New Essays on Restitution and Sentencing Commissions

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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New Issue of FSR Considers Recent Developments Affecting Right to Counsel

In three cases since 2010, the U.S. Supreme Court has seemingly strengthened the chronically anemic right to effective assistance of counsel. Padilla v. Kentucky, the first in the trilogy, indicated that defense lawyers must in some circumstances provide accurate information to their clients regarding the deportation consequences of a conviction. The Court then followed Padilla with decisions in Lafler v. Cooper and Missouri v. Frye that reaffirmed and clarified the right to effective assistance in plea bargaining. (See my post here.)

Inspired by these decisions, Cecelia Klingele and I put together an issue of the Federal Sentencing Reporter devoted to recent legal developments affecting the right to counsel. The issue is now out in print.

The issue includes commentary from several of the nation’s most astute observers of criminal procedure; the contents appear after the jump.  I do have a few extra copies on hand and would be happy to forward them gratis to any interested readers of this blog. Just email me your mailing address (michael.ohear@marquette.edu).

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Criminal Process as Morality Play

My review of Stephanos Bibas’s book The Machinery of Criminal Justice is now available on SSRN.  Here is the abstract:

Stephanos Bibas’s new book, The Machinery of Criminal Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a “participatory morality play,” in which ordinary members of the community played a crucial role. In Bibas’s view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas’s book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects for reviving the morality-play model may be even dimmer than Bibas recognizes, although a number of his proposed reforms nonetheless appear attractive.

Entitled “(The History of) Criminal Justice as a Morality Play,” my essay will appear in the Penn Law Review’s on-line journal, PENNumbra.

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