Federal Law & Legal System – Page 142 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Reversing a Liddell Progress on Crack Sentencing

Post author:Michael M. O'Hear
Post published:October 4, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit continues to struggle with the question of what it means for the federal sentencing guidelines to be “advisory.” In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory guidelines system violated the Sixth Amendment. The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory. Then, in Kimbrough v. United States, 128 S. Ct. 558 (2007), the Court confirmed what even the government had recognized and conceded: “advisory” means that a district court judge may impose a sentence outside the recommended guidelines range on the basis of a policy disagreement with the guidelines.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place. Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges. This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine. That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1. But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut.

Seventh Circuit Criminal Case of the Week: The Limits of Constructive Possession

Post author:Michael M. O'Hear
Post published:September 27, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

The Seventh Circuit had only one new opinion in a criminal case last week, but, fortunately, it was an interesting one. Under 18 U.S.C. § 922(g), it is a federal crime for felons to possess a firearm. Proof of the crime is easy enough when a felon is found actually carrying a gun. But what if the gun is nowhere on his person, but merely, say, in his home?

In practice, the federal courts have interpreted the law expansively so as to encompass a broad range of circumstances beyond actual possession. Thus, under the doctrine of “constructive possession,” a felon may indeed be convicted based on the discovery of a firearm in his home.

But, as the Seventh Circuit made clear last week in United States v. Katz (No. 08-2341), even the doctrine of constructive possession has its limits.

A Republican Form of Government

Post author:Edward A. Fallone
Post published:September 20, 2009
Post category:Constitutional Interpretation Federalism Legal History U.S. Supreme Court

On September 17, I participated in the Constitution Day program at the Law School. All of the presenters were asked to discuss one part of the United States Constitution that is often overlooked. My choice was the “republican form of government” clause, Article IV Section 4, which reads as follows: “The United States shall guarantee to every state in this Union a Republican Form of Government . . . .”

To call this clause of the Constitution “overlooked” is an understatement. The authors of the Federalist Papers spent little or no time discussing the meaning of this clause. The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning. This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government. What does the word “republican” mean? It certainly does not refer to a specific political party. Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy. This interpretation is incorrect. While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California. These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government. But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose? Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.