Criminal Law Commons^™

State V. Roman, 335 A.3d 782 (R.I. 2025)., Kylie Rau

Roger Williams University Law Review

No abstract provided.

C.J. Box And The Yellowstone Zone Of Death, Brian C. Kalt

Wyoming Law Review

C.J. Box’s novel Free Fire incorporated the theory, first published in the Georgetown Law Journal article The Perfect Crime, that there is a 50-square-mile swath of Idaho where criminals might evade punishment because of an unfortunate oversight in the law. Part II of this Article summarizes this “Yellowstone Zone of Death” theory and examines its treatment in Free Fire. Part III discusses why the loophole still has not been closed. Part IV summarizes the public attention the theory has received. Last, Part V addresses some new counterarguments to the theory that arose out of this public attention, and …

Interrogating The Facts Of The Case, Anna Roberts

Indiana Law Journal

Buried within many criminal judicial opinions is the origin of their “facts”—the interrogation room. Criminal law pedagogy should expose this origin. If we treat the alleged product of interrogation as “what happened,” as criminal cases (and professors) sometimes do, we obscure the ways in which interrogators are trained to incriminate and to co-create confessions. We also risk obscuring subsequent layers of reporting by police, prosecutors, or judges.

Recent scholarly literature urges criminal law professors to teach differently, warning that we distort, sanitize, and bolster the carceral state when we erase governmental agents and bypass procedure. Treating the “facts of the …

High Stakes And Random Rewards: A Critical Look At Loot Boxes And Illegal Gambling, Brian T. Wersan

Touro Law Review

Since their inception in the mid-2000s, loot boxes have been legal and virtually unregulated in the United States. Ever-growing mountains of evidence demonstrate the harms of loot boxes, but their structure has not yet been found to be in violation of any current U.S. gambling law, leading to a complete lack of recovery for victims. Certainly, if people experience harm, a legal avenue providing justice must exist. While other avenues are referenced, this Note ultimately argues that loot boxes can be interpreted by courts to satisfy the elements of, and thus, violate multiple state gambling laws, revealing a path to …

System Disparities: Racial Criminalization And The Risk Of Coerced And False Confessions In Youth, Cynthia J. Najdowski

Psychology Faculty Scholarship

Black youth may be even more vulnerable than other youth to admitting to crimes they did not commit in the context of police interrogations. In support, analysis of data from the National Registry of Exonerations indicates that 65% of people who were wrongfully convicted on the basis of false confessions they gave when under 18 years old are Black, whereas only 14% of the U.S. population is Black. In this chapter, I seek to understand the overrepresentation of Black youth in samples of juvenile false confessors by examining the cultural stereotype about Black criminality in relation to both investigators and …

True Threats, Public Safety, And Free Speech: An Empirical Analysis Of Counterman's Consequences, Jordan Birnholtz, Matthew B. Kugler

Journal of Criminal Law and Criminology

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role …

An Upside Of Originalism? Jury Size, Meghan J. Ryan

Journal of Criminal Law and Criminology

Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country’s unique history of being founded by British rebels, some practices from the time of the Founding—such as recognizing a strong jury right—advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually …

Revisiting Robinson: How Courts Can Preserve The Status Crimes Doctrine After Grants Pass, Sabina Idriz

Journal of Criminal Law and Criminology

Prior to the Supreme Court’s 2024 decision in City of Grants Pass v. Johnson, legal advocates for the homeless used the status crimes doctrine to successfully argue in multiple cases that anti-homeless laws, which punish life-sustaining acts such as sleeping, camping, or eating in public, are unconstitutional. Under the status crimes doctrine, which comes from the Supreme Court’s 1962 interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause in Robinson v. California, it is unconstitutional to punish individuals for having a status they may have contracted innocently or involuntarily. The Robinson Court struck down a law criminalizing …

Freedom Of Speech And Criminal Solicitation, Nikola R. Hajdin

Journal of Criminal Law and Criminology

Although criminal solicitation is recognized as one of the “historic and traditional categories” of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind “has no social value,” it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm …

Uncharted Waters: Addressing The Shortcomings Of Criminal Liability Under The Clean Water Act By Charging Water Polluters With Assault, Abigail English

Journal of Criminal Law and Criminology

Water pollution incidents pose both acute and long-term risks to human health, yet the Clean Water Act (CWA) ineffectively holds water polluters accountable. By defining criminal violations in terms of technical breaches of the statute, the CWA’s criminal provisions are vulnerable to narrow judicial interpretations, leaving many environmental crimes unpunished. Furthermore, the Environmental Protection Agency (EPA) rarely pursues criminal charges under the CWA, relying instead on civil fines, which fail to impose meaningful consequences. This underinclusiveness and under-utilization allows many polluters to evade serious penalties. Even when pollution incidents are covered by the CWA and the EPA pursues prosecution, the …

Prisoners And Choice Democracy, Eileen Prescott, Michelle Theer

Journal of Race, Gender, and Ethnicity

This Article considers how eliminating meaningful choices inside prisons harms individuals and obstructs reintegration efforts. While any individual restrictions on incarcerated people may seem minor—such as limitations on the food available in the commissary— they accumulate to a point where people adopt passive, compliant behaviors and attitudes that are adaptive inside yet maladaptive outside the prison walls. Thus, we argue that even modest improvements in prisoner autonomy could reduce recidivism and achieve the public safety goals of incarceration.

From Victim To Villain: How Gendered Narratives Shape Drug Courier Trials, Serafina C. Russo

Journal of Race, Gender, and Ethnicity

This article examines how gendered stereotypes, coercive trafficking dynamics, and permissive evidentiary practices create systemic bias in criminal prosecutions of women, particularly in drug trafficking cases. It highlights how courts often allow expert testimony and generalized narratives that blur neutral analysis with character judgment, inviting jurors to rely on cultural assumptions rather than objective facts. The “blind mule” phenomenon demonstrates the human cost, disproportionately affecting women from marginalized backgrounds, and reflects violations of due process and the presumption of innocence. The article argues for judicial and legislative reforms, including rigorous enforcement and clarification of Rule 704(b), to prevent stereotypes from …

Get Out Of Jail Free: The Monopoly Of Big Pharma & Drug Addiction, Melissa E. Morello

Journal of Race, Gender, and Ethnicity

This article analyzes the legal and social parameters of drug addiction and the opioid epidemic, arguing that pharmaceutical companies, lawmakers, and systemic institutions have effectively “gamified” public health, addiction, and their own accountability. It traces the historical trajectory of drug regulation, from early opioid use and racially motivated enforcement policies to the War on Drugs and the emergence of the prescription opioid epidemic fueled by aggressive pharmaceutical marketing. The analysis explores pivotal case law and legislation addressing addiction, highlighting the legal system’s struggle to reconcile criminal accountability with the recognition of addiction as a disease. Throughout this article, there will …

The Impact Anti-Abortion Laws Will Have On Domestic Violence Victims Post-Dobbs Decision, Elissa Schlissel Goldberg

Journal of Race, Gender, and Ethnicity

This paper will focus on the impact a total or near-total abortion law may have on domestic abuse and how male abusers may attempt to seek control by taking advantage of the law. This paper will first address domestic violence, specifically focusing on the different ways domestic violence can manifest and their definitions. Next, the paper will shift focus to abortion and how states have tried to limit a woman’s ability to access abortion. The paper will then move to focus on the connection between domestic violence and abortion, looking into the data from past researchers and the trends that …

Criminal Data Function Creep, Sarah E. Lageson

Journal of Criminal Law and Criminology

Automated, data-driven decision-making can create unfair outcomes and lead to discrimination. This Article considers a relatively ubiquitous part of modern life that is increasingly automated: the criminal background check. This Article, with contributions at the intersection of law and technology, antidiscrimination and consumer protection law, and sociological theory, makes the central claim that criminal record data is characterized by function creep—the unintended use of data for another purpose—which leads to a specific set of harms. This Article makes three central contributions. First, it offers an empirical assessment of contemporary, data-driven background screening using data based on in-depth interviews and systematic …

Rebutting The Presumption: A Constitutional Theory Of Pre-Trial Asset Seizures And Procedural Due Process, Benjamin Y. Rabin

Journal of Criminal Law and Criminology

In this Comment, I trace the origins and examine the current state of the doctrine on pre-trial asset seizures, then argue for a new approach grounded in procedural due process and constitutional theory.

The existing frameworks for assessing due process in these cases fall into three categories. The first grants the government broad presumptive validity for pre-trial seizures. The second applies a utilitarian balancing test, following the Supreme Court’s reasoning in Mathews v. Eldridge and Connecticut v. Doehr. The third, illustrated by the recent decision in Culley v. Marshall, relies on comparisons to historical practice.

I argue that …

Coercion, Trauma, And Grief In The Interrogation Room: Documenting And Analyzing Cases Of False Confessions To Murder Of A Family Member, Steven A. Drizin, Richard A. Leo, Hayley M. D. Cleary, Samara Hoose

Journal of Criminal Law and Criminology

This article examines the phenomenon of false confessions in cases in which individuals were falsely accused of murdering close family members. Drawing on a dataset of twenty-two proven false confession cases, we document how grief, trauma, and coercive interrogation practices intersect to produce highly counterintuitive admissions and narratives of guilt. The study situates these cases within the broader literature on police interrogation and false confessions, highlighting situational risk factors such as lengthy custodial interrogation, sleep deprivation, false evidence ploys, and threats and promises, alongside dispositional vulnerabilities such as youth, mental illness, and trauma exposure. Unlike prior aggregated studies of proven …

Eagle Eyes: How The Chicago Police Department’S Video Surveillance Network Is Used To Fight Crime And Its Fourth Amendment Implications, Joseph Mcinerney

Journal of Criminal Law and Criminology

Chicago, Illinois, is home to over 2.7 million individuals living under the supervision of a vast network of over forty thousand cameras integrated into a network of advanced technology run by the Chicago Office of Emergency Management. With little transparency, the City of Chicago has spent hundreds of millions of dollars in the past two decades rapidly expanding the network throughout the city while incorporating new technologies each year, posing substantial privacy risks for the millions of residents unaware of the ever-present eyes on them. To determine whether the network violates the Fourth Amendment, particularly in the wake of Carpenter …

Police Reform As System Justification, Shawn E. Fields

Journal of Criminal Law and Criminology

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning …

Striking Out Bias: A Path Toward Ending Religion-Based Peremptory Strikes, Catherine King

Journal of Criminal Law and Criminology

Peremptory strikes, while designed to craft fair and impartial juries, carry with them the potential for discriminatory use. Cognizant of this, the Court has imposed limitations on their use, producing over time the Batson line of case law. While Batson and its progeny aimed to eliminate discriminatory peremptory strikes, the consensus forty years later is that this goal remains unfulfilled—largely due to the continued acceptance of ostensibly race-, gender-, and ethnicity-neutral justifications. Religion has emerged as a frequent rationale, creating uncertainty about its permissibility and producing a circuit split.

Despite repeated calls for finality on the question of religion-based peremptory …

Paying Financial Sanctions Via Incarceration: A Case Study Of “Sitting Out”, Beth Colgan, Jordan B. Woods

Journal of Criminal Law and Criminology

This Article provides a comprehensive statewide study of a practice by which courts order defendants to pay financial sanctions—fines, costs, and probation fees—by serving terms of incarceration. Though several states authorize these practices, to date, very little is known about the extent to which payment via incarceration occurs and the different ways it is employed. This Article examines the use of the practice in Nebraska, where it is colloquially referred to as “sitting out.” Our study specifically focuses on all misdemeanor cases in Nebraska county courts with judgments (an adjudication of guilt and/or sentencing) during the year 2019.

This study …

Connecting Mens Rea And Actus Reus: Toward A New Theory Of Correspondence, Elise Sugarman

Journal of Criminal Law and Criminology

The justifiable imposition of criminal liability requires more than possession of mens rea and performance of an actus reus. A defendant’s mens rea and actus reus must also connect in a particular way. While this is a well-recognized principle in Anglo-American criminal law, the nature of the required connection—“correspondence”—is poorly understood.

This Article identifies three conflicting existent theories of correspondence from the criminal legal literature and from judicial reasoning: contemporaneity theory, actuation theory, and normative theory. According to contemporaneity theory, correspondence requires that mens rea overlap in time with the actus reus. According to actuation theory, correspondence requires that mens …

Justice For The Accomplice: Minnesota's 2023 Accomplice Liability Amendment And Its Shortcomings, John M. Thompson

Mitchell Hamline Law Review

No abstract provided.

Premium Injustice: Addressing The Harms That Cash Bail Premiums Inflict On The Non-Convicted, Jeffery L. Young

Mitchell Hamline Law Review

No abstract provided.

The Role Of Prosecutorial Discretion In Criminal Immigration Matters, Brian L. Owsley

William & Mary Journal of Race, Gender, and Social Justice

If the Trump administration’s goal is to remove between fifteen and twenty million undocumented individuals, then it would be far more effective to reduce the incentive of American companies and employers to hire undocumented individuals. Therefore, from a prosecutorial perspective, the federal government should consider whether seeking to charge and prosecute individuals is the most effective approach, or whether they should redirect their effort to the individual’s employer.

In addition to employers engaging in criminal immigration offenses, for several years now, the federal government has notably ignored the action of one person engaged in the smuggling of over 100,000 undocumented …

Sauce For The Gander: The False Symmetry Of Myths And Stereotypes Against The Accused In Sexual Assault Trials, Janine Benedet

Dalhousie Law Journal

As sexual assault laws evolved to be expressed in sex-neutral language, so too have arguments relating to myths and stereotypes in the context of sexual offences. This article evaluates the argument that myths and stereotypes, traditionally a reflection of systemic discrimination against female complainants in rape trials, also operate against male accused. Understood correctly, this trend repackages anti-feminist backlash to early equality reform efforts, ultimately working to revive the belief that women’s accusations of sexual assault are often false. The Supreme Court of Canada’s decision in R v Kruk affirms that this historical context matters when it comes to claims …

Memoir: The Brain, Neuroethics, And Bioethics, Leslie C. Griffin

Scholarly Works

This Essay examines how developments in neuroscience (or brain science) affect our views of law, medicine, ethics, and religion. Part I shows how lack of clarity about brain death can lead to premature organ donation. Part II argues that health care too often provides inadequate brain care and incomplete rehabilitation. Part III explains why recovery may be possible for those braininjured patients who are told it is not. Part IV demonstrates how the fear of a brain-injured patient oddly affects my perspective on Tort and Criminal Law, which are being influenced by neuroscientific advances. Part V examines the new developments …

The Empirical Double Standard: Opinion Surveys Across The Civil–Criminal Divide, Kay L. Levine, Bernard Chao

Faculty Articles

Across different legal domains, liability doctrines recognize the value of community input. But do courts truly listen to the community’s voice when deciding these sorts of cases? This study is the first to explore how courts treat community opinion survey evidence within both civil and criminal law. To that end, we comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and search cases.

Our research uncovers a significant asymmetry: Courts readily admit survey evidence in civil proceedings but systematically exclude it in criminal cases. This asymmetry does not appear to stem from structural differences between civil and criminal litigation …

Editor's Note, Wyoming Law Review Editorial Board

Wyoming Law Review

No abstract provided.

Conspiracy And Social Movements, Steffen Seitz

Michigan Law Review

Conspiracy prosecutions of social movements are on the rise. From anti-“Cop City” protesters in Atlanta to pro-Palestinian protesters in California, prosecutors are increasingly wielding conspiracy law to suppress social movements. This development is troubling. Social movements have long served as vital engines of democratic self-governance; they crystallize issues, foster public discourse, and mobilize citizens. Yet conspiracy law endangers these movements— and thus democracy—by targeting what makes them work: public expression and social ties between activists.

This Article makes three significant contributions to our understanding of this threat. First, it demonstrates that a charge of conspiracy requires remarkably little—just the appearance …