Seventh Circuit Criminal Case of the Week: Small Progress on Crack Sentencing

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It has been widely recognized for years that federal sentences for the crack version of cocaine are unjustifiably harsh relative to sentences for the powder version.  As far back as 1995, the United States Sentencing Commission — a body not generally known for its lenience — called for equalization between crack and powder sentences.  However, progress in softening the so-called 100:1 crack-powder disparity has proceeded at a glacial pace.  In 2007, the Commission finally succeeded in reducing (but not eliminating) the disparity as it exists in § 2D1.1 of the sentencing guidelines, but statutory disparities will require congressional action to correct.  Fortunately, a bipartisan House bill cleared subcommittee last week, and the prospects for legislative reform appear unusually strong this term.

 As reformers have argued their case in the Commission and Congress, the 100:1 disparity has collided with the Supreme Court’s reinvigorated Sixth Amendment jurispudence.  In light of constitutional concerns, the Court transformed the sentencing guidelines from mandatory to advisory in 2005.  Then, in 2007, the Court affirmed what should have been obvious (but had been rejected by the Seventh Circuit and other intermediate courts of appeals): the crack-powder disparity contained in § 2D1.1 is no more binding on sentencing judges than any other aspect of the guidelines. 

But the Seventh Circuit remains resistant to the new world of advisory guidelines.  The 100:1 ratio still lives on in § 4B1.1, the career offender guideline.  And, in United States v. Harris, 536 F.3d 798 (7th Cir. 2008), the Seventh Circuit held that district court judges still may not act to correct or soften the crack-powder disparity when sentencing career offenders.  The court reasoned that the disparity in § 4B1.1 was congressionally mandated, while the disparity in § 2D1.1 was not. 

Last week, though, the Seventh Circuit limited the reach of Harris in United States v. Knox (Nos. 06-4101, 06-4376 & 07-1813) (Tinder, J.). 

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Seventh Circuit Criminal Case of the Week: “A Total Breakdown of Justice”

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In January 2003, Milwaukee police officers found two guns in the home of the estranged wife of Rashid Salahuddin.  Salahuddin himself was arrested shortly afterwards.  Now, more than six years later, after many rounds of legal proceedings in state and federal court, Salahuddin still awaits final resolution of criminal charges stemming from the discovery of the guns.   

In October 2008, Judge J.P. Stadtmueller of the Eastern District of Wisconsin summoned the United States Attorney and the Federal Defender to his office for an off-the record conversation about the case, which he characterized as “a total breakdown of justice.”  Following this conversation, the government asked Stadtmueller to recuse himself from the case.  When Stadtmueller refused, the government initiated proceedings in the Seventh Circuit to compel the district judge’s removal. 

The Seventh Circuit has now agreed with the government that Stadtmueller’s statements at the October 2008 meeting required his recusal.  In re United States of America (No. 09-2264) (Ripple, J.). 

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Randomness, Rules, and Reason

Binary Code 1 (bw)Michael’s post below had an intriguing overlap with the tail end of my post from yesterday: to what extent does randomness undermine meaning? Michael was writing about a provocative proposal by Bernard Harcourt in a discussion he contributed to; Harcourt proposes making more aspects of criminal procedure explicitly random. Harcourt’s basic idea seems to be that the goal of completely rational punishment is a lost cause, and that therefore the criminal justice system should openly embrace randomness. As several of the commenters on Harcourt’s proposal suggest, however, even the attempt to justify punishment may serve some goals. Or as Michael himself puts it: “Randomization . . . would radically undermine the social meaningfulness of the sentencing process.” A random sentence is a sentence without meaning.

This seemed very similar to an issue in copyright law that I touched on at the end of my very long post yesterday. One of the troubling aspects of many photograph copyright cases is the amount of randomness that often enters into photographs and videos. Copyright protects the expression of ideas. To qualify as expression, the material has to convey some idea or purpose to its audience; it has to mean. Randomness, however, seems to undermine meaning. Mannie Garcia unintentionally expressed the tension nicely when he described how he captured his now-famous photograph of Obama: “And then it happened: Boom, I was there, I was ready.” To the extent the “boom” outweighs the “I was ready,” it also seems to outweigh meaning. Abraham Zapruder did not intend to convey any message at all about the Kennedy assassination; he was simply there recording when it happened.

There may be another parallel between copyright and sentencing. There are recent copyright decisions expressing the view that an author can go too far in the other direction. To the extent that a set of data is rigidly determined, not by randomness, but by a set of rules or external constraints, courts have held that such data fails to “mean” as well, and again is not copyrightable. This would appear to mirror the recent turn in the constitutionality of sentencing. Random sentences are bad; but so are sentences in which all discretion is removed from the sentencing judge. The Supreme Court has never put it this way, to my limited knowledge, but the intuition might be that such sentences also fail to mean anything; they are not expressions of society’s determination of the seriousness of that particular offense. Meaning, like perhaps all of life, appears to lie in the border between order and chaos.

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