In the area of federal criminal law, the next administration ought to undertake a number of initiatives: polish the Department of Justice’s tarnished image by ensuring that appointments to leadership positions are rigorously merit-based and by avoiding dubious prosecutions that appear politically motivated; make the federal criminal justice system a real leader and innovator in developing community-based alternatives to prison for nonviolent offenders; likewise, make the federal system a leader and innovator in implementing restorative justice and other processes that are more responsive to victim needs than conventional criminal case processing; seek the elimination of mandatory minimum sentencing statutes; and bring greater coherence and transparency to an executive clemency process that was extraordinarily kind to Scooter Libby, but that rarely does anything for offenders who are not politically connected. Although I regard all of these as matters of considerable urgency–and will perhaps blog about some of them at greater length later this month–I might put still another initiative at the top of the list: restore the possibility of parole release for federal prisoners. Continue reading “Priorities for the New President: Restore Parole in the Federal Criminal Justice System”
BNA Daily Labor Report provides some context:
The U.S. Supreme Court is scheduled to open its 2008-2009 term Oct. 6 with six labor and employment law cases awaiting oral argument.
Last week saw another round in the ongoing legal battle between the University of Wisconsin and the Madison campus’ Roman Catholic Foundation. In Roman Catholic Foundation v. Regents, 2008 U.S. Dist. LEXIS 72980 (W.D. Wis., September 24, 2008), the court addressed the University’s refusal to allow segregated fees (that portion of a student’s tuition reserved for the funding of student organizations) to be used for certain RCF activities that the University regarded as worship, proselytizing, or sectarian instruction. These activities involved programs such as spiritual counseling, training RCF student leaders, the purchase of a drum shield to be used by the RCF’s praise band, and the printing of instructional pamphlets on praying the Rosary.
District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”
As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose. Continue reading “Of Speeches and Sermons”
I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here). With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law. The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms. Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA. As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum). The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty. Continue reading “What Is an “Offense”?: Another ACCA Puzzle for the Courts”
I address this question in a new paper I’ve just posted on SSRN entitled “Explaining Sentences.” Here is the gist of the paper. Since 2005, federal judges have had increased discretion to impose sentences below the range prescribed in the federal sentencing guidelines. Since the guidelines ranges are based almost entirely on the aggravating circumstances of the crime, defendants typically argue for below-range sentences based on mitigating personal circumstances (e.g., post-offense rehabilitation, effects of extended incarceration on innocent family members, positive record of military or other community service, mental illness, physical disability, age). Some precedent, perhaps most notably in the Seventh Circuit, indicates that sentencing judges should respond to such arguments even when they choose to impose a guidelines sentence, explaining to defendants why their arguments have been rejected. Other decisions, however, indicate that the sentencing judge need do little or nothing to explain a guidelines sentence. For instance, in Rita v. United States, the Supreme Court seemed to indicate it would suffice if the sentencing judge merely acknowledged the defendant’s arguments at some point somewhere on the record.
I think decisions like the one in Rita are unfortunate. Given what is at stake–often years of a person’s life–it seems a small enough imposition to require district court judges to explain themselves in a more thorough manner. Moreover, a robust explanation requirement may help to counteract the natural tendency of busy judges (as Judge Posner puts it) just “to impose the guidelines sentence and be done with it”–a practice that threatens to undermine the Supreme Court’s rejection of mandatory sentencing guidelines three years ago.
It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.
I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.
Not a surprising development at all. From BNA Daily Labor Report (subscription required):
As several heavy hitters in the financial world have come under pressure or have gone bankrupt in the past couple of months because of the subprime mortgage and lending crisis that has battered investment firms and banks, the employer “stock drop” cases that proliferated in the post-Enron Corp. and post-WorldCom Inc. age are on the rise.
Although the Employee Retirement Income Security Act claims raised in these stock drop cases have not been identical, there are two central claims that arise in these cases. The first claim typically raised is that the plan fiduciaries breached their duties by offering company stock as a plan investment option when the stock was an imprudent or unwise investment. The second claim focuses on the disclosure obligations of the plan fiduciaries and often alleges that the fiduciaries breached their duties by not telling plan participants of financial matters of the plan sponsor that made the sponsor’s stock an imprudent investment.
