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 focus on statutory violations rather than the harm to human health weakens deterrence. Violators face neither the stigma nor the severity associated with crimes against persons, diminishing the statute's potential to deter harmful behavior. This Comment argues that prosecutors should charge water polluters with assault or assault with a deadly weapon to address the shortcomings of the CWA. Water polluters often act knowingly, recklessly, or negligently in polluting waters, and their actions frequently lead to bodily injury. Prosecutors can navigate the challenge that proving causation poses in complex environmental cases by drawing on the bifurcated causation approach used in toxic tort cases. Charging water polluters with assault not only captures polluters who may evade liability under the CWA, but also directly acknowledges the human harm caused by water pollution. Such prosecutions should no longer be uncharted waters.
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 rea cause the actus reus in a particular way. According to normative theory, correspondence requires that certain normative facts be true-for example, that an actus reus be a moral wrongdoing in virtue of the defendant's mens rea. In this Article, I argue each existent theory shares a common flaw: Each theory supposes a necessary condition for correspondence that is not genuinely necessary. In the absence of a better theory, there is no reliable way of sorting out defendants who should be acquitted for lacking correspondence from those defendants who need not, and courts cannot provide honest explanations for why a defendant falls in one or the other group. I go on to harness what is useful about existent theories to propose a path toward a better theory of correspondence. Normative theory points the way to a "job description" for correspondence-a posit regarding what work correspondence performs in securing the truth of claims about the justifiable imposition of criminal liability. The posit is that correspondence operates to ground a defendant's moral culpability for performance of an actus reus in virtue of mens rea. With this job description in hand, one can appreciate that unlike contemporaneity, actuation proves sufficient for correspondence. A new theory of correspondence should build off actuation theory by locating similarities between actuation and other relations that can do the work of grounding moral culpability. I conclude by noting how a theory of correspondence can provide payoffs beyond criminal law-within any doctrinal arena that has come to be "criminal-law-like" through a dichotomization of thought and conduct.
Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country's unique history of being founded by British rebels, some practices from the time of the Founding-such as recognizing a strong jury right-advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually achieve-at least where criminal defendants are concerned-what are often today considered progressive outcomes. The timely issue of jury size is a good example of this. While a historical approach would focus on our long history of twelve-member juries, the Court's more recent evolving functional approach has allowed smaller juries. Considering that criminal defendants generally benefit from larger juries because they can achieve more accurate outcomes, better represent their communities, and, importantly, allow more chances for hung juries, jury size offers an important lesson about the possible benefits of employing originalism in areas of criminal law and procedure.
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 the addiction of narcotics because it punished people for having the illness of addiction. In the decades since Robinson, many state and circuit courts have interpreted the status crimes doctrine to extend to laws which criminalize conduct that is involuntary and inextricably intertwined with a status. Courts, including the Ninth Circuit, have held unconstitutional some applications of anti-homeless laws prohibiting camping in public on the grounds that just as people generally cannot help their homelessness, they also cannot help that they need somewhere to sleep at night. In Grants Pass, the Supreme Court reversed the Ninth Circuit's holding that it was unlawful under Robinson for the city of Grants Pass, Oregon to punish the involuntarily homeless for using bedding supplies to sleep in public when they have no available shelter. The Court imposed a formalistic act-status distinction on its interpretation of Robinson, finding that the status crimes doctrine did not apply because the law criminalized the act of camping in public, not the mere status of being homeless. The majority further stated that it was practically impossible to analyze whether the conduct at issue was truly involuntary, and the legislature may have intended to remedy the homelessness crisis by passing such an ordinance. In her dissent, Justice Sotomayor argued that an act-status distinction may create a loophole for legislatures to exploit, whereby they can criminalize a status by wording their laws to punish conduct that stands in as a proxy for that status. This Comment proposes a narrow interpretation of Grants Pass that can cover up this loophole by preserving the power of the status crimes doctrine to apply to more than challenges to the facial wording of a law. Grants Pass should be construed to only preclude the status crimes doctrine from applying when the involuntariness of a status, and of the criminalized conduct associated with that status, cannot be conclusively shown. The application of the status crimes doctrine should also allow for the legislative intent and practical effect of a law to be considered as factors courts may use to determine whether a law effectively criminalizes a status as applied, even if the law does not criminalize a status on its face.
