Criminal Law & Process – Page 108 – Marquette University Law School Faculty Blog

Deterring Constitutional Violations

Post author:Michael Cicchini
Post published:November 1, 2010
Post category:Criminal Law & Process

Consider a case of police misconduct: An officer wants to enter and search a citizen’s home, but has no search warrant, no legal basis to obtain one, and no exigent circumstances to justify entry. The officer enters and searches anyway and, as he suspects, finds contraband. The citizen-turned-criminal-defendant then moves the court for a remedy: suppression of the evidence.

Should the evidence be suppressed? In Herring v. United States, our Supreme Court held that suppression is not an individual right, but rather a last resort. That is, even given a clear constitutional violation, a trial court should suppress evidence only in the rare case of egregious police misconduct, where suppression would deter the misconduct in the future.

Deterrence in this context, however, is an illusion.

The Beginning of the End for Life Without Parole?

Post author:Michael M. O'Hear
Post published:October 28, 2010
Post category:Criminal Law & Process Legal Scholarship

That question is the title of a new paper I’ve just uploaded to SSRN. Here is the abstract:

This essay introduces a new issue of the Federal Sentencing Reporter that is devoted to different aspects of the sentence of life without parole. An important question raised by many of the articles is whether LWOP, after two decades of explosive growth, is entering a period of decline. For instance, the Supreme Court declared LWOP unconstitutional for most juvenile offenders in May 2010, possibly inaugurating an era of more meaningful constitutional limitations on very long sentences. Additionally, many cash-strapped states have been developing new early-release programs in order to reduce corrections budgets, some of which hold out hope even for LWOP inmates. This essay considers the likelihood that these and other recent developments will contribute to a decline in LWOP. In the end, none of the developments portend dramatic changes, at least regarding LWOP for adult offenders, although it is possible that LWOP will undergo a period of slow, long-term decline, much as has occurred with the death penalty. After laying out this perspective, the essay then considers whether the United States ought to welcome such a period of decline.

Defense Counsel and Sentencing: Tenth Circuit Indicates That Lawyers Must Advise Clients on Relevant Conduct

Post author:Michael M. O'Hear
Post published:October 15, 2010
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing

In a criminal-justice system dominated by plea-bargaining and harsh sentencing laws, the core responsibility of a defense lawyer is no longer to seek acquittals at trial, but to minimize the harm suffered by the client as a result of a conviction. Ineffective assistance law should reflect this reality. Padilla v. Kentucky and its progeny (see this post) suggest that there may indeed be a growing appreciation in the courts that defense counsel must be knowledgeable and provide good advice about the crucial things that happen to a defendant post-conviction. Although the courts have long recognized as much in capital cases, it is good to see more attention now being given to the role of defense counsel in the noncapital setting.

Complementing what is happening in the collateral-consequences cases, the Tenth Circuit recently ruled that a defendant’s right to effective assistance was violated when his lawyer did not warn him of the dangers of confessing to uncharged criminal conduct during a presentence investigation meeting with a probation officer.