Criminal Law & Process – Page 36 – Marquette University Law School Faculty Blog

Bond v. United States: SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

Post author:Michael M. O'Hear
Post published:June 3, 2014
Post category:Constitutional Law Criminal Law & Process Federalism Public U.S. Supreme Court

In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act. Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes. The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.” (12) This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond. The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.

SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

Post author:Michael M. O'Hear
Post published:May 30, 2014
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify. Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower. Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests. “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.

Which States Have Reduced Their Prison Populations in the Past Decade?

Post author:Michael M. O'Hear
Post published:May 5, 2014
Post category:Criminal Law & Process Public

By 2002, in the wake of a recession that caused difficult fiscal challenges in many states, there was an increasingly widespread recognition that the American imprisonment boom of the 1980s and 1990s was not economically sustainable. Dozens of states adopted new sentencing and corrections policies that were intended to restrain further growth in imprisonment. These reforms seem to have had some success, as imprisonment rates finally stabilized after so many years of explosive growth. However, very little progress has been made toward bringing U.S. imprisonment rates back down to historic and international norms. The “if you build it, they will come” principle seems in evidence — after so much prison capacity was built in the boom years, we’ve found ways to keep using it even as crime rates have tumbled down.

Notwithstanding the overall national picture, a few states have had success in downsizing their prison populations. Here are the ten states whose prison populations dropped between December 2002 and December 2012:

New York -19%
New Jersey -17%
California -16%
Connecticut -15%
Michigan -14%
Maryland -9%
South Carolina -5%
Wisconsin -5%
Rhode Island -2%
Hawaii -1%

Even the largest decreases on the list are rather small compared with the size of the pre-2002 increases. Nonetheless, some might wonder whether reduced imprisonment has resulted in more crime. With that concern in mind, I gathered data on violent crime in the five states that experienced double-digit drops in imprisonment.