Criminal Law Commons^™

Voices Of The Denied, Heather Spencer

Lewis & Clark Law Review

This Note explores the impact of lengthy prison sentences on rehabilitation and the need for second chances. While incarceration serves purposes such as retribution and incapacitation, it fails to promote rehabilitation and deterrence. Oregon should do more in providing opportunities for early release and rehabilitation for individuals serving lengthy sentences. The Note features interviews with incarcerated individuals who share their thoughts and experiences. Overall, this Note sheds light on the importance of second chances and on the need for reform in the criminal justice system to ensure that prisoners are not denied the chance to lead productive and fulfilling lives.

Constitutional Crimes, Michael L. Smith

Faculty Articles

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt …

The Difference A Da Makes, Victoria M. Smiegocki, Shem Vinton, Pamela R. Metzger

Faculty Articles

During his 2018 campaign to become Dallas County District Attorney, John Creuzot promised to decline prosecution of low-level marijuana misdemeanors. After his election, District Attorney Creuzot (DA Creuzot) honored this campaign promise, issuing policies designed to radically reduce misdemeanor marijuana prosecutions. Analyzing qualitative and quantitative data, the authors describe police enforcement changes associated with the Dallas County District Attorney's Office's (DAO) marijuana prosecution policies. The authors also explore how the

DAO's Intake Unit successfully implemented and enforced these marijuana prosecution policies.

The authors show that DA Creuzot's policies were associated with a significant decrease in marijuana misdemeanor arrests and an …

The Constitutional Multiverse: A Retroactive Analysis Of Hemphill V. New York, Michael C. Wetmore

Loyola University Chicago Law Journal

In 2022, the Supreme Court was asked the question: May a criminal defendant “open the door” to evidence that it is otherwise inadmissible because of their Sixth Amendment right to confront adversarial witnesses? It is not unheard of that, at trial, a defendant’s attorney makes arguments that prosecutors and judges think will mislead the jury. Many times, these arguments reference evidence that—by evidentiary rule, pretrial ruling, or otherwise—is inadmissible. Trial courts have long been afforded the discretion to measure how much evidence can come through the door a defendant opens by raising these arguments to cure any false impression that …

State V. Sinapi, 295 A.3d 787 (R.I. 2023)., Andrew W. Dunphy

Roger Williams University Law Review

No abstract provided.

State V. Li, 297 A.3d 908 (R.I. 2023)., Elijah M. Santos

Roger Williams University Law Review

No abstract provided.

Judging Our New Judges: Why We Must Remove Artificial Intelligence From Our Courtrooms Now, Kieran Duffy Newcomb

Honors Theses and Capstones

In this paper, I explore some of the ways in which artificial intelligence might enhance the sentencing process through recidivism prediction technology. Notably, this technology can increase the accuracy of risk predictions and the speed with which sentencing decisions are reached. I then show, however, that the recidivism prediction technology is likely to turn into what data scientist Cathy O’Neil calls a Weapon of Math Destruction. The potential harmfulness of this technology is due not to the inherent nature of the technology, but the symbiotic relationship it will have with our already harmful criminal justice system. I argue that the …

Book Review Of Spencer Headworth’S Rules Of The Road: The Automobile And The Transformation Of American Criminal Justice, Mark Fenster

UF Law Faculty Publications

No abstract provided.

Time For Reform, Not Abolition: Balancing Justice And Morality Through Amendment Of The Federal Death Penalty, Madison Steinkamp

St. Thomas Law Review

In 1987, President Ronald Reagan addressed Congress, saying it was "scandalous and intolerable" that federal law did not provide for an enforceable death penalty.' Ten years prior, following a brief moratorium on its application, the death penalty had been ruled constitutional. While thirty-five states had already reinstated the death penalty at the state level and constitutionally executed ninety-three prisoners since 1976, Congress had not yet enacted the rational, objective standards necessary for applying the death penalty constitutionally. In the year following his speech to Congress, President Reagan successfully signed the federal death penalty into law through the Anti-Drug Abuse Act …

State V. Leonard, 296 A.3d 111 (R.I. 2023)., Jillian L. Murray

Roger Williams University Law Review

No abstract provided.

State V. Vose, 287 A.3d 997 (R.I. 2023)., Amy Anthony

Roger Williams University Law Review

No abstract provided.

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 …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

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 …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Correcting Federal Rule Of Evidence 404 To Clarify The Inadmissibility Of Character Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule 403 balancing—and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.

