Criminal Law & Process – Page 149 – Marquette University Law School Faculty Blog

Drug Courts, Racial Disparities, and Restorative Justice

Post author:Michael M. O'Hear
Post published:March 19, 2009
Post category:Criminal Law & Process Legal Scholarship Race & Law

I have a new paper on SSRN dealing with drug courts, focusing particularly on their (poor) prospects as a mechanism to address racial disparities in the prison population. Here is the abstract:

Specialized drug treatment courts have become a popular alternative to more punitive approaches to the “war on drugs,” with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation’s prison population – disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a “do-no-harm” innovation. Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants. As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes. Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders. Although treatment may be part of such a program, the real centerpiece is the “community conferencing” process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives. Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.

The article is forthcoming in the Stanford Law & Policy Review.

Seventh Circuit Week in Review, Part II: Challenging the Validity of a Jury Waiver, and Much More

Post author:Michael M. O'Hear
Post published:March 16, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

This continues my review of the Seventh Circuit’s new opinions in criminal cases, which I began here. Of the remaining cases, only two merit extended discussion.

In United States v. Williams (No. 07-3004), the court dealt with a challenge to the validity of a jury waiver. Before proceeding to a bench trial, Williams orally waived his right to a jury trial in open court. He did not, however, provide a written waiver, as required by Fed. R. Crim. P. 23(a). Nor did the judge engage in the colloquy recommended for jury waivers by United States v. Delgado, 635 F.2d 889 (7th Cir. 1981). On appeal, the defendant argued that these procedural errors rendered his waiver invalid.

The Seventh Circuit (per Judge Rovner) nonetheless affirmed.

Seventh Circuit Week in Review, Part I: Of Brothels and Woodsheds

Post author:Michael M. O'Hear
Post published:March 15, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

The Seventh Circuit had a busy week, with eight new opinions in criminal cases. In this post, I’ll discuss three that deal primarily with substantive criminal law issues. A subsequent post will cover the sentencing and procedure cases.

Two of the opinions in this post deal with the difficult and important question of whether it is money laundering when a brothel purchases advertising. But, before getting to that question, I’ll discuss a case that offers an unusual dressing-down of a federal prosecutor. (There’s actually a pun in that last sentence — read on to see what I mean.)

The legal question in United States v. Farinella (Nos. 08-1839 & 08-1860) was whether those “best when purchased by” labels you find on food packages really mean anything to consumers. Do they indicate that spoilage is imminent, or are they essentially meaningless marketing devices, akin to claims that a product is “new and improved?”

Farinella, the defendant, purchased 1.6 million bottles of “Henri’s Salad Dressing” for resale at so-called “dollar stores.” He presumably bought them at a discount because the bottles were past, or at least fast-approaching, the “best when purchased by” date stamped on each bottle by the manufacturer. The manufacturer’s label would obviously make resale more difficult, but Farinella solved this problem by covering the original labels with new labels listing a later purchase date. Of course, no one would hold this up as a model of business ethics. But was it a federal crime?