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Full-Text Articles in Law
Post-Sentencing Appellate Waivers, Kevin Bennardo
Post-Sentencing Appellate Waivers, Kevin Bennardo
University of Michigan Journal of Law Reform
A sentencing appellate waiver is a criminal defendant’s promise not to appeal her sentence. These provisions routinely appear in federal defendants’ plea agreements. With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the waiver’s scope. Using models of judicial behavior and empirical studies, this Article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process. As a solution, the Article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.
A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer
A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer
Michigan Law Review
For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders
University of Michigan Journal of Law Reform
Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …
From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric
From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric
Michigan Journal of Race and Law
Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on …
Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle
Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle
Michigan Law Review First Impressions
In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances. Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons …
Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman
Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman
Michigan Law Review
Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated …
Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach
Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach
Michigan Journal of Gender & Law
Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the …
Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.
Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.
University of Michigan Journal of Law Reform
Occasionally, criminals correctly interpret the law while courts err. Litigation pursuant to the federal Armed Career Criminal Act (ACCA) includes numerous examples. The ACCA imposes harsher sentences upon felons in possession of firearms with prior "violent felony" convictions. Over time, courts defined "violent" so contrary to its common meaning that it eventually came to encompass driving under the influence, unwanted touching, and the failure to report to correctional facilities. However, in a series of recent decisions, the Supreme Court has attempted to clarify the meaning of violent in the context of the ACCA and, in the process, excluded such offenses. …
Crime, Criminals, And Competitive Crime Control, Wayne A. Logan
Crime, Criminals, And Competitive Crime Control, Wayne A. Logan
Michigan Law Review
Given the negative consequences of crime, it should come as no surprise that states will endeavor to make their dominions less hospitable to potential criminal actors. This predisposition, when played out on a national stage, would appear ripe for a dynamic in which states will seek to "out-tough" one another, leading to a spiral of detrimental competitiveness. Doran Teichman, in an article recently appearing in these pages, advances just such a view. Teichman posits that the decentralized structure of America's federalist system provides states with "an incentive to increasingly harshen" their crime control efforts, with the net result being excessive …
The Political Market For Criminal Justice, Rachel E. Barkow
The Political Market For Criminal Justice, Rachel E. Barkow
Michigan Law Review
In 2004, the number of individuals incarcerated in the United States exceeded the two million mark. The current incarceration rate in the United States is 726 per 100,000 residents, the highest incarceration rate in the Western world and a dramatic increase from just three decades ago. Not only are more people serving time, but sentences have markedly lengthened. What should we make of these trends? The answer has been easy for most legal scholars: to them, the incarceration rate in the United States is too high, and reforms are necessary to lower sentences. But many political leaders and voters reach …
Decentralizing Crime Control: The Political Economy Perspective, Doron Teichman
Decentralizing Crime Control: The Political Economy Perspective, Doron Teichman
Michigan Law Review
In an article recently published on the pages of this Law Review, The Market for Criminal Justice: Federalism, Crime Control, and Jurisdictional Competition ("The Market"), I put forward a theory of crime control in a decentralized government. Specifically, I made three distinct claims. First, criminal justice policies affect the geographic decision of criminals as to where to commit their crimes. Other things being equal, criminal activity will tend to shift to areas in which the expected sanction is lower. Second, local jurisdictions attempting to lower their crime rates will react to policies adopted by neighboring jurisdictions and try …
Legitimizing Error, Rebecca E. Woodman
Legitimizing Error, Rebecca E. Woodman
Michigan Law Review First Impressions
Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …
The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker
Michigan Law Review First Impressions
Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …
Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman
Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman
Michigan Law Review First Impressions
Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …
The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall
The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall
Michigan Law Review First Impressions
More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …
Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien
Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien
Michigan Law Review First Impressions
In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …
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.
Land Without Plea Bargaining: How The Germans Do It, John H. Langbein
Land Without Plea Bargaining: How The Germans Do It, John H. Langbein
Michigan Law Review
The present Article demonstrates the error of this universalist theory of plea bargaining by showing how and why one major legal system, the West German, has so successfully avoided any form or analogue of plea bargaining in its procedures for cases of serious crime. The German criminal justice system functions without plea bargaining not by good fortune, but as a result of deliberate policies and careful institutional design whose essential elements are outlined in Part I. Part II addresses the American claims that a clandestine plea bargaining system lurks behind veils of German pretense.