Criminal Law & Process – Page 156 – Marquette University Law School Faculty Blog

Environmental Crime and “Real” Crime

Post author:Michael M. O'Hear
Post published:January 24, 2009
Post category:Criminal Law & Process Environmental Law Legal Scholarship

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.

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

Post author:Richard M. Esenberg
Post published:January 23, 2009
Post category:Criminal Law & Process Race & Law Wisconsin Court System Wisconsin Criminal Law & Process

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.

Seventh Circuit Week in Review, Part II: Piling on the Mandatory Minimums

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

In addition to the two cases covered in my prior post, the Seventh Circuit had four new sentencing opinions last week. Only one warrants any extended discussion. And that case, United States v. Easter (Nos. 07-2433, 2435, 3118, 3203, 3540 & 3628), actually presented several different issues raised by multiple defendants.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions. One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense. The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear). McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack. However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes. (For an earlier post on this topic, see here.) Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.