Criminal Law & Process – Page 167 – Marquette University Law School Faculty Blog

Priorities for the New President: Restore Parole in the Federal Criminal Justice System

Post author:Michael M. O'Hear
Post published:October 3, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process

This is part of a series of posts this month focusing on priorities for a new presidential administration.

In the area of federal criminal law, the next administration ought to undertake a number of initiatives: polish the Department of Justice’s tarnished image by ensuring that appointments to leadership positions are rigorously merit-based and by avoiding dubious prosecutions that appear politically motivated; make the federal criminal justice system a real leader and innovator in developing community-based alternatives to prison for nonviolent offenders; likewise, make the federal system a leader and innovator in implementing restorative justice and other processes that are more responsive to victim needs than conventional criminal case processing; seek the elimination of mandatory minimum sentencing statutes; and bring greater coherence and transparency to an executive clemency process that was extraordinarily kind to Scooter Libby, but that rarely does anything for offenders who are not politically connected. Although I regard all of these as matters of considerable urgency–and will perhaps blog about some of them at greater length later this month–I might put still another initiative at the top of the list: restore the possibility of parole release for federal prisoners.

Responding to Racial Disparities in the Criminal Justice System

Post author:Michael M. O'Hear
Post published:October 1, 2008
Post category:Criminal Law & Process Milwaukee Race & Law Wisconsin Criminal Law & Process

The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities. This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation. As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed. Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted. For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted. Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.

What Is an “Offense”?: Another ACCA Puzzle for the Courts

Post author:Michael M. O'Hear
Post published:September 28, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process U.S. Supreme Court

I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here). With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law. The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms. Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA. As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum). The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty.