The Door’s Open, But the Ride It Ain’t Free

Posted on Categories Religion & Law, Western District of WisconsinLeave a comment» on The Door’s Open, But the Ride It Ain’t Free

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”

More From the Seventh Circuit on the Scope of “Crime of Violence”

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit1 Comment on More From the Seventh Circuit on the Scope of “Crime of Violence”

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””

Seventh Circuit Narrows Reach of Armed Career Criminal Act

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Public, Seventh CircuitLeave a comment» on Seventh Circuit Narrows Reach of Armed Career Criminal Act

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”

Supreme Court Raises Doubts About the Money-Laundering Trap

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, U.S. Supreme CourtLeave a comment» on Supreme Court Raises Doubts About the Money-Laundering Trap

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”

Edwards and Erosion of the Defendant’s Right to Self-Represent

Posted on Categories Criminal Law & Process, U.S. Supreme Court1 Comment on Edwards and Erosion of the Defendant’s Right to Self-Represent

In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court.  The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding).  I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury.  (I discussed this point at greater length in this essay a few years ago.)  Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception. Continue reading “Edwards and Erosion of the Defendant’s Right to Self-Represent”

Federal Sentencing Guidelines Still Need Fundamental Reform

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Legal ScholarshipLeave a comment» on Federal Sentencing Guidelines Still Need Fundamental Reform

As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines. Continue reading “Federal Sentencing Guidelines Still Need Fundamental Reform”

A Galling Case in the Seventh Circuit

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit3 Comments on A Galling Case in the Seventh Circuit

The Seventh Circuit has an interesting new sentencing decision, United States v. Carter, which nicely illustrates the impact of the Supreme Court’s decision last year in Gall v. United States.  Robert Carter, the husband of defendant Virginia Carter, embezzled money from his insurance business over several years.  There is no indication that Virgina Carter participated in the embezzlement, but she likely had some knowledge of what was going on.  Eventually, for reasons that are unclear, she sought a divorce.  Following the advice of her lawyer, who did not know that much of the family income was illegal, Carter attempted to take control of the couple’s liquid assets by transferring them into her own individual bank accounts.  Normally, this would be a sound tactical move in a divorce setting, but, by virtue of the criminal origin of the assets, Carter thereby became a money launderer.  Following conviction, she faced a recommended sentence of 87-108 months in prison under the federal sentencing guidelines. Continue reading “A Galling Case in the Seventh Circuit”