The Seventh Circuit had four new opinions in criminal cases last week.  Two dealt with sentencing, one with interrogation, and one with a search.  I’ll cover the cases in that order.

In United States v. England (No. 08-2440), the defendant was charged with being a felon in possession of a firearm.  While being held pending trial, England learned that his brother-in-law Robert was cooperating with the police.  In telephone conversations with his father (which were apparently recorded by the police), England expressed feelings of violent rage against the brother-in-law, saying at one point, “[G]o relay a message to Robert [that if he] shows up to court, when I walk outta prison in fifteen years, I’m ‘onna [expletive] murder his [expletive].” 

After being convicted of the original charge, plus three new obstruction-of-justice types of charges, England was sentenced to 262 months in prison.  An earlier appeal and remand for resentencing resulted in a new sentence of 210 months.  Curiously, along the way, the sentencing judge “found” that England would have committed the crime of attempted murder of Robert or one of the other witnesses had he not been in custody before trial.  Indeed, this finding seemed to play a determinative role in the selection of a sentence.  From the standpoint of substantive criminal law, this was a strange move.  As the sentencing judge acknowledged, England took no “substantial step” — in fact, no step of any kind — towards the accomplishment of the murder that he supposedly intended.  There is a sense, then, in which England was punished based on little more than evil thoughts.  And, as any first-year law student will tell you, it is black-letter criminal law that you cannot be punished for thoughts alone.

The Seventh Circuit had only one new opinion in a criminal case last week.  United States v. Williams (No. 07-1573) arose from a series of bank robberies.  Four codefendants were convicted and sentenced to lengthy terms of imprisonment, ranging from 221 months to life.  All four defendants appealed on a variety of different issues, although only one, Clinton Williams, obtained any relief.  Williams was sentenced to 552 months’ imprisonment, notwithstanding evidence that he suffered from significant mental impairments and had become involved in the robberies only as a result of manipulation by his brother.  In light of this mitigating evidence, which was not seriously contested by the government, Williams’ lawyer argued for a sentence at the low end of the 519- to 552-month guidelines range.  However, the sentencing judge did not squarely address this evidence.  Instead, the judge selected a sentence at the top of the range in light of a report by an expert who evaluated Williams and found that he was exaggerating his disability.

The Seventh Circuit (per Judge Williams) vacated and remanded for resentencing.  As the court sensibly observed, there is no logical inconsistency between the evidence that Williams suffered from a mental disability and the observation that he was exaggerating the disability.  Indeed, the very expert who made the obervation estimated Williams’ IQ at 72, which is considered borderline mentally retarded.  The sentencing judge was required to address this and the other evidence of mental disability, as well as the related claim that Williams’ diminished capacity made him susceptible to manipulation by his brother.

Williams thus joins an interesting line of recent Seventh Circuit cases that require sentencing judges to explain why they reject defendants’ arguments for leniency.  I have a forthcoming article about these cases in the Florida State Law Review.  As I explain in the article, there are good procedural justice reasons to favor the Seventh Circuit approach.  It is unfortunate that other circuits have not adopted as robust an explanation requirement.