Criminal Law Commons^™

What If Criminal Lawmaking Becomes Trustworthy?, Zachary S. Price

Journal of Criminal Law and Criminology

One common theoretical perspective posits that courts should assume a counter-majoritarian role in criminal law because the political process systematically disfavors the interests of criminal suspects and defendants. Recent shifts in the politics of crime complicate this perspective’ s assumptions, raising the paradoxical possibility that welcome improvements in the politics of crime will weaken the theoretical case for counter- majoritarian judicial decisions. This Article tentatively considers whether, if at all, courts’ interpretive approach should change in response to any continuing moderation of historic “tough on crime” politics. It suggests that while arguments for narrow construction of criminal statutes will remain …

Fair Notice And Criminalizing Abortions, Brian G. Slocum, Nadia Banteka

Journal of Criminal Law and Criminology

The principle of legality requires that individuals receive “fair notice” of conduct that is criminal. Courts enforce this fair notice requirement through various interpretive principles and practices, including the void-for- vagueness doctrine. The void-for-vagueness doctrine remains undertheorized, however, despite its centrality to the interpretation of criminal statutes. We offer a new theory of the void-for-vagueness doctrine that accounts for recent Supreme Court decisions. Specifically, we propose a scalar theory that fair notice is a matter of degree, dependent on various factors. We explore the implications of this theory for anti-abortion statutes post-Dobbs and explain why many of these statutes do …

The Rule Of Lenity As A Disruptor, Maciej Hulicki, Melanie M. Reid

Journal of Criminal Law and Criminology

This article discusses the application of the rule of lenity in the American legal system. Although this constitutes a substantial element of criminal law in the United States and has been duly established in jurisprudence and legal science, it has still not been adequately applied in judicial practice. The authors of the article reflect on this situation, analyzing the historical background and the origins of this principle, as well as its current implementation in the U.S. criminal law. The work also includes a comparative analysis, where the authors juxtapose the rule of lenity with similar principles known in civil law …

Extraterritorial State Criminal Law, Post-Dobbs, Darryl K. Brown

Journal of Criminal Law and Criminology

Like the federal government, states can apply their laws to people beyond their borders. Statutes can reach out-of-state conduct, such as fraud, that has effects within the state, and in some circumstances, states can prosecute their own citizens for out-of-state conduct. Many applications of extraterritorial jurisdiction are well established and uncontroversial; state common law and the Model Penal Code provide for such authority. The practice draws little attention when states’ criminal laws are broadly similar and treat the same activities as crimes. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, however, state laws …

Abolition Of What?, Christopher Lewis, Adaner Usmani

Journal of Criminal Law and Criminology

This Article defends a structural theory of the brutality of the carceral state. We argue that American penal systems are destined to be inhumane, barring sweeping changes to the social and economic order of the United States; and that prison and police abolition are neither sufficient nor necessary to bring these kinds of changes about.

This theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it is politically infeasible for capitalist democracies to permit the incentives to defy the law to exceed those to obey it. As we show, the Principle of Less …

Excessive Force In Prison, Sharon Dolovich

Journal of Criminal Law and Criminology

Any time a correctional officer (CO) physically assaults someone in prison, their conduct demands an especially compelling justification and robust ex post scrutiny. Instead, governing Eighth Amendment doctrine almost entirely defers to COs’ own judgments as to the need for force. This highly deferential approach is especially ill advised given the institutional culture of the modern American prison, which systematically demonizes and dehumanizes people in custody and thus primes COs to use violence unnecessarily. Even a standard of “objective unreasonableness” would not suffice to prevent case outcomes from reflecting a callous indifference to the safety of people in prison. What …

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

Journal of Criminal Law and Criminology

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 …

Beyond Bars: Exploring Alternative Possibilities To Address Sexual And Gender Based Violence, Rachel Ensign Habliston

Journal of Criminal Law and Criminology

Many people agree that the United States carceral system is flawed. However, it can be difficult to discuss alternative ways to address violence that do not involve incarceration. Aside from the carceral system, there are other pathways to accountability and healing. Exploring these pathways for perpetrators of heinous crimes, such as sexual and gender-based violence (SGBV), is an overwhelming and under-reviewed endeavor. This Comment seeks to broaden perspectives about how society can hold people accountable for committing acts of SGBV by surveying progressive prosecution, restorative justice, and transformative justice as potential alternatives to the current carceral system. Part I provides …

Rubbing Salt Into The Wound: Environmental Injustices In Prisons And The Difficulties Of Obtaining Relief, Savannah Markel

Journal of Criminal Law and Criminology

American prisons are often built near or on environmentally hazardous lands. Not only do prison locations affect prisoners’ health and well-being, but deteriorating confinement conditions exacerbate such safety and wellness risks. In seeking justice for these environmental violations, prison litigants often choose to raise claims under the Eighth Amendment’s Cruel and Unusual Punishment Clause. However, the Clause requires litigants to meet an extremely high—indeed, near-impossible—bar to succeed on their claims. Environmental justice advocates have proposed an alternative remedy which calls on the Environmental Protection Agency (EPA) to regulate environmental injustices in prisons. This Comment analyzes the difficulties of raising an …

Categorical Declinations & Democracy, Brenner M. Fissell

Journal of Criminal Law and Criminology

The most contentious action taken by reform prosecutors has been the issuance of categorical declination policies. Opponents decry this as bureaucratic nullification of democratically enacted offenses, while the prosecutors themselves counter that they are responding to the will of their local electorate. Democracy claims, it appears, have taken center stage in this debate, and they are deployed by both sides. How should we think about democracy and categorical declinations? The most comprehensive scholarly work on this subject is a 2021 article by Professor Kerrel Murray. In this essay, I hope to continue the work begun by Murray, offering additional insights …

Evidence Of Unfairness: New York's 2020 Discovery Statute Reduced Fairness For Defendants, Victims, And Society, Hannah E. Meyers

Journal of Criminal Law and Criminology

To ensure fairness and safety for all citizens, it is crucial to evaluate the impact of criminal justice reforms. In this article, I argue that some recent statewide criminal justice reforms legislated with the avowed goal of making the criminal justice system fairer have had the opposite result. As a case study of this phenomenon, I focus on New York State’s discovery statute, which went into effect in January 2020. I detail specifically what the law changed and explain the profound impact of those changes on the functioning of local district attorneys’ offices.

I then analyze data showing a substantial …

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Journal of Criminal Law and Criminology

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Second Look Myopia: State Sentencing Reform And The Local Prosecutorial Response, Alexandra Harrington

Journal of Criminal Law and Criminology

This Article advises caution against over-reliance on local prosecutors’ offices to effect second-look reforms and to filter cases worthy of review. Using the lens of New York’s recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. The New York State Legislature enacted the DVSJA—after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys’ Association—to change the way the State sentences survivors of domestic violence. The DVSJA also allows …

County Prosecution And State Preemption: The Confusing Politics Of Criminal Legal Reform And Backlash, John Pfaff

Journal of Criminal Law and Criminology

Urban reform prosecutors, who are generally elected at the county level, find themselves in a tricky political spot. On the one hand. most urban counties are in many ways “too big” for reformers: they include large numbers of suburban voters who generally dislike reform, in no small part because they are relatively unaffected by the decisions prosecutors make. On the other hand, these counties are also often “too small”: they lack the political power to resist efforts by conservative state legislatures and governors to rein in, if not outright remove, reformers. This Article examines both vulnerabilities. It first maps out …

Racial Capitalism, Climate Change, And Ecocide, Carmen G. Gonzalez

Faculty Publications & Other Works

Lawyers, scholars, and activists have long sought to incorporate ecocide into the Rome Statute of the International Criminal Court to address corporate and governmental impunity for massive and severe ecological damage, including the harms caused by climate change. This Article uses the framework of racial capitalism to examine and critique the proposed criminalization of ecocide. Coined by South African scholars and activists and refined by political theorist Cedric Robinson, the theory of racial capitalism offers valuable insights on the root causes of the climate crisis and the manifold injustices it inflicts on marginalized states and peoples. While most discussions of …

Passing The Buck: The Perils Of Oklahoma V. Castro-Huerta, Adam Crepelle, Timothy Purdon, Brendan Johnson

Faculty Publications & Other Works

The Supreme Court's 2022 decision in Oklahoma v. Castro-Huerta upended federal Indian law by allowing states to prosecute crimes involving Indians committed in Indian country. Castro-Huerta created a concurrent jurisdiction over Indian country crimes involving non-Indians. While concurrent jurisdiction increases the number of law enforcement agents with jurisdiction, it also creates opportunities for those law enforcement agents to shirk responsibility. Neither state nor federal law enforcement is accountable to tribes, so Castro-Huerta is likely to create a pass the buck mentality among non-Indian law enforcement. Moreover, there is little to indicate expanding state authority over tribes will benefit Indians. In …

The Criminalization Of Mental Illness And Substance Use Disorder: Addressing The Void Between The Healthcare And Criminal Justice Systems, Emily B. Egart

Mitchell Hamline Law Review

No abstract provided.

