Criminal Law Commons^™

The O.J. Simpson Verdict: A Lesson In Black And White, Christo Lassiter

Michigan Journal of Race and Law

This article is an attempt to analyze the O.J. Simpson verdict and the press coverage of it, to suggest ways not only of improving criminal justice in a diverse community, but also of improving press coverage of criminal justice in a diverse community. Part Two of this essay is subdivided into two sections. The first section surveys the op-ed pages of major newspapers to evaluate the analysis of, and the commentary on, the O.J. Simpson verdict. The second section deconstructs the press' spin on the verdict. Part Three of this article discusses the role of a jury and proof beyond …

The Social Construction Of Identity In Criminal Cases: Cinema Verité And The Pedagogy Of Vincent Chin, Paula C. Johnson

Michigan Journal of Race and Law

This article will discuss the use of the film, Who Killed Vincent Chin?, as a method: (1) to analyze the relationship of social constructions of identity, particularly race, on the rules and discretionary application of criminal jurisprudence; (2) to provide an interactive pedagogical tool for law teachers, especially criminal law teachers, to examine the social contexts of criminal jurisprudence from multiple perspectives; and (3) to examine the ability of criminal law doctrine to address issues of race.

An Epilogue To The Age Of Pound, Thomas A. Green

Articles

Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.

Civil Forfeiture And The War On Drugs: Lessons From Economics And History, Donald J. Boudreaux, Adam C. Pritchard

Articles

This Article uses economic analysis to show how civil forfeiture’s role in the war on drugs creates contrary incentives for law enforcement officials and encourages abuses. The Article then reviews the history of civil forfeiture and the Supreme Court’s forfeiture jurisprudence, which seems incoherent. The Authors warn that the judiciary should be skeptical of civil forfeiture and its importance to the war on drugs. The Article proposes a constitutional framework, grounded in economics and history, to limit forfeiture abuses.

Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross

Articles

I'd like to offer a few words in response to Professor Polsby's articulate, forceful and amusing essay in favor of capital punishment.

Petty Offenses, Serious Consequences: Multiple Petty Offenses And The Sixth Amendment Right To Jury Trial, Jeff E. Butler

Michigan Law Review

In Blanton v. City of North Las Vegas, the Supreme Court set forth the definitive standard for distinguishing petty offenses from serious crimes.7 The benchmark used by the Court is the maximum prison term assigned to each offense by the legislature. Where the penalty exceeds six months' imprisonment, the offense is serious enough to trigger the right to jury trial. Where the penalty is six months' imprisonment or less, there is a strong presumption that the offense is petty; therefore, a defendant accused of that offense has no Sixth Amendment right to jury trial.

This Note argues that a criminal …

True Lies: The Role Of Pretext Evidence Under Batson V. Kentucky In The Wake Of St. Mary's Honor Center V. Hicks, David A. Sutphen

Michigan Law Review

In the process of determining whether a peremptory strike is valid, lower courts rely on the TI.tie VII burden-shifting framework originally laid out by the Supreme Court in McDonnell Douglas Corp. v. Green As a result, the order and presentation of proof in Batson cases deliberately parallels the order and presentation of proof in TI.tie VII intentional discrimination suits. In light of this similarity, the Supreme Court's recent TI.tie VII ruling in St. Mary's Honor Center v. Hicks - that proof of pretext under the McDonnell Douglas framework is not the legal equivalent to proof of intentional discrimination - raises …

Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green

Articles

The concept of freedom has two main aspects: political liberty and freedom of the will. I am concerned here with the latter, although - as these two aspects of freedom are not entirely unrelated to each other - I shall touch also on the former. Enough has been written from a philosophical perspective on the relationship between free will and the law that it is not easy to justify yet another such undertaking. But there may still be room for some informal observations on the manner in which doubts about the concept of freedom of the will affected discussion of …

Putting Women First, Mary Coombs

Michigan Law Review

A Review of Gender, Crime, and Punishment by Kathleen Daly

Should Courts Impose Rico's Pretrial Restraint Measures On Substitute Assets?, James M. Rosenthal

Michigan Law Review

This Note argues that courts should not apply RICO's pretrial restraint measures to substitute assets. Part I examines the text of RICO's forfeiture provisions in light of recent rulings by the Supreme Court providing guidance in interpreting the statute. Part I concludes that the statute's plain meaning limits pretrial restraint measures to tainted assets. Part II examines language in the legislative history of an earlier attempt to add a substitute asset provision to RICO and in the 1984 change from broad to specific language in the pretrial restraint provision. From this language, Part II concludes that Congress did not intend …

