Criminal Law Commons^™

Note, The Death Penalty In Late Imperial, Modern, And Post-Tiananmen China, Alan W. Lepp

Michigan Journal of International Law

This paper seeks to explore the crucial determinants that shape the Chinese legal system's use of the death penalty. Why have the Chinese relied so heavily on execution as a form of sentencing? What factors and conditions account for the major changes in the frequency of China's use of the death penalty? What indigenous traditions are reflected in China's implementation of the death penalty? In order to inquire into the role and function of the legal system in affecting the severity of criminal punishment in China, this study will focus on only those death sentences carried out by the state …

Note, The United States, Israel And Their Extradition Dilemma, Sheryl A. Petkunas

Michigan Journal of International Law

Part I of this note will examine the different approaches taken by the Second, Seventh and Ninth Circuits in their application of the Treaty's political offense exception. Part II will discuss the conflict that may arise from Israel's application of a domestic law which contravenes the purpose of the Treaty. Part III will address both the need for the United States and Israel to reconcile problems in applying the political offense exception through renegotiation and the dilemma arising from the failure of the Israeli government and the Knesset to coordinate policy with regard to the extradition of nationals.

The Great Gatsby, The Black Sox, High Finance, And American Law, Allen Boyer

Michigan Law Review

The Great Gatsby, by F. Scott Fitzgerald, is the great novel of America in the 1920s. It is about someone pursuing a girl, and, more than that, it is about someone pursuing a dream. Jay Gatsby is someone who believes in the American dream of success. His life plays out the most famous piece of repartee between Fitzgerald and Hemingway - that the rich are very different from you and me, because they have more money. Gatsby is a man who thought that if he had the money, he would be rich, and could therefore be different.

After reading …

Federal Habeas Corpus Review Of State Judgments, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

This Report carries out a review of the historical development of the federal habeas corpus jurisdiction; examines its contemporary character and operation; and discusses relevant policy considerations. The Report concludes that federal habeas corpus as a post-conviction remedy for state prisoners should be abolished or limited as far as possible. The limited reform proposals that were passed by the Senate in 1984 and that are currently before Congress as Title II of the proposed Criminal Justice Reform Act provide the best immediate prospect for improvement.

Just Punishment In An Imperfect World, Stephen J. Schulhofer

Michigan Law Review

A Review of Questioning Authority: Justice and Criminal Law by David L. Bazelon

At A Tender Age: Violent Youth And Juvenile Justice, Patrick Gallagher

Michigan Law Review

A Review of At a Tender Age: Violent Youth and Juvenile Justice by Rita Kramer

Hardly The Trial Of The Century, Franklin E. Zimring

Michigan Law Review

A Review of A Crime of Self-Defense: Bernhard Goetz and the Law on Trial by George P. Fletcher

Introducing Criminal Law, Stephen J. Morse

Michigan Law Review

A Review of Bad Acts and Guilty Minds: Conundrums of the Criminal Law by Leo Katz, and Crime, Guilt, and Punishment: A Philosophical Introduction by C.L. Ten

Congress And Genocide: They're Not Going To Get Away With It, Jordan J. Paust

Michigan Journal of International Law

Today at least, it is generally recognized that genocide is a crimen contra omnes, a crime under customary international law over which there is universal enforcement jurisdiction and responsibility. Indeed, it is commonly expected that the prohibition of genocide is a peremptory norm of customary international law, a jus cogens allowing no form of derogation under domestic or treaty-based law. It is also commonly understood that the definition of genocide contained in the Convention on the Prevention and Punishment of the Crime of Genocide defines that which is prohibited by customary jus cogens.

Pain And Suffering Guidelines: A Cure For Damages Measurement "Anomie", Frederick S. Levin

University of Michigan Journal of Law Reform

This Note argues that adapting the criminal sentencing guidelines systems in use in several states to the personal injury context would provide appropriate standards for measuring pain and suffering damages. Part I explores why present methods for measuring pain and suffering are objectionable. A description of the proposed method for developing guidelines is provided in Part II. Part II explores the use of guidelines in criminal sentencing and the analogy between sentencing decisions and assessment of damages for nonpecuniary loss. Part II also describes how to develop and implement guidelines for assessing pain and suffering damages. Part III examines why …

The Public Defender, Robert R. Kimball

Michigan Law Review

A Review of The Public Defender by Lisa J. McIntyre

Reexamining The Law Of Rape, Janet E. Findlater

Michigan Law Review

A Review Real Rape by Susan Estrich

Crimewarps: The Future Of Crime In America, Brandon D. Lawniczak

Michigan Law Review

A Review of Crimewarps: The Future of Crime in America by Georgette Bennett

Capital Punishment And The American Agenda, John Pierce Stimson

Michigan Law Review

A Review of Capital Punishment and the American Agenda by Franklin E. Zimring and Gordon Hawkins

A Retrospective On The Criminal Trial Jury, 1200-1800, Thomas A. Green

Book Chapters

My recent book provided an overview of the history of the institutional aspects of the English criminal trial jury upon which all of the contributors to this volume have, tacitly or otherwise, commented. That tentative institutional background was intended both to stand on its own terms and to provide a framework for the studies on the relationship between law and society and on the history of ideas regarding the jury that made up the larger part of the volume. The two aspects of my book were joined: the socio-legal analysis and the history of ideas were to a large extent …

Rape Shield Laws--Is It Time For Reinforcement?, Catherine L. Kello

University of Michigan Journal of Law Reform

This Note takes a critical look at civil suits arising from allegations of rape, particularly from the perspective of how these actions run counter to the spirit of rape reform and rape shield legislation. The analysis begins with a brief history of the Rape Shield Law and its intended purposes. Part II then utilizes two cases to outline the current dilemma posed by civil suits that are filed during a pending criminal sexual conduct prosecution. After presenting these cases, Part III considers whether a legislative remedy is required and determines that it is. Part IV then proposes a Model Statute. …

A Recommended Approach To Bail In International Extradition Cases, Jeffrey A. Hall

Michigan Law Review

This Note proposes such a consistent approach, arguing that courts in international extradition cases should focus on the accused's risk of flight rather than on the presence or absence of specific "special circumstances." Part I briefly discusses the international extradition process and outlines the important societal and individual interests at stake in the bail decision. Part II discusses the origin and evolution of the judicial approaches to bail in international extradition cases and demonstrates the inconsistency in the lower courts' treatment. Part III suggests an approach for making bail decisions in international extradition cases. It argues that the determinative factor …

Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt

Michigan Law Review

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …

The Ultimate Violation, Todd Maybrown

Michigan Law Review

A Review of The Ultimate Violation by Judith Rowland

Punishment: Desert And Crime Control, Ernest Van Den Haag

Michigan Law Review

A Review of Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals by Andrew von Hirsch

Crime And The Courts In England 1660-1800, Frank C. Shaw

Michigan Law Review

A Review of Crime and the Courts in England 1660-1800 by J.M. Beattie

Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla

University of Michigan Journal of Law Reform

The federal government and many states already provide psychiatric assistance to indigent defendants pleading insanity. Michigan's statutory scheme for delivering this service presents an opportunity to evaluate an approach that generally favors defendant interests in areas left unresolved by Ake. This Note undertakes that evaluation. Part I summarizes the Ake decision, key problem areas, and the research methodology. Part II describes the Michigan statutory system. Part III evaluates that system using data from interviews with legal and psychiatric practitioners and considers the consequences of Michigan's approach to the issues posed by Ake. The evaluation shows that Michigan's system …

Child Sexual Abuse Cases: Reestablishing The Balance Within The Adversary System, Mary Christine Hutton

University of Michigan Journal of Law Reform

This Article begins with an overview of the adversary process and how it has changed in recent years to respond to the needs of children. The Article highlights two of the goals of the adversary process-(!) testing and probing of two sides to a story, and (2) refraining from a decision until the complete story is told-to examine how they can be retained in spite of these changes. Part II pinpoints the assignment of multiple or poorly-defined roles to the child sexual abuse professionals as one of the potential impediments to preserving the goals of the adversarial system. The performance …

Denying The Crime And Pleading Entrapment: Putting The Federal Law In Order, Richard C. Insalaco, Peter G. Fitzgerald

University of Michigan Journal of Law Reform

The federal law of procedure in entrapment cases is in profound disarray. Despite four attempts over the past fifty years to clarify the law of pleadings in entrapment cases, the Supreme Court has yet to do so successfully. This Note focuses on these attempts, and analyzes the issue of whether to permit a defendant to plead entrapment while simultaneously denying the crime charged.

Part I reviews the historical development of the entrapment defense, the disagreement among the federal circuits with regard to alternative inconsistent defenses, and the arguments commentators have made for and against allowing alternative inconsistent defenses in entrapment …

Dangerousness And Criminal Justice, Franklin E. Zimring, Gordon Hawkins

Michigan Law Review

The first section of this paper surveys some recent writings on the topic of dangerousness for major inconsistencies, which we regard as illuminating the special problem of dangerousness in the jurisprudence of criminal sentencing.

The second section describes the "special problem of dangerousness," for, we believe, the first time. The special problem is the fear that any admission of calculations of dangerousness into sentencing decisions will lead to an overuse of dangerousness, which may be worse than the inefficiencies and hypocrisies we confront when denying that future dangerousness is relevant to decisions about prisons.

The third section attempts to reorganize …

Change In The Availability Of Federal Habeas Corpus: Its Significance For State Prisoners And State Correctional Programs, Franklin J. Remington

Michigan Law Review

Expressions of dissatisfaction with state prisoner use of federal writs of habeas corpus continue. Recently Attorney General Meese was reported as telling the Judicial Conference of the Seventh Circuit: "[M]ost of the writs filed today were frivolous 'recreational activities' [by inmates whom he referred to as 'lawyers in penitentiaries'] designed to harass federal authorities." Referring to the Reagan administration's proposal pending in the United States Senate to restrict habeas corpus, Mr. Meese said the bill "would preserve the great writ for appropriate cases."

Repeated, but as yet unsuccessful, efforts have been made in the Congress to narrow the scope of …

History Against Free Speech: The New German Law Against The "Auschwitz" -- And Other -- "Lies", Eric Stein

Michigan Law Review

An American observer would expect the central issue in the public debate to be the conflict between the constitutionally protected values of individual freedom of expression on the one hand and public security and personal honor on the other. This, however, has not been the case. To the contrary, the constitutional issue has played a marginal role in the legislative process, and it has been resolved by the courts with obvious ease in favor of the constitutionality of the previous legislation on the same general subject. There is every reason to believe that the new law will also be upheld, …

The Criminal Forfeiture Provisions Of The Rico And Cce Statutes: Their Application To Attorneys' Fees, Gregory Merz

University of Michigan Journal of Law Reform

This Note argues that the criminal forfeiture provisions of RICO and CCE should not apply to attorneys' fees legitimately paid for services rendered. Part I examines the distinction between criminal and civil forfeiture, focusing particularly on forfeiture of property transferred to third parties. Part II discusses ways in which forfeiture of attorneys' fees adversely impacts the attorney-client relationship. Part III suggests a construction of the criminal forfeiture provisions that avoids the problems presented by attorneys' fees forfeiture but maintains criminal forfeiture as a deterrent to crime.

Expert Services And The Indigent Criminal Defendant: The Constitutional Madate Of Ake V. Oklahoma, John M. West

Michigan Law Review

This Note attempts to define the boundaries of the indigent criminal defendant's constitutional right to expert assistance, in the light of Ake v. Oklahoma. Part I briefly reviews the Ake decision and examines its constitutional background. Part II inquires into Ake's implications for experts other than psychiatrists and in contexts other than the insanity defense, arguing that the principles that guided the Ake decision have validity well beyond the facts of that case. Part III asks whether the Ake doctrine should be limited to capital cases. Rejecting such a limitation, it concludes that the right to expert assistance …

Injury And Exasperation: An Examination Of Harm To Others And Offense To Others, Andrew Von Hirsch

Michigan Law Review

A Review of Harm to Others by Joel Feinberg and a Review of Offense to Others by Joel Feinberg