Racial Disparities and Risk Assessment

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.”  (A copy is available here on SSRN.)  Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.” 

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New Comments Address Fraud Sentencing and Deferred Prosecution Agreements

The latest issue of the Marquette Law Review features a student comment by Ryan Parsons on the treatment of “temporary victims” under the federal sentencing guidelines.  In crimes such as bank fraud, individual accountholders that have been defrauded are often reimbursed by the bank and, therefore, made economically whole.  Such reimbursed accountholders are often ignored for purposes of sentencing enhancement, even though reimbursement may not occur without time and effort expended by these temporary victims.  Parsons describes how various courts have dealt with this phenomenon, as well as the Federal Sentencing Commission’s recent decision to include all such temporary victims in the enhancement calculation regardless of whether the defrauded accountholders even knew about the fraud.  Parsons argues that in order for a sentence to accurately reflect the severity of the crime, temporary victims should be taken into account to the extent that they suffered actual, monetizable losses (e.g., time spent pursuing mitigation).

This issue also includes Rachel Delaney’s comment analyzing the use of deferred prosecution agreements (DPAs) in the corporate crime context, ultimately calling for congressional regulation of prosecutorial discretion.  

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Criminal Appeals Symposium: New Issue of Marquette Law Review Hits Newstands

Congratulations to the editors of the Marquette Law Review on the publication of a new issue.  This issue features papers presented at the Criminal Appeals Conference here in June 2009.  All of the articles can be downloaded from the Law Review‘s website.  Here are the contents:

  • Criminal Appeals: Past, Present, and Future , by Chad M. Oldfather and Michael M. O’Hear
  • Stories of Crimes, Trials, and Appeals in Civil War Era Missouri, Frank O. Bowman III
  • Scottsboro, by Michael J. Klarman
  • A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, by Roger A. Fairfax Jr.
  • Justice on Appeal in Criminal Cases: A Twentieth-Century Perspective, by Paul D. Carrington
  • The Impact of Government Appellate Strategies on the Development of Criminal Law, by Andrew Hessick
  • Death Penalty Appeals and Habeas Proceedings: The California Experience, by Gerald F. Uelmen
  • Taking Strickland Claims Seriously, by Stephen F. Smith
  • “You Can’t Get There From Here?”: Ineffective Assistance Claims in Federal Circuit Courts After AEDPA, by Gregory J. O’Meara S.J.
  • Innocence Protection in the Appellate Process, by Keith A. Findley
  • Judicial Blindness to Eyewitness Misidentification, by Sandra Guerra Thompson
  • Robust Appellate Review of Sentences: Just How British Is Indiana?, by The Honorable Randall T. Shepard
  • The Future of Appellate Sentencing Review: Booker in the States, by John F. Pfaff
  • Appellate Review of Sentencing Policy Decisions After Kimbrough, by Carissa Byrne Hessick
  • Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences, by Michael M. O’Hear
  • Context and Compliance: A Comparison of State Supreme Courts and the Circuits, by Sara C. Benesh and Wendy L. Martinek
  • Federal Criminal Appeals: A Brief Empirical Perspective, by Michael Heise
  • Temporary Victims: Interpreting the Federal Fraud and Theft Sentencing Guideline, by Ryan N. Parsons
  • Congressional Legislation: The Next Step for Corporate Deferred Prosecution Agreements, by Rachel Delaney
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