Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s.  The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy.  In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.

The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant.  As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron).  A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009).  I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”

In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums.  Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.” 

The argument appeared in Breyer’s dissenting opinion in Dean v. United States, 129 S. Ct. 1849 (2009).  The gist of his position is that an overly aggressive application of lenity is less harmful in the mandatory minimum context than elsewhere.  Here is the argument:

[A]n interpretation that errs on the side of exclusion (an interpretive error on the side of leniency) still permits the sentencing judge to impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence (because of the court’s interpretation of the statute) is not legislatively required. . . .

On the other hand, an interpretation [of the statute at issue in Dean] that errs on the side of inclusion requires imposing 10 years of additional imprisonment on individuals whom Congress would not have intended to punish so harshly. . . [S]uch an interpretation, by erroneously taking discretion away from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended.

Breyer’s point seems to me a good one.  And, although it appears in a dissent, the argument was not addressed, much less rejected, by the majority.  This should, in other words, be a viable argument for advocates to advance in other mandatory minimum cases.

Earlier posts in this series:

• Do the Justices Play Nicely Together?
• Ambiguity Is Ambiguous

When Heller was decided, I was reminded of United States v. Lopez, 514 U.S. 549 (1995), in which the Court seemed to overturn a half-century of precedent on the scope of Congress’s Commerce Clause power.  A revolution (or, perhaps more accurately, a counter-revolution) seemed afoot.  I was a law student then, and I vividly recall — just hours after Lopez was handed down – one of my professors announcing in class, only half facetiously, that the Supreme Court had just overturned the New Deal.  Then, when I clerked for a federal judge after law school, I recall several defendants raising Lopez challenges to federal criminal statutes.  But it all came to nought.  The lower federal courts never really bought into the Lopez revolution — if you keycite Lopez today, you will see 267 cases listed as either declining to extend or distinguishing Lopez – and the Supreme Court itself effectively threw in the towel with its decision in Gonzales v. Raich, 545 U.S. 1 (2005).

I have been wondering if the Heller revolution would go the way of the Lopez revolution.  And, indeed, it has seemed generally to be business as usual in the circuit courts post-Heller, with little sense that the intermediate appellate judges have any inclination to read Heller for all it is worth.

But the Seventh Circuit’s decision last week in United States v. Skoien (No. 08-3770) (Sykes, J.) suggests that Heller may have more life than Lopez. 

In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and sentenced to two years of probation.  In 2007, probation agents learned that Skoien had purchased a deer-hunting license.  A search of his home and truck uncovered a shotgun, an orange hunting jacket, a deer carcass, and similar evidence.  Skoien admitted that he had used the shotgun to go hunting earlier that day.  A federal grand jury then indicted Skoien for possessing a firearm after having been convicted of a domestic-violence misdemeanor in violation of 18 U.S.C. § 922(g)(9).  Skoien entered a conditional guilty plea, reserving his right to litigate whether the application of § 922(g) to him violated his Second Amendment rights.

On appeal, the Seventh Circuit could have rejected Skoien’s claim with little effort, for the Heller Court itself stated that ”nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”  128 S. Ct. at 2816.  Indeed, the Court went so far as to characterize such prohibitions as “presumptively lawful regulatory measures.”  Id. at 2817 n.26.  The government’s argument in Skoien rested almost entirely on this language.  Under a minimalist, but still plausible, reading of Heller, the government should have needed to say little more.

Remarkably, though, the Seventh Circuit used Skoien as an opportunity to develop a new test for Second Amendment claims and to signal the government that it could not necessarily rely on the Heller presumption to defeat such claims.

More specifically, the court adopted a two-part test:

First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified.  If the government can establish this, then the analysis need go no further.  If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right.  (Op. at 10.)

Applying the first part of the test to Skoien’s claim, the fact that his gun was “a shotgun used primarily for deer hunting” seemed enough to bring his asserted right within “the terms of the right as publicly understood when the Bill of Rights was ratified”:

[I]t would be odd to argue that a conventional hunting gun is wholly unprotected by the Second Amendment.  Heller referred to the founding-era importance of the right to bear arms “for self-defense and hunting,” and a long gun used primarily for hunting is obviously useful for defensive purposes as well.  (12)

The court did question, though, whether “a person convicted of a domsestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions.”  (13)  In this regard, the court noted scholarly debate over whether felons lost the right to bear arms duing the founding era.  The court did not have to resolve the debate, however, because the government was not pressing historical arguments.

It is unfortunate, then, that much remains uncertain about the first, history-oriented part of the new Second Amendment test.  I, for one, hope that the court will not lay much emphasis on this part of the test.  Gun technology, the social role of guns, and legal culture generally have changed so much since the 1790’s that the historical analysis is bound to turn on strained and uncertain analogies to practices from long ago.  Why not just keep things at a high level of generality (e.g., it was generally accepted that citizens had a right to own long guns useful for hunting) and move on?  The fact that there is or is not a long tradition of excluding a particular class of people from gun ownership can be taken into account in the second part of the test, without fetishizing the legal understandings of one particular, long-ago period of our history.

In any event, the Skoien court moved on to the second part of its new test.  This inquiry required the court to decide whether to apply the strict or intermediate standard of review to Second Amendment claims.  The court suggested that the answer to this question would depend on the nature of the conduct being regulated.  On the one hand, “gun laws that severely restrict the core Second Amendment right identified in Heller — that of ‘law-abiding, responsible citizens to use arms in defense of hearth and home’ — should receive exacting scrutiny.”  (15)  On the other hand, “applying strict scrutiny to all restrictions on gun rights is obviously incompatible with Heller’s dicta about ‘presumptively lawful’ firearms laws.”  (16)  In the end, the court decided to employ intermediate scrutiny because the “Second Amendment challenge in this case is several steps removed from the core constitutional right identified in Heller.”  (17)  Specifically, Skoien’s prior conviction meant that he was not a “law-abiding, responsible citizen” and Skoien did not “key[] his constitutional challenge to the right of self-defense.” 

Query whether any type of prior conviction (no matter the age or nature of the offense) would be enough to remove a defendant from the protection of strict scrutiny.  Query also whether the standard of review would have been different if Skoien had said at the time the gun was discovered, “Yes, I just used the gun for hunting, but the real reason I got the gun was to protect my home.”  (Until the analysis is clarified, defense counsel would do well to frame their Second Amendment claims as far as possible along self-defense lines, as opposed to hunting rights.)

The court elaborated on the intermediate scrutiny analysis this way:

What this means more specifically is that for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a “reasonable fit” between an important governmental end and the regulatory measure chosen by the government to serve that end.  (22)

Skoien did not dispute that there was an “important government end” behind § 922(g)(9): the reduction of domestic gun violence.  Thus,

The disputed question here is the relationship between the government’s means and its end — whether there is a “reasonable fit” between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates.

Because the record on “fit” had not been adequately developed, the court remanded to give the government another opportunity to carry its intermediate-scrutiny burden.

Some closing obervations by the court in Skoien invite speculation about how demanding the court intends for intermediate scrutiny to be.  The catch-phrase “reasonable fit” has little meaningful content on its own; it will be up to the court to develop the standard in common-law style.  And Skoien provides no real assurance that the Heller revolution will indeed have a lasting impact in the Seventh Circuit.  In addition to rejecting strict scrutiny in all but a (not clearly defined) “core” of Second Amendment cases, the court also made clear that intermediate scrutiny “tolerates laws that are somewhat overinclusive.”  (25) 

With respect to § 922(g)(9) more specifically, the court noted approvingly that it “targets a specific class of violent offender.”  (26)  On the other hand, the court was also appropriately concerned that the statute is overinclusive in several respects:

The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense.  (26)

Given this expression of concern, the tea leaves are difficult to read.  Assuming that Skoien (or a similar § 922(g)(9) case) returns to the Seventh Circuit with a more developed record, we should get a much clearer indication of how serious the court is about protecting gun rights in a post-Heller world.

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.

The article will appear in the William & Mary Law Review in 2010.

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

Stirring prose, no?  One would hardly guess that two years of a man’s life were riding on this characterization of an obscure grammatical norm.  Whatever else might be said for or against textualism, it does lead to opinions in which there is sometimes a disconcerting disconnect between the Court’s dry rhetoric and the human realities of crime and punishment.

In keeping with the Court’s current textualism, comparatively little attention is paid in the six opinions to legislative history, which is either ignored altogether or wheeled out as an apparent afterthought.

Of course, even textualists like Scalia acknowledge that texts are sometimes ambiguous.  In such circumstances, rather than resort to legislative history or policy considerations, textualists will look to the traditional canons of statutory construction.  One of these is the rule of lenity, which indicates that ambiguous criminal statutes should be interpreted in favor of the defendant. 

