Criminal Law Commons^™

Antiracist Expert Evidence, Jasmine Gonzales Rose, Asees Bhasin, Spencer Piston

Faculty Scholarship

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” …

U.S. Territories And The Criminal Law Curriculum, Emmanuel Hiram Arnaud

Faculty Scholarship

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.¹⁰ As I advance elsewhere,¹¹ criminal adjudication in the territories functions differently than in the mainland United States.¹² Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.¹³ Chief among the characteristics is the …

Optimal Real-Time Review Standards: Implications For Law Enforcement And Competitive Games, Murat C. Mungan

Faculty Scholarship

Real-time review systems are frequently used in various sports to monitor the decisions of referees and correct their mistakes. Interventions through these systems cause delays in games, which are perceived as being costly. This makes it optimal for these review systems to interfere with the decisions of the referee less frequently than would minimize the costs of decision errors, which I formalize through an analysis of the VAR system in football. This analysis also reveals that optimal review standards ought to be laxer when an important event (e.g., a goal) occurs between the position in which the potential error took …

We Need To Talk: Modernizing Attorney-Client Jail Communications, Cynthia Alkon

Faculty Scholarship

Attorney-client jail phone calls, video calls, and emails are all routinely recorded and monitored by jails, with numerous examples of jails and private telecommunications providers giving those recordings and emails to law enforcement and prosecutors. This widespread failure to protect the confidentiality of attorney-client communications prevents lawyers from being able to enjoy easy, quick, and regular communications with their clients. In practice, and despite the ever-expanding communication methods in the outside world, those held in jails in this country while their criminal cases are pending are effectively stuck in the nineteenth century when the only way to communicate was in …

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 …

The Shadow Defendants, Mariam A. Hinds

Faculty Scholarship

Although the overrepresentation of men, specifically Black men and men of color, in the criminal legal system is well documented, the people who support these men, especially women, have garnered less attention. Women who are proximate to system-involved men—mothers, grandmothers, sisters, daughters, girlfriends, and wives—are invisible actors in the criminal legal system who perform critical tasks and provide essential support. They appear in court to demonstrate a person’s family and community ties, use their assets as collateral for bail, deposit money in commissary accounts, maintain social ties during imprisonment through letters and visits, and bear the burden of filling the …

The Rise Of Global Fcpa Settlements, Rachel Brewster

Faculty Scholarship

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This …

Criminalization Of Immigration, Emily Ryo, Jennifer M. Chacón, Cecilia Menjívar

Faculty Scholarship

This article presents a critical analysis of social scientific research from the past fifteen years on the criminalization of immigration in the United States. Our review reveals three central themes. First, although immigration law is considered federal civil law, immigration enforcement has become substantially intertwined with criminal law enforcement in ways that have broad-ranging and radiating effects on immigrant communities of color. Second, race plays an important bidirectional role in the increasing criminalization of immigration. Specifically, criminalizing immigration results in the racialization of certain immigrant groups as dangerous outsiders, and such racialization has the effect of sustaining and promoting the …

New Insights On Expert Opinion About Eyewitness Memory Research, Travis M. Seale-Carlisle, Adele Quigley-Mcbride, Jennifer E. F. Teitcher, William E. Crozier, Chad S. Dodson, Brandon L. Garrett

Faculty Scholarship

Experimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert …

Reconceptualizing Incomplete Attempt, Youngjae Lee

Faculty Scholarship

Incomplete attempt laws are typically explained as laws that exist to justify timely law enforcement intervention. Such explanations may well provide good reasons for the laws based on harm prevention rationales, but they do not address the question whether a person who has, say, “cocked and aimed the pistol” has actually attempted to kill and is blameworthy for having done so. It turns out that this question is notoriously difficult to answer. This Article describes the challenge of defining incomplete attempt and of identifying and articulating its wrongfulness as a general theoretical matter. This Article then argues in favor of …

Contested Criminalization, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, …

Criminal Background Checks: Implications For Discrimination And Crime, Murat C. Mungan

Faculty Scholarship

Criminal background checks have recently attracted the attention of academics and policy makers alike. Recent laws and policies, like “ban the box” and expungements, focus on the availability of criminal background information as well as the permissibility of using this type of information. Quite surprisingly, policies about the content of the information –whose permissibility and availability are questioned by recent work– is not scrutinized as much.

