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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Bertha Oliva: The Search for Truth and Justice in Honduras

Marquette University Law School was very fortunate to have several international law events last week. The third of three international law speakers was Bertha Oliva, who spoke to an audience of law students and Marquette University undergraduate students on Wednesday, October 6, 2010.

Bertha Oliva is the General Coordinator of the Committee of Families of the Detained and Disappeared in Honduras (COFADEH). COFADEH is a Honduran non-governmental organization committed to fighting human rights violations. Ms. Oliva, along with others, founded COFADEH in 1982 to seek justice for the individuals who were detained, disappeared, and killed by Honduran death squads. COFADEH now investigates and documents human rights violations, represents victims of human rights violations, and educates the public on human rights issues.

Ms. Oliva spoke about the ongoing human rights violations in Honduras, particularly the violations that occurred (and continue to occur) after the coup d’etat last June. She described daily violence and threats that she, members of COFADEH, and other members of the resistance movement face because they oppose the post-coup government. Specifically, Ms. Oliva told about the rape of women, forced kidnappings, and the murder of resistance movement members that have become commonplace in Honduras. Additionally, resistance movement groups, including COFADEH, have been the victims of tear gas raids and attacks. 

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New Right-to-Counsel Rulings Address Bail and Waiver

State courts in Maryland and Indiana have recently broken new ground in the right-to-counsel area.  First, a trial judge in Baltimore ruled inRichmond v. District Court that indigent defendants have a Sixth Amendment right to be represented by counsel at bail hearings.  The decision is described in more detail at The Blog of Legal Times.  Additional coverage appears in The Daily Record.

Second, the Indiana Supreme Court ruled in Hopper v. State that defendants who wish to waive their right to counsel and plead guilty must be advised of the benefits of having a lawyer during plea negotiations.  The United States Supreme Court had previously rejected such “formulaic” requirements for a valid waiver of the right to counsel in Iowa v. Tovar, 541 U.S. 77 (2004).  However, unlikeTovar, the new case was decided not on Sixth Amendment grounds but on the basis of the Indiana Supreme Court’s general supervisory authority over lower state courts.

If it is affirmed on appeal and replicated in other jurisdictions, the Baltimore ruling is likely the more significant of the two.  

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