For instance, in the previous term, the Court (through a plurality opinion authored by Scalia) invoked the rule of lenity as a basis to interpret the federal money-laundering statute narrowly.  (I posted on the case, United States v. Santos, 128 S. Ct. 2020 (2008), here.) 

But the rule of lenity did not fare so well last term.  In its pro-government decisions, the Court’s majorities summarily rejected defendants’ (and dissenters’) arguments that statutes were ambiguous, while the authors of its pro-defendant decisions apparently felt it unnecessary to invoke lenity.  This pattern is odd, for each case featured colorable textual arguments on both sides — this would seem good prima facie evidence of ambiguity.  However, as the Court explained in Dean v. United States, 129 S. Ct. 1849, 1856 (2009):

The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.  To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.

One wonders where exactly the line is between simple ambiguity and “grievous ambiguity.”  The Court’s opinions provide no clue.  Simply put, the ambiguity standard itself suffers from ambiguity.  This is, of course, in considerable tension with the whole textualist project, which aimed to bring greater objectivity and determinacy to statutory interpretation than could be provided by intentionalism.

Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

It is commonly thought that the Court is bitterly divided along ideological lines.  In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is.  The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to the advocates or to their own colleagues.

How well does the stereotype actually reflect reality?  The answer depends on what type of criminal case you are talking about. 

The point is nicely illustrated by comparing two sets of cases from last term: the statutory interpretation cases and the investigation (that is, search, seizure, and interrogation) cases.  As I have categorized the cases, there were six in each set.  (The cases are listed at the end of this post.)

The statutory interpretation cases do not look anything like the stereotype.  In these cases, the Court was required to interpret either a substantive criminal statute or a statute containing a mandatory minimum sentence.  In these cases, the Court was remarkably cohesive.  Three of the six decisions were unanimous, while the other three were 7-2.  That makes a grand total of six dissenting votes in six cases.  Those six votes were cast by four different Justices from across the ideological spectrum.  None of the conservative Justices voted for the government in all six cases, while none of the liberal Justices voted for the defendant all the time.  Indeed, conservative Justices Scalia and Roberts voted for the defendant more often than not (four of six cases).

The investigation cases conform much more closely to the stereotype.  Four of the six cases were 5-4 decisions.  In all, the six cases produced eighteen dissenting votes, or three times as many as the statutory interpretation cases.  Moreover, the divisions generally (although not always) followed the stereotypical ideological pattern.  In three of the four 5-4 decisions, the conservatives and liberals each voted as block, with Justice Kennedy casting the tie-breaking vote (siding sometimes with the conservatives and sometimes with the liberals).  In the six investigation cases, the four conservative Justices collectively cast exactly one pro-defendant vote.  Put differently, given twenty-four opportunites to vote for a defendant, the conservatives did so only once.  (This compares with fourteen pro-defendant votes by conservative Justices in the statutory interpretation cases.)

Although I haven’t attempted to quantify this, my impression is that the Justices’ rhetoric in the investigation cases was also considerably more heated.  In particular, there seemed to be charges flying from both sides that the other side was not honestly and consistently adhering to the doctrine of stare decisis.  I did not observe similar attacks in any of the statutory interpretation cases.

What accounts for the discrepancy between the two sets of cases?  One possibility is the triumph of Justice Scalia’s preferred methodology in one area: that is, textualism in the statutory interpretation area.  I’ll have more to say about the Court’s textualism in another post, but the key point for now is this: the statutory interpretation cases play out as exercises in determining the meaning of particular words in particular statutory contexts.  There is very little discussion of broader public policy considerations that would cut across specific statutes.  As a result, there does not seem to be a lot at stake in the statutory interpretation cases, and there are few obvious implications for the Justices’ commitments to their various competing visions of the criminal justice system.  When cases are framed this way, it should not be surprising that the Justices find it relatively easy to reach common ground.

By contrast, textualism provides little clear guidance in the investigation cases (what exactly makes a search “unreasonable”?) and plays little discernible role in the Justices’ reasoning.  Indeed, what the investigation cases are really about is the scope of extratextual exclusionary rules, which do implicate core ideological commitments on both sides of the political aisle.  To liberals, the exclusionary rules (closely associated with the Warren Court and the broader civil rights revolution of that era) represent an important symbolic commitment to individual libery and equal rights in the face of a criminal justice system that has all too often wielded its power in discriminatory ways.  To conservatives, the exclusionary rules represent everything that was bad about the 1960’s: collective security sacrificed in the name of individual liberty, elites overriding the will of the “silent majority,” and so forth.  The Justices write about the exclusionary rules in terms of costs and benefits, but in truth the costs and benefits are unknown and probably unknowable.  Given the lack of any objective measure, the cost-benefit balancing necessarily becomes ideological . . . and the Justices don’t play so nicely together.

Statutory Interpretation Cases — includes cases on substantive criminal and mandatory minimum statutes, but excludes cases on the habeas corpus statute and other procedural laws

• U.S. v. Hayes, 129 S. Ct. 1079
• Dean v. U.S., 129 S. Ct. 1849
• Chambers v. U.S., 129 S. Ct. 687
• Abuelhawa v. U.S., 129 S. Ct. 2102
• Boyle v. U.S., 129 S. Ct. 2237
• Flores-Figueroa v. U.S., 129 S. Ct. 1886

Investigation Cases — includes Fourth Amendment and interrogation cases

•  Herring v. U.S., 129 S. Ct. 695
• Arizona v. Gant, 129 S. Ct. 1710
• Montejo v. Louisiana, 129 S. Ct. 2079
• Corley v. U.S., 129 S. Ct. 1558
• Arizona v. Johnson, 129 S. Ct. 781
• Kansas v. Ventris, 129 S. Ct. 1841 

Two and a half years after his first conviction, federal agents searched Schultz’s home and found a shotgun.  He was convicted of being a felon in possession of a firearm and sentenced this time to eighteen months in prison.

On appeal, Schultz argued that his telecoms offense, although a felony, did not expose him to liability under the felon-in-possession statute.  He relied on an exception in the law for prior convictions “pertaining to antitrust violations, unfair trade practices, restraints of trade, or similar offenses relating to the regulation of business practices.”  However, the Seventh Circuit rejected this argument and affirmed the conviction in United States v. Schultz (No. 09-1192) (Bauer, J.). 

The court seemed remarkably disinterested in exploring the underlying policy rationale for the business regulation exception.  The statute’s reference to “similar offenses” cries out for a theory to explain what the listed offenses (antitrust violations, unfair trade practices, and restraints of trade) have in common and why Congress deemed it appropriate to carve these offenses out of the general criminal prohibition on gun possession by a felon.  For instance, it strikes me that the listed offenses are similar in that all are nonviolent and are commonly perpetrated by otherwise legitimate business enterprises.  Thus, those who commit such offenses are not presumptively dangerous in ways that would warrant special restrictions on their right to own guns.  Based on this analysis, a court might determine whether a prior conviction counts as a “similar offense” by considering whether the offense was nonviolent and of the sort commonly perpetrated by otherwise legitimate business enterprises.  (Such an approach would, among other things, have the benefit of helping to ensure that some substantial state interest warrants the infringement on Second Amendment rights imposed by the felon-in-possession statute.)

Rather than attempting to discern a coherent congressional purpose behind the business regulation exception, the Seventh Circuit instead cobbled together a handful of holdings from other circuits to reach this test:

In order for the exclusion to apply under “regulation of business practices,” the government would have been required to prove, as an element of the predicate offense, that competition or consumers were affected; possible incidental affects are not relevant.

Because Schultz’s telecoms offense did not have as an element “that competitition or consumers were affected,” it qualified as a predicate offense. 

Interestingly, Schultz’s offense did, in fact, have as an element that his conduct affected interstate commerce.  But the court dismissed the significance of this element, observing simply that “many criminal statutes include such a jurisdictional nexus.” 

Absent is any discussion of why it makes sense to treat business regulatory offenses differently based on whether competition or consumers were affected.  Stealing cable is hardly laudable conduct, but why should the person who cheats the cable company get treated so much more harshly than the person who cheats real live consumers?

Fans of judicial minimalism should be happy with the court’s recent criminal decisions.  So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions.  I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system.  Though much in vogue now, minimalism has its vices, too.

This year marks the twentieth anniversary of a criminal justice innovation that was supposed to help solve the drug problem in this country and reduce the mass incarceration of men and women whose substance abuse habits lead them toward criminal behavior and, more often than not, to prison.

In 1989, then-State’s Attorney for Miami-Dade County, Florida (later United States Attorney General) Janet Reno designed a new approach to mitigate the crushing loads of drug-related criminal cases in South Florida. Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are 2,100 such “problem solving” courts around the country, receiving federal funds and dealing with not only drug abuse, but also drunk drivers and domestic violence offenders. 

Whatever relief these reforms brought about, in 2008 there were more than 1.7 million individuals arrested and more than 500,000 men and women in jail or prison for drug offenses, according to the FBI’s new Uniform Crime Report.  Someone is arrested in this country for drug possession or related infractions every eighteen seconds.

Reno’s drug court idea was compassionate: use the trauma of the moment to move individuals caught in the system into treatment in the hope of breaking the addiction and transitioning them toward a less dangerous existence. There are many success stories, people whose downward spiral reversed and who live normal, productive lives.

Wisconsin has at least twenty-one problem-solving courts, all in different counties. These courts focus on a variety of problems, from repeat drunk driving to drug charges. These courts have both positive and negative components. Three years ago, Waukesha County began an alcohol treatment court for defendants convicted of a third-offense DUI. A recent study completed by Temple University compared the 141 Waukesha residents who entered the program against the 81 others who were denied entry for lack of space. The 141 defendants who completed the program had a twenty-nine percent recidivism rate, as opposed to a forty-five percent recidivism rate for those who did not.

Another success story comes out of Milwaukee County. Shortly after his election in 2006, District Attorney John Chisholm, with the input of the defense bar and judiciary, developed protocols to allow for diversion or deferred prosecution for many low-level drug users. At the end of 2007, more than 700 people had benefited from a diversion or deferred prosecution agreement, with a sixty-five-percent success rate.

However, for every case with a happy ending, there are examples of lives ruined and families disrupted when treatment fails and the offending individual winds up in prison or jail. One of the central problems with specialty courts is that they have grown in an ad hoc way, so that each operates differently. Most of the courts were created by prosecutors and judges without the input of defense counsel. In response to the twenty-year anniversary of the creation of the first problem solving court, the National Association of Criminal Defense Attorneys (NACDL) commenced a national in-depth study of the effectiveness of these courts. This report can be located at www.nacdl.org/drugcourts.

Some of the findings published in the NACDL study include:

• Short-cuts built into many drug court systems make it difficult to protect the accused person’s rights. Not every person accused of a crime is guilty. However, when faced with the grim choice between treatment and prison, there is great pressure to plead to the crime and avoid risk. In order to ensure that innocent defendants are not pleading guilty, problem solving courts should allow participation at the earliest possible stages.
• Money that goes into these court-run systems could be more efficiently spent reaching out to substance abusers before they commit a crime, through public and private health programs. 
• Nationwide, many problem solving courts are structured so that prosecutors act as “gatekeepers.” Prosecutors often offer a devil’s deal with addicted offenders: plead guilty to a felony and you get into treatment. Under this “deal” even if the diversion works, the individual is left with a criminal record that makes it hard to find work, vote, or live a successful life. If the defendant is unable to comply with treatment and falls out of the program, he or she goes to jail for a lengthy sentence, at considerable taxpayer expense. An additional consequence to the “prosecutor as gatekeeper” approach is that the problem solving court then becomes a dumping ground for the prosecution’s weak cases.  
• Drug courts induce defense lawyers to become part of a “team” with the judge, prosecutors, and treatment specialists. That raises troublesome ethical issues for a lawyer whose overarching obligation is to defend his accused client. 

The cost of our current system is enormous, both in tax dollars and damaged lives. In these times of economic strife and budget deficits, it is time to start a national conversation around decriminalizing drugs and offering access to substance abuse therapy outside the legal system for all who want it. By expanding access to treatment and meaningfully restructuring the way in which prosecutions are handled, we will save money, restore lives, and preserve the dignity of low-level drug offenders.

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

Making the argument even more awkward on appeal, the jury convicted Harris of possession with intent to distribute, but actually acquitted him on a conspiracy charge. 

The Seventh Circuit nonetheless rejected Harris’s hearsay argument and affirmed his conviction in  United States v. Harris (No. 08-4026) (Flaum, J.).

In order for co-conspirator statements to be admissible, the government must prove the existence of the conpiracy by a preponderance of the evidence, not the higher beyond-a-reasonable-doubt standard that governs the guilt determination at trial.  Even so, the Seventh Circuit conceded that it was a “close question” whether the government satisfied its burden of proof:

[T]he government’s evidence of the conspiracy centers around the disputed hearsay statements themselves (and while Bourjaily permits this kind of bootstrapping, it is not the strongest evidence of a conspiracy) and Harris’s presence in the Excursion when the police officers discovered a kilogram of cocaine.  (p. 9)

The court ultimately found the evidence sufficient, relying on the facts that Harris drove the Excursion from Arkansas to Milwaukee, Harris was carrying “an exceedingly large quantity of cash,” and Anderson’s statements were corroborated in a number of other respects.

As an aside, it is interesting to see the court use the possession of a large amount of cash as a basis for inferring drug activity.  This may be perfectly appropriate in the circumstances, but I wonder to what extent drawing this sort of inference unfairly disadvantages people who live in communities that are underserved by banks or who otherwise lack access to the sorts of financial services that many of us take for granted.  As I discussed in an earlier post, this is not the first time this fall that the Seventh Circuit has been confronted with the question of when criminal activity can be inferred from carrying cash.  Notably absent from these cases is any empirical research on how commonly and in what sorts of circumstances large sums of cash are carried for lawful purposes.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all).  Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects.  Such innovations are suggestive of a system in which we punish bad people, not bad acts.  To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated – perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm.  More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime.  Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses  and prior drug convictions are routinely used against defendants in drug cases.  (See, for instance, my post here.) 

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). 

Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006.  Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date.  The trial court admitted the evidence as “intricately related” to the charged crime.  The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.

The doctrine was characterized by the Seventh Circuit this way:

Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime.  Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.

Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators.  But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution.  As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.”  Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).

The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged.  On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”

But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)).  Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.

Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake.  Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.

However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent.  No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.”  The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”

The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes.  But these purposes are not mutually exclusive.  Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.

The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions.  The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.

One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception.  The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes.  So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception.  Whether jurors actually pay attention to limiting instructions is another question . . . .

Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution.  When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.

The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35.  See United States v. Johnson, No. 08-3541 (7^th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7^th Cir. October 20, 2009). 

In both cases, the court ruled that only a defendant’s substantial assistance can be considered when determining the extent of the reduction, and that other factors normally relevant under § 3553(a) can be used only to reduce or leave in place that reduction, but never to increase it.  At least one other circuit has criticized this as an unfair “one way ratchet” in applying § 3553(a) factors to these cases.  See United States v. Grant, 567 F.3d 776 (6^th Cir. 2009) (which is also now in flux as on October 16 the Sixth Circuit vacated that decision and ordered a re-hearing en banc).

Does it make sense to limit sentencing judges’ discretion in these cases to considering only substantial assistance for the extent of the reduction?  For 3553(e) motions it may because the language of that statute states that a court has limited authority to sentence a defendant below a statutory minimum so as to reflect a defendant’s assistance.  Rule 35(b) contains no such language and states a defendant’s sentence can be reduced if the defendant provided substantial assistance, but does not otherwise limit the factors that can be considered.  The Shelby court found that despite this difference in language, it does not make sense to treat Rule 35(b) motions differently from those filed under 3553(e), and did so largely on various policy grounds.

Judge Terrance Evans wrote an interesting dissent in Shelby.  He wrote that United States v. Booker, 543 U.S. 220 (2005), which held that the United States Sentencing Guidelines were no longer binding on sentencing courts, and Kimbrough v. United States, 128 S.Ct. 558 (2007), which held that judges can legally disagree with the disparity between how crack and powder cocaine are treated under the guidelines, represented a “sea change” in federal sentencing law.  He criticized the “one-way ratchet” approach, stating, “If it’s kosher to rely on the § 3553(a) factors in giving only 50 percent of a sentence reduction sought by the government in a Rule 35 resentencing, why can’t those factors also be considered in giving the defendant more of a reduction?”  He fears that judges will now just “fudge” these hearings when they want to grant reductions larger than what may be deserved based solely upon the defendant’s assistance by exaggerating the assistance and disingenuously cloaking their reasoning in factors related only to assistance.

Evans also criticized the government for bringing the appeal, saying, “I would hope it has much better things to do.  Without an appeal, Shelby’s sentence would have passed under the radar screen without notice,” and further noting, “After all, it’s not like we’re running out of people behind bars.”  He cited a Pew Charitable Trust study that found America’s prison population has increased by 700 percent since 1970, and that America now incarcerates more people than Russia, South Africa, Mexico, Iran, India, Australia, Brazil, and Canada combined — at an average cost of $22,650 per year per inmate.

Does it make sense to base federal sentencing jurisprudence on the prison population?  Or on minor differences in wording between statutory provisions that ostensibly accomplish the same thing (i.e., reducing sentences for cooperation, with the only difference that one governs cooperation given before sentencing and one given after sentencing)?  Should we base it on individual judges’ discretion and wisdom, the very thing the Sentencing Guidelines were supposed to limit when they were enacted in the mid-1980’s? 

