Criminal Law Commons^™

Victim-Offender Relationships And Their Influence On Crime Brutality And Sentencing Outcomes In Capital Homicide Cases, Samantha Jane Trowbridge

Graduate Theses/Dissertations

This study examines capital murder cases in Missouri from 1976 to 2022 to explore how victim-offender relationships relate to both the brutality of homicides and sentencing outcomes. It addresses three main questions: What are the different types of victim-offender relationships in these cases, and how frequently does each type occur? How do these relationships influence sentencing outcomes, particularly the likelihood of receiving the death penalty versus life without parole? And which types of relationships are associated with the highest and lowest levels of brutality? The study uses official court records and applies a coding process to analyze relationship type, sentencing …

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

Crimes Against Humanity And Customary International Law, Leila Nadya Sadat

Scholarship@WashULaw

A draft text of a treaty on the prevention and punishment of crimes against humanity was finally sent to negotiations by the U.N. General Assembly on December 4, 2024, after six long years of advocacy by States and civil society. Questions remain, however, with regard to how crimes against humanity will be defined in the new treaty. On the one hand, some States have embraced a definition of crimes against humanity that tracks Article 7 of the Rome Statute of the International Criminal Court (“ICC”). Other States have rejected Article 7 as the basis for the new treaty, but theirs …

Ten Years And Ten Miles: Reflecting On "Ferguson", Benjamin Levin

Scholarship@WashULaw

This Essay serves as the introduction to a symposium on the ten-year anniversary of Michael Brown's death in Ferguson, Missouri and the subsequent protests and uprisings across the country. The authors look back on the past decade—their own experiences and our experiences as a nation—to consider the impacts of the Ferguson uprisings and the landscape of criminal justice and racial justice advocacy, scholarship, and teaching today. In this Essay, I provide a brief introduction to the Volume and essays that follow. In Part I, I situate the Ferguson uprisings in the broader context of activism responsive to racial injustice in …

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 …

Younger And Older Abstention, Fred O. Smith Jr.

Michigan Law Review

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child …

Jurisprudence Of Problem-Solving Courts: A Study Of Structure, Success, And Sociological Theory, Lauren M. Boos

Graduate Student Theses, Dissertations, & Professional Papers

In response to the failures of mass incarceration and its disproportionate impact on marginalized communities, Problem-Solving Courts (PSCs) have emerged as alternatives to traditional prosecution. These courts employ therapeutic-informed and rehabilitative practices aimed at addressing the root causes of criminal behavior. While widely regarded as more effective than traditional courts, PSCs have developed largely without a formal theoretical foundation. This is notable given their alignment with Sociological Jurisprudence (SJ) and Therapeutic Jurisprudence (TJ), which view the legal system as a vehicle for promoting individual and community well-being.

Despite being celebrated as therapeutic innovations, PSCs often embody these principles unevenly. Using …

Error In The Loop: How Human Mistakes Can Improve Algorithmic Learning, Ryan W. Copus, Cait Spackman, Hannah Laqueur

Faculty Works

Algorithms often outperform humans in making decisions, in large part because they are more consistent. Despite this, there remains widespread demand to keep a “human in the loop” to address concerns about fairness and transparency. Although evidence suggests that most human overrides are errors, we argue these errors can provide value: they generate new data from which algorithms can learn. To remain accurate, algorithms must be updated over time, but data generated solely from algorithmic decisions is biased, including only cases selected by the algorithm (e.g., individuals released on parole). Training on this algorithmically selected data can significantly reduce predictive …

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Curb Their Enthusiasm: Controlling The Discretion Of Creative Prosecutors, Scott Schumacher

Articles

On January 6, 2021, a mob of supporters of then-president Donald Trump stormed the U.S. Capitol Building to disrupt the certification by Congress of the presidential election. Joseph Fischer was a member of that mob, and he was one of the individuals who forced his way into the Capitol Building. He was charged with multiple criminal counts, including obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c) for allegedly attempting to delay Congress’ election certification. In Fischer v. United States, the United States Supreme Court reversed the obstruction charge, holding that section 1512(c) did not apply to …

State V. Garcia, 316 A.3d 1223 (R.I. 2024), Isabelle Ryan

Roger Williams University Law Review

No abstract provided.

Neves V. State Of Rhode Island, 316 A.3d 1197 (R.I. 2024), Evan Degaitas

Roger Williams University Law Review

No abstract provided.

Last Resort: Advocating For Rhode Island To Adopt A More Comprehensive Homeless Bill Of Rights In The Wake Of Grants Pass V. Johnson, Casey Rivera

Roger Williams University Law Review

No abstract provided.

Confession And Confrontation, William Ortman

Scholarly Works

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

Absolutely Unnecessary Immunity, Eileen R. Prescott

Scholarly Works

Prosecutors, like judges, cannot be sued for their professional misconduct in most jurisdictions. As long as their actions are sufficiently tied to their job duties, their actual malice does not matter, even if they had demonstrable malice-a prosecutor could bring baseless charges against an ex-spouse specifically to harass them, with absolute immunity from suit. This immunity allows prosecutors to abuse the power of their office without civil recourse. In theory, absolute immunity aims to protect the office by resolving cases simply and quickly, but in reality, courts get bogged down litigating whether a prosecutor's specific action was sufficiently tied to …

An Empirical Exploration Of A Jury Veto, Stephen E. Henderson, Vanessa A. Edkins, Matthew L. Jensen

Faculty Articles

Among the many contemporary dissatisfactions with American criminal justice are longstanding concerns relating to the scarcity of jury trials and the resulting lack of democratic oversight and control in the adjudicative process. A novel solution has recently been proposed in the form of a ‘jury veto’: perhaps a jury could be empaneled, prototypically if not exclusively by defense request, that would be empowered to select between the judicially-imposed sentence and a prosecutorial and defense alternative. We conduct the first empirical exploration of such a structure and find reason to believe it could lessen the disconnect between the American framing vision …

In Defense Of Pardons, Stephen E. Henderson

Faculty Articles

Pardons by the past two U.S. presidents—one Democratic and one Republican—have caused some to question the wisdom of executive clemency. American criminal justice is imperfect, such critics of course recognize, but here the cure might be worse than the disease. If pardons have become the playthings of would-be monarchs and tyrants, perhaps it is time to let them go. As a strong proponent of role-reversible criminal justice, I am sympathetic to this view—even in mercy, why is the decision of the single elite supplanting the will of the people? Still, I write in pardons’ defense. Not only are pardons an …

Equitable Incorporation: How History And Tradition Can Progressively Redefine The Fourteenth Amendment, Robert D'Alessandro

Cardozo Journal of Equal Rights & Social Justice

The Fourteenth Amendment, designed to ensure equality before the law, has been misinterpreted by the Supreme Court through its incorporation doctrine, leading to rulings that harm marginalized communities. The article advocates for "Equitable Incorporation," a doctrine requiring courts to consider the impact of their decisions on historically discriminated groups, ensuring the Amendment's purpose of equity and justice is upheld. This approach would necessitate the incorporation of unincorporated rights and reinterpret existing ones to reflect the Amendment's equitable intent.

Secrets Of The Killing State: The Medical Professional Mandate, Corinna Barrett Lain

Law Faculty Publications

When New Jersey reinstated the death penalty in 1983, the state hadn’t conducted an execution in twenty years, so no one knew how to conduct an execution by lethal injection. Doctors at the state prison refused to participate, citing medical ethics that required them to “support life, not end it,” and that left prison officials thinking that they might have to conduct the executions themselves. “That is not an easy task for an amateur,” a reporter covering the quandary wrote. Unsure of what else do to, officials called upon Fred Leuchter, an engineer who had worked with a number of …

I Hate Self-Care: A Criminal Defense Lawyer’S Lament, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Don’t get me wrong—I think people should take care of themselves. They should eat well, exercise regularly, and get a good night’s sleep. They should spend time with friends and family. They should have hobbies and interests. With any luck, they should find true love. But in the past decade or two, and especially since the COVID pandemic, there has been a disturbing turn inward. I’m talking about the “self-care” craze, which has become its own pandemic, or at least epidemic.

…

In this Essay, I share my concerns about what I regard to be an excessive focus on self-care …

Terrorism On Trial: Political Violence And Abolitionist Futures, Wadie E. Said

Publications

No abstract provided.

Prosecutorial Reform And The Myth Of Individualized Enforcement, Justin Murray

Publications

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 …

Law Enforcement Independence In Trump’S Second Term, Justin Murray

Publications

No abstract provided.

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

Articles

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 applauded …

Reassessing Criminogenic Risk: How Trauma-Informed Assessment More Accurately Predicts In-Prison Behavior Than Traditional Models, Bree E. Derrick

Antioch University Dissertations & Theses

Criminogenic risk-needs assessment is the cornerstone of recidivism reduction models in the correctional sector. Despite decades of using criminogenic risk-need tools, recidivism outcomes remain stubbornly high in the U.S. This non-traditional dissertation explored how traditional criminogenic assessments could be improved with the addition of measures of childhood adversity and maltreatment. This study found that the prevalence of ACEs was significantly greater in an adult prison population of 1,522 in a rural, western state than in the general public. Utilizing logistic regression, this research also found that ACEs were better predictors of in-prison misconduct than traditional criminogenic risk-needs assessments, although traditional …

Adults Drug Court Model's Review: A Case Study, Byron R. Titus

Antioch University Dissertations & Theses

In 1989 Dade County, Florida, the so-called “War on Drugs” was in full swing. As a result, drug courts were created, acting as a diversion program for the many people subsequently caught up in this “war.” Since then, such “specialty courts” have proliferated across the planet. In some cases, local versions have been adopted to adjust to their unique population, culture, risk, and needs. This dissertation is a case study that reviews three Intensive Probation Supervision Programs (IPSP). These IPSPs identify a drug court in their state or country before it becomes a “certified drug court” (now more often referred …

The Rise Of Global Fcpa Settlements, Rachel Brewster

Faculty Scholarship

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This …

New Insights On Expert Opinion About Eyewitness Memory Research, Travis M. Seale-Carlisle, Adele Quigley-Mcbride, Jennifer E. F. Teitcher, William E. Crozier, Chad S. Dodson, Brandon L. Garrett

Faculty Scholarship

Experimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert …

The Reality Of The Good Faith Exception, Michael Gentithes, Matthew Tokson

Akron Law Faculty Publications

This Article has reexamined the law and theory of the good faith exception. It fnds that the exception, originally confned to narrow circumstances, is turning into a protection for nearly any investigatory activity with an arguable connection to an existing precedent or statute. Our study is the frst to empirically demonstrate the exception’s substantial infuence on modern Fourth Amendment law. Courts rely on the exception with remarkable frequency, and a large proportion of courts invoking the exception avoid any substantive constitutional ruling, stunting the development of Fourth Amendment doctrine. Further, our close theoretical examination of the good faith exception reveals …