Setser v. United States: Bureaucratic Sentencing on Trial in the Supreme Court, Again

While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

Continue ReadingSetser v. United States: Bureaucratic Sentencing on Trial in the Supreme Court, Again

New Criminal Law Blogs

Criminal law aficionados might want to check out two new blogs with Marquette connections.  First, U.S. Court of Appeals for the Seventh Circuit Updates tracks new decisions by the Seventh Circuit in criminal cases. The authors are Amelia Bizzaro ’03, Tony Cotton ’05, Chris Donovan ’05, Josh Uller ’05, and your truly.

Second, Cybercrime Review explores “new technology, recent legal developments, and interesting arguments at the intersection of computers and the law.”  The authors are a current Marquette student, Justin Webb, and Jeffrey Brown, a student at the University of Mississippi School of Law.  In addition to being law students, both Justin and Jeffrey have impressive professional credentials in the IT field.  Justin’s comment on GPS tracking and the Fourth Amendment appeared in the most recent issue of the Marquette Law Review.

Continue ReadingNew Criminal Law Blogs

SCOTUS to Decide on Padilla Retroactivity

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whether Padilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

Continue ReadingSCOTUS to Decide on Padilla Retroactivity