Criminal Law Commons^™

Revisiting Robinson: How Courts Can Preserve The Status Crimes Doctrine After Grants Pass, Sabina Idriz

Journal of Criminal Law and Criminology

Prior to the Supreme Court’s 2024 decision in City of Grants Pass v. Johnson, legal advocates for the homeless used the status crimes doctrine to successfully argue in multiple cases that anti-homeless laws, which punish life-sustaining acts such as sleeping, camping, or eating in public, are unconstitutional. Under the status crimes doctrine, which comes from the Supreme Court’s 1962 interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause in Robinson v. California, it is unconstitutional to punish individuals for having a status they may have contracted innocently or involuntarily. The Robinson Court struck down a law criminalizing …

Freedom Of Speech And Criminal Solicitation, Nikola R. Hajdin

Journal of Criminal Law and Criminology

Although criminal solicitation is recognized as one of the “historic and traditional categories” of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind “has no social value,” it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm …

Uncharted Waters: Addressing The Shortcomings Of Criminal Liability Under The Clean Water Act By Charging Water Polluters With Assault, Abigail English

Journal of Criminal Law and Criminology

Water pollution incidents pose both acute and long-term risks to human health, yet the Clean Water Act (CWA) ineffectively holds water polluters accountable. By defining criminal violations in terms of technical breaches of the statute, the CWA’s criminal provisions are vulnerable to narrow judicial interpretations, leaving many environmental crimes unpunished. Furthermore, the Environmental Protection Agency (EPA) rarely pursues criminal charges under the CWA, relying instead on civil fines, which fail to impose meaningful consequences. This underinclusiveness and under-utilization allows many polluters to evade serious penalties. Even when pollution incidents are covered by the CWA and the EPA pursues prosecution, the …

Purpose-Driven Compliance, Veronica Root Martinez

Faculty Scholarship

Whether it is a small brokerage firm in Ann Arbor, Michigan, a private university in Cambridge, Massachusetts, or a multinational conglomerate head-quartered in New York City, organizations understand that they are required to fulfill a range of compliance obligations. Compliance programs today tend to have two important characteristics in common. First, the notion that perfect compliance is an impossible goal is a key component of the understandings and expectations of many firms’ compliance programs. Second, organizations have almost uniformly adopted compliance programs in areas where enforcement activity has been significant—like in the areas of antibribery and anticorruption, anti-money laundering, antitrust, …

Criminal Data Function Creep, Sarah E. Lageson

Journal of Criminal Law and Criminology

Automated, data-driven decision-making can create unfair outcomes and lead to discrimination. This Article considers a relatively ubiquitous part of modern life that is increasingly automated: the criminal background check. This Article, with contributions at the intersection of law and technology, antidiscrimination and consumer protection law, and sociological theory, makes the central claim that criminal record data is characterized by function creep—the unintended use of data for another purpose—which leads to a specific set of harms. This Article makes three central contributions. First, it offers an empirical assessment of contemporary, data-driven background screening using data based on in-depth interviews and systematic …

Rebutting The Presumption: A Constitutional Theory Of Pre-Trial Asset Seizures And Procedural Due Process, Benjamin Y. Rabin

Journal of Criminal Law and Criminology

In this Comment, I trace the origins and examine the current state of the doctrine on pre-trial asset seizures, then argue for a new approach grounded in procedural due process and constitutional theory.

The existing frameworks for assessing due process in these cases fall into three categories. The first grants the government broad presumptive validity for pre-trial seizures. The second applies a utilitarian balancing test, following the Supreme Court’s reasoning in Mathews v. Eldridge and Connecticut v. Doehr. The third, illustrated by the recent decision in Culley v. Marshall, relies on comparisons to historical practice.

I argue that …

Coercion, Trauma, And Grief In The Interrogation Room: Documenting And Analyzing Cases Of False Confessions To Murder Of A Family Member, Steven A. Drizin, Richard A. Leo, Hayley M. D. Cleary, Samara Hoose

Journal of Criminal Law and Criminology

This article examines the phenomenon of false confessions in cases in which individuals were falsely accused of murdering close family members. Drawing on a dataset of twenty-two proven false confession cases, we document how grief, trauma, and coercive interrogation practices intersect to produce highly counterintuitive admissions and narratives of guilt. The study situates these cases within the broader literature on police interrogation and false confessions, highlighting situational risk factors such as lengthy custodial interrogation, sleep deprivation, false evidence ploys, and threats and promises, alongside dispositional vulnerabilities such as youth, mental illness, and trauma exposure. Unlike prior aggregated studies of proven …

Eagle Eyes: How The Chicago Police Department’S Video Surveillance Network Is Used To Fight Crime And Its Fourth Amendment Implications, Joseph Mcinerney

Journal of Criminal Law and Criminology

Chicago, Illinois, is home to over 2.7 million individuals living under the supervision of a vast network of over forty thousand cameras integrated into a network of advanced technology run by the Chicago Office of Emergency Management. With little transparency, the City of Chicago has spent hundreds of millions of dollars in the past two decades rapidly expanding the network throughout the city while incorporating new technologies each year, posing substantial privacy risks for the millions of residents unaware of the ever-present eyes on them. To determine whether the network violates the Fourth Amendment, particularly in the wake of Carpenter …

Police Reform As System Justification, Shawn E. Fields

Journal of Criminal Law and Criminology

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning …

The Influence Of Adverse Childhood Experiences On Female Violent Offending: A Scoping Systematic Review, Alexis M. Wolgemuth

