Criminal Law & Process – Page 59 – Marquette University Law School Faculty Blog

Criminal Process as Morality Play

Post author:Michael M. O'Hear
Post published:January 11, 2013
Post category:Criminal Law & Process Legal History Legal Scholarship Public

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.

Imprisonment Trends in the Heartland

Post author:Michael M. O'Hear
Post published:January 9, 2013
Post category:Criminal Law & Process Legal Scholarship Public Wisconsin Criminal Law & Process

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.

Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

Post author:Michael M. O'Hear
Post published:January 7, 2013
Post category:Criminal Law & Process Federal Sentencing Public Seventh Circuit

At sentencing, defendants are expected to express remorse for their crimes. Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis. But what if the defendant chooses to say nothing at all at sentencing? On the one hand, a judge might infer a lack of remorse from the defendant’s silence. But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.). Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing. The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis. On appeal, Keskes argued that the sentence violated his right to remain silent. The Seventh Circuit, however, affirmed.