Michael M. O’Hear – Page 85 – Marquette University Law School Faculty Blog

The Early-Release Renaissance: Reflections and a Legislative Update

Post author:Michael M. O'Hear
Post published:February 25, 2011
Post category:Criminal Law & Process

As I indicated in an earlier post, I’ve been collecting information on new legislation around the country that expands early-release opportunities for prison inmates. By my count, we are now up to at least 36 states with such legislation in the past decade. These legislative initiatives, along with other factors, have probably contributed to the recent (modest) decrease in the number of inmates in state prisons. Does this reflect a durable change in attitudes towards crime and punishment, or is this about short-term fiscal pressures and the need to reduce bloated corrections budgets? Probably a little of both.

Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

Post author:Michael M. O'Hear
Post published:February 16, 2011
Post category:Criminal Law & Process Eastern District of Wisconsin Federal Criminal Law & Process Federal Sentencing Legal Scholarship Race & Law

The federal death penalty is plagued by two important types of disparity. One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black. The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and nine have produced nearly half. Although both disparities have been much commented on separately, it seems they are actually connected. Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated. A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall. Think diverse urban cores surrounded by lily-white suburbs. Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries. Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around. This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking.

The Highs (and Lows) in Life Don’t Last as Long as You Think

Post author:Michael M. O'Hear
Post published:February 7, 2011
Post category:Criminal Law & Process

Hey, Packers fans, have you started to come down from your cloud yet? I was about as euphoric as anyone when the final seconds of the Super Bowl ticked down last night, but then my kids — up way past their bedtime (thank you for the late start time, NFL) — began to fall apart from fatigue and over-stimulation, and I was vividly reminded of some fascinating reading I’ve done in the past year on “affective forecasting.”

In essence, the lesson derived from many years of psychological research is this: people have a pronounced tendency to overestimate how long both happy and sad emotional states will last, even in response to major life events. For instance, research shows that lottery winners come back to earth much more quickly than you would think, while accident victims who suffer permanently disabling injuries also tend to return to their prior emotional state after a readjustment period. An excellent introduction to this research is Jeremy A. Blumenthal, Law and Emotions: The Problems of Affective Forecasting, 80 Ind. L.J. 155 (2005).

As Blumenthal observes, the research has some interesting implications for law. Here are some thoughts, for instance, on implications for criminal punishment.