The Emerging Role Of The Quid Pro Quo Requirement In Public Corruption .Prosecutions Under The Hobbs Act, Peter D. Hardy

University of Michigan Journal of Law Reform

This Note discusses the quid pro quo requirement under the Hobbs Act, a federal criminal statute which applies to bribery by public officials. The author first describes two recent decisions by the Supreme Court, McCormick v. United States and Evans v. United States, which established slightly different versions of a quid pro quo requirement in public corruption prosecutions under the Hobbs Act. The author then explains that the lower federal courts interpreting McCormick and Evans have molded the quid pro quo requirement so that a prosecutor must prove in all public corruption cases under the Hobbs Act that the …

Strong Criticism Of The American System Of Trial By Jury, Yale Kamisar

Articles

I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization.

The Romance Of Revenge: An Alternative History Of Jeffrey Dahmer's Trial, Samuel R. Gross

Articles

On Feb. 17, 1992, Jeffrey Dahmer was sentenced to fifteen consecutive terms of life imprisonment for killing and dismembering fifteen young men and boys. Dahmer had been arrested six months earlier, on July 22, 1991. On Jan. 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on Jan. 30. The jury heard two weeks of horrifying testimony about murder, mutilation and necrophilia; they deliberated for five hours before finding that Dahmer was sane when he committed thos crimes. After …

The Punishment Of Hate: Toward A Normative Theory Of Bias-Motivated Crimes, Frederick M. Lawrence

Michigan Law Review

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between …

Strings Attached--Violin Fraud And Other Deceptions, Carla J. Shapreau

Michigan Law Review

A Review of Violin Fraud: Deception, Forgery, Theft, and the Law by Brian W. Harvey

Losing The Right To Confront: Defining Waiver To Better Address A Defendant's Actions And Their Effects On A Witness, David J. Tess

University of Michigan Journal of Law Reform

Part I of this Note examines the current legal landscape regarding a defendant's waiver of the right to confrontation. This Part explores the justifications courts have provided for finding a waiver of the confrontation right, both through the use of the traditional "intentional relinquishment of a known right" standard and the less precise formulations of waiver found in cases of defendant misconduct. Part II offers a critique of the reasoning courts employ to find waiver of the right to confrontation. In the process, the analysis explores general theories of waiver which have been advanced by other commentators. In so doing, …

Hardening Of The Attitudes: Americans' Views On The Death Penalty, Phoebe C. Ellsworth, Samuel R. Gross

Articles

American support for the death penalty has steadily increased since 1966, when opponents outnumbered supporters, and now in the mid-1990s is at a near record high. Research over the last 20 years has tended to confirm the hypothesis that most people’s death penalty attitudes (pro or con) are based on emotion rather than information or rational argument. People feel strongly about the death penalty, know little about it, and feel no need to know more. Factual information (e.g., about deterrence and discrimination) is generally irrelevant to people’s attitudes, and they are aware that this is so. Support for the death …

Postconviction Review Of Jury Discrimination: Measuring The Effects Of Juror Race On Jury Decisions, Nancy J. King

Michigan Law Review

In Part I, I review the empirical evidence concerning the effect of jury discrimination on jury decisions. Using the work of social and cognitive psychologists, I argue that the influence of jury discrimination on jury decisions is real and can be measured by judges in certain circumstances. The empirical studies suggest criteria that courts could use to identify the cases in which jury discrimination is most likely to affect the verdict. I also refute the argument that white judges can never predict the behavior of jurors of racial backgrounds different than their own and conclude that judicial estimates of the …

Continuing Criminal Enterprise, Conspiracy, And The Multiple Punishment Doctrine, Kenneth G. Schuler

Michigan Law Review

This Note argues that the Multiple Punishment Doctrine prohibits the imposition of concurrent convictions and sentences upon criminal defendants found guilty of engaging in a CCE and conspiring to violate narcotics laws. Part I surveys the values underlying the Multiple Punishment Doctrine and traces the evolution of the Supreme Court's application of the doctrine to modern criminal law. Part II examines the various methods employed by the circuit courts of appeals to deal with simultaneous convictions and sentences for CCE and conspiracy. Part III reviews the test, identified in Part I, that the Supreme Court has implicitly utilized to analyze …

Are Criminal Defenders Different?, David Luban

Michigan Law Review

No one has done more to expose the jurisprudential incoherence of this view of legal practice than William Simon. In his 1978 article, The Ideology of Advocacy, Simon demonstrated a series of internal contradictions in the most promising attempts to justify the ideology of advocacy. Subsequently, in Ethical Discretion in Lawyering, Simon elaborated an alternative view according to which lawyers must exercise independent judgment in both their choice of clients and their choice of means in pursuing client ends.

