Law Commons^™

Waiving Goodbye: Incarcerating Waived Juveniles In Adult Correctional Facilities Will Not Reduce Crime, Ellie D. Shefi

University of Michigan Journal of Law Reform

Incarcerating waived juveniles in adult correctional facilities does not reduce crime or result in increased public safety; incarcerating juveniles with adults is deleterious to both the individual offender and society. This Note argues for a renewed focus on rehabilitative rather than retributive justice, and in so doing, proposes the implementation of a comprehensive continuum of graduated sanctions that includes networks of small, secure, highly structured maximum-security juvenile facilities, wilderness camps, residential and non-residential community-based programs, restitution, and fines. This Note further advocates for the incorporation of extensive education, vocational training and placement, counseling, treatment, supervision, mentoring, transitional, aftercare, and support …

The New American Caste System: The Supreme Court And Discrimination Among Civil Rights Plaintiffs, Melissa L. Koehn

University of Michigan Journal of Law Reform

Fifteen percent of the decisions issued by the Supreme Court during its 1996-97 Term centered around section 1983. Section 1983 provides civil rights plaintiffs with a procedural mechanism for vindicating their federally protected rights, including those enshrined in the Constitution. The Court's decisions from its 1996-97 Term reflect a continuation of the alarming trend that has permeated section 1983 for the last two decades-a movement to decrease the scope of section 1983, regardless of the impact on constitutional rights. The Supreme Court appears to be creating a hierarchy both of constitutional rights and of plaintiffs: free speech and takings claims …

Furthering The Accountability Principle In Privatized Federal Corrections: The Need For Access To Private Prison Records, Nicole B. Cásarez

University of Michigan Journal of Law Reform

As American prisons face unprecedented overcrowding, both the federal and various state governments have engaged private entrepreneurs to operate correctional facilities on a for-profit basis. In the federal context, one overlooked consequence of prison privatization involves decreased public access to prison records. When a federal agency delegates a public function, like the provision of correctional services, to a private contractor, the agency frustrates the purpose of the Freedom of Information Act. Prison records that otherwise would have been available to the public become insulated from disclosure by virtue of the contractor's nonagency status. To safeguard prisoners' liberty interests and well-being, …

Lawyers At The Prison Gates: Organizational Structure And Corrections Advocacy, Susan P. Sturm

University of Michigan Journal of Law Reform

This Article attempts to fill the gaps in the discussion of public interest advocacy by exploring the roles of various legal organizations in providing representation to inmates challenging the conditions and practices in prisons, jails, and juvenile justice institutions. It is an outgrowth of a study conducted for the Edna McConnell Clark Foundation on the extent and quality of representation in corrections litigation. It puts forward an organizational change model of public interest advocacy as the most promising strategy for legal representation in the corrections area. It then identifies the major organizational providers of representation, assesses where they fall on …

Evaluating The Fourth Amendment Exclusionary Rule: The Problem Of Police Compliance With The Law, William C. Heffernan, Richard W. Lovely

University of Michigan Journal of Law Reform

Part I of this article reviews background matters bearing on our research - in particular, we discuss the Court's framework for analyzing exclusion as a deterrent safeguard, the research questions that need to be raised within that framework, and the research strategy we adopted in light of the Court's approach to exclusion. Part II analyzes our findings on police knowledge of the rules of search and seizure. Part III analyzes our findings on officers' willingness to obey the law. Part IV evaluates our findings in light of policy questions concerning the exclusionary rule. We consider whether the Court should retain …

Clearing The Roadblocks To Sobriety Checkpoints, Mark R. Soble

University of Michigan Journal of Law Reform

This Note examines the constitutional and policy implications of sobriety checkpoints. Part I discusses the competing interests involved in implementing sobriety checkpoints. Part II presents an appropriate constitutional standard for judging sobriety checkpoints. Part III proposes reform-oriented measures that conform to constitutional guidelines. This Note concludes that properly conducted sobriety checkpoints are constitutional.

A Mandatory Right To Counsel For The Material Witness, Susan Kling

University of Michigan Journal of Law Reform

This Note argues that a uniform statute establishing a mandatory right to counsel should be adopted, at both the state and federal levels, to afford to the material witness protection that the Constitution fails to provide. Part I describes the general scope of the problem and concludes that neither the federal government, the individual states, nor the United States Constitution provides the material witness with a mandatory right to counsel. Part II argues that the material witness should have a statutorily mandated right to counsel. A mandatory right to counsel should be extended to the material witness both for the …

Rejoinder: Truth, Justice, And The American Way--Or Professor Haddad's "Hard Choices", John M. Burkoff

University of Michigan Journal of Law Reform

I frankly think that Professor Haddad's response to my article on pretext searches is first-rate. It is articulate; it is thoughtful and scholarly; it sharpens the issues and the analysis in this area; and, for the most part, I think his criticisms of various portions of my own work present my positions fairly and honestly. On the other hand, I think that Professor Haddad is dead wrong.

Pretextual Fourth Amendment Activity: Another Viewpoint, James B. Haddad

University of Michigan Journal of Law Reform

Pretextual detentions, arrests, and searches pose knotty fourth amendment problems. With an air of plausibility, defense attorneys often accuse police of pretextual use of arrest warrants, search warrants, and various exceptions to the warrant requirement. Specifically, they contend that officers have utilized a particular fourth amendment doctrine to obtain certain evidence even though courts have not assigned as a reason for approving the doctrine the need to discover such evidence.

Public Employees Or Private Citizens: The Off-Duty Sexual Activities Of Police Officers And The Constitutional Right Of Privacy, Michael A. Woronoff

University of Michigan Journal of Law Reform

This Note proposes a framework for dealing with problems in this area in a manner which best balances the competing interests involved. It argues that, while there is no explicit constitutional guarantee of privacy, the state is not free to regulate all aspects of a police officer's otherwise legal, off-duty, sexual activity. Part I of the Note examines several possible sources of a constitutional right of privacy. It concludes that, although many of the courts which invalidate state regulation of police officers' off-duty sexual activity do so on the basis of some constitutional right of privacy, any implied fundamental right …

The Applicability Of Miranda Warnings To Non-Felony Offenses: Is The Proper Standard "Custodial Interrogation" Or "Severity Of The Offense"?, Kenneth W. Gaul

University of Michigan Journal of Law Reform

This Note argues that the proper standard for determining the necessity of the Miranda warnings for any offense is the existence of custodial interrogation. When interrogation for non-felony offenses takes place in a custodial atmosphere, Miranda warnings should be required, as they are for more serious offenses. Part I summarizes the two basic approaches taken by courts that have confronted the question of the applicability of the Miranda warnings to non-felony offenses. Part Ill argues that neither the rationale for the Miranda doctrine nor the roots of the fifth amendment support a distinction based on the severity of the offense …

Probable Cause And Common Sense: A Reply To The Critics Of Illinois V. Gates, Joseph D. Grano

University of Michigan Journal of Law Reform

Part I of this article reviews Gates's actual holding. Although one can view much of the Court's more interesting discussion of the two-pronged test as dicta, the majority and dissenters clearly did not regard it as such. The majority and dissenters disagreed, however, not only over the appropriate hearsay test but, more fundamentally, over the nature of probable cause itself. I will argue that one must resolve this more basic disagreement before properly addressing the hearsay issue.

Part II examines probable cause from an historical perspective. In this part, I attempt to demonstrate that both the English common law …

"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave

University of Michigan Journal of Law Reform

This seizures typology constitutes a most important part of extant fourth amendment doctrine. The precision with which and perspective from which such classifications are drawn is obviously a matter of considerable interest to the police, who must in the first instance resolve these warrant, grounds, and search issues. It is also an appropriate subject of broader concern, as the shape of these categories has a critical bearing upon the effectiveness of our law enforcement processes and the extent of our protected liberty and privacy. The following comments are directed to this seizures typology.

The Pretext Search Doctrine: Now You See It, Now You Don't, John M. Burkoff

University of Michigan Journal of Law Reform

One can only hope, to put it bluntly, that the Supreme Court majority in Villamonte-Marquez did not mean what it seemed to have said. Indeed, there is some evidence that this is precisely the case. In the same Term Villamonte-Marquez was decided, the Court also decided Texas v. Brown. In Brown, the Supreme Court continued to recognize and respond to the problem of pretext searches. In other words, the Court still acts as if the pretext search doctrine remains vital, despite the apparent body blow delivered to it in Scott and Villamonte-Marquez. The remainder of this Article …