I’ve posted recently on some of the fallout from the Supreme Court’s April decision in Begay v.United States, but not yet commented on Begay itself. It is a remarkable case. After twelve convictions in state court for DUI, Begay was convicted in federal court for being a felon in possession of a firearm. The sentencing judge found that his prior DUI felony convictions qualified Begay for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act, which applies to felon-in-possession defendants who have at least three prior convictions for a “violent felony.” The Supreme Court reversed, determining that DUI is a not a “violent felony.” I think this was the right result, but it was reached by the wrong means. Continue reading “Begay, Begone! ACCA, Aaak!”
The Open Door Church has sued the Sun Prairie (Wis.) Area School District in federal court in Madison. The complaint alleges that the district has adopted a broad policy permitting community groups to use the district’s facilities. However, the district seems to have adopted a policy of permitting waiver of rental charges for all potential users, except religious groups. As a result, the church has paid a fee for using a school classroom for weekly meetings of a club for children, while a variety of other groups, allegedly engaging in similar but nonreligious uses, were not charged.
Although the district has now changed its policy to require that all groups be charged, it has grandfathered those users for whom fees have already been waived, thus perpetuating any unconstitutional distinction between religious and nonreligious users. Continue reading “The Door’s Open, But the Ride It Ain’t Free”
Following on the heels of yesterday’s post on United States v. Smith, the Seventh Circuit issued another opinion considering the use of prior convictions to enhance a sentence. In United States v. Jennings, the court held that an Indiana conviction for resisting a law enforcement officer could be considered a “crime of violence” for purposes of a career offender enhancement under the federal sentencing guidelines. As I explained yesterday, the Supreme Court’s recent decision in Begay v. United States has altered the framework courts must use in determining whether a prior conviction counts as a crime of violence. In Smith, the Seventh Circuit interpreted Begay such that a crime of negligence and recklessness, even though it may result in serious injury, can no longer be considered a “violent felony” for purposes of the Armed Career Criminal Act. Although Begay (like Smith) involved an ACCA sentence enhancement, Jennings makes clear that the Begay standards also govern sentence enhancements under the career offender guideline. At the same time, Jennings seems to conduct the Begay analysis in a considerably less rigorous manner than Smith. Continue reading “More From the Seventh Circuit on the Scope of “Crime of Violence””
On Friday, in United States v. Smith, the Seventh Circuit held that a conviction in Indiana for criminal recklessness could not be used as a predicate offense for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act. Ordinarily, felons found in possession of a firearm face a maximum sentence of ten years. However, the ACCA raises the minimum to fifteen years for felons who have at least three prior convictions for “a violent felony or a serious drug offense.” The Seventh Circuit’s decision to vacate Smith’s ACCA sentence last week illustrates the importance of Begay v. United States, in which the Supreme Court held that DUI does not count as a “violent felony” for ACCA purposes. Prior to April, when Begay was decided, Seventh Circuit precedent indicated that a felony conviction for criminal recklessness counted; now, in light of Begay, the Seventh Circuit has adopted a new approach. Continue reading “Seventh Circuit Narrows Reach of Armed Career Criminal Act”
The federal money-laundering statute prohibits both the concealment of proceeds from crime and the use of such proceeds to promote illegal activities. While designed primarily with drug kingpins in mind, the statute’s broad language can easily become a trap for low-level criminals doing fairly routine things. (I posted recently on a good example of an aggressive use of the money-laundering statute.) Expansive readings of the statute mean that the penalties attached by Congress to many predicate offenses become meaningless, as nearly everyone becomes subject to the twenty-year maximum prison term triggered by a money-laundering conviction. Responding to this concern, the Supreme Court recently adopted narrow constructions of the money-laundering statute in two cases, United States v. Santos, 128 S.Ct. 2020 (2008), and Cuellar v. United States, 128 S.Ct. 1994 (2008). The cases may point the way towards a more discriminating money-laundering jurisprudence that attempts to reserve the harsh penalties of the statute for the most deserving defendants. Continue reading “Supreme Court Raises Doubts About the Money-Laundering Trap”