Restorative Justice and the Big Tent

tentI have a new paper on SSRN discussing some of the pitfalls that the restorative justice movement may encounter.  The paper responds to Professor Erik Luna’s essay “In Support of Restorative Justice.” Luna extolls the capacity of restorative justice practices to accommodate diverse theories of punishment, but I argue that such a “big tent” approach may undermine the ability of the restorative justice movement to bring meaningful reform to the American system of mass incarceration. This comment was published along with Luna’s essay and additional responses in Criminal Law Conversations (Paul H. Robinson et al. eds., 2009).

Continue ReadingRestorative Justice and the Big Tent

Seventh Circuit Criminal Case of the Week: Experience and Confidence Count

seventh-circuit51Once a person comes under police suspicion for dealing drugs, does that person retain any constitutionally protected right to privacy in his own home?  Of course, the answer is “not much” if the police have some specific reason to believe that the house has been used for storing or selling drugs.  But what if the police have only general information that the home-owner is dealing drugs, without any specific information connecting the house to drug trafficking?  Even then, the Seventh Circuit indicated last week, the police may have probable cause to search the house for evidence of drug transactions.

John Orozco was convicted of drug and gun offenses based, in part, on evidence found in his home while police executed a search warrant.  On appeal, he argued that the evidence should have been suppressed because the warrant was issued without probable cause. 

Continue ReadingSeventh Circuit Criminal Case of the Week: Experience and Confidence Count

Seventh Circuit Criminal Case of the Week: What Is a Crime of Violence?

seventh circuit

The Armed Career Criminal Act and § 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence.  It’s clear that certain prior convictions qualify (e.g., rape and armed robbery), but there are a surprisingly large number of offenses in the gray area between violent and nonviolent. 

As I discussed in an earlier post, the Supreme Court recently developed a new definition for “crime of violence” in Begay v. United States, 128 S. Ct. 1581 (2008), in which the Court held that prior DUI convictions do not trigger ACCA’s fifteen-year mandatory minimum.  Begay cast a lot of circuit-court precedent into doubt, and the Seventh Circuit has been struggling ever since to develop a consistent, coherent approach to identifying what types of offenses count as “violent.”  (See, for example, this post.)  Meanwhile, the Supreme Court has also remained active in this area.  Last term, for instance, the Court held that failure to report to prison and walkaway escapes are not crimes of violence in Chambers v. United States, 129 S. Ct. 687 (2009).  And the Court recently granted cert in Johnson v. United States to decide whether a battery offense counts as violent.

Reflecting the turbulence in this area of the law, the Seventh Circuit had three — count ’em, three — notable new opinions dealing with the “crime of violence” question last week. 

Continue ReadingSeventh Circuit Criminal Case of the Week: What Is a Crime of Violence?