Michael M. O’Hear – Page 123 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: A Second Amendment Blockbuster (or Maybe Not)

Post author:Michael M. O'Hear
Post published:November 22, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

seventh circuit So, the Heller revolution may have legs after all. In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court breathed new life into the moribund Second Amendment, holding that there is indeed an individual right to bear arms. Heller seemed to mark a major shift in Second Amendment jurisprudence and cast a shadow over much gun control legislation. On the other hand, the Heller Court was remarkably coy about many aspects of the individual right to bear arms, leaving open the possibility that Heller would prove no more than a flash in the pan.

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.

Sentences Merit Closer Scrutiny by Appellate Courts

Post author:Michael M. O'Hear
Post published:November 18, 2009
Post category:Criminal Law & Process Judges & Judicial Process Legal Scholarship

I have a new article on SSRN entitled “Appellate Review of Sentences: Reconsidering Deference.” As the title suggests, I review the standard arguments in favor of the prevailing rubber-stamp approach to appellate review of sentences, and I conclude that the arguments are something short of compelling. Here is the abstract:

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.

Ambiguity Is Ambiguous

Post author:Michael M. O'Hear
Post published:November 16, 2009
Post category:Criminal Law & Process U.S. Supreme Court

In an earlier post, I offered some preliminary thoughts about the Supreme Court’s six criminal statutory interpretation cases last term. I observed that Justice Scalia’s textualist approach now seems dominant on the Court. The six opinions thus reflect a great deal of effort to parse the texts of the statutes, and we get a number of passages like this one from Flores-Figueroa v. United States, 129 S. Ct. 1886, 1890 (2009):

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.