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Articles 1 - 16 of 16
Full-Text Articles in Law
To Seek A Newer World: Prisoners’ Rights At The Frontier, David M. Shapiro
To Seek A Newer World: Prisoners’ Rights At The Frontier, David M. Shapiro
Michigan Law Review First Impressions
Prisoners’ rights lawyers have long faced a dismal legal landscape. Yet, 2015 was a remarkable year for prison litigation that could signal a new period for this area of law—the Supreme Court handed down decisions that will reverberate in prison jurisprudence for decades to come. New questions have been asked, new avenues opened. This piece is about what the Court has done recently, and what possibilities it has opened for the future. More broadly, I suggest that the Court may be subjecting prison officials to greater scrutiny and that this shifting judicial landscape reflects an evolving social discourse about prison …
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 …
Why And How To Compensate Exonerees, Erik Encarnacion
Why And How To Compensate Exonerees, Erik Encarnacion
Michigan Law Review First Impressions
How can we bring greater uniformity to exoneree compensation in a principled and just way? This paper argues that answering this question becomes easier once we identify the principles of justice that best justify and explain compensation statutes. In particular, commentators have assumed incorrectly that the goal of compensating exonerees should be understood primarily in terms of corrective justice, which posits a duty to undo or repair wrongfully inflicted harms. This paper argues, by contrast, that restitutionary justice, which forces parties to relinquish unjust gains, better justifies and explains compensation statutes. The unjust gains at issue are fair wages withheld …
Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota
Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota
Michigan Law Review First Impressions
Who (if anyone) is criminally responsible for the death of Freddie Gray, the 25-year-old African-American man who died from injuries suffered while in the custody of Baltimore police? This question has been at the forefront of the extensive coverage of Gray’s death, which has inspired a national discussion about law enforcement’s relationship with black communities. But it is also a question that may never be fairly resolved for reasons wholly unrelated to the topic of community policing, with which Gray’s death has become synonymous. What may ultimately hamper the administration of justice in the prosecution of the police officers involved …
Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley
Spies In The Skies: Dirtboxes And Airplane Electronic Surveillance, Brian L. Owsley
Michigan Law Review First Impressions
Electronic surveillance in the digital age is essentially a cat-and-mouse game between governmental agencies that are developing new techniques and technologies for surveillance, juxtaposed against privacy rights advocates who voice concerns about such technologies. In November 2014, there was a discovery of a new twist on a relatively old theme. Recently, the Wall Street Journal reported that the U.S. Marshals Service was running a surveillance program employing devices—dirtboxes—that gather all cell phone numbers in the surrounding area. Other federal agencies, including the Drug Enforcement Agency, Immigration and Custom Enforcement, and the Department of Homeland Security, are also documented to have …
Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher
Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher
Michigan Law Review First Impressions
Imagine a world . . . in which the Supreme Court got it right the first time. That is, imagine that when the Supreme Court first incorporated the Confrontation Clause against the states, the Court did so by way of the testimonial approach. It’s not that hard to envision. In Douglas v. Alabama—issued in 1965, on the same day the Court ruled that the Confrontation Clause applies to the states—the Court held that a nontestifying witness’s custodial confession could not be introduced against the defendant because, while “not technically testimony,” the confession was “the equivalent in the jury’s mind …
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
Michigan Law Review First Impressions
This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …
How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg
How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg
Michigan Law Review First Impressions
United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …
The Overlooked Significance Of Arizona's New Immigration Law, Rick Su
The Overlooked Significance Of Arizona's New Immigration Law, Rick Su
Michigan Law Review First Impressions
Immigration has once again become the subject of widespread interest and public debate. This renewed interest, however, was not the result of Harry Reid's vow that the Senate will tackle comprehensive immigration reform sometime this year. Nor was it prompted by new policy initiatives with respect to immigration enforcement being implemented by the Department of Homeland Security. Rather, it has been the result of legislative action taken in one state-Arizona. Arizona's move to regulate immigration has predictably raised questions about the proper role of a state with respect to an area dominated by federal legislation. Yet the discussion thus far …
Why The County Jail Is Often A Better Choice, Shawn Chapman Holley
Why The County Jail Is Often A Better Choice, Shawn Chapman Holley
Michigan Law Review First Impressions
I have been a criminal defense lawyer in Los Angeles for almost twenty years. I began my career in the Los Angeles County Public Defender’s Office, representing defendants who were poor and often homeless. For the past twelve years, I have been in private practice, representing defendants who are wealthy and often famous. Having represented criminal defendants coming from such varied economic circumstances, I have witnessed firsthand the criminal justice system’s disparate treatment of those with money and those without. Pay-to-stay jails are yet another example of that disparity. Yet I believe that those without the money to pay for …
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
Michigan Law Review First Impressions
Pay-to-stay jails expose the moral tension between the dominant theories of punishment: retributivism and deterrence. A turn to a third major moral theory—virtue ethics—resolves this tension. According to virtue ethics, the moral worth of an action follows from both the character of the action and the disposition of the actor. Virtuous acts promote human flourishing— the central goal of life—when they are the right actions performed for the right reasons. The virtue ethics theory of punishment suggests that pay-to-stay jails conflict with the promotion of human flourishing. A virtuous state’s criminal justice system would not include fee-based incarceration because it …
Government Entrepreneurship: How Cop, Direct Supervision, And A Business Plan Helped To Solve Santa Ana's Crime Problems, Paul M. Walters, Russell Davis
Government Entrepreneurship: How Cop, Direct Supervision, And A Business Plan Helped To Solve Santa Ana's Crime Problems, Paul M. Walters, Russell Davis
Michigan Law Review First Impressions
Much has been written about Community Oriented Policing for police agencies and about the Direct Supervision concept for jail operations. Each strategy is at the cutting edge of its respective discipline. This Commentary describes how the progressive City of Santa Ana implemented both strategies— along with a visionary business plan to operate its jail at minimal cost—to combat crime successfully. The City’s business plan relies on entrepreneurship that is too often lacking in government programs. This approach has led to a number of innovations in law enforcement, corrections, and government service. Pay-to-Stay programs provide yet another example of how Santa …
The Dirty Little Secrets About Pay-To-Stay, Laurie L. Levenson, Mary Gordon
The Dirty Little Secrets About Pay-To-Stay, Laurie L. Levenson, Mary Gordon
Michigan Law Review First Impressions
The dirty little secret is out: people with more money get a better deal in our criminal justice system. Anyone who has spent more than a nanosecond in this system knows it to be true, yet that does not make it right. It is an abomination to divert our attention to pay-to-stay programs instead of finding the resources to improve our general jail facilities to make them tolerable for every inmate. Don’t get us wrong—if we suffered the misfortune of being arrested, we would dearly love the opportunity to pay for a private jail facility. However, the pay-to-stay initiative is …
Pay-To-Stay In California Jails And The Value Of Systemic Self-Embarassment, Robert Weisberg
Pay-To-Stay In California Jails And The Value Of Systemic Self-Embarassment, Robert Weisberg
Michigan Law Review First Impressions
The website of the Santa Ana, California-version of Pay-to-Stay uses hotelier-type verbiage in describing features of its alternative jail program. It tells us that the jail “is pleased to host a full range of alternatives to traditional incarceration”; it reassures prospective “clients” seeking flexible work/jail schedules (“Work on Saturday or Sunday? No problem, your weekend days are our weekend days.”); it guarantees “24-hour on-site medical staff”; it accommodates inmates near and far (“We have helped clients with sentences from other counties as well as other states.”); and it generally brags that the jail “is the most modern and comfortable facility …
Pay-To-Stay Programs In California Jails, Michael S. Carona
Pay-To-Stay Programs In California Jails, Michael S. Carona
Michigan Law Review First Impressions
When a person has committed a criminal offense, he or she must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Imprisonment—the method commonly used to carry out this punishment—becomes increasingly problematic when our jails and prisons, especially in California, are bursting at the seams. As the Sheriff of the eighth largest jail system in the nation, I am responsible for the confinement and care of thousands of inmates in the Orange County Jail system. With a growing inmate population and a shortage of beds, I continue to look for new …
It Could Happen To "You": Pay-To-Stay Jail Upgrades, Kim Shayo Buchanan
It Could Happen To "You": Pay-To-Stay Jail Upgrades, Kim Shayo Buchanan
Michigan Law Review First Impressions
In the jails of Los Angeles County, about 21,000 detainees are held in filthy cells so overcrowded—four men in a cell built for two, six to a four-man cell—that, as federal judge Dean D. Pregerson observed in 2006, inmates must stay in their bunks at all times because there is not enough room for them to stand. These men—ninety percent of whom are pretrial detainees— are held in these conditions twenty-four hours per day, seven days per week, and are typically allowed only a single three-hour exercise period weekly. Other inmates are held for days in a county “reception center” …