Court Wrestles With Vagueness and Retroactivity in Sentencing Context

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Category: Constitutional Interpretation, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
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honore%20daumier%20-%20le%20proveYesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.

With her opening question, Justice Ruth Bader Ginsburg forced Janice Bergmann, representing Beckles, to focus on the third issue in the case: the relationship between the guidelines’ residual clause and the commentary, which specifically listed Beckles’ offense of conviction as a crime of violence. A number of justices took issue with Bergmann’s assertion that the commentary cannot define “shapeless” language, a term taken from Johnson. After all, they noted, the guideline commentary, at least in part, interpreted the residual clause, presumably providing meaning in that manner. They also questioned whether the commission was not in the best position to clarify its own language. Bergmann responded that the guideline language was not the commission’s, but rather was drawn from the ACCA residual clause. Any interpretation and examples offered by the commission, she argued, would therefore be arbitrary.

Justice Samuel Alito was the first to direct the argument to the question of what vagueness would mean in a guideline-free world. Along with Justice Stephen Breyer, Alito reminded Bergmann that pre-guideline sentencing appears substantially more vague and arbitrary than the residual clause, as do many of the current guideline provisions. In response, Bergmann asserted that the guideline residual clause is unique among those provisions because of its identity with the ACCA residual clause, and that it shares the same characteristics embodied in the categorical approach that ultimately caused the court to declare the ACCA provision void for vagueness.

Chief Justice John Roberts and Justice Anthony Kennedy continued along similar lines by pointing to the decrease in vagueness any guideline, even a vague one, would provide as compared to the previous system of discretionary sentencing. Why, they asked, should greater precision lead to greater vagueness? Read more »

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Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

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Category: Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public
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galler_hornsgatan_2012aMy recent article, “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” examines judicial decisions that reflect an increasing dissatisfaction with harsh criminal penalties and severe collateral consequences for nonviolent offenders.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

A full copy of the article can be downloaded at the New York University Law Review Online.

Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School.

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Supreme Court to Tackle Constitutionality of Residual Clause in Sentencing Guidelines

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Category: Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
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hardy_they_shall_show_you_the_sentence_of_judgmentIn 2015, in Johnson v. United States, the Supreme Court struck down the “residual clause” of the Armed Career Criminals Act (ACCA) as unconstitutionally vague, ruling that the provision did not give ordinary people adequate notice of what conduct was prohibited by the statute. The residual clause had included among the category of “violent felonies” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Next week, in Beckles v. United States, the court will confront the constitutionality of the sentencing guidelines’ version of the residual clause. This is one of two cases this term that address the effect of Johnson on the vagueness doctrine. (The other case, Lynch v. Dimaya, arises in a statutory context.) Two of the nine justices who joined in the six-justice majority opinion in Johnson, including its author – the late Justice Antonin Scalia – will not participate in this case. Because Justice Elena Kagan is recused, a seven-member court will render a decision.

The U.S. Sentencing Commission, which is responsible for drafting and amending the sentencing guidelines, removed the guideline residual clause earlier this year and supplanted it in part by commentary, which is also at issue here. It did not, however, make the change retroactive. This case brings the question of retroactivity squarely in front of the court, continuing the interplay between the commission and the court. The ostensible issues of vagueness and retroactivity, however, camouflage a broader question about the meaning and function of advisory guidelines.

Notably, the government has changed its position on both retroactivity and vagueness. Although it supported the defendant’s claims in the U.S. Court of Appeals for the 11th Circuit – and those of similarly situated defendants in other circuits – it opposes them now. Adding another dimension to the controversy, the court appointed an amicus, or “friend of the court,” to defend the 11th Circuit’s holding that the vagueness doctrine does not apply to the sentencing guidelines. The decision in this case, therefore, will have broad ramifications for vagueness jurisprudence, the meaning of advisory guidelines, and the respective roles of the commission and the court. Read more »

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Calling 911 in the Wake of Police Violence

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Category: Civil Rights, Criminal Law & Process, Human Rights, Media & Journalism, Milwaukee, Political Processes & Rhetoric, Poverty & Law, Public, Race & Law
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black_lives_matter_sign_-_minneapolis_protest_22632545857Amanda Seligman is a Visiting Fellow in Law and Public Policy at Marquette University Law School.

How does racially-tinged police violence toward civilians affect city residents’ willingness to summon aid in an emergency? A study in the October 2016 American Sociological Review asks what happened to the number of 911 calls after the public revelation that off-duty white Milwaukee police officers beat Frank Jude in 2004. In “Police Violence and Citizen Crime Reporting in the Black Community,” Matthew Desmond, Andrew V. Papachristos, and David S. Kirk find that in the year after the initial publicity around the beating, Milwaukee residents placed 22,000 fewer 911 calls than might have been expected, resulting in a total of 110,000 calls. Although white neighborhoods saw a spike in 911 calls and then a long but shallow dip, the loss of calls was especially pronounced in black neighborhoods. The authors found no such loss of calls reporting traffic accidents.

