This short post is not the promised second part of my intended series on what the Seventh Circuit did during your summer vacation. But, it may interest those of you who follow developments in the criminal law. In a much-anticipated decision with parallels to United States v. Brown, 744 F.3d 474, 476 (7th Cir. 2014), the en banc Court of Appeals for the Third Circuit held today that pre-Jones warrantless use of GPS to collect data about a suspect did not require suppression of the GPS-evidence under the exclusionary rule. The case is United States v. Katzin, No. 12-2548 (3d Cir. Oct. 1, 2014).
Part One: Supervised Release
It’s been an eventful summer at the United States Court of Appeals for the Seventh Circuit in Chicago. In addition to deciding high-profile cases involving same-sex marriage and the validity of Wisconsin’s “Act 10” legislation, the Court has issued noteworthy opinions addressing criminal sentencing procedure and the law of evidence.
Seemingly out of the blue, the Court has signaled a new willingness to take a closer look at the imposition of supervised release conditions in federal criminal cases. Prosecutors, defense attorneys, judges, and probation officers will all be required to “up their game” in response to this new scrutiny. Continue reading “What the Seventh Circuit Did During Your Summer Vacation”
(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)
In my previous post, I noted a number of the considerations that the Supreme Court emphasized in its criminal statutory interpretation cases from the past term. In this post, I will highlight one recurring point of controversy, that is, whether the Court should try to maximize the effectiveness of statutes in achieving their overarching purposes.
Abramski, the firearms purchase case, provides a good illustration. Continue reading “US Supreme Court Review: Should the Court Care How Effective a Statute Is?”
(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)
In the first post in this series, I discussed two causation cases in some detail. In this post, I will more briefly summarize the full set of the Court’s criminal statutory interpretation cases from the past term and then offer a few overarching observations.
Here are the cases (excluding habeas corpus decisions): Continue reading “US Supreme Court Review: Statutory Interpretation in Criminal Cases”
(This is the first post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term. Other posts, when they appear, can be found here.) The Court’s criminal docket this term included two interesting causation cases that came to somewhat different conclusions. The cases were Burrage v. United States, 134 S. Ct. 881, which dealt with criminal responsibility for a drug-related death, and Paroline v. United States, 134 S. Ct. 1710, which dealt with restitution for a child pornography victim. In both cases, the Court had to grapple with tensions between traditional, narrow understandings of causal responsibility in the law and a natural human desire to hold bad actors accountable for tragic harms with which they seem to have some connection, even if that connection is a tenuous or uncertain one.
Burrage nicely illustrates the tension. Continue reading “US Supreme Court Review: Crime and Causation”
In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies. I wrote these reactions for the Federal Sentencing Reporter.
Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at less cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.
Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm. Continue reading “Thoughts on the Holder Address: Two Cheers for the New Paradigm”
Has Congress ever made the federal courts do more work to little so good effect than it did when it passed the Armed Career Criminal Act in 1984? The ACCA imposes a fifteen-year mandatory minimum on certain federal defendants who have three prior convictions for a violent felony or serious drug crime, which are defined terms in the statute. The basic application problem is that we have fifty different state criminal codes, and state legislatures never saw fit to amend their laws so as to fit their crime definitions to the ACCA terminology. As a result, figuring out which state convictions count as ACCA predicates has consumed — and continutes to consume — an enormous amount of judicial time and effort. A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.
The Supreme Court offered its latest foray into the ACCA quagmire yesterday in Descamps v. United States (No. 11-9540). At issue was whether Descamps’s prior burglary conviction in California could be used as a predicate for the fifteen-year ACCA mandatory minimum. The statutory definition of “violent felony” does include “burglary,” but the Court has previously held that not all burglary convictions count; rather, the crime of conviction must have the elements of “generic burglary” — if a state has chosen to define the crime of burglary in an unusually broad manner, then convictions of burlgary in that state may not be treated as burglary convictions for ACCA purposes.
And it turns out that California does have an idiosyncratic burglary definition. Continue reading “Supreme Court Reaffirms “Categorical Approach” in Applying Armed Career Criminal Act”
Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.
In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.
Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.
Some day has come. Continue reading “So Long, Harris — Breyer’s on Board”
Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.
Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”
The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.
Cross posted at Life Sentences.
So just how advisory are the “advisory” federal sentencing guidelines? That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.
The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.” Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts. Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences. Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.
The new system also raised Ex Post Facto Clause issues, which divided the lower courts. Peugh nicely illustrates the problem. Continue reading “SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections”
The recent suicide of Aaron Swartz has provoked a great deal of public discussion of what many consider to be overreaching by federal prosecutors in his case. In the view of some critics, Swartz’s theft of academic articles from JSTOR would have been more properly handled as a minor property offense in state court. Instead, Swartz found himself in federal court facing a possible 35 years in prison and a set of charges invoking a variety of obscure federal criminal statutes.
Whatever the merits of the criticisms, they have served to draw public attention to the extraordinary power exercised by federal prosecutors and the uncertain line between what is most appropriately handled in state court and what is most appropriately handled in federal.
Although the Swartz litigation is now presumably over, another case that has provoked similar charges of prosecutorial overreaching is now on its way to the Supreme Court . . . for a second time. Continue reading “Bond’s Back: SCOTUS to Take Another Look at Case on Federalism and Criminal Law”
I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.
The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.
The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.