New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.   Continue reading “New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues”

After Return from Prison, Friends Can Be Key to Success or Failure

New research highlights the importance of friends in determining whether returning prisoners will commit new crimes. A considerable body of prior research has demonstrated the importance of family relationships to the returning prisoner, but a new study John Boman and Thomas Mowen suggests that peer relationships may exert an even greater influence over success or failure.

Boman and Mowen collected data on a sample of 625 serious and violent male offenders, including their self-reported substance abuse and new criminal activity over a fifteen-month period after release from prison. The data also included the offenders’ assessment of their family support and the criminal histories of their closest friends.

After controlling for a number of variables, Boman and Mowen identified several factors that proved to be statistically significant predictors of post-release recidivism.   Continue reading “After Return from Prison, Friends Can Be Key to Success or Failure”

Crime and Stigma: New Research Explores the Connections

The colonial Americans famously had their “scarlet letter” punishments, which marked and shamed the criminal. Today, the stigma of a conviction may be less vividly displayed, but it is no less real. Two interesting new criminological articles present research on the impact of this stigma.

First, an article by Jeff Bouffard and LaQuana Askew considers potential crime-reducing benefits of stigma, specifically in relation to sex offender registration and notification (SORN) laws. Such laws, adopted across the United States in the 1990s, require certain convicted sex offenders to register their residence and other information with state authorities on an ongoing basis, sometimes for the rest of their lives. The information is then made publicly available, which can greatly magnify the duration and intensity of the stigma of the conviction.

It was thought that SORN laws might reduce sexual offending in two ways: by deterring prospective offenders from committing crimes that might land them on a registry, and by alerting potential victims to the proximity of individuals who were already registered and hence possibly dangerous. However, several studies thus far have found little or no reduction in offending in the wake of the adoption of SORN legislation.

Continue reading “Crime and Stigma: New Research Explores the Connections”

Right to Counsel: One Step Forward, Two Steps Back

As part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial.  Continue reading “Right to Counsel: One Step Forward, Two Steps Back”

Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

Three decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. Dunn. Continue reading “Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert”

Race and Risk Assessment

Risk-assessment has become all the rage in American criminal justice. In jurisdictions across the country, criminal-justice officials are utilizing increasingly sophisticated risk-assessment tools, which can be used to predict a given offender’s likelihood to reoffend based on his criminal history and a number of other variables. These predictive evaluations can be brought to bear at several important decisional points in the criminal process: pretrial release, diversion into treatment, sentencing, and others.

Although risk assessment has been widely applauded for its potential to support increased efficiency in the use of scarce criminal-justice resources, a recurring criticism has been that leading risk-assessment tools have built-in racial biases. A particular concern has been the heavy reliance on criminal history; to the extent that criminal history reflects biased actions by police or others in the past, then predictions based on that history may tend to overestimate the relative risk posed by minority defendants. Thus, for instance, a black defendant and a white defendant whose actual risk levels are identical could potentially receive quite different risk scores, leading to quite different bail or sentencing decisions.

Such concerns find some support in the empirical research.

A new study, however, reaches more reassuring conclusions, at least with respect to one risk-assessment tool used in federal court.  Continue reading “Race and Risk Assessment”

Dark Clouds on the Horizon for Graham v. Florida?

In 2010, the Supreme Court ruled in Graham v. Florida that juveniles given a life sentence for nonhomicide crimes must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what makes a release opportunity “meaningful”? The Court’s decision earlier today in Virginia v. LeBlanc suggests that the threshold may not be as high as some hoped.

LeBlanc was convicted of committing a rape when he was 16 and sentenced to life in prison without the possibility of conventional parole. On the face of it, this would seem a clear violation of Graham. However, in federal habeas proceedings, the state argued that LeBlanc would have his “meaningful opportunity” through a geriatric release program, which permits the release of some inmates who are age sixty or older.

Since many other states also have geriatric release programs, the issue presented by LeBlanc has important, national ramifications for the strength of the Eighth Amendment right recognized in Graham.

A district judge and then a panel of the Fourth Circuit held in LeBlanc’s favor. The Fourth Circuit noted the highly discretionary nature of the geriatric release decision under Virginia law, which effectively permitted the releasing authority to disregard an applicant’s “demonstrated maturity and rehabilitation,” contrary to Graham. 841 F.3d 256, 269 (4th Cir. 2016).

A unanimous Supreme Court reversed today in a brief per curiam opinion.   Continue reading “Dark Clouds on the Horizon for Graham v. Florida?”

Violence Prevention Initiatives: The Difficulty of Building on Early Success

Project Safe Neighborhoods has been among the highest-profile and best-funded national violence prevention initiatives of the past two decades, involving allocations of about $1 billion to U.S. Attorney’s Offices across the country. Evaluations to date have generally been positive, but a new study of the PSN experience in Chicago highlights the challenges of building on early success.

The researchers, Ben Grunwald and Andrew Papachristos, attempted a rigorous, beat-level analysis of the impact of PSN on troubled neighborhoods in the Windy City. With each of the nation’s U.S. Attorneys authorized to develop locally tailored PSN programs, there was considerable city-to-city variation in implementation. In Chicago, PSN had three primary components: (1) diversion of select gun-related cases from state to federal court, where there were often higher sentences available; (2) creation of a multi-agency “gun team” to investigate gun trafficking cases; and (3) development of in-person offender notification forums involving parolees and probationers who had been convicted of gun crimes. Forum attendees were both warned of the punishment they would face if they committed new gun crimes and offered social services to support better choices in the future.

PSN was rolled out in two phases in Chicago.  Continue reading “Violence Prevention Initiatives: The Difficulty of Building on Early Success”

Time to Revisit Wisconsin’s Jury Instruction on Reasonable Doubt?

Attorney (and prolific author) Michael Cicchini has been doing some interesting work on Wisconsin’s reasonable doubt instruction, including some empirical research with psychologist Lawrence White. Cicchini has now created a helpful resource page for criminal defense lawyers, which includes not only links to his own research, but also a sample brief and a list of judges who have already adopted modifications to the standard instruction.

Cicchini summarizes the problems with the standard instruction this way:

After explaining the concept of “beyond a reasonable doubt,” this instruction tells the jury “not to search for doubt,” but instead “to search for the truth.”

J.I. 140 is blatantly unconstitutional. First, telling the jury “not to search for doubt” is unconstitutional because, as other states have held, it is the jury’s duty to evaluate the state’s case for reasonable doubt. Second, telling the jury “to search for the truth” is unconstitutional because, as other states have held, it communicates the much lower “preponderance of evidence” standard, i.e., if the charge is merely probably true, the jury should convict.

Wisconsin’s War on Cocaine, 1986-1990

The new issue of Marquette Lawyer magazine has an excerpt of my book Wisconsin Sentencing in the Tough-on-Crime Era. The excerpt covers changes to drug sentencing in the late 1980s, which were largely motivated by concerns about cocaine, especially in its crack form. As others have observed, the harshly punitive response to the crack epidemic in the 1980s contrasts markedly with the more balanced response to the current opioid epidemic. Given the widespread perception that crack was the drug of poor urban blacks, might the different responses to the two crises be explained, at least in part, by race and class?