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Most Recent Print Issue
Spring 2024
Volume 21.1
Article
Justice Michael P. Donnelly
The Guardrails Are Off: Why Judicial Discretion in Ohio Criminal Sentencing Has Careened Out of Control and How Data Analytics Can Bring It Back on Course

Public confidence in the criminal justice system is its lifeblood. In order for there to be public confidence in criminal sentences, the public must be able to believe that a criminal sentence issued by a judge will be fair, consistent, and proportional to the crime involved in accordance with the rule of law. Public confidence is threatened when a large portion of our citizens believe that sentencing outcomes are not so much determined by the rule of law as by the individual proclivities of the judge who is randomly assigned to preside over a case. The stark reality of sentencing in Ohio includes the strong possibility that two judges would impose two different sentences for the same crime. This difference can encompass the vast range between probation and life imprisonment. This article will attempt to describe the systemic flaws which exist within the present system that allow such profound...

Article
César Cuauhtémoc García Hernández
The Supreme Court’s Analytical Failure and Missed Opportunity in United States v. Hansen

Helaman Hansen is an unsavory character, and no one denies it. For almost four years, from October 2012 to September 2016, he ran a scam targeting migrants and prospective migrants. Attracted to their willingness to pay hundreds and even thousands of dollars in exchange for hope, Hansen sold almost 500 people on the possibility of U.S. citizenship through a legal option of his own invention: adult adoption, he called it. Paying as much as $10,000 per person, the hopeful people who sought Hansen’s help appear to have known little about U.S. citizenship law...

Article
Jennifer Muench-McElfresh
Reflections from the Bench: Ohio Sentencing Law

Before taking the Ohio Common Pleas bench in 2013, I served as an Assistant Prosecuting Attorney in Butler County, Ohio for more than fifteen years. I spent the majority of my time prosecuting felony crimes against children. Child abuse cases present unique issues for the trial court. One of those issues is a child’s delayed disclosure of abuse, particularly in sexual abuse cases. It is not uncommon for a child victim to come forward with allegations of abuse many years after the abuse occurred. Reasons for delayed disclosure may include waiting until the child is safe from the perpetrator, fear of not being believed, and the need to be relieved of the burden that carrying such a secret may place upon a victim. Many times, children delay disclosure of abuse into adulthood...

Article
Javier Reyes
Interview with Javier Reyes, Founder and CEO, Challenge II Change

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad. Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair. As such, a thread of reform has emerged calling for more trials and fewer pleas. As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them. This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance. This ambivalence is not new. Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial. Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders— lawyers, judges and reformers—trust the American jury process to produce just results. As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining. ...

Article
Shanna H. Rifkin & Elizabeth A. Blackwood
Like They’re Waiting for you to Die: Development of the Inadequate Medical Care Doctrine from District Court to United States Sentencing Commission

Angela Beck was serving a sentence for convictions of conspiracy to distribute methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. Ms. Beck was 47 years old and had served roughly half of her sentence when, in the fall of 2017, she noticed a lump in her left breast. With a family history of breast cancer, she immediately sought medical attention. The doctor at the Bureau of Prisons (BOP) recommended imaging and consultation with a surgeon. It took two months for those appointments. By the time imaging was conducted, it revealed a high likelihood of cancer...

Article
Dr. Hazem Said
The Story of Felony Sentencing in Ohio: An Information Technology Perspective

This article is a personal retrospective of my journey as an information technology professor of twenty-two years, to understand how judges in Ohio fashion a sentence in a criminal case, how that sentence is documented, and how that documentation is shared to inform the continuous improvement of Ohio’s criminal justice ecosystem. This opportunity presented itself as part of a project with the Ohio Criminal Sentencing Commission (Commission) to develop a solution that assists judges with their journal entries based on uniform templates...

Article
Melissa Schiffel
The Use of Sentencing Data and the Importance of Getting it Right

Adult felony sentencing is one of the most serious responsibilities of  government. Philosophies on sentencing have changed through the decades, from Three Strikes You’re Out in California in the early ‘90s, to Truth in Sentencing in the late ‘90s and early 2000s, to today’s era of criminal justice reform efforts. Regardless of the philosophy, each philosophy and the subsequent law was based on some type of data collection. Legislators at the time thought the data was accurate and comprehensive, but it has long been missed by such policymakers that sentencing data cannot be accurate and comprehensive because it is often missing an important piece—the victims...

