Seventh Circuit Week in Review: What If the Sentencing Judge Thinks the Sentence Doesn’t Matter?

The Seventh Circuit had only one new opinion in a criminal case last week.  In United States v. Smith (No. 08-1477), the defendant received a twenty-year sentence for distributing child pornography.  On appeal, Smith challenged his sentence on various grounds, including (most notably) a truly remarkable colloquy between his lawyer and the sentencing judge, in which the judge indicated that the Bureau of Prisons had the authority to decide how much of Smith’s sentence would actually be served in prison.  If the judge’s comments are taken at face value, then the judge’s understanding of the law was clearly wrong.  (The judge was not referring here to the 15-percent reduction in sentence length available for “good time,” but to an alleged authority to release the defendant at “any time” up to the full twenty years.)  Such a mistake would betray not only a disconcerting ignorance of the way the federal criminal justice system has operated since parole was abolished in the 1980’s — a full 85 percent of the sentence must now be served as a minimum in all cases — but would also raise questions about whether Smith’s sentence was set unnecessarily high.  After all, the judge was apparently operating under the mistaken belief that prison officials could release Smith as soon as he no longer presented a danger to the community — given that premise, it is easy to imagine a judge erring on the side of a more severe sentence.

The Seventh Circuit (per Judge Manion) nonetheless affirmed. 

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Keeping the Underclass in Its Place

Now on SSRN, David Papke has another installment in his great series of articles on the American underclass.  The new article, “Keeping the Underclass in Its Place: Zoning, the Poor, and Residential Segregation,” explores (among other things) the role of law in maintaining class-based residential segregation.  Here is the abstract:

This article discusses the ways suburban zoning keeps the underclass out of the suburbs. The article begins by discussing the complex and sometimes contentious notion of an “underclass,” which became part of popular and political discourse in the United States in the late 1970s and early 1980s. This socio-economic group is defined not by race but rather by the group’s weak ties to the labor market. The article continues by considering the specific steps suburban zoning officials take to make it impossible for members of the underclass to find low-cost rental housing in the suburbs. The article then explores the possibility of challenging these zoning practices by invoking federal constitutional law standards, concluding that challenges of this sort hold little promise. In conclusion, the article addresses what might be accomplished not only by keeping the urban poor out of the suburbs but also by keeping them in the center-city. The article does not critique lines of legal reasoning or propose law reform but rather captures an oppressive aspect of American life and underscores the role law plays in it.

As usual, David provides a deeply engaging account of the development of the law that is rich in social and historical context.  Another in his underclass series (“Family Law for the Underclass: Underscoring Law’s Ideological Function“) is also available on SSRN.

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Judge Barker on “Imaginative Judging”

Judge Sarah Evans Barker delivered a terrific Hallows Lecture at the Law School yesterday on “imaginative judging.”  She was engaging obliquely with, and putting a fresh spin on, the otherwise increasingly tiresome debates over “judicial activism.”  While the activism debate generally focuses on the law-declaring role of appellate judges, Judge Barker focused on the case management role of trial-court judges.  Although case management may seem far-removed from law-declaring, Judge Barker observed that judges operating in either mode may sometimes face situations in which following the conventional rules of formal legal analysis produces absurd results.  Where such situations are encountered in the trial court, Judge Barker endorsed the use of imaginative problem-solving.  As an example, she cited her own work in bringing together public officials in Indianapolis to address chronic constitutional violations in the local jail.  Had she played a more conventional, passive role as the judge in pending constitutional litigation, the result (in her view) would have been a largely ineffectual remedy.  By imagining a different sort of role for herself, and engaging the key players outside of the formal legal process, a much better result was achieved. 

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