I therefore propose that the …

A Proposal To Replace The Hearsay Rules, Richard D. Friedman

University of Michigan Journal of Law Reform

This essay proposes a set of rules to replace entirely the 800 series of the Federal Rules of Evidence, the hearsay rules, with a very different, and relatively compact, set of procedural rules. (The current hearsay rules run over 3000 words; the proposed rules run under 1000.) The change will improve truth-determination, make trials more efficient, and better protect the rights of criminal defendants and other parties. There would, of course, be some adjustment period for lawyers and judges as they get accustomed to a different system, but I am confident that it would soon be easier to administer than …

Imminence Should Not Be A Controlling Factor In The Duress Defense In The Context Of Battered Women, Jacqueline Fink

Touro Law Review

Domestic violence is a silent killer that attacks quickly. This Note specifically discusses the Battered Woman Syndrome and the need to explore the current laws that “protect” this group. Current laws in a majority of states create a barrier that blocks battered women from obtaining the justice that should be given to all citizens. When the abused woman is at an impasse in her relationship, she may be forced to make a life-or-death decision. More likely than not, the result becomes the worst possible outcome. Domestic violence continues to be higher amongst women than men, where women are emotionally, as …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

Criminal Recordkeeping, Andrew K. Jennings

Faculty Articles

Business managers must create and keep records for decision-making. Yet doing so presents an obvious problem for those who manage illegal businesses: their records would make for powerful evidence in the hands of prosecutors. That problem raises a question—why would one knowingly create and keep such records when their mere existence risks detection and sanction? The answer, in short, is that the interaction of illicit activity’s complexity and continuity compels recordkeeping. A business, including a criminal one, cannot be managed without adequate information about its operations, obligations, and condition. Just how complex and long-lived its affairs are will drive the …

Operationalizing Power In Health Law: The Hospital Abolition Hypothesis, Matthew B. Lawrence

Faculty Articles

This symposium Article describes how prison abolitionist arguments also support the hypothesis that a defining goal of health law should be the abolition of hospitals. Like prison abolitionism, the hospital abolition hypothesis can provide a constructive way to shift the focus of legal analysis from substantive dimensions (in health law — cost, quality, access, and equity) to the dimension of power.

Law In Inaction: The Origins And Implications Of Chronic Drug Law Underenforcement In One Southern County, Kay L. Levine, Elizabeth Griffiths, Joshua M. Hinkle, Volkan Topalli

Faculty Articles

Common accounts of police and prosecutorial nonenforcement discretion tend to valorize individual declination choices as demonstrations of mercy and resource constraint. Simultaneously, these accounts critique blanket nonenforcement policies as being outside the bounds of executive authority. Both accounts fail to consider the origins and implications of nonenforcement decisions made by police officers and prosecutors in individual cases that, when taken together, amount to significant underenforcement of an otherwise valid law.

This Article fills the gap between these differing perspectives by empirically examining the hidden and habitual underenforcement of technically valid drug-free-zone (DFZ) laws in one Southern county. Data matching the …

Forbidden Purposes: A New Path For Limiting Criminalization, Raff Donelson

Journal of Criminal Law and Criminology

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and remove them from public spaces. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, …

Library Crime, Michael L. Smith

Faculty Articles

Libraries are often idealized as one of the few remaining safe, public spaces. Beyond providing books and internet access, they are a source of shelter, warmth, restrooms, and a place to stay without a reason for society's most vulnerable. But libraries are also at the core of a network of criminal laws that punish a wide array of library-related conduct. Steal a book? Write in or otherwise damage materials? Fail to return an item? Hide a book in a manner that looks like you are about to steal it? Many states criminalize these activities, often punishing them with potential jail …

A Critical Assessment Of The First Step Act's Recidivism-Reduction Measures, Raquel Wilson

Law Faculty Scholarly Articles

The First Step Act of 2018 (“FSA”) is the most impactful federal sentencing reform of the past 40 years. While the Act represents a partial resurgence of the rehabilitative model of imprisonment, which had fallen out of favor decades before, it also represents a missed opportunity to fully integrate evidence-based rehabilitation programs for those offenders who pose the greatest risks to public safety.

The public has a strong interest in reducing recidivism, particularly among violent offenders, most of whom will be released from federal prison eventually. The FSA incentivizes participation in evidence-based, recidivism-reducing programs offered by the Bureau of Prisons …

Extending The Prediction Of Fear Of Crime, Doreen Boateng

Theses

This study aims to expand what we know about fear of crime to reveal the different levels of fear among genders. Although there exists extensive research on the subject matter, the current work examines how different each gender perceives crime given the predictors as vulnerability, disorder and social integration. This study therefore addresses these gaps by assessing gender differences in crime fear and how these models separately influence each gender. To do that, crosstabulations and logistic regression analysis was used in analyzing the relationship between gender, perceptions of neighborhood disorder (street graffiti/litter), social integration (family ties), to determine the relationship …