Criminal Law Commons^™

Confessions Of A Criminal Lawyer, Michigan Law Review

Michigan Law Review

A Review of Confessions of a Criminal Lawyer by Seymour Wishman

Salvaging Proportionate Prison Sentencing: A Reply To Rummel V. Estelle, Thomas F. Cavalier

University of Michigan Journal of Law Reform

Part I of this Note provides a capsule of the Court's holding in Rummel. Part II argues, contrary to Rummel, that precedential support can be mustered to support eighth amendment review of sentence length. Finally, part 11,1 discusses the continued viability of the proportionality test as a vehicle for assessing challenges to the length of imprisonment, and discounts the concerns voiced in Rummel regarding the difficulty of judicial review of legislative sentencing decisions.

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

Articles

Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

The Assassination Attempt, Yale Kamisar

Articles

From the moment the would-be assassin opened fire until many days after he was found not guilty by reaaon of insanity, the press was fascinated by the case. The very same day that it reported the assassination attempt "in the open street, and in the broad face of day," the Times considered but quickly dismissed the possibility of insanity: "The defndant's purpose was carried out with the most cold-blooded determination. . . . His demeanor throughout was cool and collected, nor did there appear any evidence of insanity." When, several days later, it became plain that the defendant was indeed …

Cults, Deprogrammers, And The Necessity Defense, Michigan Law Review

Michigan Law Review

This Note considers the applicability of the necessity defense in criminal prosecutions of parents and deprogrammers. Part I explores the conflicting policies that underlie the traditional necessity defense, and suggests that courts replace their unitary approach to necessity with a "choice of evils" defense - for actors reasonably attempting to avoid a greater evil - and a "compulsion" defense - for actors reacting understandably to the pressure of circumstances. Part II applies these defenses to deprogramming cases, and concludes that rarely may they be advanced successfully.

Parent-Child Incest: Proof At Trial Without Testimony In Court By The Victim, Dustin P. Ordway

University of Michigan Journal of Law Reform

This Note argues that the incest victim should not testify personally at trial. Rather, the child's testimony should be replaced with tape-recorded pretrial examinations of the victim by an expert, supplemented by the in-court testimony of the examining expert. Part I discusses how the present system of requiring in-court testimony by the victim harms the child, fails to correct the incest problem, and produces unreliable evidence. Part II outlines and discusses the merits of the proposed reform. Part ill examines the proposed reform in light of the defendant's constitutional rights to due process and to confront witnesses against him. The …

Desert And Deterrence: An Assessment Of The Moral Bases Of The Case For Capital Punishment, Richard O. Lempert

Michigan Law Review

The controversy over the death penalty has generated arguments of two types. The first argument appeals to moral intuitions; the second concerns deterrence. Although both types of argument speak to the morality of systems of capital punishment, the first debate has been dominated by moral philosophers and the second by empirical social scientists. For convenience I shall at times refer to the approach of the moral philosophers as the moral case for (or against) capital punishment or as the argument from morality.

Mental Disabilities And Criminal Responsibility, Michigan Law Review

Michigan Law Review

A Review of Mental Disabilities and Criminal Responsibility by Herbert Fingarette and Ann Fingarette Hasse

The Inauguration Of Criminology Annuals, David F. Greenberg

Michigan Law Review

A Review of Crime and Justice: An Annual Review of Research, vol. 1 edited by Norval Morris and Michael Tonry, and Criminology Review Yearbook, Vol. 2 edited by Egon Bittner and Sheldon L. Messinger

Popular Justice: A History Of American Criminal Justice, Michigan Law Review

Michigan Law Review

A Review of Popular Justice: A History of American Criminal Justice by Samuel Walker

Social Research And The Use Of Medieval Criminal Records, Edward Powell

Michigan Law Review

A Review of Society and Homicide in Thirteenth-Century England by James Buchanan Given, and Crime and Conflict in English Communities, 1300-1348 by Barbara A. Hanawalt

Two Theories Of Criminal Justice, Alsen D. Miller

Michigan Law Review

A Review of A Theory of Criminal Justice by Jan Gorecki, and A Theory of Criminal Justice by Hyman Gross

Beating A Rap? Defendants Found Incompetent To Stand Trial, Michigan Law Review

Michigan Law Review

A Review of Beating a Rap? Defendants Found Incompetent To Stand Trial by Henry J. Steadman

A True Deliverance: The Joan Little Case, Michigan Law Review

Michigan Law Review

A Review of A True Deliverance: The Joan Little Case by Fred Harwell

The American Prosecutor: A Search For Identity, Michigan Law Review

Michigan Law Review

A Review of The American Prosecutor: A Search for Identity by Joan E. Jacoby

Vicious Circles: The Mafia In The Marketplace, Michigan Law Review

Michigan Law Review

A Review of Vicious Circles: The Mafia in the Marketplace by Jonathan Kwitny

Specific Performance Of "Unfulfillable" Plea Bargains, Stuart L. Gasner

University of Michigan Journal of Law Reform

This article discusses how courts have handled the remedy dilemma presented by unfulfillable plea bargains. Part I analyzes the seminal Supreme Court opinion on the broken plea bargain question, Santobello v. New York. This section concludes that choice-of-remedy is not entirely a matter of lower court discretion. Rather, Santobello delegates to lower courts the authority to develop a law of remedies which conforms to the underlying principles of that decision. Part I also focuses on what courts have done with this mandate, discussing the elements of decision courts have developed to remedy unfulfillable plea bargains. Finally, Part II suggests …

Incapacitating The Habitual Criminal: The English Experience, Sir Leon Radzinowicz, Roger Hood

Michigan Law Review

In this Article, Sir Leon Radzinowicz and .Dr. Roger Hood trace 150 years of unsuccessful English efforts to identify, sentence, and reform habitual criminal offenders. The Supreme Court's recent decision in Rummel v. Estelle has publicized habitual offender statutes in the United States. But Rummel primarily addressed the constitutionality, rather than the desirability, of a state habitual offender statute. This Article examines the broader policy questions common to habitual offender programs in both the United Stales and Great Britain. It describes the tension between liberal tradition and the state's desire to incapacitate those who repeatedly threaten life or property.