In Simon's view, those who carve out the criminal defense exception have been taken in by what he calls …

The Ethics Of Criminal Defense, William H. Simon

Michigan Law Review

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Reply: Further Reflections On Libertarian Criminal Defense, William H. Simon

Michigan Law Review

Since David Luban's is the work on legal ethics that I admire and agree with most, there is an element of perversity in my vehement critique of his arguments on criminal defense. I am therefore especially thankful for his gracious and thoughtful response. Nevertheless, I remain convinced that Luban is mistaken in excepting criminal defense from much of the responsibility to substantive justice that we both think appropriate in every other sphere of lawyering.

Capital Punishment's Future, Welsh S. White

Michigan Law Review

A Review of Capital Punishment in America by Raymond Paternoster

The Writing On Our Walls: Finding Solutions Through Distinguishing Graffiti Art From Graffiti Vandalism, Marisa A. Gómez

University of Michigan Journal of Law Reform

This Note argues that outlawing graffiti completely is not an effective solution. The only effective means of controlling graffiti is to develop laws and policies which accommodate graffiti art while discouraging graffiti vandalism and which attack the root causes of graffiti. Part I briefly outlines the origins of graffiti. Part II describes the different types of graffiti and the motivations of their respective creators. Part III analyzes the arguments for and against the legalization of certain types of graffiti and concludes that, because of the multitude of different types of graffiti, both graffiti proponents and opponents have meritorious arguments that …

Rape Discourse In Press Coverage Of Sex Crimes, Peggy Reeves Sanday

Michigan Law Review

A Review of Virgin or Vamp: How the Press Covers Sex Crimes

The Sexual Innocence Inference Theory As A Basis For The Admissibility Of A Child Molestation Victim's Prior Sexual Conduct, Christopher B. Reid

Michigan Law Review

The sexual innocence inference refers to the thought process a jury follows when it hears a young child testify about sexual acts and matters that reveal an understanding of such acts beyond the capacity likely at his or her age. A jury is likely to assume that because the child is so young, he or she must be innocent of sexual matters. Shocked by the child's display on the witness stand, the jury may then infer that the child could have acquired such knowledge only if the charged offense of child molestation is true. To rebut this inference, a defendant …

Prostitution And Male Supremacy, Andrea Dworkin

Michigan Journal of Gender & Law

The assumptions of academia can barely begin to imagine the reality of life for women in prostitution. Academic life is premised on the notion that there is a tomorrow and a next day and a next day; or that someone can come inside from the cold for time to study; or that there is some kind of discourse of ideas and a year of freedom in which you can have disagreements that will not cost you your life. These are premises that those who are students here or who teach here act on every day. They are antithetical to the …

Extraterritorial Application Of Rico: Protecting U.S. Markets In A Global Economy, Kristen Neller

Michigan Journal of International Law

The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted by Congress in 1970 to combat organized crime in America. Since its enactment, it has been used extensively in both the civil and criminal arenas. With the participation of foreign corporations, foreign subsidiaries, and foreign actors in general in the U.S. economy, it is only a matter of time before foreign defendants will be sued under RICO. This Note will discuss whether RICO should be applied extraterritorially: that is, whether federal courts should assume jurisdiction over foreign entities as defendants in RICO claims. First, RICO's language, legislative history and application …

Prostitution And Civil Rights, Catharine A. Mackinnon

Michigan Journal of Gender & Law

The gap between the promise of civil rights and the real lives of prostitutes is an abyss which swallows up prostituted women.' To speak of prostitution and civil rights in one breath moves the two into one world, at once exposing and narrowing the distance between them.

Strategies Of Connection: Prostitution And Feminist Politics, Margaret A. Baldwin

Michigan Journal of Gender & Law

A feminist political approach to prostitution must begin from these strengths and be tested against the standards set by them. I want to address how taking each of these strengths seriously can create sustained resistance against prostitution.