Criminal Law & Process – Page 101 – Marquette University Law School Faculty Blog

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.

California Parole May Be Broken, But Federal Courts Cannot Fix It

Post author:Michael M. O'Hear
Post published:January 25, 2011
Post category:Criminal Law & Process Prisoner Rights Speakers at Marquette U.S. Supreme Court

By some curious coincidence, at about the same time that Jonathan Simon was explaining in his Barrock Lecture yesterday that parole has effectively become unavailable in California in homicide cases, the United States Supreme Court was overturning a pair of Ninth Circuit decisions that would have established a basis for federal-court review of parole denials.

The California parole statute indicates that the state Board of Prison Terms “shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration.” According to the California Supreme Court, the statute requires that there be ”some evidence ” in support of a conclusion “that the inmate is unsuitable for parole because he or she currently is dangerous.” As Simon discussed, this requirement of some evidence of current dangerousness has been applied by the state courts such that the state can justify a parole denial in nearly any case.

The two cases decided by the Court yesterday in Swarthout v. Cooke (No. 10-333) nicely illustrate Simon’s point.

Murder Sentences Becoming “Too Flat and Too Severe,” Barrock Lecturer Says

Post author:Alan J. Borsuk
Post published:January 25, 2011
Post category:Criminal Law & Process Speakers at Marquette

A reactor or a radiator?

A radiator performs service by dissipating heat. A reactor generates increasingly intense heat, presenting difficult challenges for how to contain that heat.

Punishment for murder in the United States increasingly resembles a reactor more than a radiator, Prof. Jonathan Simon at Boalt Hall, University of California-Berkeley School of Law, said in a lecture at Marquette University Law School Monday. And like a reactor, the trends in murder sentences are building up heat that presents increasing challenges.