Federal Law & Legal System – Page 137 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Halfway Houses Back on the Menu

Post author:Michael M. O'Hear
Post published:October 11, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

If Congress makes an obvious error in drafting a statute, can a court correct that error by effectively adding something to the statute that is not there? Such was the interesting jurisprudential question the Seventh Circuit confronted last January in United States v. Head, 552 F.3d 640 (2009). Because of a mix-up with statutory cross-references, the statute that lists permissible conditions of supervised release in the federal system does not include assignment to a halfway house. However, the first seven circuits to consider the question held that sentencing judges could indeed order placement in a halfway house, reasoning that a literal interpretation of the statute would produce an absurdity. In Head, the Seventh Circuit bucked the trend and rejected the government’s absurdity argument. (My post on Head is here.) Although Congress corrected its drafting error with a 2008 amendment, Head held that the amendment could not be applied retroactively, meaning that assignment to a halfway house seemed to be off the table as a sentencing option for a large group of defendants still moving through the court system in this region.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958).

ACS Presentation on 2008-09 Supreme Court Opinions

Post author:Joshua Pollack
Post published:October 10, 2009
Post category:Criminal Law & Process Federal Civil Litigation Federal Criminal Law & Process Federal Law & Legal System Marquette Law School Political Processes & Rhetoric U.S. Supreme Court Uncategorized

With the beginning of the 2009-2010 term of the Supreme Court, the Marquette Chapter of American Constitution Society for Law and Public Policy (ACS) spent a lunch-hour discussing some of the more interesting cases of the past 2008-2009 term. Leading the lunch discussion were Marquette professors Blinka, McChrystal, and Secunda.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least). In Gant, the Court limited the scope of “search incident to arrest.” The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

Searching for Negative Space in the Constitution

Post author:Edward A. Fallone
Post published:October 7, 2009
Post category:Constitutional Interpretation Federalism Judges & Judicial Process Legal History U.S. Supreme Court

Some people dislike the game of soccer. They observe the players running around on the field and it all seems like random chaos. Soccer aficionados, however, are not focusing on the players. They are watching the spaces in between the players. These empty spaces ebb and flow, like waves in the ocean, creating momentary opportunities for the attacking side.

Some people dislike jazz. To them, the melody of the song gets lost in a blizzard of noise. Jazz aficionados hear something different. They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government. The federal government is delegated specific powers. The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government. What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states? Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate. Examples would include the Great Depression and the response to the September 11 attacks. In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.