The uncertainty in federal sentencing is representative of the uncertainty inherent in the criminal justice system as a whole.  I remember back to my first-year criminal law class taught by Professor O’Meara (with a generous recent refresher discussion via email), where he talked about criminal justice as an area of law “without an effective theory.”  He borrowed this term from Columbia University Professor George Fletcher, and it refers to the observation that the criminal justice field does not seem to have an overarching goal or objective to address the problem of criminal conduct in our society.  Are we trying to primarily deter crime?  Achieve retribution and punish the criminal?  Incapacitate them (commonly referred to as “warehousing” them in prison)?  Do we want to rehabilitate them and have them (hopefully) return to society as productive citizens?

The criminal justice system seems to try to address all of these concerns without really accomplishing any of them.  The long federal mandatory minimum sentences for drug crimes have been in effect for over twenty-five years without much decline in drug dealing.  Almost none of my federal clients (many of whom are no strangers to the state criminal justice system) have any concept that ten-, fifteen-, and twenty-year mandatory minimum sentences are common in federal court until after they are indicted.  Punishment doesn’t seem to work well either because many criminal defendants reoffend, which also indicates they have not been rehabilitated.  Perhaps the goal the federal system accomplishes best is warehousing criminals, keeping them out of the community and stopping them from committing crimes for at least as long as they are in prison. 

Ultimately, the criminal justice system may be incapable of having an overriding theory because it is a purely reactive system: it operates only after a crime is committed, a victim is identified (whether it is an individual or the community), and a defendant is charged with a crime.  I’ve often thought that the only real way to address crime would be to go after its root cause, whatever it may be: poverty, lack of education, lack of family support, mental illness, drug-addiction, etc.  The problem is that the cause of crime is as varied as the individual committing it.  Until this can be truly addressed, federal sentencing law (as an example), and the criminal justice system as a whole, will continue to struggle with finding an effective theory of addressing crime.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

Relying on prior cases, the court characterized the legal standard this way: “[A]s long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough.”  And Williams could not prevail on this “substantial compliance” test:

[T]he notice says that the government would rely on all “applicable” convictions in the pretrial services report, and it was apparent that the second felony drug conviction was “applicable,” that is, a basis for enhancement.  It was the only other felony drug conviction in the list of 19 dispositions [contained in the report]; . . . a lawyer reading the list would notice that in about fifteen seconds; and if the defendant’s lawyer had had any doubt about which conviction the prosecutor was planning to rely on for an enhancement he could have sought clarification from the prosecutor, and he didn’t — doubtless because it was clear.

Although Williams lost on his § 851 claim, the court made clear that it was not adopting a rule that any attempt at notice would always be sufficient:

We can imagine a notice and a list of convictions that were so confusing that the defendant and his lawyer could not be expected to pick out the one or ones that the government might try to use to enhance the defendant’s sentence. . . .

The government takes a risk by sloppy compliance . . . : the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel.

Interestingly, the Eleventh Circuit seems to be taking a very different view of § 851 compliance.  For instance, United States v. Bowden, No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009), apparently employs a strict compliance standard and holds that a failure to meet the standard deprives the sentencing court of jurisdiction to impose the mandatory life sentence.  Williams reports that the Solicitor General recently filed a petition for certiorari in Bowden, so the § 851 issue may be in the news again soon.

The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court  has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently.

In an opinion written by our own Janine Geske, it  has chosen to afford strict scrutiny to the substantial burdens on the free exercise of religion.

State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.

First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.

Second, does a more robust protection for religious free exercise require any – or a broader – exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one’s child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.

Perhaps Wisconsin has it right. Maybe the state’s interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.

Cross posted at Shark and Shepherd.

This article on the Fully Informed Jury Association website gives an example from America’s colonial days.  In 1734, a printer named John Peter Zenger was arrested for committing libel against His Majesty’s government by publishing articles strongly critical of it.  When brought to trial on the charges, he admitted what he had done, but argued he had an affirmative defense that what he printed was the truth and therefore that he should not be convicted.  The judge instructed the jury that truth was no justification for libel, and that only the fact of the publications need be proved.  Despite the judge’s instructions and Zenger’s confession, the jury acquitted Zenger.  Clearly, the members of that jury opposed the Crown by engaging in nullification of the law before them.  This opposition would eventually come to full fruition during the American Revolution.

The right for jurors to judge the law and not just the facts survived into American common law. 

Chief Justice John Jay wrote in Georgia v. Brailsford, 3 U.S. (Dall) 1 (1794):

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

Modern courts have also recognized this right.  The U.S. Court of Appeals for the District of Columbia has stated as recently as 1972 that there exists “an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge…”  See United States v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972) (this case also includes an excellent discussion of the history and evolution of the idea of jury nullification in America).  Despite recognizing and acknowledging the jury’s innate power to nullify, the Dougherty Court also articulated virtually every modern courts’ holding that such power “does not establish as an imperative that the jury must be informed by the judge of that power.”  Indeed, most courts refuse to let any arguments be made to the jury about this “innate” right and power.

So why should juries be informed of their right to nullify the laws that are put before them?  Consider the defendant in Morissette v. United States, 342 U.S. 246 (1952) [discussed in an article by Harvey Silverglate, “The Decline and Fall of Mens Rea," in the September/October 2009 issue of The Champion, the magazine of NACDL (the National Association of Criminal Defense Lawyers)].  Joseph Morrissette was an Army veteran who worked as a fruit stand operator in the summer and as a truck driver and scrap iron collector in the winter.  Once while he was out hunting in a desolate field in Michigan, he came across from what all appearances were empty bomb casings.  Believing them to be abandoned property, he took some of them and sold them as scrap metal for $84.  The land he took the casings from was actually Oscoda Air Base, which the U.S. Air Force had used for dropping simulated bombs at ground targets.  Morrissette was indicted in federal court for “unlawfully, willfully, and knowingly” stealing and converting property of the United States government.  When he challenged his case at trial, the judge would not let him argue that he believed the property was abandoned, nor that the government failed to take steps such as posting signs to warn people not to trespass or take any property.

Morrissette was not as lucky as Zenger to have a jury that would nullify the law in question when it defied common notions of fairness and justice.  The judge in Morrissette’s case instructed the jury that the only issues for them to decide were limited to the elements of the crime: was the property on government land, and did Morrissette knowingly move the property and convert it?  The judge did not deem it relevant that Morrissette may not have known that it was government land or property that was involved in the first place.  Luckily for Morrissette, the United States Supreme Court saw fit to review the case, and reversed in his favor, finding that crimes have historically required “a culpable state of mind.”  Put simply, to convict someone of a crime, there must be “an evil-meaning mind with an evil-doing hand,” or as first-year law students learn, both a mens rea and actus reus.

Most relevant to this discussion, though, was the Court’s assertion that had the jury been allowed to consider Morrissette’s state of mind “they might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk” and therefore might “have refused to brand Morrissette as a thief” (emphasis in quote is mine).  What the Court is implicitly recognizing with this statement is jury nullification.  The Court seems to hint that were the jury allowed to be judges of the law and not just the facts, perhaps they would have found, pursuant to their common-sense and judgment, that even though Morrissette violated the letter of the law, he should not be branded a criminal.  If the jury considered not only the factual circumstances of the crime, but also the legal circumstances, such as how the casings appeared, what explanation Morrissette offered for taking them, or whether the law put him on fair notice, perhaps a more just and robust verdict would have been rendered.  When juries, such as the one in Morrissette, are constrained to mechanically apply the facts of a case as they see them to the elements of the crime as given to them by the judge with no further critical inquiry, justice suffers.

 So why are courts afraid to let juries judge both law and fact and exercise nullification in their sound discretion?  I believe that it may be due in part to the desire to protect and extend the rampant proliferation of criminal laws and regulations in recent years, many of which do not require any specific intent on the part of the accused, but rather are “status” crimes.  For example, consider the variety of gun crimes that the U.S. Attorney’s Office has the power to prosecute. A person convicted of any felony crime in the United States is forever barred from possessing a firearm (felon in possession of a firearm). This is the classic status crime and the jury is asked to answer essentially two questions: 1) is the defendant a felon? and 2) did he or she possess a gun?  In other words, the mens rea applies only to the knowledge of the firearm, not to the knowledge of being a felon.  Not only does the rampant proliferation of criminal laws exist, but so does the rampant proliferation of criminal prosecutions.  With the government having been alleviated of the burden of having to prove one’s knowledge as to their “status,” the government can bring these prosecutions and secure convictions with relative ease.