In this article, I investigate the informational quality of existing background checks. For this purpose, I review the history and evolution of traditional criminal background checks. These checks rely on ‘rap sheets’ –documents containing …

Dimensions Of Prosecutor Decisions: Revealing Hidden Factors With Correspondence Analysis, Megan S. Wright, Cindy Cain, Shima Baradaran Baughman

Faculty Scholarship

Despite the significant impact of prosecutorial discretion on criminal justice outcomes, there are very few large-scale studies of state and local prosecutor decision-making. Our previous empirical research demonstrated that a defendant’s race and class do not affect prosecutorial charging decisions and revealed a gap in the literature about factors that do influence prosecutorial charging decisions and sentencing recommendations. Accordingly, we designed a study to obtain more information about prosecutor discretion and decision-making. Over 500 prosecutors from across the United States completed our vignette-based experiment and survey, which produced quantitative and qualitative data. We transformed these data to use Correspondence Analysis …

Colonizing By Contract, Emmanuel Hiram Arnaud

Faculty Scholarship

Since 1898, Puerto Rico has been a territory of the United States, meaning that Congress wields plenary power over the Island. Although scholars have highlighted the history and some modern manifestations of this power, conversations about how plenary power affects the territories have largely ignored constitutional criminal procedure.

This Article is the first to center the territory’s criminal legal system within the broader debate over the exercise of plenary power. In doing so, it fills significant gaps in the constitutional and criminal law literature on the territories by uncovering how the federal government’s plenary power affects local criminal adjudication. This …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

Inmate Assistance Programs, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This paper analyzes the deterrence implications of different inmate assistance programs (IAPs), carefully distinguishing between deterrence of first offenses and recidivism. All IAPs considered in our model reduce recidivism, and we identify IAPs that also reduce the first offense rate. However, IAPs which increase work opportunities, improve the reintegration of exiting inmates, and moderate individual’s self-control issues may lower the deterrence of first offenses, if this possibility is not adequately anticipated when designing these IAPs.

Administrative Arrest Warrants: Armed Encounters Outside The Judicial Process, Meg Penrose

Faculty Scholarship

This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this …

Whistle-Blowing And The Incentive To Hire, Jef De Mot, Murat C. Mungan

Faculty Scholarship

We consider a previously neglected cost of whistle-blower awards: employers may base their hiring decisions, on the margin, not on the productivity of an employee but rather on the probability that the employee will become a whistle-blower. We develop a three-stage model to examine how productivity losses due to distortions at the hiring stage influence optimal whistle-blower rewards. We characterize optimal rewards for whistle-blowing, and show that when rewards can be chosen according to either the benefits of the employer from offending or the productivity of the worker being hired, productivity-based rewards are superior to benefit-based rewards.

Negotiating Police Reform, Cynthia Alkon

Faculty Scholarship

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different …

Inmate Assistance Programs: Toward A Less Punitive And More Effective Criminal Justice System, Erkmen G. Aslim, Yijia Lu, Murat C. Mungan

Faculty Scholarship

High recidivism rates in the United States are a well-known and disturbing problem. In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.

We focus on Inmate Assistance Programs (IAPs) adopted by many states. Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems. IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for …

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

Rico's Long Arm, Randy D. Gordon

Faculty Scholarship

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Faculty Scholarship

No abstract provided.

A Conversation On The Carceral Home, Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, James Kilgore

Faculty Scholarship

On February 8, 2024, scholars Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, and James Kilgore met virtually at the Boston University School of Law to hold a conversation on Professor Weisburd’s article, The Carceral Home, 103 B.U. L. Rev. 1879 (2023).

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

The Mistaken Law Of Mistakes Of Law: Mistakes Negating Culpability Under The Model Penal Code, Scott England

Faculty Scholarship

This Article examines the relationship between two core principles of American criminal law. On one hand, ignorance of the law is no excuse. On the other hand, criminal liability requires not just a guilty act but also a guilty mind. As the criminal law has become more complex, criminal offenses have increasingly raised issues about whether they require culpability as to issues of law, often bringing culpability requirements and the ignorance maxim into apparent conflict.

In 1962, the American Law Institute published the Model Penal Code (“MPC” or “the Code”). The MPC changed American criminal law significantly, and the Code’s …

Access To Care And Outcomes With The Affordable Care Act For Persons With Criminal Legal Involvement: A Scoping Review, James René Jolin, Benjamin A. Barsky, Carrie G. Wade, Meredith B. Rosenthal

Faculty Scholarship

IMPORTANCE By expanding health insurance to millions of people in the US, the Patient Protection and Affordable Care Act (ACA) may have important health, economic, and social welfare implications for people with criminal legal involvement—a population with disproportionately high morbidity and mortality rates.

OBJECTIVE To scope the literature for studies assessing the association of any provision of the ACA with 5 types of outcomes, including insurance coverage rates, access to care, health outcomes, costs of care, and social welfare outcomes among people with criminal legal involvement.

EVIDENCE REVIEW The literature search included results from PubMed, CINAHL Complete, APA Psycinfo, Embase, …

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Faculty Scholarship

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Proportionalities, Youngjae Lee

Faculty Scholarship

"Proportionality" is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …