Seventh Circuit Week in Review: Prior Crimes Evidence, Career Offender Guideline, and More

The Seventh Circuit had four new opinions in criminal cases last week.  In United States v. Millbrook (No. 07-2931), the court (per Judge Rovner) affirmed the defendant’s conviction and sentence for drug trafficking and other offenses.  The defendant’s appeal raised several issues, the most interesting of which was yet another Rule 404(b) question regarding the use of prior crimes evidence.  I have blogged about several of these cases recently, criticizing the Seventh Circuit’s deference to poorly justified decisions by district court judges to admit highly prejudicial prior crimes evidence.  In Millbrook, the court once again affirmed, albeit with a caution that the case was “at the outer limits of what is permissible under Rule 404(b).”

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Environmental Crime and “Real” Crime

I just got back from a couple days at the University of Utah, where I was participating in a national conference on environmental crimes at the S.J. Quinney School of Law.  It was a terrific conference, and I was honored to be included among the many distinguished speakers.  But it was also among the more contentious academic conferences I have attended, with a marked divide among speakers and audience members as to whether the criminal liability provisions of the major federal environmental statutes have grown too expansive.  The basic critique — roundly rejected by some in attendance — was that the statutes (and the federal environmental sentencing guidelines) do not recognize important distinctions among environmental violations, but, rather, lump together offenses of greatly varying culpability.  The debate thus centered on the question of whether environmental criminal law respects the principle of proportionality in punishment.

In retrospect, it strikes me that the proportionality debate has a lot to do with how environmental criminal enforcement is framed: as an aspect of environmental law, or as an aspect of criminal law. 

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I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Perhaps Professor O’Hear can straighten me out on this.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant.

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