Criminal Law Commons^™

Urban Politics And The Criminal Courts, Milton Heumann

Michigan Law Review

A Review of Urban Politics and the Criminal Courts by Martin A. Levin

Decriminalizing The Marijuana User: A Drafter's Guide, Richard J. Bonnie

University of Michigan Journal of Law Reform

The article does not discuss the arguments in favor of decriminalization, a matter which the author' and others have covered elsewhere. Nor does the article consider the even more difficult questions involved in a legislative decision to legalize the drug and authorize its distribution for nonmedical uses. International obligations, federal law, and current political realities preclude enactment of a regulatory approach toward the availability of marijuana, including any variant of the so-called alcohol model. Although a state conceivably could repeal its laws against cultivation and distribution of marijuana, including only the federal prohibitions in effect, such an overt departure from …

Central Problems Of American Criminal Justice, Francis A. Allen

Michigan Law Review

At periodic intervals during the present century the American "crime problem" has aroused agitated public discussion. At these times both publicists and ordinary citizens are likely to assume that the disturbing conditions have suddenly arisen and are wholly unlike anything experienced before. In considering the crime problem, the beginning of wisdom may lie in the discovery that this is a problem with a history. Crime and its control did not suddenly become significant in the late 1960s, at the end of World War II, or even with the launching of the prohibition experiment at the conclusion of the first great …

Consent In Criminal Law: Violence In Sports, Michigan Law Review

Michigan Law Review

Because there have been few criminal prosecutions for violence in sports, there are several difficult issues that have received only cursory analysis. This Note will focus on one such issue-the existence and effect of the consent of the injured party. In section I, it will analyze the various general theories relating to the nature of actual consent and will suggest that the current theoretical framework's emphasis on ascertaining the victim's subjective state of mind is, in some contexts, ill-conceived and unhelpful. It will argue that societal interests involved in human interactions should become a major focus of any analysis, particularly …

Objectivity And Habeas Corpus: Should Federal District Court Judges Be Permitted To Rule Upon The Validity Of Their Own Criminal Trial Conduct?, Marilyn L. Kelley

University of Michigan Journal of Law Reform

It has already been suggested that one of the main purposes of section 2255 was to provide a convenient forum in which the trial judge might testify, if necessary. That purpose is, obviously, contrary to the interpretation rendered in Carvell.

Beyond this inconsistency, Carvell suggests two significant issues: first, that it is highly desirable that the motions be passed upon by the judge who is familiar with the facts; and second, that the criminal trial judge is not likely to be misled by allegations in the 2255 petition as to what had occurred. The first issue raises the question …

Criminal Redistribution Of Stolen Property: The Need For Law Reform, G. Robert Blakey, Michael Goldsmith

Michigan Law Review

Section I of this article describes various theft and fencing operations. As will be evident from that discussion, the most sophisticated fences are far removed from those receivers who are owners of seedy pawnshops or who indiscriminately select potential customers on the street, and thus they pose peculiar problems for law enforcement. Section II then identifies inadequacies in existing investigative techniques and in the substantive laws of receiving in light of modern theft and fencing operations. It proposes changes in the law and suggests appropriate law enforcement strategies to facilitate the detection and conviction of alleged fences. Needed changes in …

The Legacy Of The Stubborn And Rebellious Son, Irene Merker Rosenberg, Yale L. Rosenberg

Michigan Law Review

In twentieth century America, as in Biblical ,times, parents unable to subdue their disobedient children are authorized to invoke the coercive power of the state. As recently as 1971, for example, the Supreme Judicial Court of Massachusetts rejected constitutional challenges to the state's "stubborn child" law, which at the time of its original enactment in 1646 was patterned after the above-quoted verse from Deuteronomy. The court upheld an adjudication that an adolescent girl who refused to submit to a medical examination, used vulgar language, slammed doors, and stayed outside the home "probably talking with the boys," was a "stubborn child" …

Some Observations On The Disposition Of Ccw Cases In Detroit, Michigan Law Review

Michigan Law Review

Part I of this Note details the disposition of cases alleging violations of the Michigan CCW statute that were brought in the Detroit recorder's court during 1973. Although the statute is only part of the current scheme of gun control in Michigan, it is the principal weapon available to the police and prosecutor in the preventive battle against the illegal use of firearms. To give meaning to the dispositional statistics and to aid in perceiving the over-all judicial attitude toward CCW cases, the statistical results of the study are compared with statistics on the disposition of cases involving felonies similar …

Pretrial Diversion: The Premature Quest For Recognition, Raymond T. Nimmer, Patricia Ann Krauthaus

University of Michigan Journal of Law Reform

Pretrial diversion has been one of the most enthusiastically promoted criminal justice reforms of recent years. There are more than forty well-funded diversion programs in operation dealing with more than 10,000 criminal defendants each year. Three federal commissions have referred favorably to diversion and grant programs of both the Justice Department and the Department of Labor which have actively fostered the creation and expansion of diversion programs. Several states are considering legislation to establish diversion as a formal element of the criminal justice system and federal legislation is currently pending. Many advocates of diversion claim that the concept has been …

The Allocation Of Prosecution: An Economic Analysis, Michigan Law Review

Michigan Law Review

This Note uses economic theory to reassess the division of prosecutorial tasks between victims and the government for offenses other than victimless offenses. It attempts to answer in a general manner questions such as why the prosecutor should differ from offense to offense and where ,the line should be drawn between governmental and individual prosecution. Work done in the areas of welfare economics and public finance concerning the effectiveness of government and the private sector in providing different sorts of goods is drawn upon heavily. This Note views prosecution as an economic good and a victim's prosecution of an offender …

Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation Part I, Yale Kamisar

Articles

In essence, Williams' specific proposal is that death be authorized for a person in the above situation "by giving the medical practitioner a wide discretion and trusting to his good sense." This, I submit, raises too great a risk of abuse and mistake to warrant a change in the existing law. That a proposal entails risk of mistake is hardly a conclusive reason against it. But neither is it irrelevant. Under any euthanasia program the consequences of mistake, of course, are always fatal. As I shall endeavor to show, the incidence of mistake of one kind or another is likely …

Some Non-Religious Views Against Proposed 'Mercy-Killing' Legislation Part Ii, Yale Kamisar

Articles

There have been and there will continue to be compelling circumstances when a doctor or relative or friend will violate The Law On The Books and, more often than not, receive protection from The Law In Action. But this is not to deny that there are other occasions when The Law On The Books operates to stay the hand of all concerned, among them situations where the patient is in fact ( 1 ) presently incurable, ( 2) beyond the aid of any respite which may come along in his life expectancy, suffering ( 3 ) intolerable and ( 4) …

Juvenile Obscenity Statutes: A Proposal And Analysis, Jerold H. Israel, Rita Ann Burns

Articles

The article that follows is based largely upon a Study Report on juvenile obscenity statutes prepared for the Michigan Law Revision Commission. The objectives of the Report were (1) to analyze the various issues presented in drafting a juvenile obscenity provision, (2) to survey the treatment of those issues in statutes adopted by various states and statutes proposed by several distinguished commissions, and (3) to propose a comprehensive model statute that offers a choice of alternative provisions on key areas of controversy. Certain limitations placed upon the scope of the Report (and this article) should be noted. First, we were …

The Jury And The English Law Of Homicide, 1200-1600, Thomas A. Green

Articles

The early English jury was self-informing and composed of persons supposed to have first-hand knowledge of the events and persons in question. The judge instructed the jury on the law, but was himself almost entirely dependent upon the jury for his knowledge of the case. By stating the evidence in a way that made the result it wanted a necessary conclusion, the medieval jury was able to alter the impact of formal rules of law to conform with prevailing social attitudes.

Ex Post Facto Limitations On Legislative Power, Michigan Law Review

Michigan Law Review

This Note explores the rationale underlying the prohibition of ex post facto laws and formulates an analytic framework for a more principled application .of the prohibition. This analytic framework is then used, first, to critique the present strict application of the prohibition to changes in criminal "punishments" and determine whether the prohibition should be applied to sanctions imposed outside the criminal context, and, second, to determine the degree to which the prohibition should be applied to procedural changes.

The Future Of Sentencing Reform: Emerging Legal Issues In The Individualization Of Justice, John C. Coffee Jr.

Michigan Law Review

This article will focus on the mechanics of the individualization process: the manner in which dispositional information is collected, the quality of the resulting data, and the methodologies employed for its communication to and assessment by correctional decision makers. This focus is important because another distinctive feature of the American criminal justice system is the severity of the sentences it imposes. Not only is the average length of sentences imposed on American offenders far in excess of that imposed in other Western nations, but there is considerable evidence that the average length of sentences has increased in direct response to …

Standards For Accepting Guilty Pleas To Misdemeanor Charges, Richard A. Kopek

University of Michigan Journal of Law Reform

The guilty plea-not the trial-is the most common manner of disposing of criminal cases in America. It has been estimated that 90 percent of all convictions and 95 percent of misdemeanor convictions are the result of guilty pleas. Various reasons have been advanced to explain this heavy reliance on the guilty plea. For example, it avoids the drain on judicial resources that would occur if all cases had to be tried. In addition, it eliminates the risks and uncertainties of trials and permits flexibility in sentencing. Because of the prevalence of guilty pleas, there must be procedural safeguards to insure …

Toward An International System Of Drug Control, Louis Lessem

University of Michigan Journal of Law Reform

By any measure the ongoing explosion in the abuse and trafficking of illicit drugs must be viewed as alarming. The past few years have seen a dramatic upsurge in the use of heroin and other opiates, the re-emergence of cocaine as a popular drug, and expansion of the use and availability of synthetic and psychotropic substances, and, perhaps of greatest international concern, the penetration of illicit narcotics into markets hitherto relatively free from drug involvement. Western Europe, Canada, and most recently the Soviet Union1 have reported the growth of drug-consuming populations. At the same time, there has been an awakened …

Legislative Note: Michigan's Criminal Sexual Assault Law, Kenneth A. Cobb, Nancy R. Schauer

University of Michigan Journal of Law Reform

Under increasing pressure from women's rights groups and other reform organizations, the Michigan legislature has re-evaluated its centenarian rape statute, found it inadequate for the realities of the mid-twentieth century, and enacted a new sexual assault act. While people may refer to the act as "the new rape law," it should be noted at the outset that the statute is intended to prohibit a variety of sexual acts which involve criminal assault. Michigan's new criminal sexual assault law was formulated to distinguish among degrees of violence as motivated by hostility rather than passion; rape, like other crimes, is more heinous …

Elevation Of Entrapment To A Constitutional Defense, Robert H. Thomson Iii

University of Michigan Journal of Law Reform

The issue of entrapment arises initially as a defense when a person is accused of committing a criminal act in which government agents solicited, and perhaps actively participated in, the conduct for which the defendant stands accused. Classic entrapment situations occur when law enforcement officers, through agents or informers, solicit an illegal transaction, such as the sale of contraband. The evidence thereby obtained is used to support the prosecution of the individual accepting the solicitation. Solicitation is an important technique of law enforcement because evidence of illegal transactions is often impossible to obtain by other methods. Certain uses of solicitation …

The Fourth Amendment As A Way Of Talking About People: A Study Of Robinson And Matlock, James Boyd White

Articles

One way to regard what the Supreme Court has done in the cases it has decided under the Fourth Amendment is to say that it has created a specialized discourse of adjudication, a language in which it can talk about and dispose of the repeated conflicts that arise between an officer engaged in the process of crime control and a citizen upon whose freedom or security he intrudes. The events which bring these two figures together are bewildering in their variety and complexity, and the claims on each side are deeply felt and strenuously made. It has not been easy …

Review Of Crime And Public Order In England In The Later Middle Ages, Thomas A. Green

Reviews

Slowly but surely the history of English criminal law is being rewritten. Abundant monographs, articles and introductions to texts have appeared in the past couple of decades; many more are on the way. Work has gone ahead on the substantive law of crimes, on the procedures of the criminal law and its institutions andmore tentatively-on the social history of English criminal law. While medievalists have led the way, work is now being undertaken by early modern and modern historians as well.

The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips

University of Michigan Journal of Law Reform

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has related …

The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar

Articles

Fifty years ago Clarence Darrow, probably the greatest criminal defense lawyer in American history and a leading opponent of capital punishment, observed: The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to …

The Concurrent State And Local Regulation Of Marijuana: The Validity Of The Ann Arbor Marijuana Ordinance, Michigan Law Review

Michigan Law Review

The City Council of Ann Arbor, Michigan, has recently amended the City's "marijuana ordinance" so that it prohibits the possession, control, use, giving away, or sale of marijuana, and specifies a five dollar fine as punishment for violations of the ordinance. The State of Michigan has also legislated to prohibit marijuana-related activities, specifying a number of different offenses with penalties ranging as high as four years in prison, or a 2,000 dollar fine, or both. By enacting the ordinance, the City government has minimized the criminal sanctions for an activity it has found essentially benign, pursuant to certain local purposes. …

Non-Trial Dispositions Of Criminal Offenders: A Case Study, Nancy S. Warder, David C. Zalk

University of Michigan Journal of Law Reform

A number of pre-trial diversion projects, similar to CPA, funded either by the Law Enforcement Assistance Administration or by the United States Department of Labor, have been set up in recent years in a number of cities around the country. Many are modeled after the Vera Institute's Manhattan Court Employment Project in New York and Project Crossroads in Washington, D.C. While the programs are not entirely identical in operation, hopefully this discussion of some of the legal issues involved in non-trial disposition of criminal offenders will be of use outside the immediate confines of the CPA situation. Ultimately the continued …

Societal Concepts Of Criminal Liability For Homicide In Medieval England, Thomas A. Green

Articles

THE early history of English criminal law lies hidden behind the laconic formulas of the rolls and law books. The rules of the law, as expounded by the judges, have been the subject of many studies; but their practical application in the courts, where the jury of the community was the final and unbridled arbiter, remains a mystery: in short, we know little of the social mores regarding crime and crimi- nals. This study represents an attempt to delineate one major aspect of these societal attitudes. Its thesis is that from late Anglo-Saxon times to the end of the middle …

How To Use, Abuse—And Fight Back With—Crime Statistics, Yale Kamisar

Articles

Statistics have an almost magical appeal in a "fact"-minded culture such as ours, among a people conditioned and accustomed to watch for-and attach great significance to-even the smallest fluctuations in say, the unemployment rate. Hence, as Darrell Huff graphically demonstrated in his famous little book, How to Lie with Statistics (1954), they can be-and have been-manipulated to terrorize or calm, inflate or depreciate, and above all, to sensationalize and over simplify. As Harvard criminologist Lloyd Ohlin noted recently, statistics are especially potent when "they give a sense of solid reality (usually false) to something people vaguely apprehend and when they …

Review Of The King's Pardon For Homicide To A.D. 1307, Thomas A. Green

Reviews

NAOMI D. Hurnard's The King's Pardon for Homicide before AD 1307 is significant and instructive for both legal and social historians. The author has painstakingly pieced together the available evidence from a variety of classes of mediaeval English public records to achieve a clear statement of the law of excusable homicide, i.e., non-felonious but requiring a royal pardon. She has lucidly presented the procedure which marks out the legal life story of persons deserving pardon, from the pardonable slaying to the formal proclamation of the king's peace. But she has also accomplished much more. Through careful and generally sound use …

Quinney: The Social Reality Of Crime, Melvin M. Belli

Michigan Law Review

A Review of The Social Reality of Crime by Richard Quinney