confession law: procedural …

Ending The Presumption Of Reasonableness And Using Data To Reduce Sentencing Disparities, Brandon Mordue

Journal of Criminal Law and Criminology

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. …

Police Misconduct: Combatting The Complicity Crisis, Eric Arnold

Journal of Criminal Law and Criminology

This Comment explores the current state of police reform in the city of Chicago, with a special focus on the various oversight agencies currently in force. Chicago has a long history of police misconduct, and the city has tried to make changes over the years to restore the community’s trust in policing. The police reform movement became especially prevalent in recent years following the fatal shooting of Laquan McDonald by a Chicago Police Officer in 2014. This Comment will show why the current mechanisms in place are insufficient to bring the needed change to the Chicago Police Department, and that …

Yet Another Elected Power: A Case For Randomly Selected Forepersons, Cj Miller

Journal of Criminal Law and Criminology

Most United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury’s verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position.

Minimal Rationality And The Law Of Evidence, Ronald J. Allen, Michael S. Pardo, William J. Lawrence, Christopher K. Smiciklas

Journal of Criminal Law and Criminology

For more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, …

Justice Ginsburg's Criminal Justice Legacy: Fair Tribunals, Fair Punishment, Sandra Guerra Thompson, Samantha Medlin

Journal of Criminal Law and Criminology

Scholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in …

Crimes Without Law: Administrative Crimes And The Nondelegation Doctrine, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine.

This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and …

Towards A Federalism(S) Framework Of Punishment, Sheldon A. Evans

Journal of Criminal Law and Criminology

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues …

Military Justice: The Forgotten Jurisdiction In Capital Punishment, Erica C. Medley

Journal of Criminal Law and Criminology

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. …

Sentencing Insurrection, Kevin Lapp

Journal of Criminal Law and Criminology

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they …

The Unknowns Of The Knowledge Requirement: Revisiting The Deliberate Indifference Standard In Prisoner Healthcare, Malina J. Simard-Halm

Journal of Criminal Law and Criminology

In the 1976 decision Estelle v. Gamble, the Supreme Court held that “deliberate indifference” to significant health needs of prisoners violated the Eighth Amendment. The standard’s knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state of prison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard—and …

Proof Beyond A Reasonable Doubt Doesn't Exist: Except As An Emergent Property Of A Complex Adaptive System, Ronald J. Allen, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by “the scientific method” and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how “proof beyond a reasonable doubt” (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary …

Probation Without A Home: How Probation Maintains Barriers To Successful Completion While Homeless, Olivia K. Babin

Journal of Criminal Law and Criminology

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. …