New Issue of FSR Considers Recent Developments Affecting Right to Counsel

In three cases since 2010, the U.S. Supreme Court has seemingly strengthened the chronically anemic right to effective assistance of counsel. Padilla v. Kentucky, the first in the trilogy, indicated that defense lawyers must in some circumstances provide accurate information to their clients regarding the deportation consequences of a conviction. The Court then followed Padilla with decisions in Lafler v. Cooper and Missouri v. Frye that reaffirmed and clarified the right to effective assistance in plea bargaining. (See my post here.)

Inspired by these decisions, Cecelia Klingele and I put together an issue of the Federal Sentencing Reporter devoted to recent legal developments affecting the right to counsel. The issue is now out in print.

The issue includes commentary from several of the nation’s most astute observers of criminal procedure; the contents appear after the jump.  I do have a few extra copies on hand and would be happy to forward them gratis to any interested readers of this blog. Just email me your mailing address (michael.ohear@marquette.edu).

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Criminal Process as Morality Play

My review of Stephanos Bibas’s book The Machinery of Criminal Justice is now available on SSRN.  Here is the abstract:

Stephanos Bibas’s new book, The Machinery of Criminal Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a “participatory morality play,” in which ordinary members of the community played a crucial role. In Bibas’s view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas’s book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects for reviving the morality-play model may be even dimmer than Bibas recognizes, although a number of his proposed reforms nonetheless appear attractive.

Entitled “(The History of) Criminal Justice as a Morality Play,” my essay will appear in the Penn Law Review’s on-line journal, PENNumbra.

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Imprisonment Trends in the Heartland

A draft of my new article, “Mass Incarceration in the Three Midwestern States: Origins and Trends,” is now available on SSRN. Here’s the abstract:

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.

The article builds on my series of “Tale of Three States” blog posts from about a year ago. It will appear in print later this year in a symposium issue of the Valparaiso Law Review.

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