Criminal Law Commons^™

Evidence Rules For Decarceration, Erin Collins

Law Faculty Publications

Two observations about the operation of the criminal legal system are so widely accepted that they are seem undeniable: First, it is a system of pleas, not trials. Second, the system is too punitive and must be reformed. One could easily think, therefore, that the Rules of Evidence, which apply intentionally and explicitly only to the adjudicatory phase of criminal procedure, have nothing to do with the solution. And legal scholarship focusing on decarceration largely reflects this assumption: while many have explored reforms that target front end system actors and processes that lead people into the system (e.g. police, prosecutors, …

Sex Exceptionalism In Criminal Law, Aya Gruber

Publications

Sex crimes are the worst crimes. People generally believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes typically create a dedicated category for sex offenses, uniting under its umbrella conduct ranging from violent attacks to consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely elicits discussion, much less debate. Sex exceptionalism, however, is neither natural nor neutral, and its political history should give us pause. This Article is the first to trace, catalog, and analyze sex exceptionalism in criminal law …

The Politicization Of Criminal Prosecutions, Wadie E. Said

Publications

This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the …

Redress For Wrongful Convictions: A Response To Professor Medwed, Justin Murray

Publications

No abstract provided.

Preface: New Directions In Prosecutorial Reform, Miriam Aroni Krinsky, Justin Murray, Maybell Romero

Publications

This Preface, which introduces the American Criminal Law Review’s Symposium Issue on Reform-Minded Prosecution, begins by describing the power that prosecutors hold in the criminal legal system, which has historically gone unchecked and unquestioned. As mass incarceration, police violence, and wrongful convictions began to permeate the public consciousness, many communities focused their attention on the critical role of their local elected prosecutor and elected leaders who promised to do the job differently. Reform-minded prosecutors have enjoyed remarkable electoral successes over the past decade such that close to twenty percent of the U.S. population now resides in a jurisdiction with a …

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan P. Sturm

Faculty Scholarship

The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.

Are Police Officers Bayesians? Police Updating In Investigative Stops, Jeffrey A. Fagan, Lila J.E. Nojima

Faculty Scholarship

Theories of rational behavior assume that actors make decisions where the benefits of their acts exceed their costs or losses. If those expected costs and benefits change over time, behavior will change accordingly as actors learn and internalize the parameters of success and failure. In the context of proactive policing, police stops that achieve any of several goals — constitutional compliance, stops that lead to “good” arrests or summonses, stops that lead to seizures of weapons, drugs, or other contraband, or stops that produce good will and citizen cooperation — should signal to officers the features of a stop that …

Why Criminal Defendants Cooperate: The Defense Attorney's Perspective, Jessica A. Roth, Anna D. Vaynman, Steven D. Penrod

Articles

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District …

Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman

Faculty Scholarship

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments

Title Theft, Stewart E. Sterk

Articles

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand. Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title. Recovery of title, however, involves costs and …

Can Machines Commit Crimes Under Us Antitrust Laws?, Aslihan Asil, Thomas Wollmann

Faculty Scholarship

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm.

The Prosecution Bar, William Ortman

Scholarly Works

The American legal profession needs a prosecution bar. Before lawyers are permitted to appear for the government in a criminal case, they should be licensed not just to practice law, but to practice prosecution. The two are not the same. Regulating them as if they were fosters injustice and fortifies the carceral state.

“Doing justice” is the orienting creed of prosecutorial ethics, in theory, while on the ground, American prosecutors routinely indulge in unjust practices. This Article argues that prosecutors’ membership in an undifferentiated legal profession is the key to understanding the contradiction. Lawyers’ training, socialization, and professional regulation fixate …

Mistakes With The Mistake Defense In Texas Criminal Law, Charles Bubany

St. Mary's Law Journal

No abstract provided.

On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, Tracy Hresko Pearl

Faculty Articles

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology, as well, arguing that use of these systems will increase the number of warrants issued throughout the United States …