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Articles 1 - 30 of 73
Full-Text Articles in Criminal Law
The Twenty-First Century Death Penalty And Paths Forward, Jeffrey Omar Usman
The Twenty-First Century Death Penalty And Paths Forward, Jeffrey Omar Usman
Mississippi College Law Review
Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States. Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration. While not abolished, in many states application of the death penalty is grinding or has ground to a halt. If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age …
Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon
Bucklew V. Precythe'S Return To The Original Meaning Of "Unusual": Prohibiting Extensive Delays On Death Row, Jacob Leon
Cleveland State Law Review
The Supreme Court, in Bucklew v. Precythe, provided an originalist interpretation of the term “unusual” in the Eighth Amendment of the United States Constitution. This originalist interpretation asserted that the word “unusual” proscribes punishments that have “long fallen out of use.” To support its interpretation, the Supreme Court cited John Stinneford’s well-known law review article The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation. This Article, as Bucklew did, accepts Stinneford’s interpretation of the word “unusual” as correct. Under Stinneford’s interpretation, the term “unusual” is a legal term of art derived from eighteenth-century …
Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau
Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau
Journal of Race, Gender, and Ethnicity
No abstract provided.
The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus
The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus
Paul Marcus
No abstract provided.
The Emperor’S New Clothes: An Intersection Of Presidential Immunity And Criminal Accountability, Nicholas J. Maggio
The Emperor’S New Clothes: An Intersection Of Presidential Immunity And Criminal Accountability, Nicholas J. Maggio
Touro Law Review
No abstract provided.
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 …
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 …
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 …
The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus
The Crime Of Conspiracy Thrives In Decisions Of The United States Supreme Court, Paul Marcus
Faculty Publications
No abstract provided.
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 …
Section 6: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
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 …
Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
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 …
Section 3: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
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.
Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 7: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 6: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.