Criminal Law & Process – Page 170 – Marquette University Law School Faculty Blog

Me and the Man

Post author:Michael M. O'Hear
Post published:September 19, 2008
Post category:Criminal Law & Process Legal Scholarship

I just got back from Florida State, where I presented a paper at a faculty workshop. (Many thanks to Professor and PrawfsBlawger Dan Markel for being a terrific host.) In the paper, I propose a new type of specialized drug court built around restorative justice principles. (The paper is not on SSRN yet, but look for it soon.) The FSU folks had a lot of helpful comments and questions. In one of the more interesting exchanges, my interlocutor raised a concern that restorative justice, with its focus on personal accountability, would detract from a broader social justice agenda, drawing attention away from the structural inequalities in society that contribute to the prevalence of crime in low-income communities. It’s a fair point, although I think my proposed RJ program, which would draw lay community representatives into conferences with drug offenders, is capable of contributing to the sort of community mobilization and political activism that my interlocutor favors. In any event, I was a bit surpised to find myself defending RJ from a social justice challenge. RJ proponents sometimes present themselves as the vanguard of a revolutionary social movement. How ironic, then, that when I first advocate an RJ solution to an important social problem, it is suggested that I am really acting as (to use Chad Oldfather’s phrase) “Agent of the Man”!

More From the Seventh Circuit on the Scope of “Crime of Violence”

Post author:Michael M. O'Hear
Post published:September 16, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

Following on the heels of yesterday’s post on United States v. Smith, the Seventh Circuit issued another opinion considering the use of prior convictions to enhance a sentence. In United States v. Jennings, the court held that an Indiana conviction for resisting a law enforcement officer could be considered a “crime of violence” for purposes of a career offender enhancement under the federal sentencing guidelines. As I explained yesterday, the Supreme Court’s recent decision in Begay v. United States has altered the framework courts must use in determining whether a prior conviction counts as a crime of violence. In Smith, the Seventh Circuit interpreted Begay such that a crime of negligence and recklessness, even though it may result in serious injury, can no longer be considered a “violent felony” for purposes of the Armed Career Criminal Act. Although Begay (like Smith) involved an ACCA sentence enhancement, Jennings makes clear that the Begay standards also govern sentence enhancements under the career offender guideline. At the same time, Jennings seems to conduct the Begay analysis in a considerably less rigorous manner than Smith.

Seventh Circuit Narrows Reach of Armed Career Criminal Act

Post author:Michael M. O'Hear
Post published:September 15, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit

On Friday, in United States v. Smith, the Seventh Circuit held that a conviction in Indiana for criminal recklessness could not be used as a predicate offense for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act. Ordinarily, felons found in possession of a firearm face a maximum sentence of ten years. However, the ACCA raises the minimum to fifteen years for felons who have at least three prior convictions for “a violent felony or a serious drug offense.” The Seventh Circuit’s decision to vacate Smith’s ACCA sentence last week illustrates the importance of Begay v. United States, in which the Supreme Court held that DUI does not count as a “violent felony” for ACCA purposes. Prior to April, when Begay was decided, Seventh Circuit precedent indicated that a felony conviction for criminal recklessness counted; now, in light of Begay, the Seventh Circuit has adopted a new approach.