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Articles 1 - 30 of 618
Full-Text Articles in Criminal Law
What Is A Prison?, Grace Y. Li
What Is A Prison?, Grace Y. Li
Michigan Law Review
A review of The Idea of Prison Abolition. By Tommie Shelby.
The Shadow Of The Law Of The Police, Adam A. Davidson
The Shadow Of The Law Of The Police, Adam A. Davidson
Michigan Law Review
A review of Shielded: How the Police Became Untouchable. By Joanna Schwartz.
Revocation At The Founding, Jacob Schuman
Revocation At The Founding, Jacob Schuman
Michigan Law Review
The Supreme Court is divided over the constitutional law of community supervision. The justices disagree about the nature of a defendant’s liberty under supervision, the rights that apply when the government punishes violations, and the relationship between parole, probation, and supervised release. These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4–1–4 on whether the right to a jury trial applies to revocation of supervised release. Their opinions focused on the original understanding of the jury right at the time the Constitution was ratified.
This Article aims to settle the debate over …
Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell
Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell
Michigan Law Review
William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.
Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals …
Sisters Gonna Work It Out: Black Women As Reformers And Radicals In The Criminal Legal System, Paul Butler
Sisters Gonna Work It Out: Black Women As Reformers And Radicals In The Criminal Legal System, Paul Butler
Michigan Law Review
A Review of Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom. By Derecka Purnell and a review of Progressive Prosecution: Race and Reform in Criminal Justice. Edited by Kim Taylor-Thompson and Anthony C. Thompson.
The Geography Of Unfreedom, Ann M. Eisenberg
The Geography Of Unfreedom, Ann M. Eisenberg
Michigan Law Review
A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.
The Problematic Structure Of Indigent Defense Delivery, Eve Brensike Primus
The Problematic Structure Of Indigent Defense Delivery, Eve Brensike Primus
Michigan Law Review
The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal …
Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe
Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe
Michigan Law Review
A Review of McCleskey v. Kemp. By Mario Barnes, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 557, 581. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.
Territoriality In American Criminal Law, Emma Kaufman
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 …
Through A Glass, Darkly: Systemic Racism, Affirmative Action, And Disproportionate Minority Contact, Robin Walker Sterling
Through A Glass, Darkly: Systemic Racism, Affirmative Action, And Disproportionate Minority Contact, Robin Walker Sterling
Michigan Law Review
This Article is the first to describe how systemic racism persists in a society that openly denounces racism and racist behaviors, using affirmative action and disproportionate minority contact as contrasting examples. Affirmative action and disproportionate minority contact are two sides of the same coin. Far from being distinct, these two social institutions function as two sides of the same ideology, sharing a common historical nucleus rooted in the mythologies that sustained chattel slavery in the United States. The effects of these narratives continue to operate in race-related jurisprudence and in the criminal legal system, sending normative messages about race and …
Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert
Failed Interventions: Domestic Violence, Human Trafficking, And The Criminalization Of Survival, Alaina Richert
Michigan Law Review
Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements …
Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski
Rethinking The Reasonable Response: Safeguarding The Promise Of Kingsley For Conditions Of Confinement, Hanna Rutkowski
Michigan Law Review
Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees …
Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie
Equal Protection Under Algorithms: A New Statistical And Legal Framework, Crystal S. Yang, Will Dobbie
Michigan Law Review
In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates …
Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts
Possible Reliance: Protecting Legally Innocent Johnson Claimants, Keagan Potts
Michigan Law Review
The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court’s invalidation of the Armed Career Criminal Act’s residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.
This Note first contributes a new understanding of the …
What Is Remembered, Alice Ristroph
What Is Remembered, Alice Ristroph
Michigan Law Review
Review of Sarah A. Seo's Policing the Open Road: How Cars Transformed American Freedom.
The Municipal Pardon Power, Hayato Watanabe
The Municipal Pardon Power, Hayato Watanabe
Michigan Law Review
At the state and federal levels, the pardon power can be used to restore the dignity and legal rights lost by a criminal conviction. Unfortunately, those facing similar consequences from municipal convictions may not have access to a pardon. Although clemency is exceedingly rare at any level of government, municipal defendants face a unique structural problem that deprives them of the possibility of a pardon. Specifically, many cities have simply failed to create a local clemency power. This Note argues that the authority to grant pardons for municipal offenses is part of the toolbox of powers provided to cities through …
America's Paper Prisons: The Second Chance Gap, Colleen Chien
America's Paper Prisons: The Second Chance Gap, Colleen Chien
Michigan Law Review
Over the last decade, dozens of states and the federal government have enacted “second chance” reforms that increase the eligibility of individuals arrested, charged, or convicted of crimes to shorten their sentences, clear their criminal records, and/or regain the right to vote. While much fanfare has accompanied the increasing availability of “second chances,” little attention has been paid to their delivery. This study introduces the concept of the “second chance gap,” which it defines as the difference between eligibility and delivery of second chance relief; explores its causes; and approximates its size in connection with several second chance laws and …
Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow
Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow
Michigan Law Review
Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …
Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods
Policing, Danger Narratives, And Routine Traffic Stops, Jordan Blair Woods
Michigan Law Review
This Article presents findings from the largest and most comprehensive study to date on violence against the police during traffic stops. Every year, police officers conduct tens of millions of traffic stops. Many of these stops are entirely unremarkable—so much so that they may be fairly described as routine. Nonetheless, the narrative that routine traffic stops are fraught with grave and unpredictable danger to the police permeates police training and animates Fourth Amendment doctrine. This Article challenges this dominant danger narrative and its centrality within key institutions that regulate the police.
The presented study is the first to offer an …
Small Crimes, Big Injustices, Stephanos Bibas
Small Crimes, Big Injustices, Stephanos Bibas
Michigan Law Review
Review of Alexandra Natapoff's Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.
Criminal Justice And The Mattering Of Lives, Deborah Tuerkheimer
Criminal Justice And The Mattering Of Lives, Deborah Tuerkheimer
Michigan Law Review
A review of James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America.
Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin
Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin
Michigan Law Review
A review of John F. Pfaff, Locked In: The True Causes of Mass Incarceration - And How to Achieve Real Reform.
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.
Insider Trading Law And The Ambiguous Quest For Edge, A. C. Pritchard
Insider Trading Law And The Ambiguous Quest For Edge, A. C. Pritchard
Michigan Law Review
A review of Sheelah Kolhatkar, Black Edge.
The Consensus Myth In Criminal Justice Reform, Benjamin Levin
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 …
Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic
Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic
Michigan Law Review
American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when …
Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann
Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann
Michigan Law Review
Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …
Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco
Private Actors And Public Corruption: Why Courts Should Adopt A Broad Interpretation Of The Hobbs Act, Megan Demarco
Michigan Law Review
Federal prosecutors routinely charge public officials with “extortion under color of official right” under a public-corruption statute called the Hobbs Act. To be prosecuted under the Hobbs Act, a public official must promise official action in return for a bribe or kickback. The public official, however, does not need to have actual authority over that official action. As long as the victim reasonably believed that the public official could deliver or influence government action, the public official violated the Hobbs Act. Private citizens also solicit bribes in return for influencing official action. Yet most courts do not think the Hobbs …
What Is Criminal Law About?, Guyora Binder, Robert Weisberg
What Is Criminal Law About?, Guyora Binder, Robert Weisberg
Michigan Law Review
In “The Changing Market for Criminal Casebooks,” Jens David Ohlin offers an appreciative, but nevertheless critical review of established criminal law casebooks. He then introduces his own offering by describing “a vision for a new casebook” that will better serve the needs and wants of contemporary students. Ohlin begins with the arresting claim that criminal law professors are passionate about their subject because they are fascinated by human depravity. Then, throughout his essay, he stresses efficient, consumer-focused delivery of doctrinal instruction as the defining task of a successful casebook. Moreover, he argues, casebooks should devote less attention to academic theories …
It’S A Sin To Kill A Mockingbird: The Need For Idealism In The Legal Profession, Jonathan A. Rapping
It’S A Sin To Kill A Mockingbird: The Need For Idealism In The Legal Profession, Jonathan A. Rapping
Michigan Law Review
“[T]he first thing I lost in law school was the reason that I came.” This prescient quote by an unnamed law student defines, in a single sentence, our growing problem in training lawyers. From the moment he or she steps foot in a law school classroom, the future lawyer feels a strong pull to pursue a career that has nothing to do with justice. The law school experience will discourage the future lawyer from pursuing a career advocating for those in society who most need a voice. Once graduated, the young lawyer will enter a world where he or she …