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!”
Category: Criminal Law & Process
Me and the Man
Posted on Categories Criminal Law & Process, Legal Scholarship1 Comment on Me and the ManI 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”
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit1 Comment on More From the Seventh Circuit on the Scope of “Crime of Violence”
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””
Seventh Circuit Narrows Reach of Armed Career Criminal Act
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on Seventh Circuit Narrows Reach of Armed Career Criminal ActOn 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”
Privacy Interests in Extremis
Posted on Categories Criminal Law & Process, Privacy Rights, Wisconsin Court System, Wisconsin Criminal Law & Process1 Comment on Privacy Interests in Extremis
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”
Should Criminal Law Be Used to Enforce Family Responsibilities?
Posted on Categories Criminal Law & Process, Family Law, Legal ScholarshipLeave a comment» on Should Criminal Law Be Used to Enforce Family Responsibilities?
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?”
Supreme Court Raises Doubts About the Money-Laundering Trap
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, U.S. Supreme CourtLeave a comment» on Supreme Court Raises Doubts About the Money-Laundering Trap
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”
Edwards and Erosion of the Defendant’s Right to Self-Represent
Posted on Categories Criminal Law & Process, U.S. Supreme Court1 Comment on Edwards and Erosion of the Defendant’s Right to Self-Represent
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”
Federal Sentencing Guidelines Still Need Fundamental Reform
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Legal ScholarshipLeave a comment» on Federal Sentencing Guidelines Still Need Fundamental Reform
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”
Retributive Damages in a World Without Trials
Posted on Categories Criminal Law & Process, Legal Scholarship, Speakers at Marquette, Tort LawLeave a comment» on Retributive Damages in a World Without Trials
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”
A Galling Case in the Seventh Circuit
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit3 Comments on A Galling Case in the Seventh Circuit
The Seventh Circuit has an interesting new sentencing decision, United States v. Carter, which nicely illustrates the impact of the Supreme Court’s decision last year in Gall v. United States. Robert Carter, the husband of defendant Virginia Carter, embezzled money from his insurance business over several years. There is no indication that Virgina Carter participated in the embezzlement, but she likely had some knowledge of what was going on. Eventually, for reasons that are unclear, she sought a divorce. Following the advice of her lawyer, who did not know that much of the family income was illegal, Carter attempted to take control of the couple’s liquid assets by transferring them into her own individual bank accounts. Normally, this would be a sound tactical move in a divorce setting, but, by virtue of the criminal origin of the assets, Carter thereby became a money launderer. Following conviction, she faced a recommended sentence of 87-108 months in prison under the federal sentencing guidelines. Continue reading “A Galling Case in the Seventh Circuit”