Criminal Law & Process – Page 69 – Marquette University Law School Faculty Blog

Sentencing and the Limits of Actuarial Risk Assessment

Post author:Michael M. O'Hear
Post published:August 6, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

As child molesters go, Cory Reibel seems a relatively low-risk proposition. He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism. Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment. Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions. Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk. However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.

Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

Post author:Michael M. O'Hear
Post published:August 5, 2012
Post category:Criminal Law & Process Public U.S. Supreme Court

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining. More specifically, in Lafler v. Cooper, the Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant. Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time. In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years. Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970′s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976). The comparison is not meant as a compliment.

Dorsey v. United States: So Long, Saving Statute?

Post author:Michael M. O'Hear
Post published:July 31, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Judges & Judicial Process Public U.S. Supreme Court

Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010. The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986. There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime. However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it. Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty. However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication. Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent. By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.