Criminal Law Commons^™

The Blackstone Ratio, Modified, Murat C. Mungan

Faculty Scholarship

In his discussion of evidentiary policies, Blackstone famously noted that ‘it is better that ten guilty persons escape than that one innocent suffer’ (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than those associated with failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstone ratios (either as marginal rates of substitution or, alternatively, as the ratio …

Disposing Of Misdemeanors: An Empirical Perspective, Cynthia Alkon, Jonathan Marshall, Kyle Chrisman, Lydia Sidhom

Faculty Scholarship

While the U.S. Supreme Court has characterized the criminal legal system as a “system of pleas,” new empirical evidence suggests that, at least for misdemeanors, it is more accurately described as a system of dismissals. This Article draws on New York’s Pretrial Release Dataset, a unique publicly available administrative dataset that, to date, includes over 1.3 million criminal cases with 112 variables, of which 914,521 are misdemeanors. No other state in the country has made comparable criminal case-processing data publicly accessible at this scale. Using this dataset, the Article examines criminal case processing in ways that were not previously possible, …

Symbolic Justice: The Continued Limits Of International Criminal Justice Without A Permanent Prison System, Meg Penrose

Faculty Scholarship

Many people misremember Nuremberg, Tokyo, and the subsequent World War II tribunals. These seminal international tribunals gave the world convictions but largely failed to fully enforce the sentences imposed. Most people do not recall the mass clemency following the World War II tribunals. This Article seeks to fill a scholarly void by explaining why international criminal justice has never matured beyond Nuremberg and Tokyo. The modern ad hoc tribunals, as well as the permanent International Criminal Court (“ICC”), have failed to deliver lasting justice. Much like Nuremberg and Tokyo, the modern tribunals fixate on arrests and convictions and then seemingly …

The Quest For Objectivity In A World Of Discretion: How The Ohio Risk Assessment System Can Serve As A Blueprint To Overhaul The Sentencing Reform Act And First Step Act, Hadi Akbik

Journal of Law and Policy

The Sentencing Reform Act of 1984 fundamentally altered federal sentencing by introducing the U.S. Sentencing Guidelines to establish consistency and serve as a check to judicial discretion. Yet, over four decades later, those same guidelines are increasingly criticized for their perpetuation of disparities and failure to reflect the individualized characteristics of their offenders and their potential for rehabilitation. While the First Step Act of 2018 aimed to modernize federal sentencing, it remains largely incomplete due to the Act’s hasty rollout and the lack of high quality, empirically grounded tools that can guide the federal sentencing system more effectively. This Note …

Eyewitness Consent To Be Video Recorded: Implications For Identification Accuracy And Confidence, Sarah Argüelles

Student Theses

Recently, a recommendation has emerged for law enforcement to record the full eyewitness identification procedure, recognizing the critical role eyewitness testimony plays in the justice system (Wells et al., 2020). However, in some states, such as New York, law enforcement is required to seek consent from witnesses before recording (Municipal Police Training Council & Division of Criminal Justice Services, 2017). Since this practice is relatively new, there has been limited research on how obtaining consent may affect eyewitness accuracy. It was hypothesized that obtaining consent to video record could be linked to a witness’s confidence in their identification, with higher …

Imprisonment When An Offender Cannot Pay A Fine, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

According to a common-law rule in place since the 1993 case of Low Meng Chay v Public Prosecutor [1993] 1 SLR(R) 46, if the court is minded to impose a fine but the offender will clearly be unable to pay a fine, the offender should be sentenced to imprisonment instead (as opposed to a fine coupled with a default imprisonment term). While one can understand why the courts may apply this practice, the practice obscures the crucial distinction between: (a) being sentenced to a fine, then imprisoned in default of payment (which, it is submitted, is the correct course of …

Public Defender Discretion, Alma Magaña

Articles

A focus of criminal legal system reform efforts has been the curtailment of police, prosecutorial, and judicial discretion, which has been criticized for its arbitrariness and its contribution to racial, class, and gender disparities. However, one system actor has largely escaped similar scrutiny: public defenders, who, by grant of authority from ethical rules of practice and Supreme Court jurisprudence, have significant decision-making authority in the cases of indigent persons charged with crimes.

This Article will, for the first time, explore the historical rationale for giving public defenders the power to make life-altering decisions for their clients. Specifically, it dissects the …

Does Investing In Schools Reduce Violent Crime?, Jamein Cunningham, Monique E. Davis, Kenneth Whaley

Presentations

No abstract provided.

