Criminal Law Commons^™

Territoriality In American Criminal Law, Emma Kaufman

Michigan Law Review

It is a bedrock principle of American criminal law that the authority to try and punish someone for a crime arises from the crime’s connection to a particular place. Thus, we assume that a person who commits a crime in some location— say, Philadelphia—can be arrested by Philadelphia police for conduct deemed criminal by the Pennsylvania legislature, prosecuted in a Philadelphia court, and punished in a Pennsylvania prison. The idea that criminal law is tied to geography in this way is called the territoriality principle. This idea is so familiar that it usually goes unstated.

This Article foregrounds and questions …

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional …

Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden

University of Michigan Journal of Law Reform

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes' ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law's disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on …

Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala

University of Michigan Journal of Law Reform Caveat

One in three Native American women has been raped or has experienced an attempted rape. Federal officials also failed to prosecute 75% of the alleged sex crimes against women and children living under tribal authority. The Senate bill to reauthorize the 1994 Violence Against Women Act (VAWA) could provide appropriate recourse for Native American women who are victims of sexual assault. This bill (S. 1925), introduced in 2011, would grant tribal courts the ability to prosecute non-Indians who have sexually assaulted their Native American spouses and domestic partners. Congress has quickly reauthorized the Violence Against Women Act twice before. But …

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter …

The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman

Michigan Law Review

Part I introduces the concepts of jurisdictional competition and crime displacement and argues that, as a positive matter, a decentralized criminal justice system may create a competitive process among the different units composing it, in which each such unit attempts to divert crime to neighboring communities. Part II then turns to evaluate the normative aspects of jurisdictional competition in the area of criminal justice. In this context I will show that competition can have both advantages and disadvantages. On one hand, the forces of competition might drive jurisdictions to fight crime efficiently, since any jurisdiction that functions inefficiently will suffer …

The Market For Criminal Justice: Federalism, Crime Control And Jurisdictional Competition, Doron Teichman

Law & Economics Working Papers Archive: 2003-2009

For the most part, the United States has a decentralized criminal justice system. State legislatures define the majority of crimes and set out the punishments for those crimes. In addition, the enforcement of criminal laws lies, in most cases, in the hands of local law enforcement agencies. This article points out how this decentralized structure drives local jurisdictions to harshen their criminal justice system in order to displace crime to neighboring jurisdictions. More precisely, local jurisdictions can attempt to displace crime in two distinct ways. First, they can raise the expected sanction to a level that is higher than that …

Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon

University of Michigan Journal of Law Reform

Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.

The …

Continuing Crimes In The Rome Statute, Alan Nissel

Michigan Journal of International Law

One of the most ambitious goals of the International Criminal Court is to balance the ideal of ending impunity with the legalistic protection of the accused from the arbitrary application of law. Accordingly, the main task of this Article will be to determine when continuing crimes will fall under the jurisdiction of the International Criminal Court according to the established primary and secondary sources of international law-i.e., within the rule of law.

Some Troubling Elements In The Treaty Language Of The Rome Statute Of The International Criminal Court, Catherine R. Blanchet

Michigan Journal of International Law

This Note will examine problems that arise from the language of the Rome Statute itself. Part II will examine the potential strategic uses of the Rome Statute's jurisdictional aspects. It will also examine how the fairness concerns raised by this potential usage are exacerbated when the potential State abuser is a permanent member of the Security Council. Part III will look at the language of the Rome Statute's definition of crimes against humanity. It will also examine the various and varying interpretations of this language by the scholars and commentators who have examined the issue.

A Community Of Courts: Toward A System Of International Criminal Law Enforcement, William W. Burke-White

Michigan Journal of International Law

This Article argues that, for political reasons, the future of international criminal law enforcement will largely be at the domestic level. It anticipates the emergence of a community of courts-domestic, semi-internationalized, and supranational. A decentralized system of international criminal law enforcement may give pause for concern: How can such a system be regulated? How can uniformity and effectiveness be assured? It is the claim of this Article that, in a world in which information is power, the relationships between these courts-the exchange of information, ideas, and personnel-brings order and regularity to the system. These interdependent relationships are defined by the …

The Statute Of The International Criminal Court And Third States, Gennady M. Danilenko

Michigan Journal of International Law

This paper examines the principal legal and political effects of the Rome Statute on non-parties. In particular, it explores the significance of the creation of a new powerful international institution for all members of the international community. It discusses the jurisdictional reach of the ICC which will inevitably affect all States. This paper also analyzes possible application of some provisions of the Rome Statute to non-States Parties in so far as these may reflect or generate customary international law. It suggests that despite the traditional principle of treaty law, according to which treaties do not bind Third States, the Rome …

Extraterritorial Application Of Rico: Protecting U.S. Markets In A Global Economy, Kristen Neller

Michigan Journal of International Law

The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted by Congress in 1970 to combat organized crime in America. Since its enactment, it has been used extensively in both the civil and criminal arenas. With the participation of foreign corporations, foreign subsidiaries, and foreign actors in general in the U.S. economy, it is only a matter of time before foreign defendants will be sued under RICO. This Note will discuss whether RICO should be applied extraterritorially: that is, whether federal courts should assume jurisdiction over foreign entities as defendants in RICO claims. First, RICO's language, legislative history and application …

The Contours Of Extraterritorial Jurisdiction In Drug Smuggling Cases, Stephen E. Chelberg

Michigan Journal of International Law

This note examines the contours of U.S. jurisdiction over drug smugglers on the high seas. After a brief discussion of the two principal U.S. drug statutes, the note considers the territorial and protective principles of jurisdiction as defined by U.S. courts. Controversy currently centers around whether U.S. drug laws apply to foreign ships, carrying controlled substances on the high seas, where there has been no showing of an intent to import the drugs into the United States.

Index, Michigan Journal Of International Law

Michigan Journal of International Law

Index of terms used in this volume.

Military Law--Military Jurisdiction Over Crimes Committed By Military Personnel Outside The United States: The Effect Of O'Callahan V. Parker, Michigan Law Review

Michigan Law Review

Until recently, it had generally been considered that the minimum condition necessary to justify the invocation of military jurisdiction was the offender's "status" as "a person who can be regarded as falling within the term 'land and naval forces.' " In O' Callahan v. Parker, however, the United States Supreme Court determined that while military status is still requisite to the attachment of military jurisdiction, it is not a sufficient basis in and of itself to warrant trial by a military tribunal. In a five to three decision authored by Justice Douglas, the Court held that in order for military …

Contempt-Conduct Tending To Defeat The Effect Of Appeal Pending In Federal Circuit Court Held To Be Civil Contempt Even Though Not A Resistance To A Formal Court Order- Griffin V. County School Board, Michigan Law Review

Michigan Law Review

Appellants applied for an injunction in a federal district court in Virginia to prevent the Prince Edward County Board of Supervisors from paying out tuition grants to parents whose children attended private segregated schools. The district court refused to issue the injunction, and the appellants appealed. They asked to have their appeal accelerated, but, since the Court of Appeals for the Fourth Circuit was not then in session, the Chief Judge requested the Clerk of Court to ask the Board of Supervisors to stipulate that no tuition grants would be paid pending the appeal. The Board refused to make the …

Extraterritorial Application Of Penal Legislation, B. J. George Jr.

Michigan Law Review

One of the most difficult words in the legal lexicon to delineate is the term "jurisdiction"; it is equally difficult to relate this term to the concept of "venue." The term "jurisdiction" is constantly invoked by courts in a variety of contexts, some relating to geography, some to governmental and judicial structure, some to legislative or judicial power, some to persons, and some to procedures. Thus, it is difficult to discern a common thread of meaning or a consistent pattern of application from the cases in which the word appears.

Crimes Against Humanity And The Principle Of Nonextradition Of Political Offenders, Manuel R. Garcia-Mora

Michigan Law Review

It is thus the purpose of this article to discuss the nature of crimes against humanity in an effort to determine whether they can be classified as political offenses. It is hoped that from the uncertainty and confusion which appear to underlie the practice of the State, some useful legal principles may be extracted.

Bankruptcy-Fradulent Transfers-Venue For Plenary Actions Under Section 70(E), Martin B. Dickinson Jr.

Michigan Law Review

Plaintiff trustee in bankruptcy brought a plenary action under section 70(e) of the Bankruptcy Act in the Federal District Court for the Northern District of Illinois for recovery of fraudulently transferred property located within the district. The defendants were citizens of Illinois, except the bankrupt's daughter, a California citizen. The district court granted the daughter's motion to dismiss for lack of venue. On appeal, held, reversed and remanded. Sections 23(b) and 70(e)(3) of the Bankruptcy Act exclude actions under section 70(e) from the requirements of the general venue provision of Title 28, U.S.C.; in all cases under section 70(e) …

Labor Law--Federal Pre-Emption--State Jurisdiction To Prosecute Labor Organizers For Criminal Trespass, John W. Galanis

Michigan Law Review

Defendants, non-employee union organizers, entered the parking lot of a retail department store without permission for the sole purpose of distributing union material to the store's employees. After continued refusal to comply with requests to leave, the defendants were arrested, tried, and convicted of criminal trespass. It was contended that the trial court lacked jurisdiction because the National Labor Relations Act had pre-empted state control of the labor activities involved. On appeal to the Illinois Supreme Court, held, affirmed. State jurisdiction was justified not only by the state's interest in domestic peace and the protection of employer's property rights, …

International Law- Criminal Law- Jurisdiction Over Aliens For Crimes Committed Abroad, Frank G. Reeder S. Ed

Michigan Law Review

Six alien defendants were convicted under a federal statute for knowingly making false statements before United States consular officials abroad in order to procure nonquota immigrant visas. Their motion to dismiss this count on the ground that the district court lacked jurisdiction to indict and try aliens for crimes committed outside the territorial limits of the United States was denied. On appeal, held, affirmed. As a necessary incident to its sovereignty, the United States is competent to punish aliens apprehended within the United States for acts against its sovereignty committed outside the country. Rocha v. United States, 288 …

Snee & Pye: Status Of Forces Agreement: Criminal Jurisdiction, B. J. George Jr.

Michigan Law Review

A Review of Status of Forces Agreement: Criminal Jurisdiction: Criminal Jurisdiction. By Joseph M. Snee, S.J. and Kenneth A. Pye

Federal Jurisdiction - Securities And Exchange Commission - Application Of Rule X - 10b-5 To Transactions Involving Non-Securities, Richard Singer

Michigan Law Review

Plaintiff brought an action for damages and the cancellation of certain instruments under section 10 (b) of the Securities Exchange Act of 1934 and rule X-10B-5 promulgated thereunder by the Securities and Exchange Commission. She proved a series of interrelated acts which took place over a period of months by which the defendants fraudulently deprived her of both securities and other property. The defendants objected to the jurisdiction of the district court on the ground that rule X-10B-5 was not applicable to transactions involving non-securities. The district court retained jurisdiction on the theory that all of the acts complained of …

Constitutional Law - Courts-Martial - Power Of Congress To Provide For Military Jurisdiction Over Civilians, Whitmore Gray S.Ed.

Michigan Law Review

During the past term the Supreme Court decided three cases involving the constitutionality of court-martial jurisdiction over certain groups of civilians. In United States ex rel. Toth v. Quarles the Court held that Congress could not constitutionally provide for military trial of a discharged serviceman for offenses committed during his term of service. In two subsequent cases the Court rejected the contention that the Toth decision announced a principle applicable to any exercise of jurisdiction over civilians by the military courts in upholding the provisions of the Uniform Code of Military Justice for military jurisdiction over civilian dependents accompanying American …

Criminal Procedure - Venue - Federal Offenses Committed Outside The Jurisdiction Of Any State Or District, Richard R. Dailey

Michigan Law Review

The defendant, an army staff sergeant, was under custody at Fort Meade, Maryland, awaiting disposition of charges of sodomy lodged against him under the Articles of War. After a delay of four months, the charges were dropped and he was shipped by the Army to Fort Jay, New York, where he was separated from the service. Immediately upon his release, he was arrested by the Federal Bureau of Investigation under a commissioner's warrant charging him with treason committed in Japan during a prior enlistment in the army. At the trial in the District Court for the Southern District of New …

Criminal Law - Delay In Imposition Of Sentence As Destroying Jurisdiction Of Trial Court, M. Fred Mallender, Ii S.Ed.

Michigan Law Review

Defendant was tried for burglary in April 1952. Before judgment was rendered, a petition for his commitment to the Indiana Village for Epileptics was granted, and the trial court entered judgment in July 1952 that it continue the matter under advisement so long as defendant remained in the Epileptic Village and complied with the rules and regulations. In September 1952 defendant escaped from the Epileptic Village and was later apprehended. He was brought to trial in April 1953. The court found that he had not complied with the judgment of July 1952, found him guilty as charged, and sentenced him …

Criminal Jurisdiction And The Territorial Principle, Wendell Berge

Michigan Law Review

The authority of legislatures and courts in criminal matters is supposed to be circumscribed by the territorial boundaries of the state. That as a general proposition the criminal law of a state has no extraterritorial operation, few lawyers would question. But an uncritical acceptance of the proposition is not warranted. Merely to assert that the authority of a state over crime ends at its territorial boundaries is of no help in settling jurisdictional questions in complicated crime situations in which the constituent acts of the crime occur in different states. Modern criminals have little concern for political boundaries except as …

Crimes - Venue- Non-Support, Abandonment, And Desertion

Michigan Law Review

Defendant was divorced by his wife in A county in 1926. In 1929, defendant was indicted for non-support of his children, in B county, where his former wife and the children had maintained their home since the divorce. An objection to the venue was raised by the defense, on the ground that, if a crime was committed, it was consummated in A county, where defendant had been living during the time he was charged with non-support. Held, that "the venue of non-support is where that support should be rendered." State v. Anderson (Or. 1930) 290 Pac. 1904

Crimes-Former Jeopardy-Prosecution In Two Counties For A Continuous Act

Michigan Law Review

Defendants transported liquor by a single, uninterrupted act from A county to B county in the same state. Having been convicted and fined in B county for the transportation within its boundaries, they were later indicted in A county for that part of the transportation which took place in that territory. A plea of former jeopardy was sustained by the trial judge, and on appeal this holding was affirmed by a divided court, which held, the act constituted a single offense, punishable in either county, but not in both. State v. Shimman et al. (Ohio, 1930) 172 N.E. 367.