Jekyll, Hyde, and Criminal Law

I am looking forward to Professor Nicola Lacey’s public lecture at Marquette Law School tomorrow. Lacey’s presentation, the annual George and Margaret Barrock Lecture on Criminal Law, is entitled, “Socializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization.”  More information and registration are available here.

For an engaging and succinct introduction to Lacey’s important writing on criminal responsibility, I would recommend “Psychologizing Jekyll, Demonizing Hyde: The Strange Case of Criminal Responsibility,” 4 Crim. L. & Philosophy 109 (2010). In this article, Lacey uses the classic Robert Louis Stevenson story of Dr. Jekyll and Mr. Hyde to illustrate some fundamental tensions in thinking about criminal responsibility.

First published in 1886, Stevenson’s novella concerns a distinguished Victorian doctor, Jekyll, who despairs over his urges to indulge in vice. Jekyll devises a potion that splits the good and evil sides of his personality into distinct identities.   The animalistic Hyde may gratify his lusts without any risk to Jekyll’s reputation, or so it seems. The plan unravels, however, as Jekyll loses the ability to control the transformations, and the Hyde identity becomes dominant. Along the way, Hyde commits a murder and eventually kills himself (and thus Jekyll, too) in order to avoid arrest.

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Marquette Poll Reveals Support for Rehabilitation of Prisoners

For the past four years, Darren Wheelock and I have collaborated with Charles Franklin and the Marquette Law School Poll on a series of surveys of public attitudes toward sentencing and corrections policy in Wisconsin. Our 2015 results, released last week, seem to show remarkably high levels of support for prisoner rehabilitation. Of those who were asked, more than 80% expressed support for each of the following:

  • Expanding counseling programs for prisoners
  • Expanding job training programs for prisoners
  • Expanding educational programs for prisoners
  • Helping released offenders find jobs

At the same time, there are also indications of substantial, if somewhat lower, levels of support for various punitive policies:

  • About 47% supported making sentences more severe for all crimes
  • About 45% supported locking up more juvenile offenders
  • About 62% supported increasing the use of mandatory minimum sentences for repeat offenders
  • About 45% supported trying more juvenile offenders as adults

It is puzzling that many respondents expressed support for both pro-rehabilitation and tough-on-crime policies. We have also seen this phenomenon in earlier rounds of our polling.  

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Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

4c556cb87b0a9_imageWhile in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence.

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