Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

July 23rd, 2014

In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison.  Subsequent reforms to this system have been either short-lived or very modest in scope.  However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers.  Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:  

  • 85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
  • 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
  • 55% agreed that “once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.”

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Wisconsinites Give Criminal Justice System Poor Marks, Especially for Offender Rehabilitation

July 23rd, 2014

We expect a lot from our criminal-justice system, and we don’t seem very impressed with the results we are getting.  These are two of the notable lessons that emerge from the most recent Marquette Law School Poll of Wisconsin residents, the results of which were released earlier today.

In one part of the survey, respondents were asked to assess the importance of five competing priorities for the criminal-justice system.  As to each of the five, a majority indicated that the priority was either “very important” or “absolutely essential.”  The five priorities were:

  • Making Wisconsin a safer place to live (91.6% said either very important or absolutely essential)
  • Ensuring that people who commit crimes receive the punishment they deserve (88.1%)
  • Keeping crime victims informed about their cases and helping them to understand how the system works (81.0%)
  • Rehabilitating offenders and helping them to become contributing members of society (74.1%)
  • Reducing the amount of money we spend on imprisoning criminals (51.2%)

The especially high level of support for “making Wisconsin a safer place to live” was notable in light of the much smaller number of respondents (21.4%) who said that they or an immediate family member had ever been the victim of a serious crime.  This is line with results from last July’s Poll, which indicated that more than 85% of Wisconsinites feel safe walking alone in their neighborhoods at night.  Still, making the state safer remains a high priority for more than 90% of Wisconsin residents.

Respondents were separately asked how well the system was performing along five separate dimensions.   Read the rest of this entry »

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Final Version of Eighth Amendment Article Now Available

July 22nd, 2014

The Missouri Law Review has now published the final version of my article, “Not Just Kid Stuff? Extending Graham and Miller to Adults.”  Here is the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The citation is 78 Mo. L. Rev. 1087 (2013).

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SCOTUS End-of-Term Roundup: The Constitutional Cases

June 30th, 2014

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

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SCOTUS End-of-Term Roundup: Fourth Amendment Cases

June 29th, 2014

On the criminal side of the Court’s docket, I found this term’s statutory interpretation cases more interesting than the constitutional cases.  In the latter category, the Fourth Amendment decisions were probably the most significant.  They were:

  • Fernandez v. California, 571 U.S. __ (2014) (police permissibly conducted warrantless consent search of home notwithstanding objection of one occupant).
  • Prado Navarette v. California, 572 U.S. __ (2014) (anonymous 911 call sufficiently justified stop of vehicle).
  • Riley v. California, 573 U.S. __ (2014) (warrant required for search of arrestee’s cell phone).

In reviewing these three cases, I think the most intriguing comparison is between Fernandez and Riley.  The two decisions serve to highlight apparent inconsistencies in the Court’s stance toward search warrants. Read the rest of this entry »

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SCOTUS End-of-Term Roundup: Should the Court Care How Effective a Statute Is?

June 27th, 2014

In my previous post, I noted a number of the considerations that the Supreme Court emphasized in its criminal statutory interpretation cases from the past term.  In this post, I will highlight one recurring point of controversy, that is, whether the Court should try to maximize the effectiveness of statutes in achieving their overarching purposes.

Abramski, the firearms purchase case, provides a good illustration.   Read the rest of this entry »

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SCOTUS End-of-Term Roundup: Statutory Interpretation in Criminal Cases

June 26th, 2014

In the first post in this series, I discussed two causation cases in some detail.  In this post, I will more briefly summarize the full set of the Supreme Court’s criminal statutory interpretation cases from the past term and then offer a few overarching observations.

Here are the cases (excluding habeas corpus decisions):

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SCOTUS End-of-Term Roundup: Causation Cases

June 25th, 2014

Author’s Note: With this, I begin a series of posts that will review the Supreme Court’s criminal cases from the now-concluding term.

The Court’s docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.

Burrage nicely illustrates the tension.   Read the rest of this entry »

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SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

June 3rd, 2014

In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act.  Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes.  The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.”  (12)  This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond.  The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.   Read the rest of this entry »

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SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

May 30th, 2014

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify.  Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower.  Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests.  “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”  (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.   Read the rest of this entry »

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