Criminal Law & Process – Page 110 – Marquette University Law School Faculty Blog

Racial Disparities and Risk Assessment

Post author:Michael M. O'Hear
Post published:October 11, 2010
Post category:Criminal Law & Process Legal Scholarship Race & Law

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.” (A copy is available here on SSRN.) Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations. The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population. He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.”

New Right-to-Counsel Rulings Address Bail and Waiver

Post author:Michael M. O'Hear
Post published:October 8, 2010
Post category:Criminal Law & Process

State courts in Maryland and Indiana have recently broken new ground in the right-to-counsel area. First, a trial judge in Baltimore ruled inRichmond v. District Court that indigent defendants have a Sixth Amendment right to be represented by counsel at bail hearings. The decision is described in more detail at The Blog of Legal Times. Additional coverage appears in The Daily Record.

Second, the Indiana Supreme Court ruled in Hopper v. State that defendants who wish to waive their right to counsel and plead guilty must be advised of the benefits of having a lawyer during plea negotiations. The United States Supreme Court had previously rejected such “formulaic” requirements for a valid waiver of the right to counsel in Iowa v. Tovar, 541 U.S. 77 (2004). However, unlikeTovar, the new case was decided not on Sixth Amendment grounds but on the basis of the Indiana Supreme Court’s general supervisory authority over lower state courts.

If it is affirmed on appeal and replicated in other jurisdictions, the Baltimore ruling is likely the more significant of the two.

Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel

Post author:Michael M. O'Hear
Post published:October 1, 2010
Post category:Criminal Law & Process Legal Practice

Last spring, the U.S. Supreme Court ruled in Padilla v. Kentucky that an attorney’s incorrect advice regarding the deportation consequences of a guilty plea might violate the client’s Sixth Amendment right to effective assistance of counsel. Padilla was a surprisingly broadly worded expansion of the Sixth Amendment right into the realm of advice on the collateral consequences of a conviction. Although Padilla raised more questions than it answered, the decision may prove an extraordinarily important one in light of the proliferation of collateral consequences over the past couple of decades.

Now the Eleventh Circuit has indicated that Padilla does indeed extend beyond deportation advice. In Bauder v. Dep’t of Corrections (No. 10-10657), the court affirmed a grant of habeas relief based on an attorney’s incorrect advice that the petitioner would not face the possibility of civil commitment as a sexually violent predator if he pled no contest to a stalking charge.

In addition to its extension of the Padilla reasoning to a new collateral consequence, Bauder strikes me as quite significant for at least two reasons.