 Consider the very real example of the young man charged with being an illegal alien in possession of a firearm.  If he is brought here at a young age and raised by his parents to believe that he is a United States citizen, this man could be subjected to federal prosecution for exercising what he would believe to be his Second Amendment right. Again, the question for the jury becomes 1) is he an alien in the United States illegally? and 2) did he possess a gun?  In at least one case in the Eastern District of Wisconsin, however, defense counsel persuaded the court that the government should have to prove that the person was aware of their “prohibited status” as an illegal alien (see Eastern District of Wisconsin Case No. 07-CR-16).  When confronted with the court’s ruling that it would have to prove that the person knew he was an illegal alien, the government elected to dismiss the charges on the eve of trial.

 In his article, Silverglate discusses a study by the Federalist Society reporting that by 2003 there were over 4,000 offenses listed in the United States Code (up from 3,000 in 1980).  And this figure does not include the countless federal regulations and administrative laws that are written by agencies such as the Securities and Exchange Commission that Congress delegates such powers to.  When law becomes this specialized and complex, I believe that reasonable people have a hard time deciding what should rightly be regarded as criminal conduct (like the vast majority of people would when considering murder, rape, child abuse, and large-scale drug dealing).  When conduct is deemed criminal that most reasonable people would not instinctively or intuitively view as such, then it becomes more and more difficult for judges and prosecutors to trust jurors to “do the right thing” and apply the law “correctly.”  It is for this very reason, the fact that the line between offenses that are mala in se (evil in itself) versus mala prohibita (wrong because it is prohibited) has become so fine and so subject to the whims and fancies of the individual prosecutor and judge that not only should jury nullification be recognized and acknowledged, but extolled and reaffirmed as a fundamental right that juries can exercise in their sound pursuit of justice.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958). 

For conditions of supervised release, 18 U.S.C. § 3583 (in its pre-2008 form) authorized a sentencing court to select just about any of the permissible conditions of probation (except assignment to a halfway house) and “any other condition it considers to be appropriate.”  In Anderson, the Seventh Circuit (per Judge Wood) held that this latter language, the “catch-all provision,” permits assignment to a halfway house.  In Head, the court had rejected this reading of the catch-all provision, reasoning that the inclusion of the halfway-house condition in the probation statute and the lack of specific authorization for the condition in the supervised release statute decided the question; a general catch-all provision could not overcome the negative implication created by the statute’s failure to authorize the condition expressly. 

Anderson downplayed this aspect of Head:

Head indicated in a footnote that the catch-all provision did not recapture the power to impose the halfway-house condition . . . . This theory, however, had not been pressed by the Government . . . .

In effect, Anderson seems to treat Head’s analysis of the catch-all provision as mere dicta and adopts a quite different interpretation: the “any other condition” language means what it says, “confer[ring] broad discretion on the district courts to fashion appropriate conditions of release that compl[y] with the broad goals of sentencing.”  Thus, it turns out (per Anderson) that Head only held that the halfway-house condition was not expressly authorized by the supervised-release statute; Head did not really decide whether the condition was prohibited.  Anderson now tells us that the condition is not prohibited.

Anderson’s interpretation of Head strikes me as rather strained.  But the Anderson panel circulated its opinion to the full court, and not one judge voted to hear the case en banc.  It seems odd that the court has so thoroughly undermined such a recent decision as Head, which is only nine months old, without a single voice raised in protest.  I suppose this is a rather arcane aspect of sentencing law, and perhaps no one really cares.  Or perhaps something in the new cases convinced the judges that Head had sacrificed too much by way of sound corrections policy in the name of textualist purity.  Perhaps the overwhelming weight of contrary precedent in the other circuits also contributed to the judges’ discomfort with Head.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least).  In Gant, the Court limited the scope of “search incident to arrest.”  The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

After the discussion of the case, Professor Blinka suggested that one ramification of Gant is that law enforcement will likely put more emphasis on gaining consent to search vehicles, since arrest will no longer yield such access. Professor Blinka also left the lunch group with one question: why did the Court decide that it was appropriate to narrow the “search incident to arrest” rule in 2009, especially since the broader search rule had been in effect for nearly thirty years?

Professor McChrystal addressed the Court’s decision in Safford Unified School District v. Redding, 557 U.S. ___ (2009), another Fourth Amendment case. Unlike Gant, which was based on a police search, this case addressed the ability of public school administrators to strip search a minor student for contraband. In reaching their decision that the school administrator’s strip-search violated the student’s Fourth Amendment protection, the eight-member majority found that the intrusive nature of the search did not adequately correspond with a “substantial chance” of finding contraband in her underwear.

The 8-to-1 decision in Redding left Justice Thomas alone in dissent. In his dissenting opinion, Justice Thomas argued that the doctrine of in loco parentis (literally meaning “in place of the parent,” allows a third party to act with same authority that a parent would have) should be applied to allow school administrators to search a student’s person without any Fourth Amendment concerns whatsoever. Under this approach, not only would a strip search be constitutional, but so would a more drastic search of a student’s body cavities.

In Professor McChrystal’s closing remarks, he cautioned future practitioners about a broader issue of privacy— that in an age of Google searches, clients might want to limit their names from public record.  A Google search for the plaintiff in Redding results in nearly four million hits. And while Ms. Redding’s ordeal at school occurred six years ago this month, her name will always be attached to the school’s invasion of her privacy. However, had her lawyer petitioned the court for a pseudonym for the minor plaintiff, something that most courts would be likely to grant under the circumstances, she might have maintained more of the privacy that she fought so hard to protect.

The last case, Crawford v. Metropolitan Government of Nashville, discussed by Professor Secunda, reviewed the anti-retaliation provision of Title VII. This provision protects employees suffering from adverse employment actions (such as a demotion, change in pay, or termination) when the employee “participates” or “opposes” an unlawful employment practice. At the heart of the matter in Crawford was what type of employee conduct constitutes “opposition” to an unlawful employment practice. The Court, reversing the Sixth Circuit Court of Appeals, held that reporting sexual harassment was not needed for protection under the “opposition” prong of the anti-retaliation provision. Furthermore, applying an ordinary definition of “opposition” the Court held that the “opposition” prong of Title VII protected an employee’s cooperation with an internal investigation of sexual harassment when an employee gave a “disapproving account” of a supervisor’s conduct.

Professor Secunda noted that while the unanimous decision is good for employees that seek retaliation protection, the Court may have better helped such workers by addressing employee protection under the more frequently used “participation” clause.

MU-ACS sincerely appreciates the faculty members and students who gave their time for the event. All students are welcome to join MU-ACS events.

Roman Polanksi, a famous director of movies such as Chinatown and The Pianist, was recently arrested in Switzerland 32 years after he fled the United States after pleading guilty to a child sex offense in California.  According to Grand Jury testimony given by then 13 year-old Samantha Gailey, (viewable at the Smoking Gun website), Polanksi approached her to take pictures to be published in a magazine.  Gailey and her mother agreed and she went with him to Jack Nicholson’s home on March 10, 1977 to take pictures (apparently Jack wasn’t home that day, just an unknown woman).  After giving Gailey champagne while taking additional pictures of her, Polanski then gave her a Quaalude, which is a sedative similar in effect to barbiturates. 

Gailey testified that Polanski then enticed her into a jacuzzi and eventually into a bedroom where he performed oral sex on her, began vaginal intercourse, and asked her if “she was on the pill” and when “her last period was.”  She said the encounter ended after Polanski forced anal sex with her.

Originally charged with six felony counts including rape by use of drugs, perversion, sodomy, committing lewd and lascivious acts upon a child under 14, and furnishing a controlled substance to a minor, Polanksi entered into a plea bargain where he pled guilty to the lesser-included offense of unlawful sexual intercourse with a minor.  All the other counts were dismissed.

Before sentence could be imposed, Polanski, a French citizen, fled the United States and has since restricted his travel largely to France, Poland, Germany and the Czech Republic.  According to this article on TIME.com, the Los Angles County District Attorney’s office has tried to extradite Polanksi several times since his fleeing.  USC law school professor and former federal prosecutor Jean Rosenbluth seems to think that the effort to extradite Polanski may have been stepped up since he filed motions earlier this year alleging misconduct on the part of now-deceased Judge Laurence Rittenband, who was handling the case at the time.  The alleged misconduct is based upon a statement given by then-Los Angeles deputy district attorney David Wells who said that he had ex parte communications with the judge where he argued for more jail time for Polanski.  Wells has since recanted his statement, saying that he “embellished” his talk with the judge.

According to the TIME.com article, Polanski is now contesting extradition.  If unsuccessful and he was brought back to the U.S., he could face up to four years in prison for the initial crime he pled guilty to, plus an additional three years for what is known in Wisconsin as “bail jumping”- violating a condition of bail, in this case leaving the state without permission.

For both criminal defense practitioners like myself, and the public in general, this case raises several interesting and uncommon questions.  For example, what about the statute of limitations?  In Wisconsin, prosecutions for felonies must begin within 6 years (W.S.A. 939.74), and in the federal system it is usually 5 years for non-capital offenses (18 U.S.C. 3282- there are some exceptions like tax fraud).  The problem for Mr. Polanski is that the statute of limitations only helps where there was no prosecution started within the time limits.  Not only was the prosecution in his case started well within the time limits, he pled guilty early in the process also.  Federal law is clear and concise on this point, as the entirety of 18 U.S.C. 3290 reads: “No statute of limitations shall extend to any person fleeing from justice.”