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 v. United States, the city must increase transparency by releasing a complete accounting of the technologies integrated into the network. By building on contemporary Fourth Amendment research, while incorporating previously nonpublic details regarding Chicago's surveillance capabilities, this Comment will show how these technologies pose a radical threat to the Court's view of the Fourth Amendment in the twenty-first century.
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 analyses of 104 New Jersey residents' criminal records from both public and private sectors. Specifically, people in the study face three crucial data issues: 1) incorrect data, 2) misleading data, and 3) unknowable data. Second, the Article establishes the mechanisms of discriminatory harms as rooted in function creep, bridging scholarship in law, policy, and social science. Finally, the Article outlines how existing regulatory approaches fail those who are harmed and exacerbate the discriminatory and punishment-related harms of the criminal legal system. Overall, the Article establishes the fundamental problems that emerge when information created for processing cases through the criminal legal system is used to create background reports and predictive risk scores for profit. The rise of algorithmic data matching and automated decision-making further conceals the source data, making it increasingly difficult for people to gain access to, understand, or challenge their background check. This led many respondents in the study to withdraw from challenging these problems altogether. At the same time, both the agencies that have created criminal record data and the companies that commercialize it evade accountability. The Article concludes by suggesting specific areas of federal and state-level reform but cautions that such a focus overlooks the fundamental problem of using poor quality and often misleading criminal legal system data to assess people's suitability for a job, an apartment, or full participation in society.
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 riskfactors 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 false confessions, this analysis focuses specifically on the unique psychological burden faced by suspects who are grieving the violent death of a loved one and who are often interrogated within hours of the discovery of the crime. Many were misclassified by police as guilty due to their grief reactions, psychologically coerced into falsely confessing and fed crime scene facts and details that were repeated back in their false confessions. Our qualitative and Quantitative data analysis reveal recurring themes that have been well-documented and found in coerced-compliant and coerced-persuaded false confessions. The authors conclude with policy recommendations-including mandatory electronic recording of interrogations-and a call for trauma-informed investigative practices to prevent wrongful convictions rooted in coerced confessions from grief-ridden individuals in a uniquely vulnerable situation.
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 to structurally or systemically broken systems. One such broken system-the American policing machine-continues to enjoy broad system justifying supportfrom advantaged and disadvantaged groups alike, despite incontrovertible evidence of the system's unfairness, ineffectiveness, and inefficiency. This contention may seem at odds with the fact that policing also receives among the most vocal and sustained criticism and calls for change of any stable political structure in the country. But it is those very "reforms" championed and implemented in recent years that proves the inherent desire to defend and maintain the status quo. This Article provides two novel contributions to legal literature. First, it provides the firstSJT-specific critique ofpolicing and its ability to maintain itself, relatively unchanged, despite its long history of racialized violence and class exploitation. Second, it utilizes the SJT framework to explore how purported reforms to the policing status quo are designed to defend that status quo as fundamentally sound and fair. The two most heavily funded and implemented policing reforms since the Summer 2020 uprisings against police violence-procedural justice and predictive policing-serve not to transform the structure of policing by eliminating it or reducing its bias and exploitation, but to justify its inherent authority through the fa & ccedil;ade of objectivity. These reforms provide a veneer of legitimacy, making it easier to rationalize the unchanged and unjust status quo. At root, SIT reveals that defenses of policing rarely derive from logic or facts, but from deep-seated psychological needs to perceive the world as orderly, safe, and fair. Recognizing these motivations is key to fostering productive dialogue about true transformative change.
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 requirement satisfy First Amendment standards? Or, to put the same question differently, what is the constitutional difference between criminal solicitation and incitement? This Article presents the first comprehensive study of the relationship between freedom of speech and criminal solicitation. It tries to make sense of the new legal framework governing speech that encourages unlawful conduct and grapples with its conceptual and practical implications. It argues that, though the Court in Hansen did not purport to overrule Brandenburg, the decision introduced doctrinal uncertainties that risk weakening Brandenburg's legacy. To avoid unnecessarily suppressing free speech, courts need a more worked-out theory of criminal solicitation one that draws more precise boundaries with other doctrines regulating speech that encourages unlawful conduct. This Article aims to provide that theory. After excavating the potentially far-reaching and pernicious material consequences of applying the new solicitation test to regulate speech, this Article advances a normative claim: Only advocacy of unlawful conduct that has no recognized constitutional value should be governed by the Hansen framework. On this view, solicitation is best understood as the direct, intentional encouragement of a specific unlawful act that is likely to cause harm. A review of the Supreme Court cases from the twentieth century shows that other forms of advocacy those with more than minimal constitutional value were governed by the Brandenburg incitement test. That should remain the standard.
The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by "the scientific method" and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how "proof beyond a reasonable doubt" (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system-the criminal process. First, what constitutes BARD will vary within any jurisdiction. BARD is a linguistically vague and indeterminate standard. Second, evidentiary and procedural regimes will differ from state to state and from country to country. Differences in such regimes will functionally affect what constitutes BARD. We demonstrate how plea bargaining, declination, and diversionary programs will affect what constitutes BARD by affecting the proportion of factually guilty and innocent defendants that proceed to trial (incidentally affecting any distribution of errors). Third, we account for and respond to how the debate surrounding BARD is imbued with a deterministic focus on solving what BARD is and should be, which has proven to be a futile quest. Scholars must embrace-not ignore-the complexity that permeates our evidentiary and procedural regimes.
In the 1976 decision Estelle v. Gamble, the Supreme Court held that "deliberate indifference" to significant health needs ofprisoners violated the Eighth Amendment. The standard's knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state ofprison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard-and offers avenues for reform.
Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda. This Article argues for a new conception of punishment that forms important synergies within a redesigned federalism system. The core principle that connects punishment and federalism theory is their impact on the liberty interests of the individual. This Article builds on this unifying principle of liberty to constrain cooperative criminal federalism from abusing its power and oversubscribing to carceral punishments. These unique tools that merge federalism and punishment theories form the federalism(s) framework of punishment. This framework leads to a set of policy outcomes in which the federal and state governments conflict, cooperate, and coordinate in different contexts with the goal of fully appreciating the liberty interests of offenders while increasing public safety.
The military capital punishment scheme for murder in peacetime is heightened reliability for capital cases because it fails to include a trial by sentencing determinations. Specifically, as the number of white males particularly concerning for the military because the demographics of its military system in order to preserve discipline is undercut by the history of jurisdiction for murder in peacetime. The military has not historically had jurisdiction over murder in peacetime for the majority of this country's murder if there is a nexus to war or armed conflict.
As progressive efforts to reform the U.S. criminal legal system continue to take form, one category of crime has been consistently overlooked: sex offenses. While the carceral system is often condemned for its excessive punitiveness, severe punishments for sex offenders remain largely unchallenged and even popular. A primary example of these punishments is sex offender registration and notification (SORN) laws, which significantly constrain the lives of sex offenders after they have served their time in prison. Though subject to decades of empirical criticism from scholars, much of which has found that SORN laws have no significant impact on sex offender recidivism, these laws have remained a fixture of the American legal system since their nationwide introduction in the 1990s. This note seeks to understand the persistence of the SORN framework and ultimately argues that progressive prosecutors, through a rich normative model of prosecution, should target the SORN framework as an area ripe for reform.
