Seventh Circuit – Page 9 – Marquette University Law School Faculty Blog

Sentencing and the Limits of Actuarial Risk Assessment

Post author:Michael M. O'Hear
Post published:August 6, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

As child molesters go, Cory Reibel seems a relatively low-risk proposition. He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism. Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment. Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions. Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk. However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.

Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

Post author:Michael M. O'Hear
Post published:July 27, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation. So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively? Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months. (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.) In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant. However, the judge did not mention the Note 2(B) factors. This, the Seventh Circuit held, was plain error.

Who Is a “Supervisor”? We Know One When We See One

Post author:Michael M. O'Hear
Post published:June 12, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Judge Posner seemed to scoff at this approach: