Criminal Procedure Commons^™

Off-Label Neuroimaging, Jane C. Moriarty

Law Faculty Publications

The growth of neuroimaging evidence in the courtroom is consistent with the increased reliance on technical and machine-based specialties at trial. Litigants routinely seek to introduce neuroimaging evidence in both civil and criminal trials to supplement traditional medical, psychiatric, and psychological opinion testimony. A substantial portion of neuroimaging evidence is still in the developmental stage—what I term “off-label neuroimaging.” Unsurprisingly, evaluating the reliability of developing neuroimaging poses challenging questions for gatekeeping courts. Among the complex evidentiary issues neuroimaging presents for courts and litigants, this Article considers one foundational question: How should courts determine whether neuroimaging evidence is sufficiently reliable for …

Revocation Reconsidered: Probation Advocacy Through A Litigation Lens, Shira M. Diner

Faculty Scholarship

Being found in violation of probation has dire consequences. The person found in violation can be imprisoned, upending them from their job, family, and community. Unlike incarceration after a criminal trial, a sentence after a violation of probation is not the result of a legal process characterized by robust due process protections. It is also often not the result of a forceful and thorough defense. It is instead the consequence of a hearing where lawyers with the fixed mindset of an inevitable finding of a violation don’t engage in the same preparation that they would if it was a trial. …

The Territorial Continuum: American Samoa, Criminal Adjudication, And Territorial Administration, Emmanuel Hiram Arnaud

Faculty Scholarship

The standard account of American territorial expansion posits that territorial acquisition moved along a spectrum of sovereignty. The federal government acquired new inhabited land through conquest or purchase, and the Constitution tasked Congress with organizing and administering the new territories until they were ready to become states. That pattern came to an abrupt halt in 1898 when, at the conclusion of the Spanish-American War, the Supreme Court, fearing the extension of citizenship to, and the permanent integration of, non-White populations into the American polity, suddenly pronounced that the Constitution authorized the holding of colonies. The Court thus sentenced new territories, …

(Re)Individualizing Criminal Law, Itay Ravid

Faculty Publications

Criminal law purports to care about the individual culpability of those committing crimes. Individual mental states or defenses based on one’s beliefs are considered foundational to moral responsibility and criminal conviction. The expansion of algorithmic risk assessment tools in the criminal legal system, however, threatens these principles, changing the criminal law subject from an autonomous individual to merely a predicted object. This Article argues that risk assessment tools—now functioning as gatekeepers at both the entry and exit stages of the criminal process, from predictive policing to compassionate release eligibility—have shifted the criminal system away from its foundation in individual culpability. …

The Limits Of "Punishment", Benjamin Levin

Scholarship@WashULaw

“Punishment” is an all-important category in criminal legal thought. Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions. Much critical work, in contrast, seeks to expand the category—defining more practices and institutions as “punishment.” In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue—much of what the criminal system does probably isn’t punishment as such. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction? What …

The Punishment Paradox, Steven Arrigg Koh

Faculty Scholarship

What does criminal punishment do? Across centuries of criminal legal thought, a shared answer persists: punishment incapacitates the wrongdoer. And yet punishment sometimes yields its opposite. Paradoxically, punishment sometimes becomes a rallying point-expanding community identification and solidarity around the defendant. This Article shows this punishment paradox using the 2023-24 prosecutions of President Trump and recent and historical case examples-from Luigi Mangione to Karen Read to Rosa Parks. By arguing that criminal law can generate solidarity rather than stigma, the Article both rethinks foundational theories of punishment and reconsiders the role of criminal law in democratic politics. Such an approach transcends …

Whose Truth Commission, Lehlohonolo January

Notre Dame Journal of International & Comparative Law

It is often said that the victor always dictates the narrative and thus dictates how history is represented. The end of Apartheid in South Africa wasn’t a result of an outright victorious defeat of the Apartheid State together with its institutions of coercion but rather came about as a result of a culmination of a series of events. If this adage holds true, then why is it that the narrative seems to paint a picture of a victor’s perspective? This assertion is not made lightly but is no less reflective of how the facts seem to portray themselves in that …

"A Man’S Home Is His Castle"? Intimate Partner Violence, Firearm Surrender, And Home Searches Under Article I, Section 7 Of The Washington Constitution, Dana Raigrodski

Washington Law Review

Intimate partner violence (IPV) remains a vexing problem in Washington. Firearms make intimate partner violence much more dangerous and, frequently, deadly. To protect victims of IPV and to reduce its severity when guns are present, the State of Washington put in place a comprehensive statutory scheme to disarm perpetrators of IPV. In 2022, however, the Washington Court of Appeals for Division II held, in State v. Flannery, that the statutory firearm surrender scheme violates article I, section 7 of the Washington Constitution, which prohibits disturbing a person’s private affairs or invading their home without authority of law. This Article …

Legitimacy Throughlines In The Structural Design Of International & "Internationalized" Criminal Tribunals, Michael J. Kelly

Notre Dame Journal of International & Comparative Law

Today, the rather surprising and sudden surfeit of prosecutions for international crimes by states utilizing universal jurisdiction as we open the second decade of the 21^st Century may represent a preference for domestic over international criminal prosecution altogether. Yet, the legitimacy quotient remains a key part of the discussion. For example, as discussed in section V below, with respect to the crime of Russian aggression against Ukraine, opinion is divided as to whether prosecution for this crime should proceed from a newly created international tribunal or from an “internationalized” court within the Ukrainian judicial system.[1] Ukraine backs the …

Beautiful Means For Nefarious Ends, Eric Wahoff

Notre Dame Journal of International & Comparative Law

This note will attempt to address the laws of art dealers and banks in a way that draws parallels with the past struggles of banks and today’s struggle in the art world to keep bad actors out. It will begin with surveying how art is currently used as a tool of criminals and the current regulatory regimes in the EU, New York, and California – the states with the most art brokers.Then the note will analyze relevant laws from the US banking industry. Finally, the note will discuss ways that banking laws that have been used to address money -laundering …

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 …

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 …

Contested Criminalization, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, …

Deconstructing Burglary, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

The law of burglary has long played a vital role in protecting hearth and home. Because of the violation of one’s personal space, few crimes engender more fear than burglary; thus, the law should provide necessary safety and security against that fear. Among other things, current statutes aim to deter trespassers from committing additional crimes by punishing them more severely based on their criminal intent before they execute their schemes. Burglary law even protects domestic violence victims against abusers who attempt to invade their lives and terrorize them.

However, the law of burglary has expanded and caused so many problems …

A Model State Compensation Law For The Wrongfully Convicted, Jacqueline Kamel

Journal of Legislation

No abstract provided.

Criminal Law Minimalisms, Benjamin Levin

Scholarship@WashULaw

What is criminal law minimalism? At first blush, it appears to be the sober and sensible cousin of abolition. Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance. While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale. On the question of scope, what exactly should be …

The Slow Drip Of Decarceration: Reversing The Flood Of Mass Incarceration And Its Racist Impact, Olinda Moyd

Scholarly Articles in Law Reviews & Journals

For the last four decades, the flood of African Americans pouring into our jails and prisons can be likened to a watershed where someone turned on a faucet full force and opened the floodgates to all the prison doors. Despite the multitudinous efforts to secure the release of people unwittingly swept up in this flood, most spending decades behind bars, their releases have been mediocre and only a few have slowly dripped towards freedom. Racism seeps into every facet of American life and nowhere is it more prevalent than in our criminal legal system and the crisis of mass incarceration. …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Law & Economics Working Papers

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

“Take The Motherless Children Off The Street”: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

