Criminal Law Commons^™

The Warrant Exception That Isn't Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

American University Law Review

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans’ communications are “incidentally” collected, too. Once the government has acquired Americans’ communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless “backdoor” searches for Americans’ private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

Punishing Violence, Shima Baradaran Baughman

American University Law Review

The American criminal justice system doles out the harshest punishments in the world. It is infamous for its protracted criminal sentences and prodigious criminal code. But what most scholars and policymakers overlook is that the United States punishes only a fraction of the total serious crime that occurs in the country—including violent crime.

Approximately twenty million serious crimes occur in America each year, but only about half of these are reported to police. Of those reported, the police make arrests for an average of only twenty percent of serious crimes, and only ten percent of arrests result in a conviction. …

Fourth Amendment Hydraulics And Programmatic Surveillance, David C. Gray

American University Law Review

There is a hydraulic relationship between Fourth Amendment rights and remedies. When rights expand, remedies shrink, and vice versa. That makes good sense. At its heart, the Fourth Amendment requires striking a reasonable balance between the competing interests of citizens and their government. Expanding rights by, say, adopting a more expansive definition of “searches,” or applying the Fourth Amendment to a new category of government conduct, compromises government interests. When this happens, courts can, and should, bring things back into balance by adjusting remedies.

Sometimes the Court is cognizant of this hydraulic relationship. When the Court expanded Fourth Amendment rights …

Federal Compassionate Release Principles: Defining The Contours Of Analyses Under The “Other Reasons” Bucket, Hannah Jacobs

American University Law Review

The U.S. Sentencing Commission’s new policy statement regarding 18 U.S.C. § 3582(c)(1)(A) informs federal judges’ sentence reduction analyses. The statement expands the extraordinary and compelling reasons for which district courts may grant compassionate release under the statute’s “Other Reasons” provision. A proper application of this catchall provision requires striking a balance between the broad judicial discretion codified in that provision and the flexibility, certainty, and fairness principles Congress and the Sentencing Commission intended to shape modern compassionate release. This discretion is bound by statutory, policy, and prudential considerations, including fidelity to the totality-of-the-circumstances framework and a case-by-case approach to individual …

Video Analytics And Fourth Amendment Vision, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

What does the Fourth Amendment have to say about video analytics running on citywide camera systems? Video analytics (also known as computer vision) involves hardware and software in cameras that turns video surveillance streams into useful data, identifying, categorizing, matching, and alerting police about objects, people, and incidents. Video analytics can identify objects (e.g., hat, backpack, person, car) and track that person or thing back in time and through the streets using video surveillance footage. For police officers conducting virtual patrols or retrospective investigations, video analytics lets police scan thousands of linked cameras for suspicious behavior or a particular suspect, …

Brief Of Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

Amici are law professors who teach and research criminal law and procedure. They have no personal interests in this case. Their sole interest is in the protection and preservation of the constitutional rights of criminal defendants.

Centering The People’S Voice In Teaching And Learning First-Year Criminal Law, Fareed Nassor Hayat

Criminal Law Practitioner

This article proposes a people-centered approach to teaching first-year criminal law that elevates the people’s voice by using rap music to understand complex legal concepts. Incorporating rap music transforms the classroom and the practice of law to include those it has previously excluded and provides a people-centered means to expand legal education more broadly.

Criminalizing Ecocide, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Amid widespread acknowledgment that we live on a planet in peril, the term “ecocide” packs a powerful rhetorical punch. Extant regulatory approaches to environmental protection feel insufficient in the face of the triple threat of climate change, pollution, and biodiversity loss. International criminal prosecution for ecocide, by contrast, promises to meet the moment, and a recent proposal to introduce ecocide into the canon of core international crimes is gaining traction. Assuming the push to criminalize ecocide continues to gain momentum, this Article argues that the primary (and perhaps, sole) benefit that international criminal law can offer in this context is …

Moving Beyond Yoga: An Exploratory, Qualitative Study Of Public Defenders’ Solutions For Improving Work-Life And Effective Assistance Of Counsel, Alisa M. Smith

Criminal Law Practitioner

This study employs a thematic analysis of public defenders’ responses to open-ended questions concerning their lived experiences, motivations, and challenges, and their proposed solutions for improving their work-life balance and the criminal legal system.

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Deconstructing Burglary, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

The law of burglary has long played a vital role in protecting hearth and home. Because of the violation of one’s personal space, few crimes engender more fear than burglary; thus, the law should provide necessary safety and security against that fear. Among other things, current statutes aim to deter trespassers from committing additional crimes by punishing them more severely based on their criminal intent before they execute their schemes. Burglary law even protects domestic violence victims against abusers who attempt to invade their lives and terrorize them.

However, the law of burglary has expanded and caused so many problems …

Reviving Criminal Code Reform, Richard S. Schmechel

American University Law Review

This Article presents a history of how the District of Columbia (D.C.) recently rewrote its criminal code—legislatively adopting the first Model Penal Code (MPC)-based comprehensive criminal code reform in the U.S. in decades—and how Congress blocked the bill in 2023, its only criminal legislation of the year. The development and fate of the legislation has national implications. Like D.C., about fifteen states have never undergone MPC-based reform and dozens of other MPC-based codes have degraded over time and need comprehensive revision. After decades of reform failures, D.C. created an independent agency solely dedicated to criminal code revision. Emphasizing public transparency …

More Than Friends: A New Theory For The Third-Party Doctrine, Eang L. Ngov

American University Law Review

When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of …

Going Federal, Staying Stateside: Felons, Firearms, And The "Federalization" Of Crime, Jonathan Abel

American University Law Review

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …

Prison Administrative Law, Erin Braatz

American University Law Review

This Article examines a matching pair of gaps in the legal literature on prisons and the administrative state. On the one hand, prison law focuses on constitutional protections for prisoners. As such, it emphasizes the minimum conditions the Constitution ensures for the nearly two million individuals currently incarcerated throughout the United States. What this focus misses, however, is the administrative nature of these institutions. With vast powers delegated to prison departments, prison law often fails to fully engage with the administrative nature of power and decision-making within prison departments. This administrative structure shapes the conditions that prevail inside American prisons. …

Grasping The Third Rail: Restorative Justice And Violent Crime, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

Restorative justice is a means of responding to harm— including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low-level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net-widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and …

Digital Rummaging, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes.

The Fourth Amendment—the constitutional protection meant to limit police search powers—has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about “reasonable expectations of privacy” and “trespass” searches. While the Supreme Court has acknowledged that “digital is different,” it has not yet provided a coherent …

The Slow Drip Of Decarceration: Reversing The Flood Of Mass Incarceration And Its Racist Impact, Olinda Moyd

Scholarly Articles in Law Reviews & Journals

For the last four decades, the flood of African Americans pouring into our jails and prisons can be likened to a watershed where someone turned on a faucet full force and opened the floodgates to all the prison doors. Despite the multitudinous efforts to secure the release of people unwittingly swept up in this flood, most spending decades behind bars, their releases have been mediocre and only a few have slowly dripped towards freedom. Racism seeps into every facet of American life and nowhere is it more prevalent than in our criminal legal system and the crisis of mass incarceration. …

Lessons In Movement Lawyering From The Ferguson Uprising, Maggie Ellinger-Locke

Human Rights Brief

Michael Brown was killed by Officer Darren Wilson on August 9, 2014. That day, I was on vacation in Michigan with my family, hanging on the beach and playing in the water. My father passed away from liver cancer exactly four months before, and I made the decision to close down his law practice in the St. Louis, Missouri area, and move to Washington, DC, where my longterm partner had taken a job. The trip to Michigan was supposed to be a stopover on my way to DC; my car was packed to the brim.

Abolishing Police Consent Searches Through Legislation: Lessons From Scotland, Josephine Ross

American University Law Review

Why have U.S. civil rights organizations omitted the abolition of consent searches from the panoply of recommended police reforms? As over 90% of all searches of cars and pedestrians in the United States are based on consent, this begs the question. The Supreme Court created the consent loophole so that police who lacked probable cause could nevertheless search pockets and cars. In the American context, consent searches bolster racial profiling and enable police harassment.

Americans do not have to wait for the Court to change the law. States and cities have the power to close off this loophole through legislative …

Is It Science Or Storytime? Expert Testimony Evaluating Child Witness Credibility In Sexual Assault Cases, Elizabeth I. Boals

American University Law Review

While jurors struggle with determining any witnesses’ credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments (“SVAs”), to assist jurors in evaluating witness credibility, as they believe such …

The Slippery Concept Of "Object And Purpose" In International Criminal Law, Patrick J. Keenan

American University International Law Review

In little more than twenty-five years, the field of international criminal law has grown from a small slice of public international law into a functioning system of international justice, complete with multiple juridical bodies and substantial scholarly attention. Building on the legacy of the Nuremberg Tribunals and drawing from international humanitarian law, human rights law, and domestic criminal law principles, international criminal law has become its own discipline. Creating any new field of law is a complicated endeavor; this is especially true when the field affects and is affected by so many politically sensitive issues. Throughout this doctrinal experiment, one …

Hostility Is In The Eye Of The Beholder: Why Congress Should Decriminalize Hostile Work Environment Sexual Harassment In The Military, Adam J. Crane

Criminal Law Practitioner

In 2022, for the first time in American history, Congress enacted legislation criminalizing hostile work environment sexual harassment. More serious types of sexual harassment have long been criminal under the Uniform Code of Military Justice, but hostile work environment harassment is a civil wrong, not a crime, and should not have been made into one. Section 539D of the National Defense Authorization Act for Fiscal Year 2022 (now listed under Article 134, UCMJ (Sexual Harassment), is both unconstitutional and counterproductive. It violates the Fifth Amendment for vagueness by failing to provide fair notice of what is prohibited, and the First …

Victims Of Coercive Plea Bargaining: Defendants Who Give False Testimony For False Pleas, Lucian E. Dervan, Vanessa A. Edkins, Thea Johnson

American University Law Review

The last decade has seen a significant growth in academic research and literature related to coercive plea bargaining. One thread that emerges from this research is how coercive plea practices encourage innocent defendants to falsely condemn themselves, and sometimes even other innocent people to get the benefit of a “good” deal. This Article compiles and synthesizes this research to highlight how and why typical plea bargaining can lead to false guilty pleas. It also frames those who falsely plead guilty in the face of coercive bargains and those who are subject to false testimony as a result as victims of …

Vulnerable Fraudsters: Reverse Affinity Fraud In Cases Of Public Hoaxes, Caroline E. Vordtriede

Criminal Law Practitioner

This Article examines reverse affinity fraud, which is affinity fraud in the context of public hoaxes. In traditional affinity fraud the fraudster targets a vulnerable group, whereas in cases of public hoaxes the fraudster portrays herself as part of a vulnerable group and targets the well-meaning and sympathetic general public. This Article explores the mindset and characteristics of vulnerable fraudsters in reverse affinity frauds by analyzing the cases of Sherri Papini and Lacey Spears. Both Papini and Spears utilized social media and online giving sites to defraud the public, and their cases highlight the unique challenges prosecutors have in proving …

Unwinding “Law And Order”: How Second Look Mechanisms Resist Mass Incarceration And Increase Justice, Destiny Fullwood, Cecilia Bruni

Human Rights Brief

For decades, the United States has used incarceration to achieve a particularized version of safety. Amidst the civil rights movement, presidential candidate Barry Goldwater wielded the phrase “law and order” against the masses of Black men, women, and children in their fight for equitable treatment. This came at a time when “[i]t was no longer socially permissible for polite White people to say they opposed equal rights for Black Americans. Instead, they began ‘talking about the urban uprisings’” and “attaching [those] to street crime, to ordinary lawlessness[.]” The result was a decades-long, persistent campaign to maintain order by arresting and …

Deathly Delegation: Analyzing Mississippi's Execution Statute Under The Nondelegation Doctrine, Megan Meissner

American University Law Review

The nondelegation doctrine is a separation of powers principle that limits the legislative branch from delegating its legislative authority to another branch of government. Although this doctrine is more widely known for its federal use, preventing Congress from relinquishing too much of its law-making authority to administrative agencies, most states have adopted similar nondelegation principles. Mississippi’s nondelegation doctrine requires that the legislature enact laws that prescribe the basic policy decision, provide adequate boundaries for agency guidance, and do not vest an agency with arbitrary discretion.

On July 1, 2022, Mississippi enacted a new execution statute, permitting the Department of Corrections …

Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith

Legislative Testimony & Comments

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

Courts Without Court, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …

War Crimes: History, Basic Concepts, And Structures, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

On May 24, 2022, the Washington Post carried front-page news that a court in Ukraine had sentenced a 21-year-old Russian soldier, Vadim Shishimarin, to life imprisonment for the war crime of premeditated murder of a civilian, 62-year-old Oleksandr Shelipov. The session was the first war crimes trial in Ukraine since Russia's invasion three months earlier.