Criminal Law Commons^™

Absent Words, Absent Consent: Gisèle Pélicot And The Limits Of French Rape Law, Victoria Baez

FIU Law Review

France's force-based definition of rape, which centers on violence, coercion, threat, or surprise, fails to adequately protect victims who are unconscious, incapacitated, or otherwise unable to resist. This deficiency was highlighted by the Mazan case, where structural gaps in French law made prosecuting mass sexual assaults involving an unconscious victim unusually complex. Under this framework, the legal requirements to establish rape distort the understanding of consent and perpetuate longstanding rape myths, including the presumption that silence implies agreement. Although convictions were ultimately secured in the Mazan case, they occurred despite the structure of the law. Without reform, France's current rape …

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

Understanding Brady Violations, Jennifer Mason Mcaward

Journal Articles

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most …

The Intersection Of Dementia And Criminal Behavior, J. Taylor Humphrey

Marquette Law Review

As the number of individuals affected by dementia increases, the criminal justice system continues to face questions about dementia and criminal responsibility. However, gaps in the legal process have left these individuals, incapable of forming intent, vulnerable to wrongful punishment. Courts rely on traditional culpability frameworks that fail to account for the nuance in dementia-related cognitive decline, and, as a result, prisons are forced to function as de facto nursing homes lacking adequate resources to provide proper care. This Comment proposes treating dementia as a sliding scale, arguing for a context-specific response through streamlined crisis response, use of diversion programs, …

Appendix: Selected Quotes From Prosecutors' Interview Responses, Anna Arons

Faculty Publications

No abstract provided.

The Model Minority Victim, Elaine M. Chiu

Faculty Publications

The rise in xenophobia, hate and violence against AAPI Americans inspired by the COVID-19 pandemic was an opportunity to assess the effectiveness of the criminal legal system as a tool of anti-racism. This Article traces the legal aftermath when Asian New Yorkers reported 276 possible hate crimes to the police in 2021. The analysis takes an empirical approach and a narrative approach. It relies on a unique database that followed what happened to civilian complaints of anti-Asian crimes from beginning to end. Using metrics such as arrest rates and conviction rates, the Article draws initial conclusions about the systemic legal …

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Faculty Publications

(Excerpt)

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

In recent years, scholars have called on their …

Standardizing Exoneration Compensation Statutes, Farina Barth

Journal Articles

Wrongful convictions plague the American criminal justice system and leave lasting, unimaginable harm on the innocent. Since 1989 through February 2025, the National Registry of Exonerations reported 3,658 exonerations: a total of 32,750 years behind bars that were lost. An exoneree, once labeled a defendant, becomes a victim. To right this wrong, some states aim to make a wrongfully convicted citizen whole through compensation. However, in examining the evidence of wrongful conviction compensation, a pervasive issue is uncovered in the American compensation system: victims of wrongful incarceration are deeply undercompensated due to statutory drafting. For those states with compensation statutes, …

Prosecutorial Reform And The Myth Of Individualized Enforcement, Justin Murray

Articles & Chapters

The American prosecutor’s legitimacy faces unprecedented challenges. A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo. Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement. This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting …

Internal Or External: An Exploration Of The United States Police Chief Hiring Process, Kayleigh Walker

Williams Honors College, Honors Research Projects

This paper explores the hiring processes of police chiefs across the United States, focusing on internal versus external hiring practices. The goal of this research was to identify common trends, legislative barriers, and the impact of leadership on the hiring process through historical context, legal analysis, and case studies. The findings suggest that internal hires dominate chief appointments, though external hires are often sought during crises. The paper concludes with recommendations for future research and highlights the need to more fully understand this phenomenon. Understanding the processes and limitations surrounding the appointment of new leadership is critical to reform and …

Contract Or Prison, Sadie Blanchard

Journal Articles

Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Governments are turning to “offender-funded” programs that empower firms to contract with people who are suspected of or have been convicted of crimes— and whose alternative to agreeing to these contracts is prosecution or incarceration. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the …

Breaking The Chain: How An Alternate Dispute Resolution Process Can Be Used In The Criminal Justice System For First-Time Non-Violent Criminal Offenders, Leora Perlstein

Cardozo Journal of Conflict Resolution

The criminal justice system is deeply rooted in our history. There are traditional views on how it should be run and conducted. “Founded on the concept that crimes against an individual are crimes against the state, our justice system prosecutes individuals as though they victimized all of society.” Traditionally, when individuals commit a crime, they go through the process of receiving a ticket—or if they commit a particular violent crime they will be immediately arrested—and then they go through the process of appearing in court for an arraignment in which they are “read the charges against [them]” and are either …

Criminal Law— Addressing Probation Revocation Policies In Arkansas, Hunter Willis

University of Arkansas at Little Rock Law Review

No abstract provided.

Artificial Intelligence & Criminal Justice: Cases And Commentary, Benjamin Perrin

All Faculty Publications

When I was given the chance to develop a seminar this year at UBC’s Peter A. Allard School of Law, I jumped at the opportunity to develop something new and engaging. After brainstorming ideas with students, it quickly became evident that there was substantial interest and enthusiasm for a seminar on the growing integration of artificial intelligence and the criminal justice system.

Embarking on this journey has been a steep learning curve for me as my students and I worked together to shape the course along with input from generative AI tools like ChatGPT, Gemini and Perplexity, along with open-source …

Video Analytics And Fourth Amendment Vision, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

What does the Fourth Amendment have to say about video analytics running on citywide camera systems? Video analytics (also known as computer vision) involves hardware and software in cameras that turns video surveillance streams into useful data, identifying, categorizing, matching, and alerting police about objects, people, and incidents. Video analytics can identify objects (e.g., hat, backpack, person, car) and track that person or thing back in time and through the streets using video surveillance footage. For police officers conducting virtual patrols or retrospective investigations, video analytics lets police scan thousands of linked cameras for suspicious behavior or a particular suspect, …

The Carceral State(S), Esther K. Hong

Michigan Journal of Race and Law

The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state.

Although the term often appears without an express definition, the limited ones that …

Lost Innocence, Mateo Valdivieso

Honors Undergraduate Theses

Human trafficking is defined as involving “force, fraud, or coercion to obtain some type of labor or commercial sex act” (U.S. Department of Homeland Security). It disproportionately affects vulnerable populations, particularly children within the U.S. welfare system. This research aims to analyze the characteristics of this system that produce vulnerabilities in welfare children that heighten their risk of being trafficked. The study focuses on socio-economic, psychological, and environmental vulnerabilities, examining how these factors, combined with increased internet accessibility, exacerbate the risks of trafficking. Using a qualitative approach, the research uses secondary data from peer-reviewed journal articles, government reports, and reputable …

The Impact Of Divorce Proceedings On Victims Of Domestic Violence, Quinn G. Di Ienno

Honors Undergraduate Theses

Divorce often signifies the end of conflict in relationships that individuals no longer wish to continue. However, the impact of divorce on victims of intimate partner violence (IPV) is a topic that remains underexplored. This research investigates the extent to which individuals navigating divorce proceedings are victims of IPV and aims to illuminate their experiences within the legal system. The study delves into various forms of abuse, including physical, emotional, and financial, while also addressing the challenges victims face in seeking assistance. Employing a mixed-methods research design, this study comprises a comprehensive literature review and an online survey targeting those …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Exploring The Impact Of Attorneys With Exposed Tattoos On Jurors, Diego F. Mahoney

Honors Undergraduate Theses

Within the legal field, there appears to be a pervasive stigmatization of exposed tattoos. Law firms justify their explicit or implicit bans on exposed body art by arguing that tattoos could negatively prejudice jurors who may be biased against people with tattoos. This thesis intends to put that notion to the test via a digital survey. Subjects who meet the qualifications to serve as a juror in the United States were shown one of two identical videos of an opening statement. However, in one video the attorney has a neck tattoo, whereas in the other the attorney does not. Subjects …

Prosecutorial Independence Regained? Mixing The Continental And Anglo-American Styles In South Korea, Neil Chisholm

Cardozo International & Comparative Law Review

The article examines the challenges of achieving prosecutorial independence in South Korea, highlighting the tension between Continental European and Anglo-American models. It explores the reforms aimed at addressing these challenges, including the creation of the Corruption Investigation Office for High-Ranking Officials (CIO) and the decentralization of investigative powers. While these reforms reflect an effort to balance bureaucratic and democratic accountability, concerns persist about politicization, hierarchical control, and the effectiveness of new institutions. The article argues that the success of these reforms depends on structural changes and the ability of new agencies to operate independently.

Book Review Of “Nuclear Weapons And International Law: Existential Risks Of Nuclear War And Deterrence Through A Legal Lens”, By Professor Charles J. Moxley Jr., John Kierulf

Cardozo International & Comparative Law Review

No abstract provided.

The Life Of Or Measure 110: Evolution, Implementation, And Impact, Matthew D. Albertson

Anthós

In 2020, Oregon voters approved Measure 110, a groundbreaking policy that decriminalized possession of small quantities of controlled substances and redirected cannabis tax revenues to treatment and recovery centers. This article examines the passage, implementation, and rollback of Measure 110 with HB 4002, enacted in 2024. Drawing on state audits, legislative records, and public health data to contextualize Measure 110 within broader debates on public health, criminal justice reform, and policy-making, Albertson analyzes the progressive policy’s aspirational, reform-minded goals and the practical shortcomings in its enactment. Albertson argues that while Measure 110 has faced justified criticism and partial reversal, it …

Duped: The Implications Of The Proliferaiton Of Superfake Luxury Goods And What Consumers May Not Have Considered, Riann Colbert

Cardozo Arts & Entertainment Law Journal

The proliferation of "Superfake" luxury goods, which are high-quality counterfeit items nearly indistinguishable from authentic products, poses significant challenges to trademark law, consumer protection, and the broader economy. These items, often sold through e-commerce platforms, not only undermine legitimate businesses but also expose consumers to health risks, support organized crime, and perpetuate environmental harm. The note advocates for enhanced legal frameworks and consumer education to mitigate these issues.

Reframing Puerto Rican Advocacy: How The Emerging U.S.-China Rift Can Help Puerto Rico Realize Greater Autonomy, Michael Angelo Tabrizi

Cardozo International & Comparative Law Review

The note advocates for reframing Puerto Rican decolonization efforts as a foreign policy issue rather than solely a domestic matter, leveraging the U.S.-China rivalry to gain international support and alignment with the United Nations' principles on self-governance.

Auditing Criminal Justice Minimalism, Trevor George Gardner

Scholarship@WashULaw

If criminal justice minimalism is a shared principle among criminal law scholars, it can help to clarify the quality of our disagreements. Every normative proposal in the criminal legal literature can be held to the minimalist standard—audited, so to speak, to account for the policy author’s minimalist claims. To this end, this Essay proposes a four-step framework by which to evaluate adherence to the minimalist principle, where each step serves as a hub for pointed scholarly debate regarding the path to minimalist criminal justice.

A Liberty-Balancing Approach To Crime, Sheldon Evans

Scholarship@WashULaw

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads …

Secrets Of The Killing State: The Untold Story Of Lethal Injection Introduction, Corinna Lain

Law Faculty Publications

Three hours. That’s how long it took the state of Alabama to kill Joe Nathan James by lethal injection in 2022, setting a new record for the longest execution in United States history. James’s autopsy showed puncture wounds and bruising at the knuckles and wrists, indicating that executioners had tried (and failed) to insert an IV in those locations. It revealed puncture wounds in his musculature, nowhere near the anatomical vicinity of a vein. And it documented a deep, jagged incision that pathologists suspect occurred when James flinched as executioners were attempting to perform a “cutdown”— a surgical incision used …

An Indecent Exposure Of The Rules Of Legal Ethics, Lauren E. Bartlett

All Faculty Scholarship

Thousands of attorneys experience rape and sexual assault by clients, as well as indecent exposure, public masturbation, unwanted touching, verbal threats, and stalking. These incidents are not often publicly reported, but client sexual violence against attorneys is not uncommon. The ethical rules currently fail to account for an attorney who has experienced client sexual violence, whether to allow for termination of representation or to mitigate future harm to other lawyers. While the ethical rules are usually thought of as neutral, this Article critically examines the gender stereotypes and structures of oppression corseting the rules. Relying on a fifty-state survey of …

What's In A Name? Policing, Juliet., Shanée Brown

Scholarly Works

Child welfare" and "child protection" are misnomers. These terms do not accurately depict the investigatory nature of the system purported to help families, or at the very least, save endangered children. Contrary to public opinion, the "child welfare system" comprises of state actors who police parents and children. It is the naming of this system that convinces the public that these agencies are excised from the category of law enforcement, persuading many that the agencies engage in social work and not police work. Calling the system what it really is-family policing-is a step toward achieving justice for families adversely impacted …