Digital Commons Network^™

Precise Punishment: Why Precise Punitive Damage Requests Result In Higher Awards Than Round Requests, Michael Conklin

Michigan Business & Entrepreneurial Law Review

Imagine a setting where someone asks two people what the temperature is outside. The first person says it is 80 °F, while the second person says it is 78.7 °F. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player.

This Article reports …

Can Prosecutors End Mass Incarceration?, Rachel E. Barkow

Michigan Law Review

A Review of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. by Emily Bazelon.

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 …

Offenders And Sorn Laws, Amanda Agan, J.J. Prescott

Book Chapters

Chapter 7 describes what we know about the effects of SORN laws on criminal behavior. A coherent story emerges from this review: there is virtually no evidence that SORN laws reduce recidivism or otherwise increase public safety. The chapter first delineates the various ways registration and notification alter the legal environment not only for registrants but also for nonregistrants, the public, and law enforcement. There are many channels through which SORN laws might impact the frequency of sex offenses, including some that would produce an increase in overall offending. The chapter assesses these possibilities in light of a large body …

May The State Punish What It May Not Prevent?, Gabriel S. Mendlow

Articles

In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …

International Megan's Law As Compelled Speech, Alexandra R. Genord

Michigan Law Review

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” International Megan’s Law (IML), passed in 2016, prohibits the State Department from issuing passports to individuals convicted of a sex offense against a minor unless those passports are branded with this phrase. The federal government's decision to brand its citizens’ passports with this stigmatizing message is novel and jarring, but the sole federal district court to consider a constitutional challenge to the passport identifier dismissed the plaintiffs’ First Amendment claim, deeming the provision government speech. …

Eighteen Is Not A Magic Number: Why The Eighth Amendment Requires Protection For Youth Aged Eighteen To Twenty-Five, Tirza A. Mullin

University of Michigan Journal of Law Reform

The Eighth Amendment protects a criminal defendant’s right to be free from cruel and unusual punishment. This Note argues that any punishment of eighteen- to twenty-five-year-olds is cruel and unusual without considering their youthfulness at every stage of the criminal process, and that it is unconstitutional under the Eighth Amendment for these youths to be automatically treated as fully-developed adults. This Note will explore in depth how juveniles differ from adults, both socially and scientifically, and how the criminal justice system fails every youth aged eighteen- to twenty-five by subjecting them to criminal, rather than juvenile, court without considering their …

Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow

Michigan Law Review

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …

The Elusive Object Of Punishment, Gabriel S. Mendlow

Articles

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; …

Guilt By Alt-Association: A Review Of Enhanced Punishment For Suspected Gang Members, Rebecca J. Marston

University of Michigan Journal of Law Reform

This essay, written in reaction to the University of Michigan Journal of Law Reform’s 2018 Symposium entitled “Alt-Association: The Role of Law in Combating Extremism” (the Symposium), does not dispute the seriousness of gang-related violence. Rather, it examines ways in which current strategies for combating gang-related crimes are ineffective or problematic and suggests possible reforms. Part One of this essay will describe current methods used in labeling, tracking, and prosecuting gang members, which result in a cycle of enhanced punishment. Part Two will evaluate these practices and reflect on whether enhanced punishment is the best way to reduce gang-related violence, …

Prosecutorial Discretion And Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014, David M. Uhlmann

Michigan Journal of Environmental & Administrative Law

In a 2014 article entitled “Prosecutorial Discretion and Environmental Crime,” I presented empirical data developed by student researchers participating in the Environmental Crimes Project at the University of Michigan Law School. My 2014 article reported that 96 percent of defendants investigated by the United States Environmental Protection Agency and charged with federal environmental crimes from 2005 through 2010 engaged in conduct that involved at least one of the aggravating factors identified in my previous scholarship, namely significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations. On that basis, I concluded that prosecutors charged violations that …

Reckless Juveniles, Kimberly Thomas

Articles

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme …

Small Crimes, Big Injustices, Stephanos Bibas

Michigan Law Review

Review of Alexandra Natapoff's Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.

Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail

University of Michigan Journal of Law Reform

The United States imprisons a greater proportion of its own population than any other country in the world. A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence). Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons. That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the …

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

Articles

A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …

Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow

Articles

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. …

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post …

Criminal Justice And The Mattering Of Lives, Deborah Tuerkheimer

Michigan Law Review

A review of James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America.

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.

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron

University of Michigan Journal of Law Reform

When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?

Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

University of Michigan Journal of Law Reform

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Michigan Law Review

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …

Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz

Articles

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment …

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley

Articles

Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …

The Complicated Economics Of Prison Reform, John F. Pfaff

Michigan Law Review

Two recent books on prison growth directly address the relationship between penal change and economic conditions: Hadar Aviram’s Cheap on Crime and Marie Gottschalk’s Caught. Aviram’s is the more optimistic of the two accounts, arguing that there is at least some potential in an economic-based reform effort. Gottschalk, on the other hand, fears not only that economic-based efforts could fail to lead to significant reforms, but that they could actually make prison life worse for inmates if states cut funding and support without cutting populations. Both books make many provocative points, but both also suffer from some surprising omissions. …