Criminal Law Commons^™

Searching For A Big Score: Analyzing Drug Yield From Search Warrant Executions, Elizabeth Griffiths, Walter Campbell, Kay L. Levine, Joshua C. Hinkle

Faculty Articles

In this study, we investigated the extent to which law enforcement efforts predicted drug and other kinds of illicit yield in search warrant executions. The data are drawn from one major metropolitan police department during 2005, 2009, and 2012. Using multilevel random intercept logistic regression models and multilevel random intercept multinomial logistic regression models, we regress high yields of various kinds of drugs and other illicit items seized during searches on the investigative activities that led to search warrant applications and the enlistment of teams of officers or other agencies in executing the search. Investments in high-effort search warrant work …

Alternate Approaches: Beyond Problem-Solving Courts, Erin Collins

Law Faculty Publications

Problem-solving courts were born out of a well-meaning experimentalist spirit, a spirit that is very much in line with the vision of a recent symposium on the multidoor criminal courthouse. These courts, which include drug courts, mental health courts, veterans courts, and many other specialized criminal courts, were created as a way to close one door to the criminal courthouse — the so-called “revolving door” that appeared to bring some people accused of crimes back into court as soon as they exited. Problem-solving court judges sought to open a different door for some of those who entered their courtrooms, one …

Web Of Exploitation: The Psychological Need For Comprehensive Federal Law To Combat Cyber Sexual Abuse, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

Cyber sexual abuse inflicts deep and lasting psychological harm on victims, often exacerbating the trauma of traditional sexual abuse due to the permanence and reach of digital content. Survivors may experience depression, anxiety, PTSD, and suicidal ideation as intimate images, videos, or messages resurface indefinitely online. Despite the severity of its impact, current state and federal legal protections are limited and inconsistent, leaving many victims without adequate criminal or civil remedies. This article argues for the creation of comprehensive federal legislation specifically targeting cyber sexual abuse. Such laws would not only provide clearer paths to justice and accountability but also …

Introduction: In Honor Of Professor Megan A. Fairlie, Antony Page

FIU Law Review

No abstract provided.

Introduction To Perspectives On The International Criminal Court And International Criminal Law And Procedure: A Symposium In Memory Of Megan Fairlie, Howard Wasserman

FIU Law Review

No abstract provided.

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 …

Exploring The Intersectionality Of Antisemitism And The Law: A Case Study Of The Crown Heights Riots And Aftermath, Stephen Sussman, Carole Huberman

FIU Law Review

Antisemitism does not exist in isolation; it often intersects with other forms of discrimination and prejudice. Examining these intersections is crucial to understanding the broader dynamics of discrimination and developing effective strategies. Antisemitism and racism often intersect in complex ways. Historical examples include the portrayal of Jews as racially inferior or “other” during periods of heightened racial tension. This intersection has implications for policies related to hate crimes, racial profiling, and equal protection under the law. This research examines the complex interplay between antisemitism and the legal system, using the Crown Heights Riots of 1991 as a focal point. The …

Sex Crimes And Progressive Prosecution: Reimagining Sex Offenses And Sorn Laws As An Opportunity For Criminal Justice Reform, Kana Turley

Journal of Criminal Law and Criminology

As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender …

How Grand Jury Secrecy And Bias Protects And Perpetuates Police-Suspect Impunity, Ilana M. Friedman

Law Faculty Scholarly Articles

This Article proceeds in four parts. Part I introduces the theoretical frameworks for various questions involving police-suspect grand juries, including the structure and function of contemporary grand juries, the law surrounding examinations into an officer’s use of force, modern prosecutorial influences, findings from social psychologists on the impacts of diversity on jury decision-making practices, and how police-suspect grand juries implicate unique political pressures.

Part II presents a description of original methods of data collection. To investigate this setting, forty-seven in-depth, semi-structured interviews with twenty-one respondents in five field sites around the country was conducted. Respondents included civilians and legal

professionals …

The Migration Of Abolition Theory, Matthew Boaz

Law Faculty Scholarly Articles

This Article considers whether and how theories of abolition developed by criminal law scholars are transferrable to the realm of immigration enforcement. A key question is how abolitionist principles might be employed in support of critiques of the United States’ immigration regulatory regime in the same way that these principles have been deployed in denouncing racialized policing and an injurious, industrialized prison system.

This Article makes two contributions: First, it identifies and illuminates a methodology adopted by critical and decarceral criminal law scholars: (i) denouncing the harms of a structural system, (ii) identifying the normative justification(s) for this system, and …

The 'Realness' Key To Compelled Passcode Production, Gabriel Pell

Journal of Criminal Law and Criminology

This Article explains how the Foregone Conclusion exception to the Fifth Amendment’s privilege against self-incrimination applies to compelled passcode production. The Supreme Court fashioned the Foregone Conclusion exception in connection with the compelled production of documentary evidence. It facilitates government access to real evidence despite the implicit factual communications inherent in a target’s act of producing it (i.e., that the real evidence exists, is accessible, and is what the state demanded). Engaging with the ‘real evidence’ limitation for compelled acts of production, the Article shows that focusing on unlocked devices and/or stored passcodes as the real evidence to be produced …

The State[S] Of Confession Law In A Post-Miranda World, Eve B. Primus

Journal of Criminal Law and Criminology

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.

This Article catalogues four different state approaches to regulating confession law: procedural …

Ending The Presumption Of Reasonableness And Using Data To Reduce Sentencing Disparities, Brandon Mordue

Journal of Criminal Law and Criminology

The idea that one’s punishment should depend on the crime committed rather than which judge happens to do the sentencing strikes most as uncontroversial, if not a requirement for a fair sentencing regime. Forty years ago, the passage of the Sentencing Reform Act promised just that result. Increased data availability allows us to evaluate the project’s success. The results are not encouraging.

Federal defendants are sentenced using guidelines issued by the United States Sentencing Commission that sometimes bear little relation to the underlying wrongdoing. This has created a split among judges, with some following the guidelines and others rejecting them. …

Police Misconduct: Combatting The Complicity Crisis, Eric Arnold

Journal of Criminal Law and Criminology

This Comment explores the current state of police reform in the city of Chicago, with a special focus on the various oversight agencies currently in force. Chicago has a long history of police misconduct, and the city has tried to make changes over the years to restore the community’s trust in policing. The police reform movement became especially prevalent in recent years following the fatal shooting of Laquan McDonald by a Chicago Police Officer in 2014. This Comment will show why the current mechanisms in place are insufficient to bring the needed change to the Chicago Police Department, and that …

Yet Another Elected Power: A Case For Randomly Selected Forepersons, Cj Miller

Journal of Criminal Law and Criminology

Most United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury’s verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position.

Minimal Rationality And The Law Of Evidence, Ronald J. Allen, Michael S. Pardo, William J. Lawrence, Christopher K. Smiciklas

Journal of Criminal Law and Criminology

For more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, …

Justice Ginsburg's Criminal Justice Legacy: Fair Tribunals, Fair Punishment, Sandra Guerra Thompson, Samantha Medlin

Journal of Criminal Law and Criminology

Scholars have written much about Supreme Court Justice Ruth Bader Ginsburg’s legacy in many areas of law, but her criminal justice legacy has yet to be fully articulated, likely because she penned few important opinions in this field. This article argues that Justice Ginsburg had an enormous impact across a large area of criminal justice cases decided by the slimmest majority. We explore these close cases and, in so doing, we show her to have played a crucial role in a remarkable number of landmark cases that extended important constitutional protections to criminal defendants. Specifically, she joined the majorities in …

Crimes Without Law: Administrative Crimes And The Nondelegation Doctrine, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine.

This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and …

Towards A Federalism(S) Framework Of Punishment, Sheldon A. Evans

Journal of Criminal Law and Criminology

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues …

Military Justice: The Forgotten Jurisdiction In Capital Punishment, Erica C. Medley

Journal of Criminal Law and Criminology

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. …

Sentencing Insurrection, Kevin Lapp

Journal of Criminal Law and Criminology

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they …

The Unknowns Of The Knowledge Requirement: Revisiting The Deliberate Indifference Standard In Prisoner Healthcare, Malina J. Simard-Halm

Journal of Criminal Law and Criminology

In the 1976 decision Estelle v. Gamble, the Supreme Court held that “deliberate indifference” to significant health needs of prisoners violated the Eighth Amendment. The standard’s knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state of prison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard—and …

Proof Beyond A Reasonable Doubt Doesn't Exist: Except As An Emergent Property Of A Complex Adaptive System, Ronald J. Allen, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by “the scientific method” and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how “proof beyond a reasonable doubt” (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary …

Probation Without A Home: How Probation Maintains Barriers To Successful Completion While Homeless, Olivia K. Babin

Journal of Criminal Law and Criminology

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. …

Institutional Structures Of Penal Inequality, Alexandra Natapoff

Journal of Criminal Law and Criminology

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger …

Climate Prosecution As Climate Regulation, Cindy J. Cho

Articles by Maurer Faculty

Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must …

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

The Violence Of Bright Lines, Terrell Woolfolk, Kathryn E. Miller

Fordham Law Review

The U.S. Supreme Court interprets the Eighth Amendment to prohibit members of certain groups from serving extreme punishments, such as the death penalty and life without parole. For example, the Court has long banned death sentences for people with intellectual disability and for those who were under eighteen years old at the time of their crime. More recently, in Graham v. Florida and Miller v. Alabama, the Court extended this reasoning to sentences of life without parole for those under eighteen—prohibiting the sentence altogether for nonhomicide crimes and barring its mandatory imposition for homicides.

Many scholars and advocates have …

Ecarrots: Prison Control And Profits From Correctional Tablets, Justin Iverson

Scholarly Works

In recent years, tablets have gained tremendous popularity behind bars for their ability to expand access to educational and rehabilitative services for people in prison. However, there are downsides to tablet implementation, including high costs at the expense of a captive population and shifting power dynamics resulting in possible volatility. This Article examines the use of correctional tablets in jails and prisons as mechanisms for administrative control and profit-making in an era of beleaguered correctional budgets. It also considers legal and policy implications related to the disproportionately negative impact of the introduction of tablets on people in poverty, increased dependency …

Restorative Justice And Building Communities Of Radical Belonging In The Law School Classroom, Aparna Polavarapu

Scholarly Works

No abstract provided.