Law Commons^™

Restorative Federal Criminal Procedure, Leo T. Sorokin, Jeffrey S. Stein

Michigan Law Review

A Review of Until We Reckon: Violence, Mass Incarceration, and a Road to Repair. by Danielle Sered.

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.

Bail Nullification, Jocelyn Simonson

Michigan Law Review

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

Criminal Procedure, Justice, Ethics, And Zeal, Darryl K. Brown

Michigan Law Review

William Stuntz's recent article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, offers a series of thoughtful observations on the reasons that criminal procedure doctrines designed to protect defendants have done so little to improve the criminal justice system. Stuntz's article describes the unintended effects of attempts by the United States Supreme Court to improve criminal justice by closely regulating criminal procedure. That procedural focus has had perverse effects because, in a dynamic criminal justice system, other institutional players have responded to procedural rules in ways that undermine appellate courts' goals. Specifically, legislatures have reacted by expanding substantive criminal …

The Path To Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(D)(1), Sharad Sushil Khandelwal

Michigan Law Review

The enforcement of the U.S. Constitution within the criminal justice system is an odd subspecies of constitutional law. In areas other than criminal law, federal courts act as the ultimate guarantors of constitutional rights by providing remedies whenever violations occur. Criminal law, however, is different by necessity; the bulk of criminal justice occurs in state courthouses, leaving constitutional compliance largely to state judges. The U.S. Supreme Court, of course, may review these decisions if it chooses, but a writ of certiorari can be elusive, especially given the Court's shrinking docket. After World War II, however, this feature of criminal constitutional …

(Almost) Everything You Wanted To Know About Criminal Procedure, Charles F.C. Ruff

Michigan Law Review

A Review of Criminal Procedure by Wayne R. LaFave and Jerold H. Israel

Exploring The Roots Of Our Criminal Justice Systems, Samuel Walker

Michigan Law Review

A Review of The Roots of Justice by Lawrence M. Friedman and Robert V. Percival, and Conscience and Convenience by David Rothman

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 …

Book Review, Arthur H. Sherry

Michigan Law Review

A book review of Criminal Procedure by Abraham S. Goldstein and Leonard Orland, and Cases and Comments on Criminal Procedure by Fred E. Inbau, James R. Thompson, James B. Haddad, James B. Zagel and Gary L. Starkman, Modern Criminal Procedure, 4ht Ed by Yale Kamisar, Wayne R. LaFave, and Jerold H. Israel, The Process of Criminal Justice: Investigation by H. Richard Uviller, Criminal Process, 2nd Ed by Lloyd L. Weinreb

Judicial Examination Of The Accused--A Remedy For The Third Degree, Paul G. Kauper

Michigan Law Review

Reprint from 30 Michigan Law Review 1224.

In its report on "Lawlessness in Law Enforcement" the Wickersham Commission concludes that in the police systems of a number of American municipalities the "third degree" is very generally practiced as a means of extorting from accused persons under arrest confessions, incriminating statements, and other information of value to the police. The conclusion of the Commission confirms the results of private investigation made in the same field. It is true that the methods of inquiry pursued by the Commission leave doubt as to the accuracy of some of the facts reported. But the …

American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Trial By Jury (Approved Draft), Melvin M. Belli

Michigan Law Review

A Review of American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Trial by Jury (Approved Draft). Recommended by the Advisory Committee on the Criminal Trial

American Bar Association: American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Pleas Of Guilty (Tentative Draft), Donald J. Newman

Michigan Law Review

A Review of American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Pleas of Guilty (Tentative Draft)