Marquette Law Review Article Sparks Debate on Use of Dictionaries to Decide Legal Cases

A recent article in the Marquette Law Review was featured in Adam Liptak’s “Sidebar” column for the New York Times earlier this week.  Liptak wrote about the increasingly common citation of dictionaries in Supreme Court opinions:

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Liptak notes various objections to the practice.  For instance, dictionaries were not written for the purpose of supplying precise legal definitions, and the variety of different meanings suggested by the many available dictionaries creates opportunities for “cherry picking.”  He adds,

The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”

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Seventh Circuit Says Begay and Chambers Must Be Applied Retroactively

Retroactivity has been in the news a lot lately, thanks to the U.S. Sentencing Commission’s ongoing consideration of whether to give already-sentenced defendants the benefit of more favorable crack guidelines. But crack defendants are not the only inmates serving extraordinarily long terms based on recently discarded aspects of federal sentencing law.  Earlier this week, the Seventh Circuit approved retroactivity for another category of such inmates in Narvaez v. United States (No. 09-2919).

The Supreme Court’s recent decisions in Begay and Chambers substantially narrowed the reach of the Armed Career Criminal Act’s fifteen-year mandatory minimum.  (For background, see this post.  Ironically, shortly after Narvaez was decided, the Court issued its opinion in Sykes v. United States, which seemed to back away from Begay.)  Five years before Begay, Luis Narvaez pled guilty to bank robbery and was sentenced as a career offender under the sentencing guidelines based on his prior convictions for “violent felonies,” including two convictions for failure to return to confinement in violation of Wis. Stat. § 946.42 (3)(a).  Later, in Chambers, the Supreme Court ruled that the Illinois crime of failing to report for confinement did not count as a “violent felony.”  Narvaez then filed a motion under 28 U.S.C. § 2255 to vacate his sentence in light of Chambers.  The district judge held that Chambers did not apply retroactively, but granted Narvaez a certificate of appealability.

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Court Backs Away From Begay

Is the Begay revolution over?  In its 2008 decision in Begay v. United States, the Supreme Court adopted a narrow construction of the Armed Career Criminal Act’s “residual clause,” limiting the ACCA’s reach to convictions for “purposeful, violent, and aggressive” crimes.  (For background, see this post.)  The following year, in Chambers v. United States, the Court again pared back the residual clause, emphasizing the need to demonstrate the objective dangerousness of an offense for it to count as a trigger for the ACCA’s fifteen-year mandatory minimum sentence.

What many observers took from Begay and Chambers is that a prior conviction does not count under the ACCA unless it satisfies both a subjective test (purposeful, violent, and aggressive) and an objective test (statistically demonstrated likelihood of injury).

But, today, in Sykes v. United States (No. 09-11311), the Court threw this understanding into doubt, suggesting a considerably more expansive interpretation of the residual clause.

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