Seventh Circuit Week in Review: What If the Sentencing Judge Thinks the Sentence Doesn’t Matter?

The Seventh Circuit had only one new opinion in a criminal case last week.  In United States v. Smith (No. 08-1477), the defendant received a twenty-year sentence for distributing child pornography.  On appeal, Smith challenged his sentence on various grounds, including (most notably) a truly remarkable colloquy between his lawyer and the sentencing judge, in which the judge indicated that the Bureau of Prisons had the authority to decide how much of Smith’s sentence would actually be served in prison.  If the judge’s comments are taken at face value, then the judge’s understanding of the law was clearly wrong.  (The judge was not referring here to the 15-percent reduction in sentence length available for “good time,” but to an alleged authority to release the defendant at “any time” up to the full twenty years.)  Such a mistake would betray not only a disconcerting ignorance of the way the federal criminal justice system has operated since parole was abolished in the 1980’s — a full 85 percent of the sentence must now be served as a minimum in all cases — but would also raise questions about whether Smith’s sentence was set unnecessarily high.  After all, the judge was apparently operating under the mistaken belief that prison officials could release Smith as soon as he no longer presented a danger to the community — given that premise, it is easy to imagine a judge erring on the side of a more severe sentence.

The Seventh Circuit (per Judge Manion) nonetheless affirmed. 

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Join Us at the Law Alumni Awards Reception

Students, alumni, faculty, administrators, staff — indeed, all who in any way form part of the Marquette University Law School community — are warmly encouraged to attend the annual Law Alumni Awards Reception this coming Thursday, April 23, 5:30 p.m., in the Monaghan Ballroom at the Alumni Memorial Union. The Law Alumni Awards Reception, which is in the nature of a cocktail party with a program, is among my own favorite events of the year. Partly this is because of the specific individuals to whom we give awards: this year, these individuals are Robert J. Berdan, L’75 (Alumnus of the Year); Larry B. Brueggeman, L’69 (Lifetime Achievement Award); Robert E. Webb Jr., L’97 (Howard B. Eisenberg Service Award); and Kristi L. Schoepfer, L’01 (Charles W. Mentkowski Sports Law Alumna of the Year). Mostly, though, my enjoyment of the ceremony comes from opportunity to celebrate the ideal of the Marquette lawyer that the particular award-winners — and many other alumni — have realized over the years. Marquette lawyers have done important things during the past century-plus, and the nature of life is that many of these things will go unrecognized, unrewarded, and even unappreciated. How appropriate, then, to pause at the end of our academic year, as part of the University’s Alumni National Awards Weekend, in order to reflect on the specific but representative ways in which certain alumni, selected by the Law Alumni Association, have exemplified the Law School’s ideals and spirit since graduation — and perhaps, incidentally, to inspire those of our students who will graduate this May and join the ranks of their forbears as Marquette lawyers. We regard the event as sufficiently important that classes end for the semester late on Thursday afternoon, so that all who are interested may attend. And I hope that “all who are interested” are all of us. It is helpful if you r.s.v.p. here, but feel free to attend even if you haven’t done so. I hope to see you on Thursday.

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The Pirate Bay Is Keel-Hauled

Pirate FlagThe Pirate Bay verdict was handed down yesterday in Sweden, and the four defendants were found guilty. Like Evan Brown, I don’t see much of significance in the verdict, although Mike Madison does.

However, what I do find interesting about the whole Pirate Bay situation is “Steal This Film II,” a documentary of comments on filesharing and copyright law produced in support of the defendants. Last week, our own IP Law Society here at Marquette organized a showing of the film. What I found particularly intriguing about “Steal This Film II” is its view of how creative content is produced: it’s not produced at all. Rather, content is found, like rabbits in a field; the rabbits then reproduce on their own, while the “author” stands around doing nothing. (See here at 22:46.) This is a view that I think is unconsciously held by a lot of commentators on this issue: there’s no need to ensure that copyright owners are paid for content, because content will continue to get produced in exactly the same quantity and quality as it is today. (Or, as Jessica Litman suggested at the Nies Lecture this year, perhaps we will have to live with a few less special-effects explosions—no big whoop.)

The issue of how to manage the conflict between copyright and digital technologies becomes much easier if you ignore the problem of how to compensate copyright owners. The very reason the problem is difficult is because two seemingly incompatible goals have come into conflict. One is ensuring that expensive works continue to get produced at the same rate they are now. The second is ensuring that digital technologies develop to their full potential. Eliminate one of those goals and—presto!—the problem becomes trivially simple.

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