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Articles 1 - 30 of 97
Full-Text Articles in Criminal Law
Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill
Limiting Access To Remedies: Select Criminal Law And Procedure Cases From The Supreme Court's 2021-22 Term, Eve Brensike Primus, Justin Hill
Articles
Although the most memorable cases from the Supreme Court’s 2021-22 Term were on the civil side of its docket, the Court addressed significant cases on the criminal side involving the Confrontation Clause, capital punishment, double jeopardy, criminal jurisdiction in Indian Country, and important statutory interpretation principles, such as the mens rea presumption and the scope of the rule of lenity. Looking back, the Court’s decisions limiting individuals’ access to remedies for violations of their constitutional criminal procedure rights stand out. Shinn v. Ramirez and Shoop v. Twyford drastically limit the ability of persons incarcerated in state facilities to challenge the …
Homes, History, And Shadows: Select Criminal Law And Procedure Cases From The Supreme Court’S 2020-21 Term, Eve Brensike Primus, Lily Sawyer-Kaplan
Homes, History, And Shadows: Select Criminal Law And Procedure Cases From The Supreme Court’S 2020-21 Term, Eve Brensike Primus, Lily Sawyer-Kaplan
Articles
The death of Justice Ruth Bader Ginsburg in September 2020 and the appointment of Justice Amy Coney Barrett to replace her solidified a 6-3 majority on the Court for Republican appointees and is already affecting how the Court approaches and decides its criminal law and procedure cases. Justice Ginsburg, a strong advocate for equality and fair treatment, generally construed criminal statutes narrowly and stressed the importance of defendants’ procedural rights. Justice Barrett is an originalist who will look to history to seek answers on the scope of criminal procedure amendments. The combined appointments of Justice Gorsuch and Justice Barrett mean …
Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle
Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle
Articles
Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …
All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes
All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes
Michigan Law Review
A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.
Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas
Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas
Articles
First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …
Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman
Judge Gorsuch And Johnson Resentencing (This Is Not A Joke), Leah M. Litman
Michigan Law Review Online
Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably …
How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley
How The Sentencing Commission Does And Does Not Matter In Beckles V. United States, Leah Litman, Luke C. Beasley
Articles
Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual …
Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley
Jurisdiction And Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied, Leah Litman, Luke C. Beasley
Articles
This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review). AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.
Judging Judicial Elections, Michael S. Kang, Joanna M. Shepherd
Judging Judicial Elections, Michael S. Kang, Joanna M. Shepherd
Michigan Law Review
Melinda Gann Hall’s new book Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections suggests what seems impossible to many of us—a powerful defense of today’s partisan judicial elections. As judicial races hit new levels of campaign spending and television advertising, there has been a flood of criticism about the increasing partisanship, negativity, and role of money. In view of the “corrosive effect of money on judicial election campaigns” and “attack advertising,” the American Bar Association (ABA) recommends against judicial elections, which are currently used to select roughly 90 percent of state judges. Justice O’Connor, who has championed judicial-election …
The Exceptional Circumstances Of Johnson V. United States, Leah M. Litman
The Exceptional Circumstances Of Johnson V. United States, Leah M. Litman
Michigan Law Review First Impressions
Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Since Johnson was decided six months ago, courts have been sorting out which of the currently incarcerated defendants who were sentenced under ACCA’s residual clause may be resentenced. Determining who can be resentenced in light of Johnson requires courts to answer several questions. For example, does the rule in Johnson apply retroactively to convictions that have already become final? And can prisoners who have already filed one petition for postconviction review—review that occurs after a defendant’s conviction has become final— file …
The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno
The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno
University of Michigan Journal of Law Reform
This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …
Resentencing In The Shadow Of Johnson V. United States, Leah Litman
Resentencing In The Shadow Of Johnson V. United States, Leah Litman
Articles
On June 26, 2015, the Supreme Court handed down a decision many years in the making—Johnson v. United States. Johnson held that the ‘‘residual clause’’ of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Although Johnson may have been overshadowed in the final days of a monumental Supreme Court term, the decision is a significant one that will have important consequences for the criminal justice system. ACCA’s residual clause imposed a severe 15-year mandatory minimum term of imprisonment, and many federal prisoners qualify for ACCA’s mandatory minimum. Johnson did away with ACCA’s residual clause such that defendants will no …
Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson
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 …
Miller V. Alabama: Something Unconsitutional Now Was Equally Unconstitutional Then, W. Patrick Conlon
Miller V. Alabama: Something Unconsitutional Now Was Equally Unconstitutional Then, W. Patrick Conlon
University of Michigan Journal of Law Reform Caveat
In June 2012, the United States Supreme Court found mandatory life-without-parole sentences against juvenile offenders unconstitutional in Miller v. Alabama. The Court determined that because children possess “immaturity, impetuosity, and [fail] to appreciate risks and consequences,” they are fundamentally different than adults. Although Miller invalidated every juvenile mandatory life-without-parole (JMLWOP) statute across the United States, there is no clear indication regarding whether Miller retroactively applies to juveniles sentenced to mandatory life-without-parole before the Court’s ruling. As a result, states are split on whether to apply Miller retroactively. Fifteen states have yet to decide whether Miller applies retroactively, while several other …
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Michigan Law Review
Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …
Retroactivity And Crack Sentencing Reform, Harold J. Krent
Retroactivity And Crack Sentencing Reform, Harold J. Krent
University of Michigan Journal of Law Reform
This Article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision, Dorsey v. United States, is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may mislead legislatures in future contexts, whether addressing marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only. Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court relied excessively on the general …
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi
On Estimating Disparity And Inferring Causation: Sur-Reply To The U.S. Sentencing Commission Staff, Sonja B. Starr, M. Marit Rehavi
Articles
In this Essay, Professors Starr and Rehavi respond to the U.S. Sentencing Commission’s empirical staff’s criticisms of their recent article, which found, contrary to the Commission’s prior work, no evidence that racial disparity in sentences increased in response to United States v. Booker. As Starr and Rehavi suggest, their differences with the Commission perhaps relate to differing objectives. The Commission staff’s reply expresses a lack of interest in identifying Booker’s causal effects; in contrast, that is Starr and Rehavi’s central objective. In addition, Starr and Rehavi’s approach also accounts for disparities arising throughout the post-arrest justice process, extending beyond the …
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi
Mandatory Sentencing And Racial Disparity, Assessing The Role Of Prosecutors And The Effects Of Booker, Sonja B. Starr, M. Marit Rehavi
Articles
This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference …
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Assessing Divisibility In The Armed Career Criminal Act, Ted Koehler
Michigan Law Review
When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career …
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
Michigan Law Review
The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Michigan Telecommunications & Technology Law Review
Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court's recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent--willful blindness--into the statute for patent infringement, a civil offense. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to …
David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross
David Baldus And The Legacy Of Mccleskey V. Kemp, Samuel R. Gross
Articles
The first major empirical challenge to racial discrimination in the use of the death penalty in the United States was presented in federal court in the case of William L. Maxwell, who was sentenced to death in Arkansas in 1962 for the crime of rape.1 It was based on a landmark study by Marvin Wolfgang, a distinguished criminologist who had collected data on some 3000 rape convictions from 1945 through 1965 in selected counties across eleven southern states.2 He found that black men who were convicted of rape were seven times more likely to be sentenced to death than white …
Kids Are Different, Stephen St.Vincent
Kids Are Different, Stephen St.Vincent
Michigan Law Review First Impressions
The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment. Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a …
Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, Robert Smith, G. Ben Choen
Redemption Song: Graham V. Florida And The Evolving Eighth Amendment Jurisprudence, Robert Smith, G. Ben Choen
Michigan Law Review First Impressions
In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole ("LWOP") for a juvenile under eighteen who commits a non-homicide offense. For Terrance Graham, who committed home-invasion robbery at seventeen, the decision does not mean necessarily that he someday will leave the brick walls of Florida's Taylor Annex Correctional Institution. Unlike previous Eighth Amendment decisions, such as Roper v. Simmons, where the Court barred the death penalty for juveniles, this new categorical rule does not translate into automatic relief for members of the exempted class: "A State need not guarantee the …
What Does Graham Mean In Michigan?, Kimberly A. Thomas
What Does Graham Mean In Michigan?, Kimberly A. Thomas
Articles
In Graham v. Florida, the United States Supreme Court held that life without parole could not be imposed on a juvenile offender for a nonhomicide crime.1 In this context, the Graham Court extensively discussed the diminished culpability of juvenile criminal defendants, as compared to adults. The Court relied on current scientific research regarding adolescent development and neuroscience. While the narrowest holding of Graham has little impact in Michigan, the science it relies on, and the potential broader implications for adolescents in Michigan, are significant.
The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer
The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer
Michigan Journal of Race and Law
In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. …
Furman'S Mythical Mandate, Scott W. Howe
Furman'S Mythical Mandate, Scott W. Howe
University of Michigan Journal of Law Reform
This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …
The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall
The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall
Michigan Law Review First Impressions
More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …
Legitimizing Error, Rebecca E. Woodman
Legitimizing Error, Rebecca E. Woodman
Michigan Law Review First Impressions
Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …
Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman
Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman
Michigan Law Review First Impressions
Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …