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Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski
Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski
Michigan Law Review
Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees …
All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes
All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes
Michigan Law Review
A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Michigan Law Review
Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …
The Pathological Politics Of Criminal Law, William J. Stuntz
The Pathological Politics Of Criminal Law, William J. Stuntz
Michigan Law Review
Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …
The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker
The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker
Michigan Law Review
To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.
The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman …
Legitimating Death, Louis D. Bilionis
Legitimating Death, Louis D. Bilionis
Michigan Law Review
This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.
To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court's recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be …
Justifiably Punishing The Justified, Heidi M. Hurd
Justifiably Punishing The Justified, Heidi M. Hurd
Michigan Law Review
Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …
Capital Punishment And The American Agenda, John Pierce Stimson
Capital Punishment And The American Agenda, John Pierce Stimson
Michigan Law Review
A Review of Capital Punishment and the American Agenda by Franklin E. Zimring and Gordon Hawkins
Just And Painful: A Case For The Corporal Punishment Of Criminals, Michigan Law Review
Just And Painful: A Case For The Corporal Punishment Of Criminals, Michigan Law Review
Michigan Law Review
A Review of Just and Painful: A Case for the Corporal Punishment of Criminals by Graeme Newman
The Three Faces Of Double Jeopardy: Reflections On Government Appeals Of Criminal Sentences, Peter K. Westen
The Three Faces Of Double Jeopardy: Reflections On Government Appeals Of Criminal Sentences, Peter K. Westen
Michigan Law Review
Every now and then a case ·comes along that tests the fundamental premises of a body of law. United States v. DiFrancesco presents such a test to the law of double jeopardy, raising the question whether the government may unilaterally appeal a defendant's criminal sentence for the purpose of increasing the sentence. The question cannot be answered by facile reference to the text of the fifth amendment, because the terms of the double jeopardy clause are not self-defining. Nor can it be settled by reference to history, because the issue has not arisen with any frequency until now.
Constitutional Law-Expatriation-Criminal Due Process As Prerequisite To Expatriation When Imposed As Punishment, John W. Erickson
Constitutional Law-Expatriation-Criminal Due Process As Prerequisite To Expatriation When Imposed As Punishment, John W. Erickson
Michigan Law Review
Respondents, native-born Americans, in two separate cases sought declaratory judgments confirming their status as United States citizens. One wanted to return to this country, and the other sought to avoid deportation as an alien. The Government claimed that respondents had lost their citizenship by operation of section 401(j) of the Nationality Act of 1940 and its successor, section 349(a)(10) of the Immigration and Nationality Act of 1952, which automatically divest an American of his citizenship for "departing from or remaining outside the jurisdiction of the United States in time of war or . . . national emergency for the purpose …
Constitutional Law-Executive Powers-Right To Remove Executive Employees Without Judicial Trial, William E. Beringer
Constitutional Law-Executive Powers-Right To Remove Executive Employees Without Judicial Trial, William E. Beringer
Michigan Law Review
Plaintiff was reinstated in the classified civil service of the federal government on the condition that removal might be ordered if, "on all the evidence, reasonable grounds exist for belief that the [plaintiff] is disloyal to the Government of the United States." Such evidence having allegedly been uncovered, dismissal followed, with a ban against federal employment for three years. The specific grounds for suspicion were never revealed to plaintiff, and no opportunity was ever afforded to confront, cross-examine, or learn the identity of those who had informed against her. Plaintiff sought an order of reinstatement in the federal district court, …
Constitutional Law-Removal Of Executive Employees By Act Of Congress-Bill Of Attainder, John A. Huston S.Ed.
Constitutional Law-Removal Of Executive Employees By Act Of Congress-Bill Of Attainder, John A. Huston S.Ed.
Michigan Law Review
Respondents, three employees of the federal government, were, among other federal officeholders, accused by Congressman Martin Dies of having engaged in subversive activities and were investigated by a special subcommittee of the House of Representatives on that charge. Upon a report of this committee that the respondents were guilty of such activities, the House attached a rider, in section 304, to the Urgent Deficiencies Appropriation Act, 1943, which prohibited, after November 15, 1943, the application of any appropriation to the payment of respondents' compensation, except as jurors or members of the armed forces, unless prior to November 15 they should …
Due Process And Punishment, Clarence E. Laylin, Alonzo H. Tuttle
Due Process And Punishment, Clarence E. Laylin, Alonzo H. Tuttle
Michigan Law Review
To threaten such a man with punishment," wrote Sir James .LFitzjames Stephen,' "is like threatening to punish a man for not lifting a weight which he cannot move."