I testified earlier today before the U.S. Sentencing Commission on retroactivity for the new crack amendment. Here are a few off-the-cuff impressions. (Warning: this post will probably seem like a lot of inside baseball to anyone who does not practice federal criminal law.)
Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes. The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.
Here’s what happened. While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed. Fowler was later convicted in federal court under the witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).
Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense. The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer. There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops. But does the statute really require the defendant to be thinking about federal involvement?
Do criminals count? Are they really “one of us”? That is the big question that hangs over all of the Supreme Court’s Cruel and Unusual Punishments Clause cases, including the Court’s decision earlier this week in Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population. Do we regard criminals as fellow citizens, or at least fellow human beings, who are entitled as such to some irreducible minimal level of decent treatment? Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?
The latter view is hardly foreign to the American legal tradition. The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s. Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.
In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.