How about the alleged judicial misconduct?  According to the TIME.com article, the judge handling Polanksi’s recent filing regarding the same has indicated he is open to arguments that misconduct had occurred.  However, he refused to rule on such misconduct until Polanski made a personal appearance in front of him.  This is pursuant to the “Fugitive Disentitlement Doctrine,” which states fugitives are not entitled to adjudication on their claims because if they are ruled against there can be no effective enforcement of the court’s order.  Basically, the judge is telling Mr. Polanski he can’t have his cake and eat it too.

What about Polanski defending the case on its merits, as it is now 32 years old, and the victim herself has stated publicly that she no longer thinks this case should be pursued?  Before he could do that, Polanski would have to move to withdraw his guilty plea.  If this case were in Wisconsin, Polanksi would have to show, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a “manifest injustice.”  This can occur when a defendant makes a plea without knowledge of the charge or potential punishment if convicted, or if the plea is not made knowingly, voluntarily or intelligently in some regard.  See State v. Cash, 2004 WI App 63, 271 Wis.2d 451, 677 N.W.2d 709. 

As a criminal defense attorney who handles appeals in both state and federal court, I think Polanksi would have a difficult time arguing “manifest injustice” occurred here.  I reviewed the plea transcripts , and it seems to have been well-handled, no doubt due in part to the high profile of the case.  Polanski clearly was made aware of and waived several important constitutional rights, including his right to a jury trial, his right to a lawyer (he was represented by one at this stage anyway), his right to confront his accuser, the right to subpoena witnesses and present evidence, and the right to remain silent and have the state prove its case beyond a reasonable doubt.  He also stated in his own words what the penalties were that he faced, and what his criminal conduct consisted of.  The process of California’s sex offender designation was also explained to him, along with the fact that the judge decided his sentence and did not have to go along with the plea agreement.

If he is returned to the U.S., what kind of sentence can Polanski expect?  Most people in our society are familiar with the current crusade against child sex offenders, exemplified by T.V. shows like “To Catch a Predator.”  Based on the facts of the crime alone, Mr. Polanksi can expect to receive a stiff punishment.  Other sentencing factors also aggravate his situation.  The federal statute that lays out what factors a judge is to consider when sentencing a defendant is an instructive example.  These include: deterrence of crime, both specific to the individual and in general to others in society; punishment for wrongdoing; and to promote respect for the law.  See 18 U.S.C. 3553.  However, these factors have to be balanced against the history, characteristics, and rehabilitative needs of the defendant and the public interest in protection from the defendant committing further crimes.  These last two factors are where Polanksi’s greatest hope for a lenient sentence lies: he is 76 years old and is probably considered a very low-risk to re-offend.  Also, he undoubtedly has done several positive things with his life while on the run from the law, including directing The Pianist, a moving film about the trial and travails of Polish Jews during World War II.  Whoever may end up sentencing Polanksi will have to juggle several competing factors to determine a reasonable sentence for him, and will no doubt leave many people unhappy about the outcome regardless.  My guess, though, is that any such sentencing would not occur for a long time as the extradition process unfolds.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

Writing for the Welton panel, Judge Bauer expressly disavowed Liddell “to the extent that Liddell is inconsistent with [earlier holdings] that a district court may not rely on the 100:1 crack/powder disparity embedded in  § 4B1.1 as a basis for imposing a non-Guidelines sentence.”  Moreover, because of the avowed overruling of Liddell, Welton was circulated to the entire court, and only three judges voted to rehear the case en banc.  (On behalf of these three dissenters, Judge Williams wrote what seems to me a quite persuasive opinion in Welton arguing the basic “advisory means advisory” point.)

The majority’s position seems to boil down to this: the Sentencing Commission did not come up with § 4B1.1 on its own, but instead followed a directive contained in 28 U.S.C. § 994(h) that the guidelines “specify a sentence to a term of imprisonment at or near the [statutory] maximum” for career offenders.  The court thus sees  § 4B1.1 as embodying a congressional policy choice, which is binding on district judges because it is not merely a Commission policy choice.

There is no question that Congress could write a statute requiring district judges to sentence career offenders “at or near the statutory maximum.”  But Congress has not written such a statute.  By its terms, § 994(h) is a directive to the Sentencing Commission, not district judges.  And, if there is anything we have learned from Justice Scalia and his New Textualism, it is that Congress’s mere “policy choices” are not binding on anyone; it is only through the written law, as contained in statutes enacted through constitutionally mandated procedures, that Congress can make binding policy decisions. 

Instead of issuing a directive on career offenders to district judges, Congress chose to issue its directive to the Sentencing Commission, recognizing that its policy choice regarding career offenders would be embedded within, and necessarily qualified in all sorts of uncertain ways, by a larger structure of sentencing guidelines.  Rather than pass a stand-alone mandatory minimum statute, Congress evidently believed that it was best for the specifics of career-offender sentencing to be worked out in a way that cohered with the rest of the federal sentencing system.  Post-Booker, such coherence means that the career offender guideline should be treated as no less advisory than any other guideline.

Moreover, treating § 994(h) as binding on judges risks reversing Booker by the back door.  Section 994(h) is not the only congressional directive to the Sentencing Commission; the whole of § 994 is chock full of them.  Indeed, very nearly all of the guidelines could be fairly characterized as embodying one congressional policy choice or another.  (There is, in fact, an interesting debate in the scholarly literature over whether the worst features of the federal guidelines are due more to Congress’s or the Commission’s policy choices.)  Once we start saying that congressional policy choices embodied in the guidelines are binding, it is not clear where a principled line is to be drawn to save Booker.

In fact, the whole point of Booker is that Congress does not get to have its way when it comes to sentencing guidelines.  The Sixth Amendment trumps congressional preferences.  And the Sixth Amendment prohibits courts from treating the policies contained in sentencing guidelines as binding in the absence of jury fact-finding.

Judge Williams concluded her dissent with a call for the Supreme Court to address the § 4B1.1 problem in light of the disagreement it has sparked within the lower courts.  I heartily agree.

In the meantime, I take solace in the fact that there remains some interest and ability on the part of the Seventh Circuit to impose other sorts of limits on the mandatory application of the § 4B1.1 100:1 ratio, as evidence by the court’s recent decision in United States v. Knox, which held that the ratio is not binding on defendants convicted merely of conspiracy to commit a crack offense.  (My post on Knox is here.)

In practice, the federal courts have interpreted the law expansively so as to encompass a broad range of circumstances beyond actual possession.  Thus, under the doctrine of ”constructive possession,” a felon may indeed be convicted based on the discovery of a firearm in his home. 

But,  as the Seventh Circuit made clear last week in United States v. Katz (No. 08-2341), even the doctrine of constructive possession has its limits. 

Katz, a felon, had some sort of altercation with Grice, his girlfiend, at her home.  Responding to 911 calls, police arrived at the scene, detained Katz, and searched Grice’s home.  The search revealed, among other items of interest, drugs and a shotgun with Katz’s fingerprints on it.  At trial, Katz stipulated that he had been convicted of a felony prior to the incident at Grice’s home, and a jury subsequently found him guilty of being a felon in possession. 

On appeal, Katz argued that the evidence was insufficient to estabish his guilt beyond a reasonable doubt.  The Seventh Circuit, per Judge Rovner, agreed.

Although Katz’s fingerprints were on the shotgun, it was impossible to tell how old the fingerprints were.  Nor did the evidence at trial establish when exactly Katz had become a felon, other than that it happened sometime before the altercation with Grice.  For all the Seventh Circuit could tell, Katz might have handled the gun long before his felony conviction.  Thus, the evidence was insufficient to establish actual possession of a firearm by a felon.

What of constructive possession?  If the gun had been found in Katz’s residence, then the government would have been home free.  But are we prepared to extend the constructive possession doctrine to the residence of a felon’s girlfriend?  Is it fair to infer that a guy really has control over all of the property in his girlfriend’s home?

