Law Commons^™

Failed Protectors: The Indian Trust And Killers Of The Flower Moon, Matthew L.M. Fletcher

Michigan Law Review

Review of David Grann's Killers of the Flower Moon: The Osage Murders and the Birth of the FBI.

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Michigan Law Review

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

Race And Wrongful Convictions In The United States, Samuel R. Gross, Maurice Possley, Klara Stephens

Other Publications

African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations.” We see this racial disparity for all major crime categories, but we examine it in this report in the context of the three types of crime that produce the largest numbers …

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 …

Process Costs And Police Discretion, Charlie Gerstein, J. J. Prescott

Articles

Cities across the country are debating police discretion. Much of this debate centers on “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point. Rather, public order offenses are enforced prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process. These “process costs” are significant; they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant. But the ongoing debate about police discretion has ignored the centrality of these …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

Waylaid By A Metaphor: A Deeply Problematic Account Of Prison Growth, John F. Pfaff

Michigan Law Review

The incarceration rate in the United States has undergone an unprecedented surge since the 1970s. Between 1925 and 1975, the U.S. incarceration rate hovered around 100 per 100,000. Since then, that rate soared to 504 in 2009, dropping only slightly to 500 in 2010. In absolute numbers, the U.S. prison population grew from 241,000 in 1975 to 1.55 million in 2010. Not just exceptional by historical standards, this boom is unparalleled globally: the United States has the highest incarceration rate in the world. Despite having just 5 percent of the world's population, it houses nearly 25 percent of the world's …

Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan

University of Michigan Journal of Law Reform Caveat

One of the lasting vestiges of Richard Nixon’s presidency is the infamous “War on Drugs,” a forty-year-old effort aimed at curtailing “illicit drug consumption and transactions in America.” Although the goal behind the policy—a reduction in the rate of substance abuse—may be altruistic, the War on Drugs has dismally failed to achieve its goals and has exacerbated existing problems. Specifically, laws dealing with crack cocaine result in a “heavily disproportionate impact on black defendants;” in 2008 “blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses,” whereas “whites comprised only 10.4 percent.” More generally, these laws illustrate a fundamental …

¡Silencio! Undocumented Immigrant Witnesses And The Right To Silence, Violeta R. Chapin

Michigan Journal of Race and Law

At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's inmigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report …

Unusual Suspects: Recognizing And Responding To Female Staff Perpetrators Of Sexual Misconduct In U.S. Prisons, Lauren A. Teichner

Michigan Journal of Gender & Law

Despite the general public's ignorance of this issue of sexual misconduct perpetrated by female prison staff against male inmates, such stories are remarkably familiar to those who study or work in the world of prisons. The Prison Rape Elimination Act ("PREA") of 2003 mandated that the Bureau of Justice Statistics ("the Bureau") undertake new studies of sexual violence in prisons. Accordingly, the Bureau released a report in July 2006 revealing some groundbreaking data. Of the 344 substantiated allegations of staff-on-inmate sexual violence made in federal, state, and private prisons in 2005, 67% of the overall victims were male inmates and …

Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort

Articles

Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …

Exonerations In The United States 1989 Through 2003, Samuel R. Gross, Kriten Jacoby, Daniel J. Matheson, Nicholas Montgomery, Sujata Patil

Articles

On August 14, 1989, the Cook County Circuit Court in Chicago, Illinois, vacated Gary Dotson's 1979 rape conviction and dismissed the charges.1 Mr. Dotson-who had spent ten years in and out of prison and on parole for this conviction-was not the first innocent prisoner to be exonerated and released in America. But his case was a breakthrough nonetheless: he was the first who was cleared by DNA identification technology. It was the beginning of a revolution in the American criminal justice system. Until then, exonerations of falsely convicted defendants were seen as aberrational. Since 1989, these once-rare events have become …

The Unknown Past Of Lawrence V. Texas, Dale Carpenter

Michigan Law Review

On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Gamer having anal sex. This violated the Texas Homosexual Conduct law, and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights. So goes the legend of Lawrence v. Texas. Do not believe it. …

Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Bames

Articles

Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today... the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that."4 Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It never has been con-doned …

"Suitable Targets"? Parallels And Connections Between "Hate" Crimes And "Driving While Black", Lu-In Wang

Michigan Journal of Race and Law

This Essay seeks to show that there is less to some of these apparent differences than meets the eye. While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied bias-motivated violence and of legal scholars who have studied racial profiling- prominent among them my fellow panelist, Professor David A. Harris- reveals striking similarities and connections between the two practices. In particular, both hate crimes and racial profiling tend to be condemned only at …

The Punishment Of Hate: Toward A Normative Theory Of Bias-Motivated Crimes, Frederick M. Lawrence

Michigan Law Review

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between …

The Politics Of Predicting Criminal Violence, Sheri Lynn Johnson

Michigan Law Review

A Review of The Prediction of Criminal Violence by Fernand N. Dutile and Cleon H. Foust

Some Impressions And Reflections On Observing Legal Proceedings In The People's Republic Of China, Christina B. Whitman, Sallyanne Payton

Articles

Very few foreign visitors have been allowed an opportunity to observe legal proceedings in the People's Republic of China. We were included in the first American group ever favored with a professional exchange legal tour. During the month of May 1977, we spent three weeks in China with a group of Black American judges and lawyers, headed by the Hon. George C. Crockett, Jr., Judge of the Recorder's Court of Detroit. Since we ourselves would be skeptical of the claim of a visitor to the United States who purported to have "studied" the American legal process during the course of …

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 …

Short-Term Rehabilitation And Crim Prevention, Jon C. Mackay

University of Michigan Journal of Law Reform

Any program designed to reduce the rate of recidivism in the United States must be viewed as a valuable tool of crime prevention. It can be safely said that at least two-thirds of the crimes committed every year are committed by recidivists, for over the past decade approximately fifty to sixty per cent of all offenders have become repeaters. Thus the elimination of the recidivist in our society would result in a minimum reduction of thirty-three per cent in the number of crimes committed over a given period of time. The task of eliminating recidivism has been left to the …

Theory And Application Of Roscoe Pound's Sociological Jurisprudence: Crime Prevention Or Control?, Louis H. Masotti, Michael A. Weinstein

University of Michigan Journal of Law Reform

The current interest in reforming the administration of justice has been triggered by a number of factors including the 1967 report of the President's Commission on Law Enforcement and the Administration of Justice and the treatment afforded arrestees during the civil disorders of the past few years. The nation is alarmed at the reported annual increases in crime, and this alarm was manifested in the 1968 presidential election when "law and order" became a major issue. Superficially the answer may seem clear: more effective enforcement of the law and, when necessary, more stringent laws. The critical issue, however, is a …