The Fourth Amendment And The Control Of Police Discretion, William J. Mertens

University of Michigan Journal of Law Reform

The fourth amendment protects the security of people's "persons, houses, papers, and effects" in two distinct (if overlapping) ways. First, it requires a sufficiently weighty public interest before the government's agents are allowed to search or seize. Thus, for example, probable cause is required for arrest. Whatever uncertainty there may be in the phrase "probable cause" (and, for that matter, however indefinite the idea of "arrest" may have become), in this context, at least, the probable cause standard requires the demonstration of objective facts that point with some probability to the guilt for some particular offense of the person arrested. …

Developing A Victims' Suit For Injuries Caused By A Compulsorily Released Prisoner, Leonard M. Niehoff

University of Michigan Journal of Law Reform

This Note advocates the development of a tort remedy for victims injured by a compulsorily released prisoner. This remedy would be based on existing tort theory permitting suits against third parties whose negligence causes or facilitates a criminal act. The victim would bring suit against both the state and third parties who aided in the criminal release determination . To support his claim, the victim would allege: (1) that state officials negligently selected the offending inmate for early release; and (2) that the state negligently maintained the unconstitutional prison conditions which precipitated the release.

Part I of this Note discusses …

Relief For Prison Overcrowding: Evaluating Michigan's Accelerated Parole Statute, Frank T. Judge Iii

University of Michigan Journal of Law Reform

This Note describes and analyzes Michigan's Prison Overcrowding Emergency Powers Act. Part I reviews briefly current efforts to relieve prison overcrowding and concludes that traditional remedies are largely inadequate. Part II examines the early prisoner release statute and its implementation. Finally, Part III evaluates the statute's success in relieving prison overcrowding .

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

The Privacy Protection Act Of 1980: Curbing Unrestricted Third-Party Searches In The Wake Of Zurcher V. Stanford Daily, Jose M. Sariego

University of Michigan Journal of Law Reform

This article analyzes the Privacy Protection Act as a response to Zurcher. Part I discusses the Zurcher decision and its effect on First and Fourth Amendment rights, as well as its impact on state testimonial privileges. Part II critically examines key features of the statute, focusing on the parties and materials protected, the police practices regulated, the remedies provided for violations, and the Act's constitutional underpinnings. Part II also offers suggestions for remedying the problems the Act currently presents. The article concludes that the Privacy Protection Act, while a necessary first step to minimizing the impact of Zurcher, is …

Police Use Of Cctv Surveillance: Constitutional Implications And Proposed Regulations, Gary C. Robb

University of Michigan Journal of Law Reform

This article evaluates the constitutionality of CCTV "searches." Part I discusses the present uses being made of closed circuit technology and evaluates the merits of the CCTV surveillance system. The critical policy trade-off is the system's effectiveness in combatting crime against the resulting loss of privacy to individual citizens.

Part II considers the constitutional implications of CCTV use in terms of three major doctrines: the Fourth Amendment prohibition against "unreasonable searches and seizures"; the constitutional right of privacy; and the First Amendment guarantees of free speech and association. This part briefly summarizes the state of the law concerning these constitutional …

The Right To Counsel In Police Interrogation Cases: Miranda And Williams, Mitchell Leibson Chyette

University of Michigan Journal of Law Reform

This article will consider some of the theoretical and practical ramifications of the Williams decision and compare its protections to the protections offered by Miranda. The article, focussing on the right to counsel, discusses the nature of the police conduct which is prohibited by each decision, the time at which the protections involved become effective, and the standard by which a waiver of the rights will be measured. The article concludes that there may be significant differences in the application of the two cases and that a uniform rule based on the sixth amendment may be superior to the …

Subsequent Use Of Electronic Surveillance Interceptions And The Plain View Doctrine: Fourth Amendment Limitations On The Omnibus Crime Control Act, Raymond R. Kepner

University of Michigan Journal of Law Reform

Despite the critical examination to which many sections of Title III have been subjected, section 2517(5) has received little serious scrutiny from either the courts or the commentators. This note will analyze the constitutionality of the section in terms of the standards which the Supreme Court has articulated, both with respect to the law of search and seizure generally and with respect to electronic surveillance. This examination will reveal that section 2517(5) cannot be sustained under the existing contours of fourth amendment interpretation.

Standards For Accepting Guilty Pleas To Misdemeanor Charges, Richard A. Kopek

University of Michigan Journal of Law Reform

The guilty plea-not the trial-is the most common manner of disposing of criminal cases in America. It has been estimated that 90 percent of all convictions and 95 percent of misdemeanor convictions are the result of guilty pleas. Various reasons have been advanced to explain this heavy reliance on the guilty plea. For example, it avoids the drain on judicial resources that would occur if all cases had to be tried. In addition, it eliminates the risks and uncertainties of trials and permits flexibility in sentencing. Because of the prevalence of guilty pleas, there must be procedural safeguards to insure …

Protection Of Privacy Of Computerized Records In The National Crime Information Center, Stuart R. Hemphill

University of Michigan Journal of Law Reform

The purpose of this article is to describe the social benefits and costs of the NCIC and to indicate the need for a program of operational controls to temper the system's impact on the balance between individual privacy and law enforcement needs. Various approaches which could be incorporated into a program of safeguards are introduced and briefly analyzed. Finally, the article discusses several overall design issues which should be considered in the construction of an adequate program of safeguards. Particular emphasis is placed on the NCCH file since it is the major source of the tensions underlying the issues addressed.

Elevation Of Entrapment To A Constitutional Defense, Robert H. Thomson Iii

University of Michigan Journal of Law Reform

The issue of entrapment arises initially as a defense when a person is accused of committing a criminal act in which government agents solicited, and perhaps actively participated in, the conduct for which the defendant stands accused. Classic entrapment situations occur when law enforcement officers, through agents or informers, solicit an illegal transaction, such as the sale of contraband. The evidence thereby obtained is used to support the prosecution of the individual accepting the solicitation. Solicitation is an important technique of law enforcement because evidence of illegal transactions is often impossible to obtain by other methods. Certain uses of solicitation …

Minimum Wages For Prisoners: Legal Obstacles And Suggested Reforms, James J. Maiwurm, Wendy S. Maiwurm

University of Michigan Journal of Law Reform

The growing literature on prisoners' rights has not yet focused on inmates' demands for minimum wages and the justification for such demands. This article explains why statutory minimum wage coverage should be extended to inmates, discusses the judicial treatment of prison labor and the minimum wage question, advocates adoption of legislation now pending in Congress, and suggests further legislative reform necessary to implement the minimum wage proposal. Many conditions in our prison system are undoubtedly more harmful and degrading than lack of meaningful wages. This article focuses on only one feasible reform, not on the priorities of prison reform in …

Legal Rights In A Juvenile Correctional Institution, Matthew L. Myers

University of Michigan Journal of Law Reform

This article focuses on the effect on juvenile correctional institutions of the erosion of the "hands-off" doctrine and the introduction of procedural safeguards in the juvenile justice system. In so doing, the article examines the difficulties inherent in any attempt to reform institutional practices and procedures to accommodate the goals of the juvenile correctional model. In the juvenile context, the extent to which fundamental rights need or may be abrogated to allow the institution freedom to rehabilitate and treat its inmates is crucial. Therefore, this article examines three areas involving fundamental constitutional rights: imposition of punitive segregation, freedom of communication, …

The Concept Of Privacy And The Fourth Amendment, Steven C. Douse

University of Michigan Journal of Law Reform

This Article attempts at a minimum to offer a common background and frame of reference for defining and comparing myriad facets of the law. If successful, they furnish a model for the integration of these many facets. This inquiry begins with an examination of the proposition that the essence of the fourth amendment is protection of a right of privacy. The concept of privacy is then defined and elaborated, both without and within the constitutional context. These conclusions are further extended in an exploration of mechanisms for defining the invasions and protection of fourth amendment privacy.

Police Initiated Emergency Psychiatric Detention In Michigan, Mark F. Mehlman

University of Michigan Journal of Law Reform

While performing his duties a police officer may frequently be confronted with the behavior of an individual which threatens or has resulted in self-inflicted injury, or which poses an imminent threat to the safety of others. Under such circumstances an officer may determine that criminal arrest is inappropriate but that some form of restraint is necessary. Michigan has provided an alternative course of action by authorizing temporary emergency psychiatric detention of an individual whom a police officer deems to be "mentally ill and manifesting homicidal or other dangerous tendencies."

The Parole Board's Duty Of Self-Regulation, John P. Quinn

University of Michigan Journal of Law Reform

This article examines the Michigan Parole Board in terms of its structure, mode of operation, and certain legal issues raised by its procedures. The note argues that the Board's and the legislature's concept of professional, scientific decision-making is not an adequate substitute for the checks and balances which confine and control the discretion of other governmental agencies, and furthermore, that this concept is inconsistent with both the letter and spirit of the Michigan Administrative Procedures Act (MAPA or Act). Thereafter, an approach is suggested by which the Act can be used as a tool to legitimate and rationalize Parole Board …