The Seventh Circuit answered no, at least on the facts of Katz:

There is no evidence whatsoever that Katz resided at the premises, or even that he had ever stayed at the home for any period of time.  The only evidence presented indicates that the home belonged to Grice exclusively: the lease was in her name; she did not want to leave him in the home when she left for work; she called police to have him removed from her home; and she possessed the keys.  He apparently did not have keys because he took hers when he left the premises.  There are none of the indicia of joint possession of the premises that we have found in other cases.  (7)

In trying to show constructive possession of the premises, the government relied on the fact that Katz carried $1,800 in cash at the time of his arrest.  The goverment’s theory was that (a) drug dealers often carry large amounts of cash, (b) drugs were found in Grice’s home, (c) therefore, Katz was dealing drugs from Grice’s home, (d) drug dealers often keep guns around the places where they deal drugs, and (e) therefore, the gun at Grice’s home must have been Katz’s.  Just stating the government’s argument reveals how speculative the reasoning was, and the Seventh Circuit appropriately found it insufficient to support a criminal conviction.  Interestingly, then, this is the second week in a row in which the Seventh Circuit has rejected inferences of specific criminal activity drawn from the fact the defendant happened to be carrying a few hundred dollars at the time of his arrest.  (For last week’s case, see my post here.)

First, let me set the stage. 

We are told to dress “prison appropriate” which means no metal anywhere (other than your shoes) unless you want to take off that particular piece of clothing or undergarment to run it through the metal detector.  We (Janine; a few law students; community members interested in RJ, including someone from LA interested in adopting this program for California; and me) go through five sets of bars that open only when the one behind you closes.  The circle is held in the prison classroom, where we sit in a large circle of chairs – prisoners interspersed with staff and outsiders.  Although we can see their full names on their name tents, we use first names and flip our security-issued name tags around so no one can read the full name.  It’s a little daunting, so even more powerful, as the day moves forward.

I went on the second day of the RJ program.  On the first day, the prisoners are broken into groups, and each group charts the ripple effects of a single crime, an armed robbery at a mall.  From the flipcharts posted around the room, I can see the groups have done an impressive job.  A single theft not only affects the victim and the store, but the victim’s family, customers and other workers at the store, members of the broader community who might shop at the mall, the suppliers, and so on.  Today, on the second day, we hear from two victim-survivors in the morning.  The first is a the widow of a police officer killed at a domestic violence shelter, taking a bullet for a 15-year-old who had been defending his mother against her abuser.  She speaks in excrutiating detail: hearing the sirens, being woken to go to the hospital, hearing her sneakers squeak with his blood, seeing the line of blue uniformed officers lining the hospital hallway, telling her two small children.  It is impossibly hard to hear this and I wonder what the prisoners think.  The next woman who speaks lost her son to a drunk driver.  (She hates that phrasing “lost.” It is much too passive.   As she noted, she didn’t “lose” her son – she knows exactly where he is.  I should say he was murdered.)  Again, we learn the details of his life: a warm, vibrant college senior who, in the year between high school and college, biked with three friends around the entire perimeter of the continental U.S.  He was biking when he was killed, just a few days before his last college exam.

And then we break for lunch.  As Janine warned the inmates, lunch might be difficult.  They will be thinking about what they have heard.  We get to leave for lunch and the sunlight is a welcomed intrusion.

When we return, it is time to go around the circle and hear from the men.  The statements are amazing – as Janine tells me, many of these men will never be released from prison.  Their statements do not go to the parole board, and they often wouldn’t help them anyway.  Almost all of them start by thanking the women for speaking, many of them are crying and talk about their own loss and vicitimization as part of what got them to prison in the first place.  Here is a sampling:

“I want to apologize to you.  I belong here and you have helped me understand the hurt that I have caused.” 

“I will take your story and try to change the world for good.” 

“I used to think that victimizing someone after you have been a victim is power.  But this is real power, the power to help others, the power to help change.” 

“I used to view myself as the victim and blame others.  I never saw the ripple effect.” 

“I was hurt so I wanted to hurt others.” 

“Males are born but men are made – and this is one of the starting points.”

At the end of the afternoon, the prisoners heard from one more victim, the sister of a man imprisoned for life for murder, who just graduated law school at Marquette.  And the men heard about a different ripple effect, on their families and loved ones, who lost their brother or son in the crime they committed.  

Unfortunately, I could not go for the third day, where the prisoners talk again about what they have heard and then look forward to what they can do with what they have learned.  The warden at Green Bay loves this program: In-prison behavior from these prisoners improves while they are there and the likelihood of repeat offending once they do get out goes down.

Let me close with what I was thinking on my drive home:  First, I felt blessed that I was just a visitor – not a victim, not a relative, not directly touched by any crime.  Second, I was amazed to see what restorative justice and dispute resolution can do to individuals even in the worst circumstances.  And finally, I was so proud that this program is supported by Marquette and part of our dispute resolution curriculum.  I know it has a dramatic impact on our students as they go out into the world and practice law.  They, too, will learn the ripple effect of their actions – good and bad – and what good they can do as lawyers in the broader community.

Cross posted at Indisputably.

When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant.  The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking.  And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.”  (For an earlier post on the pitfalls of relevant conduct, see here.)  In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest.  Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced.  If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right?  The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly.   Judge Posner, writing for the panel, sensibly observed,

The falsity of the defendant’s testimony makes reasonably clear that the $765 was proceeds of an illegal transaction of some sort, but does not show that it was proceeds from selling crack.  For all one knows, the defendant sold other illegal drugs (he had been convicted in the past of possession of marijuana) or other contraband, such as guns, but did not want to acknowledge other illegal behavior, which he might have thought would get him into even worse trouble than he was in.

In light of these possibilities, it appeared that too much crack might have been attributed to Edwards when his guidelines sentence was calculated.  The Seventh Circuit thus vacated Edwards’ sentence and remanded for resentencing.

It is true that Edwards’ false testimony does not logically require an inference that the $765 came from crack sales, but it is still surprising to see the Seventh Circuit not permit the inference.  After all, what was at issue was a district court’s finding of fact, to which appellate courts are supposed to show some deference.  Indeed, the First Circuit upheld a district court’s decision on similar facts in United States v. Jackson, 3 F.3d 506 (1st Cir. 1993).  However, the Seventh Circuit felt that Jackson was inconsistent with other cases that reject “the automatic inference from disbelief in one part of a witness’s testimony to disbelief in the rest.”

Although the Seventh Circuit may not have shown its typical deference to district-court fact-finding in Edwards, the lower court’s piling on of relevant conduct is a reminder of why the drug sentencing guidelines have provoked so much criticism.  Quantity tends to overwhelm other considerations in drug sentencing, and the determination of quantity under the guidelines makes no distinction between what was proven to a jury beyond a reasonable doubt and what was proven to a judge by a preponderance of the evidence.  The diminished burden of proof under the guidelines invites dramatic increases in punishment on the basis of the sort of flimsy inferences used in Edwards.  This is especially troubling when the defendant is being sentenced under the crack guideline, which is widely recognized to be unjustifiably harsh.

It turns out that the armed bank robbery statute, 18 U.S.C. § 2113(d), can be satisfied in either of two different ways.  First, a robber qualifies for increased punishment by committing an assault.  As the Seventh Circuit indicated many years ago in United States v. Smith, 103 F.3d 600 (7th Cir. 1996), the assault prong of the statute is satisfied when a teller has a reasonable fear of imminent bodily injury.  Brandishing a gun — loaded or unloaded — seems almost certain to create such a fear.

The second prong, though, raises a closer question. 

Under this prong, a robbery qualifies as armed if the robber “puts in jeopardy the life of any person by the use of a dangerous weapon or device.”  This prong turns, not on the teller’s belief that his or her life is in jeopardy, but on the objective reality of the danger.  And the danger is surely far less when a robber carries an unloaded than a loaded weapon.

Because of the availability of the assault prong, it would seem to be academic whether carrying an unloaded weapon triggers the in-jeopardy prong.  But, for reasons not clear to me, prosecutors in United States v. Simmons (No. 08-2207) charged the defendant bank robber only under the in-jeopardy prong.  His conviction and subsequent appeal thus presented the Seventh Circuit with an opportunity to address whether carrying an unloaded weapon puts a teller’s life in jeopardy.  The First and Ninth Circuits had previously answered in the affirmative a closely related question (whether carrying a fake gun puts a life in jeopardy).

The Seventh Circuit (per Judge Tinder) reached the same conclusion.  Although the unloaded weapon was obviously of little direct threat to anyone, jeopardy was nonetheless established by the “potential violent reaction of the victim or law enforcement” to the apparent (but not actual) threat posed by the weapon.

I find it hard to quarrel with the result, but the case does illustrate a “missing category” problem in the bank robbery statute.  Although it is more dangerous (and thus more blameworthy and more suitable for enhanced punishment) for a robber to carry an unloaded gun than it is for a robber to leave his gun at home, it also surely more dangerous for a robber to carry a loaded than an unloaded gun.  An important distinction in offense severity seems lost without an intermediate offense category for carrying an unloaded (or fake) weapon.  Fortunately, a sentencing judge may exercise his or her discretion to make the appropriate distinctions.

The Seventh’s Circuit opinion last week in United States v. Noel (No. 07-2468) reveals a substantial division over how to handle violations of a defendant’s right to address the court at sentencing.  As now codified in Federal Rule of Criminal Procedure 32, the Supreme Court has held that defendants must be personally invited to address the court before being sentenced; it is not enough for defense counsel to be given an opportunity to speak.  I have long thought this right of allocution to be a Rorschach test of sorts, revealing fundamental disagreements in the way that criminal procedure rights are conceptualized. 

According to one view – probably the most common — criminal defendants have procedural rights so to ensure the accurate sorting of the guilty from the innocent.  Thus, for instance, we give defendants a right to counsel so that falsely accused defendants are able to mount a successful defense.  On this view of procedural rights, though, the right to allocute appears a largely empty technicality.  By the time of sentencing, the defendant’s guilt has already been established, and the selection of a sentence is not the sort of decision that has a singular right answer.  It is hard to see how allocution fits the accuracy-enhancement paradigm.  Perhaps defendants may occasionally use their opportunity to speak in ways that persuade an otherwise skeptical judge of their remorse, and perhaps the sentences these defendants receive are improved as a result.  Even so, allocution still seems to be making a rather weak contribution to the search for “right answers” in the criminal justice system; other rights (such as the rights to counsel, to obtain exculpatory evidence in the government’s possession, to confront accusers, and to suppress coerced confessions) seem far more weighty.

On a competing view, though, the rights of criminal defendants are not exclusively (or perhaps even primarily) about accuracy-enhancement, but about showing respect for defendants’ essential human dignity.  (I discussed this point of view in religious terms here.)  Central to the dignitary paradigm is giving defendants the opportunity to tell their side of the story before punishing them.  From this perspective, allocution is not merely a peripheral, “technical” right, but a core right — indeed, it is perhaps the most important right in our plea-bargaining-dominated system that rarely gives defendants an opportunity to tell their side of the story at trial. 

It is interesting to read Noel against this backdrop of accuracy versus dignitary views of criminal procedure.  Noel was convicted of possessing and producing child pornography.  He appealed both his conviction and sentence.  The Seventh Circuit (per Judge Kanne) affirmed, but only narrowly so.  For one thing, the court indicated that a police officer improperly testified at trial that Noel’s images fit the legal definition of pornography.  Although the court scolded the government for presenting this testimony, the error did not warrant reversal because Noel did not object to the testimony at trial, and the testimony did not rise to the level of plain error. 

Likewise, although the court noted a nationwide debate on the propriety of the jury instruction used by the trial judge to define child pornography (the so-called Dost instruction), any problems with the instruction did not support a finding of plain error.

This brings us to the allocution issue.  The trial judge solicited a statement from Noel’s attorney, but not Noel himself.  Once again, the Seventh Circuit found error, but not one warranting reversal. 

Because Noel failed to object in the district court, he could not win on appeal unless he showed (1) a plain error that (2) affected his substantial rights and (3) seriously affected the “fairness, integrity, or public reputation of the judicial proceedings.”  And the court did find plain error that affected substantial rights.  With respect to the latter element, the court relied on United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), which held that the court “presume[s] prejudice when there is any possibility that the defendant would have received a lesser sentence had the district court heard from him before imposing sentence.”

But Noel lost on the third element.  In finding that the error did not seriously affect the “fairness, integrity, or public reputation of the judicial proceedings,” the court relied on the following facts: the sentencing judge twice mentioned Noel’s right to allocute (even though he did not personally solicit a statement from Noel), Noel’s lawyer read a letter from him at sentencing, the letter was structured much as an allocution would be, everyone at the sentencing overlooked the error, and Noel received a sentence far below the recommended guidelines range.

Chief Judge Easterbrook wrote a concurring opinion arguing that the Luepke rule of presumed prejudice should be overturned and the burden of proving prejudice placed on the defendant.  Luepke reflected a concern that defendants would have an unduly hard time showing prejudice: how could a defendant really show that he would have received a different sentence if allowed to speak?  But Easterbrook did not share this concern: “[T]he reason it is hard to show injury is that violations of [Rule 32] usually are inconsequential.”  In the same vein, he characterized a violation of the right to allocute as merely “technical.”  His emphasis on prejudice, of course, is characteristic of the accuracy paradigm in criminal procedure.  One wonders if he will be looking for an opportunity to press his desire to overturn the Luepke rule in future cases.

Judge Williams wrote a dissenting opinion with two purposes.  The first was to take issue with the majority’s conclusion that the allocution error did not seriously affect the fairness of the sentencing proceeding.  In particular, Judge Williams was far less impressed than the majority with the fact that defense counsel read the letter from Noel, which was not apparently written with the intention that it be presented in lieu of an in-court statement. 

Judge Williams’ second purpose was to defend Luepke.  In her view, “the importance of the right to allocute cannot be minimized.”  She noted the contribution of allocution to the “perceived equity” of the sentencing process, and suggested that allocution implicated “core values” of sentencing.  Plainly, Judge Williams has much more of the dignitary perspective on process than Chief Judge Easterbrook.  

The importance she would attach to the right to allocute contributed to her conclusion that the rules of appellate review should give defendants a realistic opportunity to enforce the right.  More specifically, because the burden of proving prejudice would be ”almost insurmountable for defendants,” the Luepke presumption plays an important role in ensuring that the right to allocute is something more than an “unenforced honor code” for district judges. 

Other new opinions in criminal cases were:

United States v. Johnson (No. 08-3541) (Kanne, J.) (affirming district court’s denial of Franks hearing and affirming sentence).

United States v. Plummer (No. 07-4031) (Rovner, J.) (affirming finding in drug case that substance involved was crack cocaine).

United States v. Zahursky (No. 08-1151) (Tinder, J.) (in child enticement case, reversing enhancement of defendant’s sentence under U.S.S.G. § 2G1.3(b)(2)(B) because defendant did not engage in prohibited sexual conduct).

United States v. Winbush (No. 08-1602) (Kanne, J.) (affirming sentence and conviction in drug trafficking case)

United States v. Meece (No. 09-1211) (Bauer, J.) (affirming conviction and sentence in felon-in-possession case).

United States v. Anderson (No. 08-2925) (Ripple, J.) (affirming conviction and sentence in telemarketing fraud case).

United States v. Garcia (No. 07-3964) (Kanne, J.) (affirming conviction and sentence in drug trafficking case).

The national debate triggered by Vick’s arrest and conviction revealed that most middle and upper class Americans viewed dog-fighting as barbaric and properly criminal.  On the other hand, it also made many aware for the first time that there were racial, socio-economic, and regional dimensions to the debate.  While few openly called for the repeal of all dog-fighting laws, it became clear that many African-Americans and rural whites, particularly Southerners and those with lower incomes, did not view dog fighting as a particularly serious offense.  Many in these groups still find it a fascinating and exhilarating spectator sport, and, consequently, view the laws against it as trivial and unfair.  From their perspective the issue was not so much one of animal rights but the ability of the majority to impose their cultural views on a relatively powerless minority.

Although dog-fighting has been illegal in every state for some time now—Vick’s home state of Virginia outlawed “commercialized” dog-fighting and betting on dog-fights at the end of the 19^th century—the sport once had a long and surprisingly upper class pedigree.  Queen Elizabeth I was a great fan of dog-fighting and prevented Parliament from outlawing the sport during her reign.  Dog-fighting, along with bear baiting, cock fighting, gander pulling, and other blood sports were quite popular in colonial Virginia and helped to unite individuals of different races and economic classes, including slaves and their masters.

Even after dog-fighting was outlawed, at least in the South there was a long tradition of law enforcement officials looking the other way, or sometimes joining in the activity.  (In that regard, it was like “moonshining.”) To this day, the kindred sport of cock fighting remains legal in Virginia (so long as it is done solely for the enjoyment of the spectators and no money changes hands), and a recent effort to abolish it in the Old Dominion failed, in part because the state’s farmers are among the nation’s leading breeders of fighting roosters.  More over, hunting, fishing, and horse racing continue to be perfectly legal although it is hard to believe that the animals involved derive much pleasure from the sport.

I spent a good part of the summer in my hometown of Pearisburg, Virginia (pop. 2200).  While I was there, the topic of conversation frequently turned to Michael Vick.  Although the town has a black town councilman which it elected in at large voting, it is predominantly white and very conservative.  Almost without exception, however, everyone seemed to view seemed to feel that Vick had gotten an extremely raw deal.

While it is true that the town is overwhelming populated by fans of Virginia Tech (Vick’s alma mater), I don’t think that that was the reason for their views.  (They would have felt the same, I think, even if he had played for UVa or West Virginia University.) For what they viewed as at best a minor infraction against an animal, Vick was punished as though he had committed a serious offense against another human being.

I am sure that nothing would please Michael Vick more than for the public to completely forget about his dog-fighting experiences.  However, as the focus of civil rights disputes increasingly shifts from issues of race to issues of culture, Vick may be a symbol of resistance for those who embrace rural, lower class Southern values instead of those of the middle-class majority.