Criminal Law Commons^™

Presumed Guilt: Epistemic Closure In Pregnancy Prosecutions, M. Eve Hanan

Scholarly Works

Criminal law and reproductive justice scholars are calling attention to the increase in prosecutions for pregnancy outcomes in the United States. Trace amounts of controlled substances in newborns are prosecuted as child abuse. Miscarriages are prosecuted as illegal abortions or homicides. This area of criminal law existed side-by-side with Roe v. Wade for late-term pregnancy outcomes. The Dobbs decision has further emboldened these prosecutions by removing the protections of the Due Process Clause from the pre-viability phase of the pregnancy.

Using a case study of a woman who was pressured to plead guilty to manslaughter and sentenced to eight years …

Unpunishment Purposes, Meredith B. Esser

Scholarly Works

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. This Article attempts to reconceptualize the traditional purposes of punishment to meet the current historical moment, and it does …

Fourth Amendment Hydraulics And Programmatic Surveillance, David C. Gray

American University Law Review

There is a hydraulic relationship between Fourth Amendment rights and remedies. When rights expand, remedies shrink, and vice versa. That makes good sense. At its heart, the Fourth Amendment requires striking a reasonable balance between the competing interests of citizens and their government. Expanding rights by, say, adopting a more expansive definition of “searches,” or applying the Fourth Amendment to a new category of government conduct, compromises government interests. When this happens, courts can, and should, bring things back into balance by adjusting remedies.

Sometimes the Court is cognizant of this hydraulic relationship. When the Court expanded Fourth Amendment rights …

Federal Compassionate Release Principles: Defining The Contours Of Analyses Under The “Other Reasons” Bucket, Hannah Jacobs

American University Law Review

The U.S. Sentencing Commission’s new policy statement regarding 18 U.S.C. § 3582(c)(1)(A) informs federal judges’ sentence reduction analyses. The statement expands the extraordinary and compelling reasons for which district courts may grant compassionate release under the statute’s “Other Reasons” provision. A proper application of this catchall provision requires striking a balance between the broad judicial discretion codified in that provision and the flexibility, certainty, and fairness principles Congress and the Sentencing Commission intended to shape modern compassionate release. This discretion is bound by statutory, policy, and prudential considerations, including fidelity to the totality-of-the-circumstances framework and a case-by-case approach to individual …

Capital Punishment, Crimmigration, And The Necropolitical Agenda Against Noncitizens, Erin R. Collins

Law Faculty Publications

On January 20, 2025, President Trump signed Executive Order 14164, Restoring the Death Penalty and Protecting Public Safety. This Order, one of twenty-six signed on Inauguration Day, directs the Attorney General to seek the death penalty for any “capital crime committed by an alien illegally present in this country,” and specifies the mandate applies “regardless of other factors.” In other words, the Order requires federal prosecutors to set aside their duty to determine what punishment comports with justice in an individual case, and instead seek the authority to kill anyone who is within the country without lawful status upon …

The Hidden Verdict: Measuring Implicit Bias In Juror Decision-Making, Gina Dudley

Psychology | Senior Theses

This experiment examines the influence of implicit bias awareness on juror decision-making in cases involving Hispanic defendants. Explicitly, it tests three hypotheses: (1) bias-educated jurors will demonstrate lower conviction rates for Hispanic defendants, (2) these jurors will report higher confidence in their verdicts, and (3) they will show greater awareness of how their previous experiences influence their decision-making. This experiment uses a mock jury paradigm to investigate whether bias awareness interventions affect verdict decisions and juror confidence levels in cases with Hispanic defendants. Ninety participants were randomly assigned to receive or not receive implicit bias education before reviewing a case …

Reentry Realities: Examining The Role Of Aftercare Programs In Supporting Justice-Involved Youth, Lynda Girven

Honors Undergraduate Theses

The current study examined if aftercare and reentry programs helped to reduce recidivism among youth who have been involved in the juvenile system, and specifically, youth released from residential placement facilities. Different components of aftercare programs were also examined, such as the inclusion of mentoring or family support, how many services were offered, and if the program followed the Risk-Need-Responsivity (RNR) model. Through completing a systematic review of studies published since 2008, five studies met the inclusion and exclusion criteria. All five studies found that the youth who received services through aftercare programs were less likely to reoffend than youth …

State V. Brown, 314 A.3d 576 (R.I. 2024), Sarah Egan

Roger Williams University Law Review

No abstract provided.

State V. Liverpool, 314 A.3d 948 (R.I. 2024), Ryan Claudino

Roger Williams University Law Review

No abstract provided.

State V. Esdel, 317 A.3d 756 (R.I. 2024), Meghan Sheldon

Roger Williams University Law Review

No abstract provided.

State V. Aponte, 317 A.3d 745 (R.I. 2024), Jacob Young

Roger Williams University Law Review

No abstract provided.

State V. Finnigan, 316 A.3d 1190 (R.I. 2024), Nikki Nappi

Roger Williams University Law Review

No abstract provided.

State V. Ortiz, 317 A.3d 737 (R.I. 2024), Samantha Barnes

Roger Williams University Law Review

No abstract provided.

State V. Pires, 316 A.3d 701 (R.I. 2024), Anna Macgillivray

Roger Williams University Law Review

No abstract provided.

Perceptions And Treatment Decisions For A Drug Offender Based On Social Class, Cocaine Type, Personal Characteristics, And Compassionate Love: A Vignette Study, Yasmin A. Odeh

Theses and Dissertations

Problem: The shift from a focus on rehabilitation to the more punitive, “tough on crime” approach to illegal behavior in the U.S. has been enacted in no small way by policies connected to the use and abuse of drugs. The disparities between crack and powder cocaine—two chemically similar substances—have headlined this shift (Vagins and McCurdy 2006). However, research is scarce on laypeople’s approval of deterrence approaches for drug offenses, including as a function of types (e.g., powder vs. cocaine possession). This study examined people’s perceptions of prosecutorial decisions for drug offenders—whether they are punished, rehabilitated, or both—and whether people perceived …

Fear And Free Speech, Helen Norton

Publications

No abstract provided.

To Free A Predator: The Flawed Rationale For Overturning Bill Cosby’S Conviction, Michael C. Kovac

Dickinson Law Review (2017-Present)

No abstract provided.

The Lasting Impact Of Ring V. Arizona On Capital Jury Trials, Kevin M. Morrow

Wyoming Law Review

The final decision on the imposition of the death penalty in the United States is made by either judges or juries. A wealth of empirical study has gone into comparing these two methods. Arizona, with its change to a jury-based system immediately after the landmark Supreme Court decision Ring v. Arizona, is divided into discrete eras of capital sentencing. For the first time, this article catalogs, and examines, the post-Ring capital trials that reached the question of life or death to explore systemic differences between jury and judge sentencings. The study revealed that while Arizona’s rate of death sentences increased …

Should Hate Speech Be Criminalized? Lessons From The Canadian Experience In R V. Zundel And R V. Keegstra, Kenneth Grad

FIU Law Review

There is a global trend toward increased use of criminal law to combat hate speech. In assessing this trend, one should be mindful of the experience of countries that have long had criminal laws targeting harmful expression. Canada is one such country. Using the leading Canadian cases of R v. Zundel and R v. Keegstra, this article argues that the Canadian experience suggests the criminal law is a flawed mechanism for countering harmful expression. This is so for at least three reasons. First, hate-speech prosecutions may undermine the group dignity and sense of inclusion of minority groups. Second, criminal laws …

Prurient Interests: The Law Of Sexual Desire, Lawrence M. Friedman

FIU Law Review

A recent book by George Fisher tries to explain the history of drug and alcohol laws in terms of social and legal norms against whatever can rob people of rational thinking; this article extends the analysis to laws about sexual behavior in the last two centuries, their rise and fall.

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 …