Criminal Law & Process – Page 130 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Crediting the Lost Opportunity to Serve a Concurrent Sentence

Post author:Michael M. O'Hear
Post published:August 30, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

Since separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime. But what if federal prosecution is delayed, and the state sentence has already been served by the time sentencing occurs in federal court? The federal sentence cannot be made concurrent in those circumstances. Is it permissible then for the district judge to reduce the federal sentence length in light of the missed opportunity for a concurrent sentence?

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer. Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence.

Seventh Circuit Criminal Case of the Week: Of Lifelines and Waiver

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

seventh circuit

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack. An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act. Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana. Looks like a slam-dunk issue on appeal, right?

Athletes Behaving Badly

Post author:Michael M. O'Hear
Post published:August 19, 2009
Post category:Criminal Law & Process Legal Scholarship Sports & Law

Did Michael Vick get off easy when he was reinstated by the NFL? Or would the League overstep its proper role in imposing further punishment on an athlete who has already paid his proverbial debt to society? Variations on these questions arise every time a famous professional athlete breaks the law — an all-too-common occurence, it seems.

Janie Kim and Matt Parlow make a thoughtful contribution to the debate with a new paper on SSRN entitled “Off-Court Misbehavior: Sports Leagues and Private Punishment.” Here is the abstract:

This Essay examines how professional sports leagues address (apparently increasing) criminal activity by players off of the field or court. It analyzes the power of professional sports leagues and, in particular, the commissioners of those leagues, to discipline wayward athletes. Such discipline is often met with great controversy — from players’ unions and commentators alike — especially when a commissioner invokes the “in the best interest of the sport” clause of the professional sports league’s constitution and bylaws. The Essay then contextualizes such league discipline in criminal punishment theory — juxtaposing punishment norms in public law with incentives and rationales for discipline in professional sports — and analyzes the legal and cultural limitations to this approach.

As Kim and Parlow point out, one of the troubling aspects of league-administered punishment for off-court misconduct is that the procedures and standards seem so informal and ad hoc compared with those of the criminal justice system. This raises legitimacy problems for league punishment — all the more so when the league itself is perceived to have unclean hands (see, e.g., MLB and steroids).