Volume 61

The Mistaken Law of Mistakes of Law: Mistakes Negating Culpability Under the Model Penal Code

by Scott England
This Article examines the relationship between two core principles of American criminal law. On one hand, ignorance of the law is no excuse. On the other hand, criminal liability requires not just a guilty act but also a guilty mind. As the criminal law has become more complex, criminal offenses have increasingly raised issues about […]

Morrison’s Flawed “Focus” Test and the Transnational Application of the (Misinterpreted) Wire Fraud Statute

by Julie Rose O'Sullivan
Federal prosecutors’ mantra is “when in doubt, charge wire fraud.”  Section 1343 can be applied to any scheme to defraud—a capacious term that encompasses everything from computer scams to bribery and smuggling—in which a wiring (by phone, text, internet communication, or the like) can be identified. Given the explosion of transborder criminality—especially that conducted by […]

Defining “Victim” Through Harm: Crime Victim Status in the Crime Victims’ Rights Act and Other Victims’ Rights Enactments

by Paul G. Cassell and Michael Ray Morris, Jr.
Who qualifies as a “victim” is the foundational question for the Crime Victims’ Rights Act (“CVRA” or “Act”) and other crime victims’ rights laws. This article provides the first comprehensive exploration of this “victim” defini tion question. It traces how the CVRA (and many states) define “victim” as broadly covering anyone who has been harmed […]

The Extravagance of Eighth Amendment Deference

by Daniel Loehr
We live in an era of extremely long prison sentences, visibly excruciating executions, and violence-plagued prisons. We also live in an era of penological judicial restraint, which manifests through the practice of deference, wherein courts put a thumb on the scale in favor of finding laws and policies constitutional. On this basis, courts have been […]

Write Before You Watch: Policies for Police Body-Worn Cameras That Increase Accountability and Accuracy

by Hillary B. Farber
In the wake of high-profile killings and abuse by police officers over the past few years, the public has come to expect that officers will be equipped with body-worn cameras (BWCs). These cameras capture and preserve encounters between police and civilians, and the footage they record often becomes critical evidence in criminal, civil, or administrative […]

Ending Restitution’s Gilded Age: Bankruptcy, Criminal Law Exceptionalism, and Forgiveness

by Jarred L. Barlow
The criminal justice system bills defendants for the distribution of justice. Defendants are subject to legal financial obligations at all stages of their case that can metastasize into unpayable debts. These financial obligations uniquely impact indigent defendants, who may be incentivized to minimize costs instead of minimizing their chances of conviction. If convicted, indigent defendants […]

DPA Discounts

by Todd Haugh and Mason McCartney
There is a longstanding debate over the propriety of corporate deferred and non-prosecution agreements, those semi-private settlements entered into between prosecutors and companies under criminal investigation. That debate is occurring in the shadow of the growing use of these DPAs and NPAs, a trend that recent DOJ policy changes suggest will only increase. Regardless of […]

Anything But Compassion: The Conflict Between Exhaustion and Compassionate Release

by Ciara N. Cooney
Horacio Estrada-Elias was a ninety-year-old prisoner with less than eighteen months to live due to congestive heart failure, atrial fibrillation, and chronic kidney disease when he requested compassionate release. He was serving a life sentence for conspiracy to distribute large quantities of marijuana. A non-violent offense that nonetheless carried a mandatory life term because of […]

Why Attacks on Prosecutorial Discretion Are Attacks on Democracy

by Rebecca Blair and Miriam Aroni Krinsky
As communities across the United States have increasingly elected reform-minded prosecutors to lead their local district attorney’s offices, the broad discretion afforded to American prosecutors has faced unprecedented scrutiny. Opponents of criminal justice reform have vigorously contested prosecutorial policies aimed at presumptively ending the prosecution of certain offenses, reducing extreme sentences, and shrinking the criminal […]

Letter from the Editor

by Victoria T. Sheber
Whether directly or indirectly, the American criminal legal system affects every person living in the United States. How we choose to criminalize and punish behavior speaks to what we value as a society and how far we are willing to go to protect those values. The American Criminal Law Review is proud to have been […]

Preface: New Directions in Prosecutorial Reform

by Miriam Aroni Krinsky, Justin Murray, and Maybell Romero
This Preface, which introduces the American Criminal Law Review’s Symposium Issue on Reform-Minded Prosecution, begins by describing the power that prosecutors hold in the criminal legal system, which has historically gone unchecked and unquestioned. As mass incarceration, police violence, and wrongful convictions began to permeate the public consciousness, many communities focused their attention on the […]

Drug-Induced Homicide Laws and False Beliefs About Drug Distributors: Three Myths That Are Leaving Prosecutors Misinformed

by Taleed El-Sabawi, Jennifer J. Carroll, and Morgan Godvin
An increasing number of criminal legal system actors, including some prosecutors, have acknowledged that the so-called “overdose crisis” is a public health problem. Despite this narrative shift, some prosecutors are responding to local overdoses by charging persons who distribute drugs that are linked to a subsequent death with criminal killing. These charges are brought either […]

A Fiduciary Theory of Progressive Prosecution

by Bruce A. Green and Rebecca Roiphe
Progressive prosecutors differ from their more traditional counterparts primarily in the way in which they make decisions. They tend to bind their discretionby announcing categorical policies rather than making fact-based decisions case by case. This Article catalogs the unusual degree of pushback progressive prosecutors have encountered from the public, legislatures, courts, police, and their own […]

Prosecutorial Mutiny

by Cynthia Godsoe and Maybell Romero
Elected progressive prosecutors face resistance on many fronts to their reforms of the overly harsh and racist criminal legal system. One of these forms of resistance is particularly corrosive—internal dissension by line prosecutors. This resistance flummoxes criminal legal system reform and undemocratically interferes with the will of the electorate. This resistance, which we term “prosecutorial […]

Progressive Prosecution or Zealous Public Defense? The Choice for Law Students Concerned About Our Flawed Criminal Legal System

by Abbe Smith
This Article addresses a question asked by many law students concerned about our flawed criminal legal system: should they become a prosecutor in an office run by a progressive prosecutor, or a public defender in an office devoted to zealous, client-centered (or holistic) defense? The Article starts with an anecdote about Philadelphia District Attorney Larry […]

Progressive Prosecutors or Zealous Defenders, From Coast-to-Coast

by Brooks Holland and Steven Zeidman
This Article challenges the narrative that the progressive prosecutor movement can meaningfully transform the criminal legal system and argues that the myopic focus on prosecutors as the solution to all that ails this system further diminishes the critical, and chronically under-resourced, role of the public defender. In presenting this claim, we do not question the […]

Progressive Prosecutors: Winning the Hearts and Minds of Line Prosecutors

by Laurie L. Levenson
The progressive prosecutor movement offers many critical proposals to reform our criminal justice system. However, it has not been able to fully accomplish its goals in many jurisdictions because the newly elected prosecutors have faced pushback, not just from hardline opponents to their reforms, but from the deputy prosecutors in their own offices. For there […]