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Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin Sep 2020

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …


Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel Jun 2018

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined …


Plenary Power Is Dead! Long Live Plenary Power, Michael Kagan Sep 2015

Plenary Power Is Dead! Long Live Plenary Power, Michael Kagan

Michigan Law Review First Impressions

For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have reaffirmed plenary power. Instead, the Court produced a splintered decision that did neither. This Essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.


Rethinking Immigration’S Mandatory Detention Regime: Politics, Profit, And The Meaning Of “Custody”, Philip L. Torrey Jan 2015

Rethinking Immigration’S Mandatory Detention Regime: Politics, Profit, And The Meaning Of “Custody”, Philip L. Torrey

University of Michigan Journal of Law Reform

Immigration detention in the United States is a crisis that needs immediate attention. U.S. immigration detention facilities hold a staggering number of persons. Widely believed to have the largest immigration detention population in the world, the United States detained approximately 478,000 foreign nationals in Fiscal Year 2012. U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement, boasts that the figure is “an all-time high.” In some ways, these numbers are unsurprising, considering that the United States incarcerates approximately one in every one hundred adults within its borders—a rate five to ten times higher than any other Westernized …


Beyond The Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture Of Counterterrorism, Robert M. Chesney Nov 2013

Beyond The Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture Of Counterterrorism, Robert M. Chesney

Michigan Law Review

By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan, …


A Functional Approach To Targeting And Detention, Monica Hakimi Jan 2012

A Functional Approach To Targeting And Detention, Monica Hakimi

Articles

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …


Detention Debates, Deborah N. Pearlstein Jan 2012

Detention Debates, Deborah N. Pearlstein

Michigan Law Review

Since the United States began detaining people in efforts it has characterized, with greater and lesser accuracy, as part of global counterterrorism operations, U.S. detention programs have spawned more than 200 different lawsuits producing 6 Supreme Court decisions, 4 major pieces of legislation, at least 7 executive orders across 2 presidential administrations, more than 100 books, 231 law review articles (counting only those with the word "Guantanamo" in the title), dozens of reports by nongovernmental organizations, and countless news and analysis articles from media outlets in and out of the mainstream. For those in the academic and policy communities who …


International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi Jan 2009

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Articles

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street corners, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …


International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi Jan 2008

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Articles

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …


Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman Jan 2007

Secrets And Lies: Intelligence Activities And The Rule Of Law In Times Of Crisis, Simon Chesterman

Michigan Journal of International Law

This Article will consider generally the prospects for an approach to intelligence activities based on the rule of law, focusing on the problem of covertness. In particular, it will examine the debate over how law should deal with crises, epitomized by the "ticking time-bomb" hypothetical. On the one hand, some call for a pragmatic recognition that, in extremis, public officials may be required to act outside the law and should seek after-the-fact ratification of their "extra-legal measures." On the other hand, others argue that the embrace of "extra-legal measures" misconceives the rule of law, underestimates the capacity of a …


Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar Jan 2007

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …


The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong Jan 2006

The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong

Michigan Journal of Race and Law

This Article provides a brief overview of how Muslims were treated after 9/11. It documents how the USAPA and related measures have been used to monitor, investigate, detain, and deport Muslim U.S. citizens in violation of their civil rights. Of particular importance, is how the life circumstances of the Muslims in America have changed for the worse as a result of zealous enforcement and discriminatory application of the USAPA. In so doing, this Article seeks to provide concrete facts and a rich context to ascertain the implications of 9/11 on American society.


Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde Jan 2005

Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde

Michigan Journal of International Law

This Article considers the significant role that extraterritorial activity is playing in the post-9/11 foreign policy of some States and the idea that this activity somehow takes place "outside" the law or, at least, outside an arena where legal norms apply as a matter of course rather than only when and to the extent that the State involved decides these norms will apply. It begins in Section II by mapping out the extraterritorial state activities conducted since 9/11, covering activities with a personalized object-such as the military action taken in Afghanistan against Al Qaeda-and activities with a spatial (territorial) object-such …


Antiterrorism Military Commissions: The Ad Hoc Dod Rules Of Procedure, Jordan J. Paust Jan 2002

Antiterrorism Military Commissions: The Ad Hoc Dod Rules Of Procedure, Jordan J. Paust

Michigan Journal of International Law

While the article Antiterrorism Military Commissions: Courting Illegality was set for publication, the Department of Defense formally issued its first set of Procedures for Trials by Military Commission of Certain Non-United States Citizens in the War Against Terrorism. The President's November 13th Military Order had set up several per se violations of international law. Instead of attempting to avoid them, the DOD Order of March 21, 2002 continued the violations, set up additional violations of international law, and created various rules of procedure and evidence that, if not per se violative of international law, are highly problematic. This is a …


The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks Jan 2001

The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks

Michigan Journal of International Law

Despite many indications of an emerging transnational consensus on the scope of human rights law, fundamental disagreements persist. These disagreements are, in many respects, structured around important cleavages in the international community such as: North/South, East/West, and capitalist/socialist. Whether these cleavages are understood as cultural, economic, or political, international lawyers must develop a better understanding of the specific practices that generate divergent interpretations of human rights standards. Without such an understanding, these factions seem to underscore an irreducibly political conception of human rights. Indeed, the prospects of a global "community of law" turn on the degree to which fundamental differences …


Executive Detention In Time Of War, Richard A. Posner May 1994

Executive Detention In Time Of War, Richard A. Posner

Michigan Law Review

A Review of In the Highest Degree Odious: Detention Without Trial in Wartime Britain by A.W. Brian Simpson


Israel's Forty-Five Year Emergency: Are There Time Limits To Derogations From Human Rights Obligations?, John Quigley Jan 1994

Israel's Forty-Five Year Emergency: Are There Time Limits To Derogations From Human Rights Obligations?, John Quigley

Michigan Journal of International Law

This article analyzes the permissibility of such a derogation under the Covenant and under general international law. Part I of this article outlines the historical development of Israel's declaration of a continuous state of emergency and its justification for detention without trial. Part II examines international rules on detention and derogation. Part III establishes a standard for declaring a state of emergency and applies this standard to Israel's declaration, with respect both to Israel's own territory and to the Palestinian territories occupied by Israel. Finally, Part IV inquires whether Israel will apply the Covenant as a matter of domestic law.


Some Issues Of Immigration Law In A Developing State, Miriam Defensor Santiago Jan 1989

Some Issues Of Immigration Law In A Developing State, Miriam Defensor Santiago

Michigan Journal of International Law

This article outlines some basic issues of immigration law that will be discussed during this process of reform. These issues, each of which constitutes a separate section, include the legal basis for deportation under Philippine jurisprudence; the power to issue a warrant of arrest against an alien; the power to grant bail to an alien under detention; and the power of judicial review over deportation cases.


Clearing The Roadblocks To Sobriety Checkpoints, Mark R. Soble Apr 1988

Clearing The Roadblocks To Sobriety Checkpoints, Mark R. Soble

University of Michigan Journal of Law Reform

This Note examines the constitutional and policy implications of sobriety checkpoints. Part I discusses the competing interests involved in implementing sobriety checkpoints. Part II presents an appropriate constitutional standard for judging sobriety checkpoints. Part III proposes reform-oriented measures that conform to constitutional guidelines. This Note concludes that properly conducted sobriety checkpoints are constitutional.


Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler Dec 1986

Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Michigan Law Review

This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.