Desmond et al.’s 911 study received extensive mass media coverage. Juleyka Lantigua-Williams wrote about the study in The Atlantic, and the New York Times’sThe Upshot” column reported the findings. The study was the subject of two articles in the Milwaukee Journal Sentinel, one reporting on the findings and one offering responses from District Attorney John Chisholm and Milwaukee Police Chief Edward Flynn. Two of the authors, Desmond and Papachristos, also published an Op-Ed piece in the New York Times commenting on the significance of their research. A small host of other reports suggest broad interest in the study’s implications in the context of the Black Lives Matter movement and widespread coverage of police shootings of African American civilians.

Sociologist Desmond is one of our most thoughtful observers of the cultural significance of the 911 emergency call system. In Evicted, his 2015 ethnographic study of housing and poverty in Milwaukee, Desmond observed how victims of domestic violence put themselves at risk for losing their homes if they call the police too often. Read more »

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Obama Clemency Grants Pick Up Steam

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Marquette Law School, President & Executive Branch, Prisoner Rights, Public, Race & Law
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Somewhat lost amidst the wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined. The August 30 grants, however, had special significance for me and a small group of recent Marquette Law School graduates.

Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Reinforcing the negative perceptions, President Bill Clinton’s pardon of financier Marc Rich and President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby seemed to confirm that clemency was mostly used to benefit wealthy, powerful defendants.

The Obama Administration, however, envisioned a very different way to use clemency.   Read more »

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“On the Issues”: Former Avery Attorney Criticizes Criminal Justice System

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Category: Criminal Law & Process, Public, Speakers at Marquette, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System
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Nine months ago, Dean Strang’s life changed. A well-known criminal defense attorney from Madison, he had been involved in cases that attracted public attention, especially the murder trial a decade ago of Steven Avery, who was accused of murdering a freelance photographer, Teresa Halbach, in 2005 in Manitowoc County.  The case attracted attention especially because it came two years after Avery was exonerated and freed after serving 18 years for a previous, unrelated murder. Strang and Jerry Buting, a Waukesha attorney, defended Avery in a trial that ended with Avery being convicted in 2007.

But nothing that happened at that time or in connection with any other case he had worked on prepared Strang for the impact on his life when a Netflix series, “Making a Murderer,” began running in December 2015 and became an international sensation. The case went into great detail in documenting the Avery case. It was widely regarded as supporting the argument that Avery was unfairly convicted.

Strang and Buting found themselves the centers of enormous attention. “It’s sort of like Jerry and I had been handed a microphone,” Strang said at an “On the Issues with Mike Gousha” program at Marquette Law School on Monday.  “Now, what are you going to do with the microphone?”   Read more »

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Strong Support for Marijuana Legalization in Law School Poll, But Results for Other Drugs Harder to Interpret

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Category: Criminal Law & Process, Marquette Law School Poll, Milwaukee, Public, Wisconsin Criminal Law & Process
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In the Marquette Law School Poll conducted earlier this month, fifty-nine percent of registered Wisconsin voters agreed that marijuana “should be fully legalized and regulated like alcohol.” Only thirty-nine percent disagreed.

Support for legalization in Wisconsin follows the recent decisions to legalize marijuana in Colorado and Washington in 2012, and in Oregon and Alaska in 2014. Nationally, support for legalization has grown steadily since the early 1990s and finally crossed the fifty-percent threshold in 2013. (On the local level, the Public Policy Forum published a thoughtful assessment of the costs of marijuana enforcement in Milwaukee earlier this year.)

In the Law School Poll, respondents were asked which arguments for legalization they found most convincing.

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Making a Murderer: Oh-So-Many Talking Points

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Evidence, Judges & Judicial Process, Legal Ethics, Legal Practice, Legal Profession, Popular Culture & Law, Public, Wisconsin Law & Legal System
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635874987555624158-XXX-IMG-NETFLIX-MAKING-A-MUR-1-1-VGCTGMDU-78432434As the winter break winds down, it’s definitely worth your time to start binge-watching Making a Murderer, a recent Netflix documentary on a real-life criminal case. A very close-to-home criminal case, at that.

The documentary, filmed over 10 years, follows Steven Avery, who was convicted in 1985 of sexual assault. He maintained his innocence and, indeed, 18 years later DNA evidence exonerated him. After he was released, he sued Manitowoc County for his wrongful conviction. It looks as though that lawsuit starts digging up some very unsavory conduct among officials in Manitowoc County.

But then—Avery is arrested for the murder of photographer Teresa Halbach. Several months later, his nephew Brendan Dassey is also arrested.

I’ll stop there with plot. If you’ve been around Wisconsin, you’ve probably heard of the case. If you’ve been on the Internet in the last couple of weeks, you’ve almost surely heard of it. But you must watch it.

For law students, there’s so many teachable moments. For everyone, there’s so much to talk about. Read more »

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Bill Cosby’s Honorary Degrees Rescinded & Sexual Assault Charges Filed

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Category: Criminal Law & Process, Feminism, Public
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bill-cosby-mugshot-640x400In May 2013, comedian Bill Cosby received an honorary doctorate of letters from Marquette University. In his address to the students, he told them “to go into the world remembering the values they learned from the school’s Jesuits—respect, integrity and a responsibility to serve others.” In retrospect, it’s ironic advice coming from him.

In the past year, a large number of women have come forward to say that Cosby sexually assaulted them, with incidents going back to the mid-1960s. To date, that number has swelled to more than 50. The stories of the alleged assaults have some general similarities: Cosby offered to mentor the women or coach them with acting; he offered them drinks; the women then felt dizzy or woozy and some may have passed out; some of them describe waking up in various states of undress.

Yesterday, Cosby was charged with aggravated indecent assault, a felony, in Montgomery County, Pennsylvania, stemming from an encounter in 2004 with Andrea Constand, then operations director for Temple University women’s basketball team, who believed Cosby was a mentor and a friend. The allegations in the complaint parallel the numerous other allegations. The complaint alleges Cosby gave Constand some pills and told her to sip some wine; Constand felt dizzy and felt she had no sense of time; Cosby then sexually assaulted her. The case was re-opened this summer, prosecutors said, after new evidence emerged. That new evidence was Cosby’s deposition testimony in the civil suit Constand filed against him. In his deposition, Cosby admitted giving women Quaaludes in an effort to have sex with them. Read more »

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Possible Solutions to America’s Gun Problem

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Category: Constitutional Interpretation, Criminal Law & Process, Political Processes & Rhetoric, Public
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Glock_19_Gen_4_frontThe first step in solving any problem is admitting that a problem exists. America has a gun problem. Guns are all too easy for those with ill intent to obtain. So why worry about gun control and not knife control? Guns allow murderers to exponentially increase fatalities. Compare, if you will, the knife attack in China in which six terrorists killed 29 people and wounded 130 others with the Virginia Tech shooting, in which a single shooter killed 32 people and wounded 20 others. Anecdote aside, one only need to intuit that guns possess extraordinary risks uncommon to other weapons. We need to acknowledge the risks that guns possess.

America averages one mass shooting a day. Clearly something needs to be done, and we must do it without delay. Several observers have suggested ways in which gun violence could be reduced, both from within and outside of the legal system.

Milwaukee Police Chief Ed Flynn has repeatedly called for illegal gun possession to be a felony under Wisconsin law . It is currently a misdemeanor, no matter how often an individual has perpetrated the crime. This means that when police catch someone with a gun who should not have it, all they can do is take it away, slap that person with a fine, and let them go. This is not a sufficient deterrence for people who should not have guns and does not do enough to keep them from possessing guns. Read more »

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Marquette Quarterfinalists in Criminal Procedure Moot Court

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Category: Criminal Law & Process, Legal Practice, Legal Writing, Marquette Law School, Public
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Mary Ellis and Natalie SchiferlCongratulations to 3Ls Mary Ellis and Natalie Schiferl for placing in the quarterfinals and being awarded the third place for their Petitioner’s brief in the National Criminal Procedure Tournament this past weekend in San Diego.  The team’s advisors are Professors Susan Bay and Thomas Hammer, and the team coaches are Attys. Brittany Kachingwe, Sarah McNutt, and Jennifer Severino.  Special thanks to alum Jennifer Severino, who has been a tremendous volunteer with the Marquette moot court program as a coach and competition judge.  Atty. Severino is moving to Las Vegas and will be missed at Marquette.

 

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Jekyll, Hyde, and Criminal Law

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Category: Criminal Law & Process, Marquette Law School, Popular Culture & Law, Public
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I am looking forward to Professor Nicola Lacey’s public lecture at Marquette Law School tomorrow. Lacey’s presentation, the annual George and Margaret Barrock Lecture on Criminal Law, is entitled, “Socializing the Subject of Criminal Law? Criminal Responsibility and the Purposes of Criminalization.”  More information and registration are available here.

For an engaging and succinct introduction to Lacey’s important writing on criminal responsibility, I would recommend “Psychologizing Jekyll, Demonizing Hyde: The Strange Case of Criminal Responsibility,” 4 Crim. L. & Philosophy 109 (2010). In this article, Lacey uses the classic Robert Louis Stevenson story of Dr. Jekyll and Mr. Hyde to illustrate some fundamental tensions in thinking about criminal responsibility.

First published in 1886, Stevenson’s novella concerns a distinguished Victorian doctor, Jekyll, who despairs over his urges to indulge in vice. Jekyll devises a potion that splits the good and evil sides of his personality into distinct identities.   The animalistic Hyde may gratify his lusts without any risk to Jekyll’s reputation, or so it seems. The plan unravels, however, as Jekyll loses the ability to control the transformations, and the Hyde identity becomes dominant. Along the way, Hyde commits a murder and eventually kills himself (and thus Jekyll, too) in order to avoid arrest.

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