Theses, Dissertations and Capstones

Female-perpetrated violence has exhibited concerning data trends in recent years. Prior scholarship indicates that past victimization and trauma in childhood, known as adverse childhood experiences (ACEs), are highly prevalent among women offenders. However, the research concerning ACEs and violent females is scattered. This thesis provides a scoping literature review using the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) updated 2020 guidelines. A systematic database search was conducted using Academic Search Complete, SAGE Journals, Springer Nature Link, and HeinOnline to identify relevant peer-reviewed journal articles. Inclusion and exclusion criteria are established, focusing on studies published after January 2015. These …

Striking Out Bias: A Path Toward Ending Religion-Based Peremptory Strikes, Catherine King

Journal of Criminal Law and Criminology

Peremptory strikes, while designed to craft fair and impartial juries, carry with them the potential for discriminatory use. Cognizant of this, the Court has imposed limitations on their use, producing over time the Batson line of case law. While Batson and its progeny aimed to eliminate discriminatory peremptory strikes, the consensus forty years later is that this goal remains unfulfilled—largely due to the continued acceptance of ostensibly race-, gender-, and ethnicity-neutral justifications. Religion has emerged as a frequent rationale, creating uncertainty about its permissibility and producing a circuit split.

Despite repeated calls for finality on the question of religion-based peremptory …

Paying Financial Sanctions Via Incarceration: A Case Study Of “Sitting Out”, Beth Colgan, Jordan B. Woods

Journal of Criminal Law and Criminology

This Article provides a comprehensive statewide study of a practice by which courts order defendants to pay financial sanctions—fines, costs, and probation fees—by serving terms of incarceration. Though several states authorize these practices, to date, very little is known about the extent to which payment via incarceration occurs and the different ways it is employed. This Article examines the use of the practice in Nebraska, where it is colloquially referred to as “sitting out.” Our study specifically focuses on all misdemeanor cases in Nebraska county courts with judgments (an adjudication of guilt and/or sentencing) during the year 2019.

This study …

Connecting Mens Rea And Actus Reus: Toward A New Theory Of Correspondence, Elise Sugarman

Journal of Criminal Law and Criminology

The justifiable imposition of criminal liability requires more than possession of mens rea and performance of an actus reus. A defendant’s mens rea and actus reus must also connect in a particular way. While this is a well-recognized principle in Anglo-American criminal law, the nature of the required connection—“correspondence”—is poorly understood.

This Article identifies three conflicting existent theories of correspondence from the criminal legal literature and from judicial reasoning: contemporaneity theory, actuation theory, and normative theory. According to contemporaneity theory, correspondence requires that mens rea overlap in time with the actus reus. According to actuation theory, correspondence requires that mens …

Justice For The Accomplice: Minnesota's 2023 Accomplice Liability Amendment And Its Shortcomings, John M. Thompson

Mitchell Hamline Law Review

No abstract provided.

Premium Injustice: Addressing The Harms That Cash Bail Premiums Inflict On The Non-Convicted, Jeffery L. Young

Mitchell Hamline Law Review

No abstract provided.

The Role Of Prosecutorial Discretion In Criminal Immigration Matters, Brian L. Owsley

William & Mary Journal of Race, Gender, and Social Justice

If the Trump administration’s goal is to remove between fifteen and twenty million undocumented individuals, then it would be far more effective to reduce the incentive of American companies and employers to hire undocumented individuals. Therefore, from a prosecutorial perspective, the federal government should consider whether seeking to charge and prosecute individuals is the most effective approach, or whether they should redirect their effort to the individual’s employer.

In addition to employers engaging in criminal immigration offenses, for several years now, the federal government has notably ignored the action of one person engaged in the smuggling of over 100,000 undocumented …

Reimagining Justice: Transformative Justice Analysis In Adult Felony Cases, Marisa Tramontano

Open Educational Resources

In this sociology final project, students take the role of a sociologist working with a public defender and analyze the records and social history of a client facing sentencing for a felony. They write a report for a judge explaining how structural factors and sociological concepts illuminate the case, then recommend responses that include alternatives to incarceration. A reflective essay examines the limits of the available information, ethical considerations, and how the project shaped their understanding of justice.

Policy Recommendations To Reduce False Confessions By Juveniles In Wrongful Conviction Cases, Rohit R. Iyer

CMC Senior Theses

This research focuses on false confessions by juveniles in the United States justice system. False confessions are statements made by suspects during investigations in which individuals provide statements to investigators admitting to a crime in which they had no part. In these cases, individuals often spend years, if not the entirety, of their lives behind bars for crimes they did not commit. False confessions are the result of a number of systemic factors that will be discussed in this paper. While relatively rare, they are one of the largest blemishes in the U.S. justice system. Juveniles – individuals below the …

The Empirical Double Standard: Opinion Surveys Across The Civil–Criminal Divide, Kay L. Levine, Bernard Chao

Faculty Articles

Across different legal domains, liability doctrines recognize the value of community input. But do courts truly listen to the community’s voice when deciding these sorts of cases? This study is the first to explore how courts treat community opinion survey evidence within both civil and criminal law. To that end, we comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and search cases.

Our research uncovers a significant asymmetry: Courts readily admit survey evidence in civil proceedings but systematically exclude it in criminal cases. This asymmetry does not appear to stem from structural differences between civil and criminal litigation …

Neurobiological Determinants Of Psychopathy And Their Ethical Implications In Capital Punishment Cases, Brooklyn Lewis

Williams Honors College, Honors Research Projects

This literature review examines the relationship between the neurobiological determinants of psychopathy and the ethical implications of applying capital punishment to violent offenders. Drawing on research from neuroscience, psychology, and criminal justice, the paper explores how structural and functional differences in brain regions associated with emotional processing, impulse control, and moral reasoning are linked to psychopathic traits. The review synthesizes findings on how these neurobiological factors may contribute to an increased risk of violent behavior while emphasizing that such influences are not deterministic. The paper further analyzes how neuroscientific evidence is interpreted within legal contexts, particularly in relation to assessments …