Criminal Law & Process – Page 33 – Marquette University Law School Faculty Blog

Of Trump Cards and Lawyering

Post author:Joseph D. Kearney
Post published:August 20, 2014
Post category:Criminal Law & Process Legal Practice Legal Profession Pro Bono Public Seventh Circuit

King of Spades Some of the best and the worst of the legal profession can be seen through Socha v. Boughton, No. 12-1598, decided by the Seventh Circuit this past week. The substance of the case involved the court’s applying — for the first time — the doctrine of equitable tolling to excuse a late filing by a state prisoner in a habeas case. This required a conclusion that the district court had abused its discretion in concluding otherwise, including the catchy characterization that “[t]he mistake made by the district court and the state was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt” (slip op. at 19).

Yet it is the lawyering that I want especially to note.

“With Friends Like These . . .”: New Critiques of Graham and Miller

Post author:Michael M. O'Hear
Post published:August 15, 2014
Post category:Criminal Law & Process Legal Scholarship Public U.S. Supreme Court

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade. Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder. I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller. Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another). Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.

Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

Post author:Michael M. O'Hear
Post published:July 24, 2014
Post category:Criminal Law & Process Public Wisconsin Criminal Law & Process

In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison. Subsequent reforms to this system have been either short-lived or very modest in scope. However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers. Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:

85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
55% agreed that “once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.”