University of Miami Law Review

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the …

Second Chances In Criminal And Immigration Law, Ingrid V. Eagly

Indiana Law Journal

This Essay publishes the remarks given by Professor Ingrid Eagly at the 2022 Fuchs Lecture at Indiana University Maurer School of Law. The Fuchs Lecture was established in honor of Ralph Follen Fuchs in 2001. Professor Fuchs, who served on the Indiana University law faculty from 1946 until his retirement in 1970, was awarded the title of university professor in recognition of his scholarship, teaching, and public service. In her Fuchs lecture, Professor Eagly explores the growing bipartisan consensus behind “second chance” reforms in the state and federal criminal legal systems. These incremental reforms acknowledge racial bias, correct for past …

Enticing The Supreme Court To Hold That Physical Contact Is Not Required To Violate The Child Enticement Statute, Cassidy Eckrote

Dickinson Law Review (2017-Present)

The sexual exploitation of children is a growing problem in the United States. Fifty years ago, parents feared their child getting kidnapped or approached by a predator in the park. Parents today fear their child being preyed upon through the internet. As technology continues to advance, child predators satisfy their depraved desires without ever stepping foot near their victim. In response to the danger of the sexual exploitation of children, the federal government enacted the child enticement statute, codified at 18 U.S.C. § 2422(b). The statute criminalizes the enticement of a minor to engage in sexual activity. Because the federal …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Articles

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin

Scholarship@WashULaw

After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform. That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.” Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.” In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor. Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions …

Prosecuting The Crisis, Benjamin Levin

Scholarship@WashULaw

Over the past decade, activists and academics have celebrated the rise of the so-called “progressive prosecutor” movement. District attorney candidates—often former public defenders or civil rights lawyers—have promised to use prosecutorial discretion to address the injustices of the criminal system. A proliferation of such campaigns, and the electoral successes of some of these candidates have raised questions about progressive prosecution: what does it actually mean to be a progressive prosecutor? Does progressive prosecution work? Do progressive candidates follow through on campaign promises? And, how enthusiastic should defense attorneys, reformers, and critics of the carceral state be about progressive prosecution? The …

On Warrants & Waiting: Electronic Warrants & The Fourth Amendment, Tracy Hresko Pearl

Faculty Articles

Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology, as well, arguing that use of these systems will increase the number of warrants issued throughout the United States …

Taming Dangerousness, Shima Baradaran Baughman

Faculty Scholarship

In every courtroom across the country each day, judges determine whether thousands of individuals are either released or held before trial. These speedy and seemingly minor decisions have profound impacts on an accused’s fate and on national incarceration rates. Indeed, over the last fifty years, these individual decisions have led to a four-hundred percent increase in pretrial detention in the United States. This increase in pretrial detention accounts for 99% of the jail growth in the last fifteen years, despite record decreases in arrest and crime rates. At the same time, the United States has witnessed three meaningful periods of …

The Ultimate Injustice: States' Failure To Take Steps To Prevent Wrongful Convictions And, When Wrongful Convictions Are Exposed, To Provide Adequate Assistance To Exonerees, Natalie Lahera

FIU Law Review

Among the many rights guaranteed by the Constitution are the rights to a presumption of innocence, equal protection, due process, a speedy trial, a trial by jury, and legal counsel, if indigent and charged with a serious crime. But those rights do not ensure that the justice system succeeds every time. The United States has exonerated over 3,000 individuals since 1989. The exonerees have collectedly lost over 26,700 years of their lives. Each exoneration has provided insight into the causes of wrongful convictions, the issues with current compensation laws, and even the changes that need to be implemented to avoid …

Llegaron Los Federales: The Federal Government’S Prosecution Of Local Criminal Activity In Puerto Rico, Emmanuel Hiram Arnaud

Faculty Scholarship

In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionally sanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto …

Victims’ Rights Revisited, Benjamin Levin

Scholarship@WashULaw

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

Scholarship@WashULaw

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …