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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.

Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin

Michigan Law Review

A review of John F. Pfaff, Locked In: The True Causes of Mass Incarceration - And How to Achieve Real Reform.

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …

Too Vast To Succeed, Miriam H. Baer

Michigan Law Review

If sunlight is, in Justice Brandeis’s words, “the best of disinfectants,” then Brandon Garrett’s latest book, Too Big to Jail: How Prosecutors Compromise with Corporations might best be conceptualized as a heroic attempt to apply judicious amounts of Lysol to the murky world of federal corporate prosecutions. “How Prosecutors Compromise with Corporations” is the book’s neutral- sounding secondary title, but even casual readers will quickly realize that Garrett means that prosecutors compromise too much with corporations, in part because they fear the collateral consequences of a corporation’s criminal indictment. Through an innovation known as the Deferred Prosecution Agreement, or DPA, …

Transnational Networks And International Criminal Justice, Jenia Iontcheva Turner

Michigan Law Review

The theory of transgovernmental networks describes how government officials make law and policy on issues of global concern by coordinating informally across borders, without legal or official sanction. Scholars have argued that this sort of coordination is useful in many different areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. One area to which the theory has not yet been applied is international criminal law. For a number of reasons, until recently, international criminal law had not generated the same transgovernmental networks that have emerged in other fields. With few exceptions, international criminal law had been enforced …

One Bite At The Apple: Reversals Of Convictions Tainted By Prosecutorial Misconduct And The Ban On Double Jeopardy, Rick A. Bierschbach

Michigan Law Review

This Note argues that the Double Jeopardy Clause bars retrial after reversals of convictions tainted by prosecutorial misconduct in the submission of evidence when two conditions are met: (1) the prosecutor intentionally introduced tainted evidence, and (2) excluding the tainted evidence would have left insufficient evidence at trial to support the defendant's conviction. This Note contends that this limited extension of double jeopardy protection is both mandated by the policies underlying the Double Jeopardy Clause and consistent with existing double jeopardy jurisprudence.

Reassessing The Role Of The Trial Judge In Verdictless Dispositions Of Criminal Cases, H. Richard Uviller

Michigan Law Review

A Review of The Passive Judiciary by Abraham S. Goldstein

Prosecutorial Vindictiveness In The Criminal Appellate Process: Due Process Protection After United States V. Goodwin, Michigan Law Review

Michigan Law Review

This Note reformulates the doctrine of prosecutorial vindictiveness in light of the distinction drawn in Goodwin between pretrial and posttrial charging decisions. Part I recounts the development of the vindictiveness concept, and argues that in extending the doctrine beyond the factual settings which moved the Supreme Court to fashion its original prophylactic rule, the circuit courts have seriously eroded an essential due process safeguard. Part II critically examines the distinction between pretrial and posttrial charging decisions relied upon in Goodwin. Developing the logical corollary of the Goodwin holding, this Part argues that just as the pretrial situation does not …

Prosecutorial Peremptory Challenge Practices In Capital Cases: An Empirical Study And A Constitutional Analysis, Bruce J. Winick

Michigan Law Review

As presently construed, the Constitution does not prohibit the death penalty. The states and the federal government may punish the commission of certain crimes with death, so long as the extreme penalty is not imposed on a mandatory basis and so long as the procedures used in imposing a death sentence meet constitutional scrutiny.

A demonstration that the prosecutor used the peremptory challenge in the manner described in a single case probably would be insufficient to support a constitutional challenge in the federal courts and in the vast majority of state courts. In these courts a prosecutor's use of the …

The American Prosecutor: A Search For Identity, Michigan Law Review

Michigan Law Review

A Review of The American Prosecutor: A Search for Identity by Joan E. Jacoby

Reforming The Federal Grand Jury And The State Preliminary Hearing To Prevent Conviction Without Adjudication, Peter Arenella

Michigan Law Review

It is this Article's thesis that the substitution of plea-bargaining for the criminal trial as our primary method for determining legal guilt requires a fundamental reassessment of our pretrial screening processes. In a system where the prosecutor's decision to file charges is usually followed by a negotiated guilty plea, we can no longer pretend that the pretrial process does not adjudicate the defendant's guilt. Accordingly, this Article argues that it no longer makes sense to rely primarily on the trial to safeguard essential accusatorial principles when pretrial screening devices like the preliminary hearing and the grand jury perform the only …

Joint Trials Of Defendants In Criminal Cases: An Analysis Of Efficiencies And Prejudices, Robert O. Dawson

Michigan Law Review

Legislatures and courts, in weighing the relative advantages of joint and separate trials, have unreasonably struck a balance in favor of joint trials. The strongest justification traditionally offered for joint trials is efficiency. This Article shows that courts have greatly exaggerated the supposed efficiencies of joint trials while grossly underestimating the impediments joint trials pose to fair and accurate determinations of individual guilt or innocence. The propriety of joint trials is more than a question of efficiencies. Joint trials usually, although not always, help the prosecutor to get convictions, and thereby modify the balance of advantage in criminal trials. Disputes …

Denial Of Justice, Joel M. Flaum

Michigan Law Review

A Review of Denial of Justice by Lloyd L. Weinreb

The Prosecutor's Duty To Present Exculpatory Evidence To An Indicting Grand Jury, Michigan Law Review

Michigan Law Review

This Note explores the implications of the stark procedural disparities between prosecution by information and prosecution by indictment in those states where both methods are used. It first examines the consequences to a defendant of a prosecutor's decision to seek an indictment rather than proceed by information, the reasons underlying the discretion given the prosecutor to choose between the two methods, and the potential for abuse of this discretionary power. It then considers several alternative approaches for minimizing this potential for abuse. After rejecting possible constitutional objections to the disparity between indictment and information procedures and application of the common-law …

The Virtuous Prosecutor In Quest Of An Ethical Standard: Guidance From The Aba, H. Richard Uviller

Michigan Law Review

Among his other endeavors, the public prosecutor strives to maintain an upright stance in the stained halls of criminal justice. He correctly senses that the people demand more of him than diligent, workmanlike performance of his public chores. Virtue is the cherished ingredient in his role: the honorable exercise of the considerable discretionary power with which our legal system has endowed his office. Daily, the ethical fibre of the prosecutor is tested -and through him, in large measure, the rectitude of the system of justice.

Here, I shall discuss only three of the many ethical problems along the prosecutor's way: …

The Investigating Magistrate (Juge D'Instruction) In European Criminal Procedure, Morris Ploscowe

Michigan Law Review

For nearly five centuries the distinctive figure in the preliminary stages of European criminal proceedings has been the investigating magistrate, known in France as the juge d'instruction. Although temporarily eclipsed by the revolutionary reforms in France in 1791, he was soon re-established. In other European countries the juge d'instruction continued to be the central figure in the preliminary procedure through all the reforms achieved by the liberal movements of the nineteenth century. The investigating magistrate has remained a purely Continental institution. In theory and in practice he embodies the essential difference between Continental and Anglo-American criminal procedure preliminary to trial.