Seventh Circuit Week in Review: Terrible Tragedy=Maximum Sentence?

The Seventh Circuit had four new opinions in criminal cases last week.  The court did not break new ground in any of them, but one raises some interesting sentencing issues.  I’ll first discuss that case, United States v. Wise (No. 08-2794), and then briefly summarize the other three, which dealt with the definition of “crack cocaine,” disparity in the sentencing of codefendants, and the constitutionality of a gun possession statute, respectively.

First, the Wise case arose out of terrible tragedy.  Wise left a loaded firearm on a window ledge in his girlfrend’s apartment, where it could be reached by children.  You can already guess where this is headed: a four-year old left unattended in the room for a few minutes picked up the gun, the gun discharged, and a two-year old was killed.  Wise was charged in Illinois state court with reckless endangerment of a child resulting in the child’s death.  Wise, however, was a felon, and so his possession of the firearm was a federal crime, too.  State charges were apparently dropped, as federal prosecutors charged Wise with the gun possession crime.  Wise pled guilty.  The sentencing judge decided to sentence Wise above the recommended sentencing guidelines range and give Wise the maximum, ten years.  Wise challenged his sentence on appeal, and the Seventh Circuit (per Judge Evans) affirmed. 

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Meares on Race and Policing

In delivering the first annual Barrock Lecture on Criminal Law yesterday, Yale Professor Tracey Meares set a high bar for future speakers.  (A webcast is available here, and a written version will appear in the summer issue of the Marquette Law Review.)  Tracey’s talk was a call for police to move from an emphasis on deterring crime through the threat of harsh punishment to a more holistic approach to crime control that includes promoting more positive attitudes towards the law and legal authorities.  She identified procedural justice — basically, treating people with fairness and respect — as an important component of the more holistic strategy.  Her particular concern lies with crime and policing in inner-city, minority neighborhoods, where punishment-alone approaches have resulted in shockingly high incarceration rates among young, poorly educated, African-American men.  Tracey argues that an approach combining punishment with procedural justice offers better prospects for reducing crime and improving the quality of life in these difficult environments, and points to her own work with Project Safe Neighborhoods in Chicago as an example of the violence-reduction that can be accomplished when the police engage with the community in new ways.

I recently made a similar argument that the same sorts of benefits might be derived from prosecutors paying more attention to procedural justice in plea bargaining.  (A copy of my article is available here.) 

As Tracey indicated in her talk, there is plenty of evidence indicating that deterrence has limited value as a crime-control strategy. 

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Drug Treatment Courts: More Band-Aid Than Magic Bullet

Last week, I traveled to Stanford Law School to speak about drug treatment courts, which are intended to divert drug offenders from prison to treatment.  I was part of a program entitled, “Drug Courts: Magic Bullets or Band-Aids?” 

My two co-panelists (Professor Eric Miller of St. Louis University and Attorney Theshia Naidoo of the Drug Policy Alliance) and I were all definitely more on the “band-aid” than “magic bullet” side of the question.  There is a great deal of variation among the nation’s roughly 2,000 existing drug courts, which makes generalizations difficult.  Moreover, only a few of the courts have been rigorously evaluated.  Still, many commentators (including me) have expressed concerns over the use of “shock incarceration” to punish relapse, high rates of “flunking out” of drug court (approaching or exceeding fifty percent in many programs), the tendency to punish drug court failures more harshly than they would have been punished had they been sentenced in a traditional criminal court, and the tendency to cherry-pick only the most promising (and hence least addicted) drug offenders for admission to drug court in order to keep failure rates as low as possible.  If the goal is to reduce the incarceration rate for nonviolent drug offenders — a very worth goal, in my estimation — then drug courts are apt to be little more than a marginal improvement over traditional case processing.

More information about the Stanford program is here.  (I understand that a podcast will be available at that link eventually.)  Many thanks to the Stanford Criminal Justice Center and the Stanford Law and Policy Review for cosponsoring this interesting discussion!

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