Previous Print Issues
Spring 2023
Volume 20.2
Article
Carissa Byrne Hessick
Introduction to Symposium on Pleas

Guilty pleas and plea bargaining dominate the criminal justice system. When the U.S. Supreme Court affirmed the constitutionality of plea bargaining in 1971, 1 fewer than 20% of convictions were the result of a trial.2 Today—a half century later—that number has shrunk to less than 3%, 3 leading the modern Supreme Court to recognize “the reality that criminal justice today is for the most part a system of pleas, not a system of trials."...

Article
William W. Berry III
The Problem with Capital Pleas

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining. With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel....

Article
Richard J. Bonnie
Competence for Criminal Adjudication: Client Autonomy and the Significance of Decisional Competence

The practice of assessing and adjudicating competence for criminal adjudication in the United States developed largely without assistance from the U.S. Supreme Court or other state and federal courts of appeal for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision-making of persons accused of criminal behavior. During the past thirty years, some governing principles have come into view, but important issues remain unresolved. After a brief review...

Article
Thea Johnson
Trial Ambivalence

Much of the rhetoric about criminal justice reform posits that trials are good and pleas are bad. Trials provide full, public adversarial process, while plea bargaining is secretive, coercive, and unfair. As such, a thread of reform has emerged calling for more trials and fewer pleas. As this Article argues, underlying these reform efforts is an unspoken ambivalence about trials among the very reformers who clamor for more of them. This ambivalence stems from the often unacknowledged reality that many of the common harms associated with plea bargaining are frequently benefits when viewed through the lens of trial avoidance. This ambivalence is not new. Indeed, in its plea bargaining jurisprudence the Supreme Court has long demonstrated its own ambivalence about the American trial system, even while romanticizing the trial. Modern-day criminal justice reformers often wax poetically about trials, while simultaneously resisting efforts to actually require more trials. The ambivalence unearthed here demonstrates how little legal stakeholders— lawyers, judges and reformers—trust the American jury process to produce just results. As long as the romantic narrative of trials persists in tandem with this ambivalence, reform efforts may actually more deeply entrench plea bargaining. ...

Article
Jared G. Keenan
Beyond Bordenkircher's Boundaries: Challenging Coercive Plea Bargaining in the Maricopa County Early Disposition Court System

In Maricopa County, Arizona—the fourth largest county in the U.S. and home to the nation’s third largest prosecuting agency, the Maricopa County Attorney’s Office (“MCAO”)—a third of all felony cases are routed through the Early Disposition Court (“EDC”) system. The purpose of the EDC system is speed, not justice. Indeed, MCAO’s stated goal on its website is to use the EDC system to “prevent a backlog” of criminal prosecutions by “resolving them as quickly as possible.”1 While many negative aspects of the criminal legal system—pretrial detention, charge stacking, mandatory minimum sentencing, etc.—exert pressure on the accused to waive their constitutional right to a trial and accept a plea offer as quickly as possible, the primary tool MCAO employs to achieve fast and cheap guilty pleas in the EDC is to threaten those they charge with a crime that if they demand a preliminary hearing—a right under Arizona law—or reject a plea offer in favor of trial—a right under the United States and Arizona constitutions—the next plea offer will be “presumptively harsher” or even “substantially harsher.”2 In other words...

Article
Clark Neily & Jay Schweikert
Founding-Era Informed Juries and the First Amendment

Centuries of accumulated wisdom tell us that the decision whether to convict someone of a crime should be made by ordinary citizens rather than government officials. That wisdom is embodied in our state and federal constitutions, and it is significant that nearly half the Bill of Rights concerns the adjudication of criminal charges by citizen juries. And yet juries play a negligible role in today’s criminal justice system, having been mostly displaced by so-called “plea bargaining.” As of 2021, 98.3% of all convictions in federal court were obtained through guilty pleas,1 and the states are not far behind at around 94%.2 As the Supreme Court itself candidly acknowledged more than a decade ago, “criminal justice today is for the most part a system of pleas, not a system of trials.” The problems...