Criminal Law & Process – Page 71 – Marquette University Law School Faculty Blog

Wisconsinites Like Truth-in-Sentencing . . . Sort Of

Post author:Michael M. O'Hear
Post published:July 17, 2012
Post category:Criminal Law & Process Marquette Law School Political Processes & Rhetoric Public Wisconsin Criminal Law & Process

The latest edition of the Marquette University Law School Poll includes some interesting data on sentencing policy. I’m grateful to Professor Charles Franklin for collaborating with me in putting the questions together. The results are here (note that the sentencing questions start at Q25a).

The primary purpose of the questions was to determine the attitudes of Wisconsinites toward truth-in-sentencing, which was adopted by the state legislature in 1998. The questions are timely in light of recent political debates over new early release opportunities for prison inmates, which were embraced by the legislature in 2009, but then repealed two years later. Early release undercuts truth-in-sentencing by introducing uncertainty into the actual date that inmates will be released. Indeed, critics of the 2009 reforms complained — in what was probably a bit of an overstatement — that the new early release mechanisms “gutted” truth-in-sentencing.

At first blush, the new poll seems to provide strong support for the 2011 repeal and the return to a purer form of truth-in-sentencing: a decisive 63% majority agreed that “truth in sentencing should continue to be the law in Wisconsin.” (25c) Moreover, only 27% agreed that “many of the people who are locked up in prison do not deserve to be there,” and only 37% agreed that “many of the people who are locked up in prison could be safely released without endangering the community.” (27d, e)

But the story is a little more complicated than might first appear.

Miller’s Unanswered Questions and the Future of the Eighth Amendment

Post author:Michael M. O'Hear
Post published:July 14, 2012
Post category:Criminal Law & Process Public U.S. Supreme Court

Since it was handed down late last month, the Supreme Court’s decision in Miller v. Alabama has deservedly received much attention from lawyers and nonlawyers alike. The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to mandatory terms of life imprisonment without parole; “JLWOP” can only be imposed by a judge who has discretion to consider the juvenile’s “youth and attendant circumstances.” (20) Miller thus nicely complements the Court’s 2010 decision in Graham v. Florida, in which the Court banned JLWOP for all offenses less severe than homicide. In Miller, the Court preserved JLWOP as a sentencing option in homicide cases, but only if certain procedural requirements are satisfied, that is, only if the sentencing judge considers “youth and attendant circumstances.”

Like Graham, Miller breaks down a doctrinal barrier between capital punishment and the lesser sentence of life without parole. In Graham, for the first time in a noncapital case, the Court used the methodology it had developed for determining whether the death penalty could be applied to particular categories of offenders, such as juveniles and the mentally retarded. Before Graham, it seemed as if there were no meaningful substantive limitations on noncapital sentences. Similarly, before Miller, there was a well-developed body of Eighth Amendment doctrine regarding the sentencing procedures that had to be followed in capital cases, but no corresponding doctrine for noncapital cases. Miller suggests that the procedural rules may now be migrating, along with the substantive limitations, into LWOP cases and perhaps beyond.

Graham and Miller may lay the foundation for a revolution in the constitutional law of sentencing. Or maybe not. It’s too early to say for sure. Perhaps this Court just has a soft spot for kids (see, for instance, last term’s decision in J.D.B. v. North Carolina.)

In any event, as the revolution or non-revolution plays out, we are likely to see the courts wrestling with many interesting questions raised by Miller. I’ll highlight a few in the remainder of this post.

October Conference to Consider the History, Legacy of America’s First Crime Commission

Post author:Michael M. O'Hear
Post published:July 11, 2012
Post category:Criminal Law & Process Public Speakers at Marquette

Along with my colleagues Dan Blinka, Dean Strang, and Gordon Hylton, I’ve been organizing a conference at Marquette Law School on the Wickersham Commission, America’s first national crime commission. Appointed by President Hoover (left) and including many legal luminaries of the day, the Wickersham Commission produced an extraordinary series of reports in 1931 that examined in great detail the causes of crime and the operation of the American criminal-justice system. Perhaps best remembered for the critical light it cast on extreme police interrogation tactics, the Commission’s work might also be thought of as the coming-of-age of American criminology, as a progenitor of the contemporary “evidence-based decision making” movement, and as a centerpiece of the first presidential effort to craft a comprehensive federal crime-control policy.

The conference will kick off at 4:30 on October 4 with a keynote address by one of my favorite authors on crime policy, Professor Frank Zimring of Berkeley. Registration information for the keynote is here.

The conference will continue with a series of panels beginning at 8:30 a.m. on October 5. Speakers will include distinguished historians, law professors, and criminologists. CLE credits will be applied for. Additional details and registration information are available here.