The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …


A Mandatory Right To Counsel For The Material Witness, Susan Kling Jan 1986

A Mandatory Right To Counsel For The Material Witness, Susan Kling

University of Michigan Journal of Law Reform

This Note argues that a uniform statute establishing a mandatory right to counsel should be adopted, at both the state and federal levels, to afford to the material witness protection that the Constitution fails to provide. Part I describes the general scope of the problem and concludes that neither the federal government, the individual states, nor the United States Constitution provides the material witness with a mandatory right to counsel. Part II argues that the material witness should have a statutorily mandated right to counsel. A mandatory right to counsel should be extended to the material witness both for the …


"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave Apr 1984

"Seizures" Typology: Classifying Detentions Of The Person To Resolve Warrant, Grounds, And Search Issues, Wayne R. Lafave

University of Michigan Journal of Law Reform

This seizures typology constitutes a most important part of extant fourth amendment doctrine. The precision with which and perspective from which such classifications are drawn is obviously a matter of considerable interest to the police, who must in the first instance resolve these warrant, grounds, and search issues. It is also an appropriate subject of broader concern, as the shape of these categories has a critical bearing upon the effectiveness of our law enforcement processes and the extent of our protected liberty and privacy. The following comments are directed to this seizures typology.


Political Asylum Under The 1980 Refugee Act: An Unfulfilled Promise, Arthur C. Helton Jan 1984

Political Asylum Under The 1980 Refugee Act: An Unfulfilled Promise, Arthur C. Helton

University of Michigan Journal of Law Reform

Part I of this Article reviews the history and development of asylum law in the United States which culminated in the passage of the Refugee Act of 1980. It analyzes the failure of the responsible administrative authorities to follow the dictates of the law - a circumstance which prompted the passage of the Act and which now threatens to subvert the right to asylum in the United States. Part II considers the impact on asylum seekers of new alien interdiction and detention programs, and the legality of those programs under domestic and international law. Finally, Part III makes specific recommendations, …


The Indefinite Detention Of Excluded Aliens: Statutory And Constitutional Justifications And Limitations, Michigan Law Review Oct 1983

The Indefinite Detention Of Excluded Aliens: Statutory And Constitutional Justifications And Limitations, Michigan Law Review

Michigan Law Review

Part I of this Note examines the statutory authority for the indefinite detention of excluded aliens. It concludes that although the INA does not explicitly authorize such detention, the statute's purposes and specific provisions imply that Congress intended to establish a statutory preference for the detention of excluded aliens. The Note then argues in Part II that indefinite detention is constitutionally permissible when it is necessary to vindicate the government's sovereign right to exclude aliens. The Note concludes, however, that the Constitution requires the government to make a continuing good faith effort to deport a detained, excluded alien.


Punishment Before Trial: An Organizational Perspective Of Felony Bail Processes, Michigan Law Review Mar 1983

Punishment Before Trial: An Organizational Perspective Of Felony Bail Processes, Michigan Law Review

Michigan Law Review

A Review of Punishment Before Trial: An Organizational Perspective of Felony Bail Processes by Roy B. Flemming


Legislation - Survey And Analysis Of Criminal And Tort Aspects Of Shoplifting Statutes, Wilbur J. Markstrom S.Ed. Jan 1960

Legislation - Survey And Analysis Of Criminal And Tort Aspects Of Shoplifting Statutes, Wilbur J. Markstrom S.Ed.

Michigan Law Review

Shoplifting not only results in heavy financial losses for the merchant but also poses special problems in criminal law and general law enforcement. One such problem arises from the fact that most such thefts involve relatively small amounts, with the result that the public does not seem extremely concerned about the matter when an individual case comes up for prosecution. Another peculiar difficulty is that perhaps more than any other single crime shoplifting is an offense committed by amateurs, both adult and juvenile. This serves to make both detection and prosecution difficult. Finally, the right of the individual to be …


The Proposed Federal Rules Of Criminal Procedure, Wendell Berge Dec 1943

The Proposed Federal Rules Of Criminal Procedure, Wendell Berge

Michigan Law Review

The recently published Preliminary Draft of the Federal Rules of Criminal Procedure is now before the bench and bar for discussion. The rules proposed are, of course, tentative. Following a procedure similar to that adopted in the case of the civil rules a few years ago, they have been printed and distributed by the Advisory Committee at this stage for the purpose of obtaining criticisms and suggestions. Some of the rules merely restate existing law as provided by statute or adopted by general agreement in judicial decisions. Others work substantial procedural changes. How is the product to be judged?