I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here). With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law. The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms. Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA. As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum). The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty. Continue reading “What Is an “Offense”?: Another ACCA Puzzle for the Courts”
I address this question in a new paper I’ve just posted on SSRN entitled “Explaining Sentences.” Here is the gist of the paper. Since 2005, federal judges have had increased discretion to impose sentences below the range prescribed in the federal sentencing guidelines. Since the guidelines ranges are based almost entirely on the aggravating circumstances of the crime, defendants typically argue for below-range sentences based on mitigating personal circumstances (e.g., post-offense rehabilitation, effects of extended incarceration on innocent family members, positive record of military or other community service, mental illness, physical disability, age). Some precedent, perhaps most notably in the Seventh Circuit, indicates that sentencing judges should respond to such arguments even when they choose to impose a guidelines sentence, explaining to defendants why their arguments have been rejected. Other decisions, however, indicate that the sentencing judge need do little or nothing to explain a guidelines sentence. For instance, in Rita v. United States, the Supreme Court seemed to indicate it would suffice if the sentencing judge merely acknowledged the defendant’s arguments at some point somewhere on the record.
I think decisions like the one in Rita are unfortunate. Given what is at stake–often years of a person’s life–it seems a small enough imposition to require district court judges to explain themselves in a more thorough manner. Moreover, a robust explanation requirement may help to counteract the natural tendency of busy judges (as Judge Posner puts it) just “to impose the guidelines sentence and be done with it”–a practice that threatens to undermine the Supreme Court’s rejection of mandatory sentencing guidelines three years ago.
I’ve posted recently on some of the fallout from the Supreme Court’s April decision in Begay v.United States, but not yet commented on Begay itself. It is a remarkable case. After twelve convictions in state court for DUI, Begay was convicted in federal court for being a felon in possession of a firearm. The sentencing judge found that his prior DUI felony convictions qualified Begay for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act, which applies to felon-in-possession defendants who have at least three prior convictions for a “violent felony.” The Supreme Court reversed, determining that DUI is a not a “violent felony.” I think this was the right result, but it was reached by the wrong means. Continue reading “Begay, Begone! ACCA, Aaak!”
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”!
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. Continue reading “More From the Seventh Circuit on the Scope of “Crime of Violence””
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. Continue reading “Seventh Circuit Narrows Reach of Armed Career Criminal Act”
In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home. See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008). The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years. The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.” Wis. Stat. § 940.225(2)(d). The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.” Wis. Stat. § 940.225(6). Continue reading “Privacy Interests in Extremis”
This important question is explored in a forthcoming mini-symposium in the Boston University Law Review. The lead article, written by Professors Jennifer Collins, Ethan Leib, and Dan Markel, argues that if criminal law is going to be used to enforce the responsibilities of family members to one another, then there also ought to be ways for people in other types of caregiving relationships to make their responsibilities criminally enforceable. Continue reading “Should Criminal Law Be Used to Enforce Family Responsibilities?”
The federal money-laundering statute prohibits both the concealment of proceeds from crime and the use of such proceeds to promote illegal activities. While designed primarily with drug kingpins in mind, the statute’s broad language can easily become a trap for low-level criminals doing fairly routine things. (I posted recently on a good example of an aggressive use of the money-laundering statute.) Expansive readings of the statute mean that the penalties attached by Congress to many predicate offenses become meaningless, as nearly everyone becomes subject to the twenty-year maximum prison term triggered by a money-laundering conviction. Responding to this concern, the Supreme Court recently adopted narrow constructions of the money-laundering statute in two cases, United States v. Santos, 128 S.Ct. 2020 (2008), and Cuellar v. United States, 128 S.Ct. 1994 (2008). The cases may point the way towards a more discriminating money-laundering jurisprudence that attempts to reserve the harsh penalties of the statute for the most deserving defendants. Continue reading “Supreme Court Raises Doubts About the Money-Laundering Trap”
In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court. The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding). I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury. (I discussed this point at greater length in this essay a few years ago.) Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception. Continue reading “Edwards and Erosion of the Defendant’s Right to Self-Represent”
As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines. Continue reading “Federal Sentencing Guidelines Still Need Fundamental Reform”
Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees. Continue reading “Retributive Damages in a World Without Trials”