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Full-Text Articles in Law

Why Arrest?, Rachel A. Harmon Dec 2016

Why Arrest?, Rachel A. Harmon

Michigan Law Review

Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as …


A Legal Obituary For Ramiro, Sheri Lynn Johnson Sep 2016

A Legal Obituary For Ramiro, Sheri Lynn Johnson

University of Michigan Journal of Law Reform

Most death penalty lawyers who practice long enough will watch the execution of a client. It is always, always terrible, but not always terrible in the same way. With each client’s execution, a lawyer is confronted with the death of a human being—not an accidental death, not an inevitable death, but an avoidable one—and with his or her own failure to prevent that death. Some executions also involve a very personal loss for the lawyer because of their relationship with the client. Other executions are horrific because things go awry and impose extreme suffering on the executed individual. No matter …


Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman Jun 2016

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.


Creating (And Teaching) The "Bail-To-Jail" Course, Jerold H. Israel Apr 2016

Creating (And Teaching) The "Bail-To-Jail" Course, Jerold H. Israel

Articles

Yale Kamisar has explained how events that occurred about fifty years ago led to the creation of a stand-alone criminal procedure course and, a few years later, led to the division of that stand-alone course into two courses. The second of those courses came to be called, almost from the outset, the "Jail-to-Bail" course. My focus today is on why that course was created and how it was shaped. Modern Criminal Procedure, as Yale has noted, was the first coursebook designed for a stand-alone course in criminal procedure. Modern was published in 1966. A year earlier, the first version …


Too Vast To Succeed, Miriam H. Baer Apr 2016

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, …


Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus Jan 2016

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …


Search Incident To Probable Cause?: The Intersection Of Rawlings And Knowles, Marissa Perry Jan 2016

Search Incident To Probable Cause?: The Intersection Of Rawlings And Knowles, Marissa Perry

Michigan Law Review

The search incident to arrest exception authorizes an officer to search an arrestee’s person and his or her area of immediate control. This exception is based on two historical justifications: officer safety and evidence preservation. While much of search incident to arrest doctrine is settled, tension exists between two Supreme Court cases, Rawlings v. Kentucky and Knowles v. Iowa, and a crucial question remains unanswered: Must an officer decide to make an arrest prior to commencing a search? In Rawlings, the Supreme Court stated that a search may precede a formal arrest if the arrest follows quickly thereafter. In Knowles, …


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 Jan 2016

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 …


Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel Jan 2016

Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel

Michigan Law Review

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the confession …