Criminal Law & Process – Page 53 – Marquette University Law School Faculty Blog

Habeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths

Post author:Michael M. O'Hear
Post published:June 2, 2013
Post category:Criminal Law & Process Public U.S. Supreme Court

The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks. The habeas petitioner won in two of the cases and lost in the third. There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.

One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126). Perkins was convicted of murder in state court, with the judgment becoming final in 1997. More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel. The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted. The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court. Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.

Does this new exception threaten to eviscerate the statute of limitations?

If You Build It . . .

Post author:Michael M. O'Hear
Post published:May 25, 2013
Post category:Criminal Law & Process Public

The paths followed by crime and incarceration in the United States have been mirror images of one another over the past two decades. This can be clearly seen in the graph below, which I prepared for an upcoming conference presentation.

The graph depicts year-by-year rates of imprisonment, homicide, and violent crime (the latter based on results from the National Crime Victimization Survey), indexed to 1992 rates. The mirroring effect is most pronounced if you compare imprisonment (green line) with homicide (red): between 1993 and 1999, imprisonment goes up at almost precisely the same rate that homicide goes down; in 2000, there is an abrupt leveling off in both areas; and neither has seen a lot of change since. The violent victimization line (blue) mostly tracks the homicide line, save for an additional three years of rapid decline (1999-2002) and a notable uptick between 2009 and 2011.

The mirror-image paths might seem counterintuitive. Shouldn’t less crime translate into less imprisonment? Let me suggest three theories to account for what has happened.

The Eighth Amendment and Life Without Parole for Adults

Post author:Michael M. O'Hear
Post published:May 23, 2013
Post category:Criminal Law & Process Legal Scholarship Public U.S. Supreme Court

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.