Criminal Law Commons^™

Incarcerated Persons’ Day In The Sun: Why Prisoners Should Have A Right To Fresh Air And Direct Sunlight, David Gross

Indiana Journal of Law and Social Equality

One word sums up the current state of a prisoner’s rights to fresh air and direct sunlight: conditionality. Because the rights are conditional in the United States, the sword of litigation hangs above prisons while residents are subject to violations of their limited constitutional rights. International law and medical research respectively recognize the right to, and need for, outdoor recreation. However, the grueling deliberate indifference standard debilitates attempts to change this reality in the courthouse. Thus, the impetus of change must come from the expansion of statutory rights. The right to fresh air and direct sunlight can be energized …

Vice, Morality, And Immigration: Critiquing And Examining The Application Of Legal Moralism In The Criminalization Of Immigrants For Vice-Related Crimes, Sofia Garcia

Indiana Journal of Law and Social Equality

No abstract provided.

Interrogating The Facts Of The Case, Anna Roberts

Indiana Law Journal

Buried within many criminal judicial opinions is the origin of their “facts”—the interrogation room. Criminal law pedagogy should expose this origin. If we treat the alleged product of interrogation as “what happened,” as criminal cases (and professors) sometimes do, we obscure the ways in which interrogators are trained to incriminate and to co-create confessions. We also risk obscuring subsequent layers of reporting by police, prosecutors, or judges.

Recent scholarly literature urges criminal law professors to teach differently, warning that we distort, sanitize, and bolster the carceral state when we erase governmental agents and bypass procedure. Treating the “facts of the …

Climate Prosecution As Climate Regulation, Cindy J. Cho

Articles by Maurer Faculty

Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must …

Shocking Sentences, John B. Meixner Jr.

Indiana Law Journal

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds. Most arguments focus on how sentences arising from these penalties are disproportionate—that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: They lead to sentences that are totally unexpected—indeed, shocking—to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences. …

Indiana Law Supporting Newly Established Indiana Innocence Project, James Owsley Boyd

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

Law students from the Indiana University Maurer School of Law will have the opportunity to help exonerate wrongfully convicted Hoosiers through the newly established Indiana Innocence Project, which officially launched Saturday (Aug. 17).

Established in association with the national Innocence Project—which has helped free more than 240 wrongfully convicted prisoners since 1992—the Indiana Innocence Project (INIP) has been made possible through the support of the Herbert Simon Family Foundation, along with the Law School and IU’s Department of Criminal Justice.

The Indiana Innocence Project will screen and investigate cases with meritorious innocence claims, secure DNA testing when biological evidence …

Sotomayor Cites Maurer Faculty Member In Scotus’ Decline To Hear Alabama Bite Mark Case, James Owsley Boyd

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

The case of an Alabama man convicted of murdering his wife in 1985 will not be reviewed by the U.S. Supreme Court, despite evidence that, nearly 40 years later, has been “wholly discredited.”

The Supreme Court denied certiorari in the case of McCrory v. Alabama, but Justice Sonia Sotomayor cited research from Indiana University Maurer School of Law Professor Valena Beety in her concurring agreement with the court’s decision.

Charles M. McCrory was convicted for the murder of his wife, Julie Bonds, based in large part on expert testimony from an odontologist who matched McCrory’s teeth to two bite marks …

Stevens Foundation Selects Four Law Students As 2024 Fellows, James Owsley Boyd

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

The John Paul Stevens Foundation has chosen four Indiana University Maurer School of Law students to serve as 2024 Stevens Fellows this summer. The Foundation made the announcement today (June 26).

Selection as a Stevens Fellow comes with $12,000—half from the Foundation, half from the Law School—to help offset the cost of unpaid public interest work over the summer. This year’s Stevens Fellows are Kristal Davis ’25, from Lansing, Michigan; Allegra Maldonado ’25, from Indianapolis; James Monroe ’25, from Naperville, Illinois; and Niara Wakaba ’26, from Louisville.

Survival Labor, Yvette Butler

Articles by Maurer Faculty

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating racialized bodies and the policing of those bodies has created a culture where blackness is equivalent to criminality. While a penal abolitionist framework is helpful …

The Criminal Metaverse, Eldar Haber

Indiana Law Journal

Virtual worlds are no longer science fiction. New technologies that promise a world lacking physical or mental boundaries are finally becoming a reality. Commonly referred to as the metaverse, this innovative technology opens a world of opportunities for individuals everywhere to experience an almost unlimited virtual dimension where they can play, work, own property, engage in sexual activities, and fulfill their dreams. Unlike previous virtual worlds, the metaverse could be a gamechanger as it offers an immersive experience. It feels authentic to the users and will become even more realistic with advancements in haptic technology. With its benefits, the technology …

Counterman V. Colorado: True Threats, Speech Harms, And Missed Opportunities, R. George Wright

Indiana Law Journal

Some Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.

The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat. True threats, as defined and limited by the Court, comprise a narrow, traditionally constitutionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily and unadvisedly extended a substantial measure …

A New Criminal Response Framework: Rejecting The "Four Horsemen Of The Carceral State", George Glass

Indiana Law Journal

Many first-year criminal law courses begin with a discussion of the nineteenth-century English case Regina v. Dudley & Stephens. In this case, a ship was caught in a storm, and while stranded at sea, two men decided to kill and eat a younger man in order to survive. The case considers whether these two men should be punished for killing the third man, and if so, how severe should that punishment be. For many law students, this is one of the rare occasions when they are asked whether punishment is justified. Soon, they will instead be asked which of the …

Broadening The Community, Strengthening The Movement: An Introduction To The Innocence Project "Just Data" 2024 Scholarship Issue, Vanessa Meterko, Jaime S. Henderson, Ngozi Ndulue, Tebah Browne, Valena Beety

Articles by Maurer Faculty

This special issue of The Wrongful Conviction Law Review features a collection of seven research papers presented at the Innocence Project’s 2023 Just Data: Advancing the Innocence Movement conference. This annual event, organized by the Innocence Project and partners in the larger Innocence Network, brings together a diverse group of scholars and advocates, including those who have been wrongfully convicted themselves, to share the latest social science, discuss emerging issues, and make connections to inform our collective work and promote new applied research. Social science research, often conducted quietly and behind the scenes, is critical to data-driven litigation and policy …

The "New" Drug War, Jennifer D. Oliva, Taleed El-Sabawi

Articles by Maurer Faculty

American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.

The drug war has been a failure …

What Fischer V. United States Gets Wrong About Prosecutorial Discretion, Cindy J. Cho

Articles by Maurer Faculty

Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021.  Making good on those worries, the conservative majority in Fischer v. United States, rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical.

This article attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases.  A survey of ten January 6 cases …

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 …

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 …

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 …

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 …

Criminal Defamation And Freedom Of Speech In The Internet Age: A Study For Indonesian Democratic Values, Eka Nugraha Putra

Maurer Theses and Dissertations

For a country that has been declared a democratic nation since it gained independence, Indonesia still faces the real challenge of maintaining democratic values. Currently, Indonesian legal regulations do not provide a clear standard for when speech is protected and when it can be considered actionable defamation. The obscure scope of the law means that it can affect some kinds of speech, such as opinion or criticism, and render that speech punishable as a crime.

This study analyzes Indonesia’s criminal defamation laws by examining what is protected and unprotected speech. The study examines various laws, including Indonesian statutes and judicial …

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 …