Seventh Circuit Week in Review: Prior Crimes Evidence, Career Offender Guideline, and More

The Seventh Circuit had four new opinions in criminal cases last week.  In United States v. Millbrook (No. 07-2931), the court (per Judge Rovner) affirmed the defendant’s conviction and sentence for drug trafficking and other offenses.  The defendant’s appeal raised several issues, the most interesting of which was yet another Rule 404(b) question regarding the use of prior crimes evidence.  I have blogged about several of these cases recently, criticizing the Seventh Circuit’s deference to poorly justified decisions by district court judges to admit highly prejudicial prior crimes evidence.  In Millbrook, the court once again affirmed, albeit with a caution that the case was “at the outer limits of what is permissible under Rule 404(b).”

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Environmental Crime and “Real” Crime

I just got back from a couple days at the University of Utah, where I was participating in a national conference on environmental crimes at the S.J. Quinney School of Law.  It was a terrific conference, and I was honored to be included among the many distinguished speakers.  But it was also among the more contentious academic conferences I have attended, with a marked divide among speakers and audience members as to whether the criminal liability provisions of the major federal environmental statutes have grown too expansive.  The basic critique — roundly rejected by some in attendance — was that the statutes (and the federal environmental sentencing guidelines) do not recognize important distinctions among environmental violations, but, rather, lump together offenses of greatly varying culpability.  The debate thus centered on the question of whether environmental criminal law respects the principle of proportionality in punishment.

In retrospect, it strikes me that the proportionality debate has a lot to do with how environmental criminal enforcement is framed: as an aspect of environmental law, or as an aspect of criminal law. 

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Religion in Public Places

An unsettled question in the law of limited purpose public forums is whether forums that are made available for broad purposes can exclude religious worship. In a trio of cases culminating in Good News Club v. Milford Central School, the Supreme Court has made clear that religious uses that are within a forum’s purpose cannot be excluded because they are religious. Thus, the Milford school, having decided to make its facilities broadly available for after hours community use, could not exclude the Good News Club, an evangelical Christian group who wished to conduct bible study and related activities for children.

Some have read Good News Club (incorrectly in my view) to recognize a distinction between worship and other forms of religious uses. In this paper (forthcoming in the Mississippi Law Journal), I draw on the theology of Christian worship (which I think broadly applies to many other religious traditions) to argue that worship, while sometimes seen as noncommunicative and deliberative, is, in fact, both and ought not to be excluded from broadly defined forums.

Here’s a related question.

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