Criminal Law & Process – Page 82 – Marquette University Law School Faculty Blog

U.S. Probation Population Continues to Drop: Who’s Leading the Way and Why

Post author:Michael M. O'Hear
Post published:November 22, 2011
Post category:Criminal Law & Process Public

The Bureau of Justice Statistics released a new report yesterday showing that the number of adults under community supervision declined by 1.3 percent in 2010. Entitled Probation and Parole in the United States, 2010, the report summarizes the most recent national data on community supervision. The decline in 2010 built on a smaller drop in 2009, and may point toward a long-term retreat from the massive increase in the American supervised population that occurred in the 1980′s and 1990′s.

Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults. This compares to a supervised population of less than 1.4 million in 1980.

The supervised population includes both probationers and those released from prison to community supervision. (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”) The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010. Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.

Why are fewer Americans on probation? The report provides no definitive answers, but some clues are apparent.

Seventh Circuit Overturns Sentence for Lack of Explanation

Post author:Michael M. O'Hear
Post published:November 19, 2011
Post category:Criminal Law & Process Federal Sentencing Public Seventh Circuit

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990′s. Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme. Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience. Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness. United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005). These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a sentence below what is recommend by the sentencing guidelines. As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously. For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.

SCOTUS to Revisit Life Without Parole for Juveniles

Post author:Michael M. O'Hear
Post published:November 8, 2011
Post category:Criminal Law & Process Public U.S. Supreme Court

Yesterday, the Supreme Court granted certiorari in two new cases that will test the limits of the Court’s important 2010 ruling in Graham v. Florida, which banned the sentence of life without possibility of parole for most juvenile offenders. Graham recognized an exception, however, for juveniles convicted of homicide. It is this exception that is at issue in the two new cases, both of which involve fourteen-year-old killers.

The two cases are Miller v. Alabama (opinion below: 63 So. 3d 676 (Ala. Crim. App. 2010)) and Jackson v. Hobbs (2011 Ark. 49). The question granted in each case is the same, and they are to be argued together. It appears that the defendants are presenting a categorical challenge to the constitutionality of “LWOP” as applied to fourteen-year-olds.