When We Need Someone To Blame: Officer Suicide, Justice, And The Felony Murder Rule In The Casey White Case, Mallory Sadler

Mitchell Hamline Law Review

No abstract provided.

Virtual Justice: Criminalizing Avatar Sexual Assault In Metaverse Spaces, Olivia Bellini

Mitchell Hamline Law Review

No abstract provided.

Reprieves Return: Minnesota's Decision To Awaken The Reprieve, Mary Fee, Monica Shaffer

Mitchell Hamline Law Review

No abstract provided.

The Myth Of The Guilty Suspect: Confession, Narrative, And Political Assent, Susan L. Tanner

Mitchell Hamline Law Review

No abstract provided.

Creditor Courts, Alexander Billy, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

One of the largest institutional creditors in the United States is perhaps the most unexpected: the criminal court system. Each year, creditor courts collect more than $15 billion in revenues from criminal defendants. These fees are the lifeblood of the modern criminal legal system.

In this Article, we shed new light on the legal and economic framework under which myriad stakeholders operate in these creditor courts. By analyzing new survey data from clerks of court and 102 contracts with debt collection agencies in Florida, we provide general insights how creditor courts distort incentives and teem with conflicts of interest. These …

A Second Chance At Success: Using “Second Look” Laws To Modify Sentences Of Juvenile Offenders, Sophia M. Adams

Dickinson Law Review (2017-Present)

“Second look” sentencing laws allow incarcerated individuals to petition to have their sentences reexamined and potentially reduced after they have served a significant period of incarceration. This rehabilitative relief is conditioned upon an offender showing that they have made meaningful positive changes while incarcerated and would not pose a threat to their community if released. Implementing second look laws is particularly appropriate in the context of offenders who have committed crimes as juveniles. The U.S. Supreme Court has recognized that juvenile offenders are less culpable than their adult counterparts and psychological science supports this conclusion. This Comment examines and compares …

A Critical Assessment Of The First Step Act’S Recidivism-Reduction Measures, Raquel Wilson

Dickinson Law Review (2017-Present)

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 …

Beccaria, The Executioner, And The French Revolution, Willa Carlyle Reising

Graduate Theses, Dissertations, and Problem Reports (ETD)

This thesis explores ideas and practices in the French penal system during the Revolutionary era, especially during the Reign of Terror, considering the experiences of Revolutionary leaders and the executioner of Paris during the Revolution. It argues that while in some ways Revolutionary leaders used Enlightenment penal laws to justify their actions during the Reign of Terror, in other ways the Reign of Terror was a departure from Enlightenment penal reform laws. The main Enlightenment penal reformer which this thesis uses is Cesare Beccaria because he was influential in France and during the French Revolution in helping to create early …

The Sociology Of Bail Reform: Crime, Social Interaction, And Offender Experiences In Rurality., Scott Kevin Turner

Graduate Theses, Dissertations, and Problem Reports (ETD)

The study sought to explore the impact of the New York State “Bail Reform Act of 2019,” in rurality. It examined some of the legislative goals of the law, the claim that it caused crime, and offender experiences in rurality. Secondary data was used to map the rural crime landscape and primary data was collected from offenders during face to face interviews. The study was framed using deterrence and opportunity approaches and situated within the broader field environments; legislative, courtroom, and community. The research failed to find support for the claim that bail reform caused crime. Instead, it revealed that …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Who Bears The Burden When Prison Guards Rape?, Meredith B. Esser

Scholarly Works

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons ("BOP"). Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution ("FCI") Dublin, also known as the "rape club," resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years. In response to these patterns of misconduct, the Federal Sentencing Commission's new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early …

Extraordinary Punishment: Conditions Of Confinement And Compassionate Release, Meredith B. Esser

Scholarly Works

People experience severe forms of harm while incarcerated, including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment the most common vehicle through which people seek to redress these harms presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment's "deliberate indifference" standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …