Criminal Law Commons^™

Dealing With The Wrongs And The Rights: Lessons On Lethal Self-Defense From Durham, North Carolina, Emily Bass

DePaul Journal for Social Justice

The tragic loss of seventeen-year-old Trayvon Martin and the lack of accountability that George Zimmerman faced for fatally shooting him in their Florida neighborhood inspired countless calls for politicians to reexamine self-defense laws. Still, long before stand-your-ground laws, the same racist undertones that plagued Zimmerman’s trial prevented other state courts from holding accountable those who use excessive force in proclaimed “self-defense” and killed Black teenagers.

In 1993, then fifteen-year-old Jamal Elliott and several of his friends broke into the garage of Durham, North Carolina resident Michael Seagroves, hoping to steal a motorcycle. As Jamal ran from the garage, Seagroves shot …

From Chains To Handcuffs: Confronting The Racial Legacy Of Prison Labor And The Urgency Of Reform, Hibah Hasan

Criminal Law Society Blog

This article examines prison labor in the United States as a system rooted in the 13th Amendment’s exception clause and shaped by post–Civil War practices such as Black Codes and convict leasing. It argues that, although formally abolished, the racialized logic of forced labor persists through modern mass incarceration, where incarcerated individuals—disproportionately Black men—perform essential work for little to no pay and without basic labor protections. The article analyzes how this system reflects a continuation of historical exploitation and proposes reforms, including fair compensation, voluntary participation, and expanded labor protections, to align prison labor with principles of rehabilitation and justice.

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 …

White Supremacy And The Legitimation Of Violence Against Women: Analyzing The History And Impact Of Vawa, Ember Jahn

Et Cetera

This article confronts the mainstream feminist narrative that white women first addressed patriarchal violence en mass in the 1970s. Instead, this article traces back to Black women who advocated against lynching and sexual violence in the late 1800s as the first attempt to address systemic violence against women. They engaged in womanism, or the fight for Black people’s right to experience safety and discover a sense of wholeness. Their efforts led to the proliferation of numerous movements in the 1900s. Despite how crucial their efforts were to the formation of the feminist movement; many white feminists remained hostile and engaged …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

Inge Viermetz, Woman Acquitted At Nuremberg, Diane Marie Amann

FIU Law Review

Conventional narratives tend to represent the post-World War II international criminal proceedings as a men’s project, thus obscuring the many women who participated, as lawyers, journalists, analysts, interpreters, witnesses, and defendants. Indeed, two women stood trial before Nuremberg Military Tribunals. This article examines the case of the only woman found not-guilty: Inge Viermetz, who had been an administrator at Lebensborn, the Nazi SS adoption and placement agency. The article outlines the prosecution’s child-taking case against Viermetz, as well as her successful gendered self-portrayal as a conventionally feminine caregiver. With references to Professor Megan A. Fairlie, at whose memorial symposium it …

Racializing Three Strikes, G. Ben Cohen, Justin D. Levinson, Koichi Hioki

Akron Law Faculty Publications

"Three Strikes” laws sit at the fulcrum of racial disparities and mass incarceration. Despite clarity across decades that such laws have served to disproportionately punish Black Americans, legislatures have blessed them, courts permit them, prosecutors charge them, and juries convict based on them. Although it has long been clear that these laws have played a key role in the racialization of America's criminal justice system, less clear are the mechanisms that drive and permit the embrace of this racialization. In this Article, we test empirically in a national study the hypothesis that Three Strikes laws exist because of race, are …

Transcript: The Intersection Of Race And Poverty In Criminal Justice, Stephen B. Bright

Tennessee Journal of Law and Policy

Transcript of the lecture given by Bright at the University of Tennessee College of Law Summers-Wyatt Lecture given on September 27, 2010.

School-To-Prison Pipeline, Samuel S. Honas, April Terry

SACAD: Scholarly Activities

Kindergarten through grade 12 schools are institutions where youth go to learn, grow, and sculpt their minds for their future. For some youth, schools do not present a warm and welcoming environment, and instead, respond in ways that create negative outcomes for certain youth. Factors like bullying, poor student-to-teacher interactions, and negative parental attachment can cause youth to have problems in school. Minority youth are also more likely to get in trouble in school for the same behaviors as their white counterparts. The school-to-prison pipeline is a pathway that begins in the school system that operates under the notion of …

Survival Labor, Yvette Butler

Articles by Maurer Faculty

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating racialized bodies and the policing of those bodies has created a culture where blackness is equivalent to criminality. While a penal abolitionist framework is helpful …

Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Racial Bias, Accomplice Liability, And The Felony Murder Rule: A National Empirical Study, G. Ben Cohen, Justin D. Levinson, Koichi Hioki

Akron Law Faculty Publications

Two long criticized prosecutorial tools—the felony murder rule and the accomplice liability doctrine—play an outsized role in the operation of American homicide law. Though each of these tools have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy is also defined by the way they function symbiotically and specifically to heighten racialized punishment. This Article addresses the weighty combined reach of the accomplice liability doctrine and felony murder rule, and proposes that racial bias has fueled the operation and survival of these tools. Specifically, it suggests that implicit racial …

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

Articles

The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

Tracing The Roots Of A Poisonous Tree: On The Origins And Impact Of Criminal Terminology In A Civil Apprehension Scheme, Shani Mahiri King, Nicole Silvestri Hall

Articles (Current Faculty)

Language is powerful. It can affect how we think about and treat groups of people. Poor language choices have a massive impact on immigration law, an area of the law that determines how groups of perceived “outsiders” are classified and regulated. Language and bias in judicial opinions have been studied, but less research has been done on poor language choices in immigration statutes.

This Comment focuses on the harmful effects of poor language choices in immigration statutes, including the criminal terminology “arrest” and “warrant” in civil immigration apprehension statutes 8 U.S.C. Sections 1226 and 1357. Two fundamental problems arise when …

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Law School News: Joyce And Bill Cummings Of Cummings Foundation To Deliver Keynote Address At Rwu Commencement 4-20-2023, Jill Rodrigues

Life of the Law School (1993- )

No abstract provided.

The Legacy Of Trayvon Martin—Neighborhood Watches, Vigilantes, Race, And Our Law Of Self-Defense, Mark S. Brodin

Marquette Law Review

Reflecting back a decade later, what is the enduring significance of the Trayvon Martin case—a Black teenager whose life is violently cut short, and a legal system that accepted his death without consequence? The poet Elizabeth Alexander speaks of “The Trayvon Generation” of Black youth who have grown up in the haunting shadow of his killing, and the anguished parents who cannot protect their children from such a fate. America’s first Black president spoke for them: “When I think about this boy, I think about my own kids. If I had a son, he’d look like Trayvon,” Barack Obama told …

The Role Of Suspect Development Practices In Eyewitness Identification Accuracy And Racial Disparities In Wrongful Conviction, Margaret Bull Kovera

Publications and Research

This article reviews the three previously studied categories of variables that are related to eyewitness identification accuracy: estimator (characteristics of the witnessing conditions), system (characteristics of the identification procedure that are under the control of the criminal legal system), and reflector (variables that reflect the likely accuracy of a witness). Although eyewitness scholars frequently turn to these variables and models of memory to explain why eyewitnesses make mistakes, none of these variables provides a reasonable explanation for the large racial disparities in wrongful convictions based on mistaken identifications, yet problematic policing practices might. The policies and practices guiding police efforts …

How The “Black Criminal” Stereotype Shapes Black People’S Psychological Experience Of Policing: Evidence Of Stereotype Threat And Remaining Questions, Cynthia J. Najdowski

Psychology Faculty Scholarship

Cultural stereotypes that link Black race to crime in the U.S. originated in and are perpetuated by policies that result in the disproportionate criminalization and punishment of Black people. The scientific record is replete with evidence that these stereotypes impact perceivers’ perceptions, information processing, and decision-making in ways that produce more negative criminal legal outcomes for Black people than White people. However, relatively scant attention has been paid to understanding how situations that present a risk of being evaluated through the lens of crime-related stereotypes also directly affect Black people. In this article, I consider one situation in particular: encounters …

Racial Disparities In Policing: Psychological Consequences Over The Lifespan, Kelly C. Burke, Cynthia J. Najdowski, Margaret C. Stevenson

Psychology Faculty Scholarship

We review the psychological consequences of racialized policing for people of color over the course of their lives, organizing our review within Bronfrenbrenner’s (1979) social-ecological model and emerging science on racial, legal, and racial-legal socialization. First, we consider the broader social climate that criminalizes and punishes people of color, and thereby generates racialized policing (macrosystem). Then, we turn to the institution and practice of policing and how this influences the way people of color come to think about their relationships with police (exosystem). Next, we examine how vicarious experiences with police shape attitudes toward police (mesosystem), and how direct experiences …

The Conflict Among African American Penal Interests: Rethinking Racial Equity In Criminal Procedure, Trevor George Gardner

Scholarship@WashULaw

This Article argues that neither the criminal justice reform platform nor the penal abolition platform shows the ambition necessary to advance each of the primary African American interests in penal administration. It contends, first, that abolitionists have rightly called for a more robust conceptualization of racial equity in criminal procedure. Racial equity in criminal procedure should be considered in terms of both process at the level of the individual, and the number of criminal procedures at the level of the racial group—in terms of both the quality and “quantity” of stops, arrests, convictions, and the criminal sentencings that result in …

Law School News: Should Prison Be Abolished? 10-6-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

One Hundred Tones, One Decision: Exploring Race, Skin Tone, And Motivations For Becoming A Criminal Justice Practitioner, Talisa J. Carter

Qualitative Criminology (QC)

"Overall, scholarship finds individuals have similar motivations to work in the criminal justice system. However, several studies acknowledge race and gender can influence motivations to work as justice professionals. Absent from the motivation and criminal justice profession literature is the potential role that skin tone plays. This gap is surprising as research firmly establishes people with darker skin complexions are more likely to negatively experience the criminal justice system. And thereby may find working as a criminal justice practitioner less desirable. Taken together, this raises the question, how does skin tone impact motivations to work in the justice system? To …

Racial Disparities In South Carolina's Juvenile Justice System: Why They Exist And How They Can Be Reduced, Grace E. Driggers

South Carolina Law Review

No abstract provided.

The Pathological Whiteness Of Prosecution, India Thusi

Articles by Maurer Faculty

Criminal law scholarship suffers from a Whiteness problem. While scholars appear to be increasingly concerned with the racial disparities within the criminal legal system, the scholarship’s focus tends to be on the marginalized communities and the various discriminatory outcomes they experience as a result of the system. Scholars frequently mention racial bias in the criminal legal system and mass incarceration, the lexical descendent of overcriminalization. However, the scholarship often fails to consider the roles Whiteness and White supremacy play as the underlying logics and norms driving much of the bias in the system.

This Article examines the ways that Whiteness …

An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment And Protesting While Black, Karen Pita Loor

Faculty Scholarship

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were …

Law School News: Welcome, Professor Bernard Freamon 04-20-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The 1994 Federal Crime Bill: An Evaluation Of The Past, Present, And Future Of Its Impact On The Criminal Justice System, Jade R. Philpot

Honors College Theses

The 1994 Violent Crime Control and Law Enforcement Act was signed into law in response to the crack cocaine and crime epidemic of the 1980s. In this thesis I address the major elements of this bill, the racial, financial, and ethical conflicts that arose thereafter, and the reforms that should be implemented today to correct said conflicts.