Criminal Law & Process – Page 141 – Marquette University Law School Faculty Blog

Environmental Sentencing: Its Bark Is Worse Than Its Bite — Should We Care?

Post author:Michael M. O'Hear
Post published:May 26, 2009
Post category:Criminal Law & Process Environmental Law Federal Criminal Law & Process Federal Sentencing Legal Scholarship

I have a new paper on SSRN about the sentencing of environmental offenders. The title is “Bark and Bite: The Environmental Sentencing Guidelines after Booker.” Using date collected by the United States Sentencing Commission, I show that judges sentence below the range recommended by the federal sentencing guidelines in an unusually high percentage of environmental cases, approaching sixty percent in some years.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime. Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions. Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract:

The One-Month Anniversary of Arizona v. Gant: A Sign of Things to Come

Post author:Michael M. O'Hear
Post published:May 20, 2009
Post category:Criminal Law & Process U.S. Supreme Court

Although we have not yet seen the flurry of end-of-term opinions sure to emerge from the Supreme Court in June, few are likely to gain as much immediate attention as Arizona v. Gant, in which the Court imposed new Fourth Amendment limitations on the ability of police officers to search vehicles. The CrimProf listserve has been buzzing about Gant since the opinion came out, and now we are beginning to see the first signs of fallout in the lower courts. Rising 3L Brent Simerson sent me the following insightful comments about the significance of Gant, for which I am grateful:

As one might expect, the United States Supreme Court’s recent ruling in Arizona v. Gant has triggered changes in the way police officers and attorneys must analyze warrantless searches incident to a lawful arrest in the vehicle context. Professor Jon Deitrich provided several interesting observations about the opinion itself in a post last week. The Court held that police officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” This holding narrowed the Court’s prior holdings in Chimel v. California and New York v. Belton, which were largely interpreted by lower courts as permitting vehicular searches incident to a lawful arrest regardless of how improbable it was that the arrestee could access the automobile. Gant will undoubtedly constrict law enforcement’s hitherto broad authority to search vehicles incident to lawful arrest, see United States v. Majette, No. 08-4427, 2009 U.S. App. LEXIS 9267 (4th Cir. Apr. 30, 2009) (conviction vacated pursuant to Gant), but it is too soon to describe how courts will answer tough questions presented by Gant‘s requirements: What constitutes a “secured” arrestee? May police officers circumscribe the spirit of Gant by directing the unsecured arrestee to remain within reaching distance of the passenger compartments? These fact-sensitive questions will take time to resolve.

Seventh Circuit Criminal Case of the Week: Watch the “R” Word, Prosecutors!

Post author:Michael M. O'Hear
Post published:May 18, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

Two months ago, I posted here about the Seventh Circuit’s sharp rebuke of a prosecutor in United States v. Farinella, in which the defendant was charged with selling mislabeled bottles of salad dressing. The court’s concerns focused, in part, on the prosecutor’s repeated suggestions to the jury that the salad dressing was spoiled, despite the absence of any evidence to that effect. The court, per Judge Posner, rightly took the prosecutor to task for attempting to inflame the jury’s emotions through evocative, but misleading, characterizations of the evidence. We can and should expect prosecutors to act with integrity and restraint in carrying on their critically important public functions, rather than playing the adversarial system for all it’s worth. In my experience, the vast majority of prosecutors appreciate — apologies to Vince Lombardi — that winning is not the only thing. But, when prosecutors do occasionally cross the line, as in Farinella, I am happy to see the courts call them out.

I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury.