Seventh Circuit Demands “Intellectual Discipline” at Sentencing

seventh circuitIt’s almost like Judge Easterbrook read my article.  I have a forthcoming piece in the Marquette Law Review arguing that appellate courts ought generally to demand more rigor of trial judges in explaining their sentences and specifically to require greater attention to objective benchmarks.  Not surprisingly, I was quite pleased to read the Seventh Circuit’s opinion earlier this week in United States v. Kirkpatrick (No. 09-2382) (Easterbrook, J.), in which the court called for “intellectual discipline” at sentencing and vacated a sentence because the district judge failed to use the sentencing guidelines as an initial benchmark.

Here’s what happened.  Following his arrest for unlawful gun possession, Kirkpatrick confessed to four murders and then told his cellmate that he had arranged a contract hit on a federal agent.  After more than 200 hundred hours of investigation, law enforcement officials determined that all of these claims were false.  (Why Kirkpatrick would confess to four murders he did not actually commit is a mystery to me.)  With a conviction only for the gun-possession crime, Kirkpatrick’s guidelines range was calculated to be 37-46 months.  The district judge, however, felt he deserved more because of the false statements and the wasted law enforcement effort they caused.  So the sentence actually imposed was 108 months — more than twice the guidelines maximum. 

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Punishment Permitted for Both Attempt and Conspiracy in Seventh Circuit

seventh circuitPolice found marijuana hidden in a car that Maurice Crowder and a colleague tried to ship from Arizona to Illinois.  Crowder was then charged with, convicted of, and sentenced for two crimes: attempted possession with intent to distribute and conspiracy, both in violation of 21 U.S.C. § 846.  Sounds like double-dipping, right?  After all, both crimes of conviction arose from the same underlying criminal plot.  Crowder appealed to the Seventh Circuit on this basis, arguing that he could not be punished for both crimes.

Crowder’s appeal raised an issue that has divided other circuits.  The Ninth Circuit prohibits double punishment for attempt and conspiracy under § 846 if both convictions arise from a “single course of action.”  By contrast, the Sixth, Eighth, and Tenth Circuits permit double punishment in these circumstances.

In United States v. Crowder (No. 08-3320) (Kanne, J.), the Seventh Circuit sided with the Sixth, Eighth, and Tenth Circuits, and affirmed Crowder’s conviction and sentence. 

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Milwaukee Sheriff’s Religious Presentations to Deputies Violated Establishment Clause

Car_police Interesting public employment case. Here are the facts of Milwaukee Deputy Sheriffs’ Association v. Clarke, 08-1515 (7th Cir. Dec. 4, 2009):

Despite complaints from other employees, the [religious group, the] Centurions, made presentations during 16 roll calls between May 9 and May 16, 2006, during which they distributed the flyers and books featured at the leadership conference.

The union argued that the employer’s actions, allowing the religious group to make religious presentations during mandatory employee meetings to Sheriff deputies, had the purpose or effect of advancing religion.The union sued the Milwaukee County Sheriff under Section 1983, alleging that the religious meeting violated their rights under the Establishment Clause of the First Amendment.

The Seventh Circuit affirmed the district court and unanimously held:

Because the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the Sheriff’s Department, we conclude that the defendants violated the Establishment Clause . . .

In this case, the Centurions gave a heavily Christian-focused presentation at a mandatory
conference for government employees, and the Sheriff subsequently invited them to present at mandatory roll calls during work hours, granting them unfiltered access to a captive audience of subordinates. At each roll call, they were personally introduced by the Sheriff’s command staff and were permitted to distribute additional Christian-focused literature. Even more telling was the Sheriff’s refusal to cease the presentations after some of the deputies complained of the Centurions’ proselytizing. He took no steps to disentangle himself or the Department from any of the religious message . . . and his actions, at the least, appeared to place the Centurions’ in the same category as the other “partnering” organizations, like Johnson’s Bike Company—all of whom presumably received the Department’s approval.

I agree with the court that, “it would be difficult to interpret the Sheriff’s actions as anything other than endorsement.”

One last point. The court also considered the free speech rights of the religious group to speak to the Deputies under a First Amendment free speech forum analysis.  On this ground, the court concluded:

The Sheriff is mistaken that the department has created a forum of any kind and so, the Centurion’s desire to access the deputies present at the leadership conference and roll calls does not trigger a Free Speech forum analysis.  The Supreme Court recognizes a distinction between claims asserting access to a forum and claims asserting access to a captive audience. Minn. State Bd. for Cmty Coll. v. Knight, 465 U.S. 271, 286 (1984).

In all, this case is a welcome reminder that public places of employment may not purposefully expose their employees to religious proselytizing, no matter how benign the purposes.

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