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Full-Text Articles in Law
Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail
Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail
University of Michigan Journal of Law Reform
The United States imprisons a greater proportion of its own population than any other country in the world. A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence). Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons. That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the …
Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron
Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron
University of Michigan Journal of Law Reform
When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?
Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …
"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody
"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody
University of Michigan Journal of Law Reform
This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …