Criminal Law Commons^™

Officer-Created Jeopardy In Corrections: Rethinking Use-Of-Force Review After Barnes V. Felix, Dr. Hayden Smith

Georgia Criminal Law Review

Courts typically evaluate correctional uses of force by zooming in on the last seconds before impact, asking what an officer reasonably perceived at the “moment of threat.” That frame obscures a basic feature of jail and prison operations: officers’ pre-force tactical choices often create or sharply heighten the risks that force is later used to manage. Building on Barnes v. Felix’s rejection of a rigid moment-of-threat rule and the broader state-created-danger line, this Article argues that officer-created jeopardy should be treated as a central component of constitutional and institutional review in corrections. It shows how Barnes, read alongside DeShaney, Kingsley, …

Betschart V. Oregon: A Seven-Day Standard For Maine, Henry Gates

Maine Law Review

Maine lacks a clear standard for ensuring the right to counsel for indigent defendants. The State’s public defense system is struggling to meet Maine’s constitutional mandate: To provide indigent defense services in rural areas and across the state. An aging bar with few new attorneys working in rural areas—where there are often higher relative prosecution rates and a corresponding increased need for legal services—is contributing to the problem. This has resulted in a legal system that negatively impacts rural communities and indigent defendants to the point that one court concluded the state is violating the Sixth Amendment. Following the Ninth …

The Other Right To Counsel: The Civil Guarantee In State Constitutions, Dmitry Bam

Maine Law Review

When most people speak of the right to counsel, they speak in the singular. After the Supreme Court’s seminal decision in Gideon v. Wainwright, the right to counsel in criminal prosecutions has become one of our most cherished fundamental rights. It is a right ingrained in our culture. Even children can recite the mantra that the accused have the right to a lawyer, and if they can’t afford a lawyer, one will be provided to them free of charge. It is no surprise, then, that our constitutional focus is trained on the criminal defendant’s right to counsel. After all, there …

Weaponized Bureaucracy At The Criminal Immigration Divide, Dorien Ediger-Seto

Washington Law Review

Despite deportation being entrenched as a civil consequence rather than a punishment over 100 years ago, today’s immigration enforcement and deportation scheme relies heavily on state-level criminal arrests, convictions, and data sharing systems. And immigration-based crimes have accounted for between twenty-five and fifty percent of all federal criminal charges over the past decade. But the fact that the systems are bureaucratically and doctrinally separate from each other has practical impacts that go beyond these formalized intersections. Not only do federal law enforcement actors often have dual mandates to investigate and prosecute federal crimes alongside related civil removal cases, but criminal …

Facing State-Created Danger In Facial Recognition Technology, Esha Jain

Washington Law Review

When the police wrongfully arrest someone, that person faces distinct harms. Various scholarship, news articles, and studies document that AI-powered facial recognition technology (FRT) disproportionately misidentifies individuals from marginalized racial groups when used irresponsibly. Many of those sources indicate that police reliance on FRT without adequate vetting results in wrongful arrests. Yet law enforcement continues to misuse FRT.

This Comment contends that the 42 U.S.C. § 1983 state-created danger doctrine offers a potential remedy for plaintiffs harmed by police reliance on FRT. To prevail under this doctrine, plaintiffs must prove affirmative conduct, deliberate indifference, and proximate causation. If successful, these …

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 …

Pretrial Publicity In A Modern World: Exploration Of Defense Attorney Experiences And Perspectives, Giray Uzen

Honors Undergraduate Theses

This research examined how pretrial publicity, like statements made by law enforcement and prosecutors, affects criminal defense strategy. Using a qualitative, phenomenological design, interviews were held with practicing defense attorneys to understand how they deal with media coverage, protect their clients’ rights, and adjust their strategy when a case starts getting attention. The project identifies common themes, including attorney concerns about biased jurors, distorted narratives, and pressure created by public commentary. Findings work towards reforming policy discussions to respect free speech while protecting the constitutional right to an impartial jury in our modern media environment.

Directing Unconstitutional Verdicts: When Judges Become Jurors On Self-Defense, Anjali Pathmanathan

Georgia Criminal Law Review

The right to self-defense is one of the oldest and most universal concepts in Anglo-American criminal law and criminal procedure. Under this defense, an accused person, who honestly believed that using force was necessary to protect themself from imminent danger, did nothing criminal even if another person was harmed as a result. To assert self-defense at trial, however, the accused must admit to intentionally committing the forceful acts alleged to explain how they only used such force to save themself from immediate harm. Once an accused has made such a grave admission, the jury must consider whether the force was …

Criminalization Of Immigration Through State Enforcement: Lessons From Texas’S Latest Efforts To Criminalize Immigration Through Senate Bill 4, A. Regenold Bright

University of Arkansas at Little Rock Law Review

No abstract provided.

The Rights Of The Person Acquitted By Reason Of Insanity: Equal Protection And Due Process, Anne B. Poulin

Maine Law Review

In response to the Maine Supreme Judicial Court's decision in State v. Shackford a commentator suggested that the Maine automatic commitment statute be attacked as denying equal protection of the laws to those individuals acquitted by reason of mental disease or defect. Such an attack was made in the case of Chase v. Kearns, but without the predicted success. In Chase the court failed to come to grips with the crucial issues presented despite careful effort by both counsel to focus on the constitutional problems. The court side-stepped the difficult constitutional issues raised, upholding the statute but failing to provide …

Due Process And Supremacy As Foundations For The Adequacy Rule: The Remains Of Federalism After Wilbur V. Mullaney, Maine Law Review

Maine Law Review

Stillman E. Wilbur, Jr., was found guilty of murder by a jury in a Maine Superior Court and appealed, contending that the trial judge's instructions violated due process. In essence, the trial court instructed the jury that if it were satisfied beyond a reasonable doubt that Wilbur had committed a voluntary and intentional killing, malice aforethought was presumed, and therefore, the defendant would be guilty of murder unless he established by a preponderance of the evidence that he had killed in the heat of passion upon sudden provocation, in which case the jury could find him guilty of manslaughter. The …

Presumptions Against Criminal Defendants, Affirmative Defenses, And A Substantive Due Process Interpretation Of County Court Of Ulster V. Allen, John C. Sheldon

Maine Law Review

In County Court of Ulster County v. Allen, the Supreme Court stated: "inferences and presumptions are a staple of our adversary system of factfinding." Because Allen concerned the constitutionality of the use against criminal defendants of such deductive devices as statutory inferences and presumptions, it appeared that the decision would ultimately favor their unrestricted use in criminal cases by the prosecution. Further, that expectation was buttressed by the ruling in Patterson v. New York, in which the Court awarded constitutional sanction to state use of affirmative defenses against criminal defendants. These facts suggested that the Court would refrain from imposing …

Compromised Guilt: Systemic Denial Of The Right To A Unanimous Verdict In Arkansas, Bryan Altman

University of Arkansas at Little Rock Law Review

Currently, the State of Arkansas curiously stands alone in opposition to the rest of the nation when it comes to honoring the individual’s right to a unanimous verdict in a criminal trial. While never explicitly adopted by the Arkansas Supreme Court, Arkansas law has passively permitted two illegitimate practices to develop. First, prosecutors are permitted to submit evidence of multiple, separate acts to sustain a single criminal charge. Second, jurors are permitted to disregard factual disagreements and render patchwork verdicts, especially in the context of sex crime cases.

Arkansas practice and custom currently does not protect against a conviction based …

Legalist Realism, Mark A. Drumbl

Scholarly Articles

This essay explores the scholarly footprint of Professor Megan Fairlie. This is a footprint of "legalist realism." Professor Fairlie was greatly concerned with legalism, in other words, the centrality of due process, the rights of the defendant, and human dignity in trials of individuals accused of the most heinous crimes. She was committed to put the law in international criminal law. And her view was one of realism, notably, that the structure of international institutions must be mindful of power politics, and expectations and ambitions ought to recognize the limitations and possibilities of politics in order to retain legitimacy and …

Eye-For-An-Eye: High Compensation Awards Against States As Undue Punishment, David M. Bigge, Jonathan M. White

American University International Law Review

In observing the past several years’ debates regarding reparations under international law, we are reminded of lessons we learned as children in Sunday School. The Jewish and Christian sacred texts address the principle of retributive justice reflected in the Biblical phrase “an eye for an eye, a tooth for a tooth.” During the early rabbinic period, the great sages grappled with the import of this rule. Jesus famously rejected the rule in favor of mercy: “turn the other cheek.” The rabbis were not as interested in rejecting this rule in its entirety as ensuring that it yielded justice.

Fairness Writ Large Or Writ Small In International Criminal Justice, Nancy Combs

FIU Law Review

This article highlights the various, sometimes competing conceptions of fairness in international criminal law.

State V. Mather, 317 A.3d 728 (R.I. 2024), Casey Rivera

Roger Williams University Law Review

No abstract provided.

Shocking Sentences, John B. Meixner Jr.

Indiana Law Journal

Harsh recidivist sentencing penalties, like three-strikes laws, have been criticized heavily among both academics and practitioners on a number of different grounds. Most arguments focus on how sentences arising from these penalties are disproportionate—that there is no sensible relationship between the wrong committed and the sentence imposed. Those critiques are valid, but there’s another important problem with recidivist sentencing penalties that has been overlooked: They lead to sentences that are totally unexpected—indeed, shocking—to the defendants who face them. Many recidivist sentencing penalties cause large leaps in sentencing exposure that amount to exponential growth when compared with a defendant’s prior sentences. …

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Zero-Option Defendants: United States V. Mclellan And The Judiciary's Role In Protecting The Right To Compulsory Process, Wisdom U. Onwuchekwa-Banogu

JCLC Online

How does one obtain evidence located outside the United States for a criminal trial? For prosecutors, the answer is an exclusive treaty process: Mutual Legal Assistance Treaties (MLATs). Defendants, on the other hand, may only use an unpredictable, ineffective, non-treaty process: letters rogatory. The result is a selective advantage for law enforcement at the expense of the defendant. Though this imbalance necessarily raises Sixth Amendment Compulsory Process Clause concerns, MLATs have remained largely undisturbed because defendants still have some form of process, albeit a lesser one. But what happens when the letters rogatory process is also closed off to the …

The Second Founding And Self-Incrimination, William M. Carter Jr.

Northwestern University Law Review

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the …

The Emerging Constitutional Law Of Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of …

Police Prosecutors In Rhode Island: The Wisdom Of Separate Lanes, Andrew P. Dunphy

Roger Williams University Law Review

No abstract provided.

Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee

University of Cincinnati Law Review

No abstract provided.

Jd And Me: Exploring Hybrid Representation Of Pro Se Defendants In Capital Murder Cases, Andrew Wick

Et Cetera

The United States Constitution grants those facing the loss of life and liberty the right to due process and a fair trial under the law. What can be done to ensure criminal defendants facing the death penalty feel as though their desired argument and defense will be presented while still having the appearance of a fair trial? This Article compares a person the law says is qualified to waive counsel and represent themselves and a person qualified to be appointed to represent those facing the death penalty, what is required to waive counsel, the involvement of the trial court and …

Mass E-Carceration: Electronic Monitoring As A Bail Condition, Sara Zampierin

Utah Law Review

Over the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Michigan Law Review

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law School Faculty Publications

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an "element" that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Due Process Junior: Competent (Enough) For The Court, Tigan Woolson

Journal of Law and Health

There are many reports presenting expert policy recommendations, and a substantial volume of research supporting them, that detail what should shape and guide statutes for juvenile competency to stand trial. Ohio has adopted provisions consistent with some of these recommendations, which is better protection than relying on case law and the adult statutes, as some states have done. However, the Ohio statute should be considered a work in progress.

Since appeals courts are unlikely to provide meaningful review for the substance of a juvenile competency determination, the need for procedures for ensuring that the determination is initially made in a …

The Black Fourth Amendment, Charisma Hunter

Washington and Lee Law Review Online

Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the …