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Screening, Plea Bargains And The Innocent Problem, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

Courts in common law countries reject plea-agreements only when the agreed upon sentence is seen as exceedingly lenient. This judicial intervention is designed to ensure that plea-bargaining does not undermine deterrence. Many legal scholars argue against this policy, claiming that courts should prohibit plea-bargaining all together. They argue that the plea-bargaining system increases the risk of wrongful convictions. Economists often criticize this judicial intervention as well, but for a different reason. Rather than advocating the abolition of plea-bargaining, many economists argue that the courts should accept all plea-agreements without review. They claim that plea-bargaining can help ensure an efficient use …

Corporate Defendants And The Protections Of Criminal Procedure: An Economic Analysis, Vikramaditya S. Khanna

Law & Economics Working Papers Archive: 2003-2009

Corporations are frequently treated as “persons” under the law. One of the fundamental questions associated with this treatment is whether corporations should receive the same Constitutional protections and guarantees as natural persons. In particular, should corporations receive the Constitutional protections of Criminal Procedure? After all, corporations cannot be sent to jail so the sanctions they face are essentially the same as in civil proceedings. If so, then why not have the same procedural protections for corporate defendants in civil and criminal cases? Little scholarly analysis has focused on this issue from an economic perspective and this article aims to fill …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

Sex, Shame, And The Law: An Economic Perspective On Megan's Law, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

This Article focuses on the question, how should policymakers aiming to minimize the cost of sanctioning utilize legal and nonlegal sanctions when designing a system of criminal sanctions. After presenting the general economic case for the use of nonlegal sanctions the article turns to present a model of shaming, which unlike existing models, incorporates the endogenous effects of legal and nonlegal sanctions. This model demonstrates that tailoring an efficient regime that combines legal and nonlegal sanctions might be more difficult than previously perceived by law and economics scholars. A specific case study presented in this article is of the current …

Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon

University of Michigan Journal of Law Reform

Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.

The …

Two Standards Of Competency Are Better Than One: Why Some Defendants Who Are Not Competent To Stand Trial Should Be Permitted To Plead Guilty, Jason R. Marshall

University of Michigan Journal of Law Reform

This Note argues that the present uniform standard of competency, competence to stand trial, be abolished in favor of two standards: competence to stand trial and competence to plea bargain. Part I traces the history of the competency standard by exploring its common law origins, the Supreme Court rulings that frame the debate, an academic reformulation of the competency inquiry, and the interests protected by requiring that defendants be competent to proceed through the criminal process. Part II contrasts the cognitive abilities, capacity to communicate with counsel, and courtroom behavior of defendants standing trial with those qualities required of defendants …

Pleas' Progress, Stephanos Bibas

Michigan Law Review

George Fisher's new book, Plea Bargaining's Triumph, is really three books in one. The first part is a careful, detailed explanation of how and why plea bargaining exploded in Middlesex County, Massachusetts in the nineteenth century. This part is the fruit of an impressive amount of original research in Massachusetts court records and newspaper archives. The second part of the book looks more broadly at other academic histories of plea bargaining in England, California, and New York. It explains how the forces that produced plea bargaining in Middlesex County likewise contributed to plea bargaining's rise elsewhere. The final part …

Justice In The Time Of Terror, Sharon L. Davies

Michigan Law Review

On my drive into work recently I found myself behind a Ford pickup truck and noticed its bumper sticker: "When the going gets tough, I get a machine gun." Not a doctor. Not a counselor or mediator. Not a shelter for cover. Not the wisdom of a favored advisor or a proven friend. But a machine gun. How odd, I thought, to prefer a weapon incapable of identifying with any precision, any careful thought, where the enemy of the wielder of it might actually be hidden. A weapon as apt to injure non-targets as targets. A weapon mindless of its …

Hearing The Danger Of An Armed Felon- Allowing For A Detention Hearing Under The Bail Reform Act For Those Who Unlawfully Possess Firearms, Matthew S. Miner

University of Michigan Journal of Law Reform

This Article advocates an interpretation of the Bail Reform Act that affords courts the ability to hold detention hearings in gun crime cases to evaluate defendants' potential danger to the community. According to an interpretation advanced by some courts, gun possession offenses do not constitute "crimes of violence" within the meaning of the Act and therefore those charged with such crimes, even ifth ey have a prior felony conviction, are not subject to pre-trial detention. Arguing against this approach, the Article looks to the Bail Reform Act, the relevant federal case law, and the alarming statistics concerning the growing use …

Sexual Slavery And The International Criminal Court: Advancing International Law, Valerie Oosterveld

Michigan Journal of International Law

This Article explores the advancement of the international crime of sexual slavery, from its initial inclusion in the Rome Statute of the International Criminal Court through further development in the delineation of the ICC's Elements of Crime document. This Article begins with a detailed exploration of the negotiation process that led to the inclusion of the crime of sexual slavery in the Rome Statute. The first Section describes the decision to include both sexual slavery and enforced prostitution as crimes, as well as the debate on listing sexual slavery as a crime separate from that of enslavement. Next, the Section …

Continuing Crimes In The Rome Statute, Alan Nissel

Michigan Journal of International Law

One of the most ambitious goals of the International Criminal Court is to balance the ideal of ending impunity with the legalistic protection of the accused from the arbitrary application of law. Accordingly, the main task of this Article will be to determine when continuing crimes will fall under the jurisdiction of the International Criminal Court according to the established primary and secondary sources of international law-i.e., within the rule of law.