Michael M. O’Hear – Page 42 – Marquette University Law School Faculty Blog

Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

Post author:Michael M. O'Hear
Post published:September 7, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Federalism Public

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system. One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.” The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas. Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s. In that decade, guilty plea rates hovered between 77% and 82%. After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009. But this, apparently, is not a new phenomenon. Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial. That’s right, only nine trials in three years, or 1.5 criminal trials per judge per year. (Eight of these trials, by the way, took less than one full day to try.) The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%. (See Ron Wright’s helpful data compilation here.) So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, quite reminiscent of a modern“fast-track” plea-bargaining system.

Welcome, September Bloggers

Post author:Michael M. O'Hear
Post published:September 1, 2012
Post category:Public

Many thanks to our August guests, Jesse Dill ’10 and 3L Ariane Strombom. Our September bloggers will be Michael Hupy ’72 and 2L Robert Steele.

Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

Post author:Michael M. O'Hear
Post published:August 20, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.