For Capital Punishment, Michigan Law Review

Michigan Law Review

A Book Notice about For Capital Punishment by Walter Berns

Plea Bargaining Reexamined, Lynn M. Mather

Michigan Law Review

A Review of Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys by Milton Heumann

Do Defendants Have An Attorney When They Have A Public Defender, James Eisenstein

Michigan Law Review

A Review of Counsel for the Poor: Criminal Defense in Urban America by Robert Hermann, Eric Single, and John Boston

The Rise Of Prisons And The Origins Of The Rehabilitative Ideal, Carl E. Schneider

Michigan Law Review

A Review of The Discovery of the Asylum: Social Order and Disorder in the New Republic by David J. Rothman

Changed Society, Changing Law, Hence Unstable Prisons, Daniel Glaser

Michigan Law Review

A Review of Stateville: The Penitentiary in Mass Society by James B. Jacobs

Review Of Crime In England, 1550-1800, Thomas A. Green

Reviews

Crime in England, 1550-1800, is the second collection of essays on the social history of crime and the criminal law in early modern England to appear in recent years. Together with the essays in Albion's Fatal Tree (1975),' these offerings advance our knowledge of the subject considerably. To be sure, as G. R. Elton cautions, there are methodological problems in a field so new, and Elton's "Introduction" will serve as an excellent starting point for readers concerned with such matters. We must nevertheless recognize the accomplishments of the new school of socio-legal historians. The essays in this volume deal with …

Introduction To Blackstone Volume Iv, Thomas A. Green

Other Publications

The final volume of Blackstone's Commentaries sets forth a·lucid survey of crime and criminal procedure informed by those propositions concerning English law and the relations between man and state that characterize the entire work. Perhaps no area of the law so tested Blackstone's settled and complacent views as did the criminal law, particularly the large and growing body of statutory capital crimes. In the end, Blackstone failed to demonstrate that English criminal law reflected a coherent set of principles, but his intricate and often internally contradictory attempt nevertheless constitutes a classic description of that law, and can still be read …

Government Appeals In Criminal Cases: The 1978 Decisions, Edward H. Cooper

Articles

The statute allowing the government to appeal from some forms of trial court defeat in criminal cases, 18 U.S.C.A. § 3731, has a long and tangled history. In its 1970 opinion in United States v. Sisson 9ui the Supreme Court wrestled mightily with a difficult problem under the statute as it then stood, and invited Congress to amend "this awkward and ancient Act." Soon afterward the act was amended. It now provides in part that the government may appeal in a criminal case

from a decision, judgment, or order of a district court dismissing an indictment or information as to …

The Law As A Path To The World, Francis A. Allen

Michigan Law Review

Many years ago the late Mr. Justice Oliver Wendell Holmes observed: "The law is a small subject (though ... it leads to all things) .... " The comments that follow are an elaboration of Justice Holmes's theme. It will be asserted that one characteristic of legal studies, properly pursued, is that they lead to a fuller understanding of the larger world of which the law and its institutions are a part. Because the law leads to a larger world of persons, events, and ideas, it claims the attention even of those possessing no interest in acquiring professional legal skills. This …

Pleas Of Guilty And The Loss Of Constitutional Rights: The Current Price Of Pleading Guilty, Stephen A. Saltzburg

Michigan Law Review

This Article proposes the same basic rule as Westen's to explain the Supreme Court's decisions, but for very different reasons which require several modifications of the Westen rule. I argue that all the guilty-plea cases, properly viewed, are consistent with, and therefore can be read as evidence of, a theory more easily applied than articulated by the Court: that some constitutional rights are largely premised on notions of litigation avoidance, that their "avoidance" rationales must be respected, and that these rights therefore prevent governments from establishing procedural rules that force criminal defendants to go to trial-to choose more rather than …

Forfeiture By Guilty Plea--A Reply, Peter Westen

Michigan Law Review

I will begin by describing what I think Professor Saltzburg and I both mean by a ''legal theory." I then apply that standard to test the validity of the two theories at issue here, first Professor Saltzburg's, then mine. I next discuss a third theory that is independent of both Professor Saltzburg's and mine, viz., that whether a constitutional claim survives a guilty plea depends on whether it is ''jurisdictional." Finally, I comment generally on the concept of forfeiture and its influence on the way one conceives of constitutional rights.

The Restoration Of In Re Winship: A Comment On Burdens Of Persuasion In Criminal Cases After Patterson V. New York, Ronald J. Allen

Michigan Law Review

At the conclusion of its last term, the Supreme Court rendered what should have been a most unremarkable decision. In Patterson v. New York, the Court upheld New York's affirmative defense of extreme emotional disturbance, which requires a defendant who seeks to reduce his offense from murder to manslaughter to prove by a preponderance of the evidence that he acted under extreme emotional disturbance. Had the case come before the Court seven years earlier, it could have been swiftly dispatched with a brief opinion upholding the New York statute on the grounds that the issue of extreme emotional disturbance …