Genocidal Accusation, Steven Arrigg Koh

Faculty Scholarship

To accuse of genocide — what does it mean? Genocidal accusation is ubiquitous today, evident more in the public square than in any courtroom. At first glance, such accusation seemingly relies on a central assumption: genocidal accusation is critical to preventing atrocity. This Article argues that this widespread assumption is incomplete, obscuring genocidal accusation’s dual nature. In fact, genocidal accusation encompasses not only laudable atrocity prevention (for example, the Rwandan genocide), but also problematic punitive, carceral discourse that brands the “other” as morally polluted (such as President Putin’s Ukraine invasion). It is thus challenging to evaluate such accusation in the …

Young V. State [Of Nevada], 141 Nev. Adv. Op. 47 (Oct. 16, 2025), Madeleine Langhoff

Nevada Supreme Court Summaries

COURT OVERRULES PRECEDENT WHICH REQUIRES TRIAL COURTS TO REMOVE JURORS BASED ON DIFFERENT CATEGORIES OF BIAS.

Missing Children Discrimination, Itay Ravid, Tanisha Brown

Faculty Publications

The problem of missing children in America—many of whom are victims of crime—has haunted society for decades. In response, a range of laws and policies have emerged, culminating in the nationwide adoption of the AMBER Alert system in the early 2000s. While often hailed as a success, this Article reveals a sad truth: Not all children benefit equally from AMBER. In particular, missing Black children are systematically underserved by the system, which ultimately contributes to the disproportionate impact of the missing children crisis on Black communities. While this issue received limited scholarly attention, states have recently started recognizing it. In …

Freedom Clinic Faculty And Students Win Clemency Case Through New Jersey Second Chance Initiative, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

The Perlmutter Center for Legal Justice at Cardozo Law secured clemency for LaShawn Fitch through New Jersey's Second Chance Initiative. Cardozo Freedom Clinic faculty and students helped prepare Mr. Fitch's clemency petition, highlighting issues surrounding felony-murder sentencing, the trial penalty, and juvenile justice.

Empathy On Trial: The Role Of Neuroscience And Communication In Sexual Violence Jurisprudence, Samantha M. Gonzales

Honors Program Theses and Research Projects

Sexual violence remains a contentious public safety and legal challenge, which has become further complicated by the tension between supporting victim-survivors and safeguarding the falsely accused. False accusations, though still well below the numbers of rightly accused, are experiencing a rise in popularity given recent (past ten years) political climates. This thesis examines how communication theory, neuroscience, and law intersect in molding perceptions of truth, culpability, and justice in sexual violence cases; while also examining the intersectionality of those fields in addressing the candor of allegations, the rate of recidivism, and quality of public health and safety. The most prominent …

Death Before Breath: Courts Should Add De–Escalation And Proportionality To The Graham Factors, Nakyshia Fralin

University of Miami Race & Social Justice Law Review

This paper examines Barnes v. Felix, a case recently before the Supreme Court, through a comparative analysis of various circuit courts’ applications of the Graham factors in use–of–force evaluations. Beginning with a historical overview of policing, the paper revisits the factual background of the case before delving into the Fifth Circuit’s analysis, known as the Moment–of–Threat doctrine. It then contrasts this approach with the broader “totality of the circumstances” approach, highlighting the differing judicial interpretations. Building upon these established frameworks, the paper proposes two additional factors aimed at promoting human life and safety. By introducing these elements, the analysis seeks …

Deterring Prison Versus Police Civil Rights Violations: Legal Challenges, Public Policy, And Institutional Failures, Natalie Kemper

University of Miami Race & Social Justice Law Review

The status of incarcerated individuals falls categorically below that of non-incarcerated individuals in our society, yet most would agree they deserve protection from governmental abuses of power. This Note evaluates the current legal, institutional, political, and societal circumstances that contribute to the immense difficulties faced by individuals alleging civil rights violations under the Eighth Amendment, primarily through the avenue of U.S.C. § 1983. Due to similarities in civil rights claims, this Note compares the barriers faced by incarcerated plaintiffs to those encountered in police misconduct claims, highlighting key discrepancies that undermine accountability and deterrence.

A primary barrier is the significantly …

Ser (Georgio) V. State, 141 Nev. Adv. Op. 57 (Nov. 20, 2025), Hunter Patterson

Nevada Supreme Court Summaries

No abstract provided.

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 …

"There Was Such An Array Of Circumstances Pointing To Defendant's Guilt…": Shepard V. United States And The Dying Declaration As A Legal, Social, And Political History Of People, Places, Times… And Utility, Joshua E. Kastenberg

Cleveland State Law Review

In 1933, the Court, in Shepard v. United States, limited the “dying declaration” exception to the prohibition against hearsay. Shepard has been cited over 500 times by courts of appeal, the decision appears in evidence casebooks, and scholars have challenged it as robbing the voice of victims. However, there has never been a legal history of the decision. The case arose from a criminal conviction that occurred in the last days of the “Roaring Twenties,” and the appeal transited through the courts in the first years of the Great Depression. The Court, in a unanimous decision authored by Justice …

For One Or For All: Who Gets The Benefits Of The First Step Act?, Andrew Edwards

Kentucky Law Journal

No abstract provided.

The Myth Of Fundamental Decisions, Michael D. Cicchini

Kentucky Law Journal

No abstract provided.