Seventh Circuit Week in Review, Part II: Piling on the Mandatory Minimums

In addition to the two cases covered in my prior post, the Seventh Circuit had four new sentencing opinions last week.  Only one warrants any extended discussion.  And that case, United States v. Easter (Nos. 07-2433, 2435, 3118, 3203, 3540 & 3628), actually presented several different issues raised by multiple defendants.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions.  One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense.  The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear).  McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack.  However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes.  (For an earlier post on this topic, see here.)  Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.

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Seventh Circuit Week in Review, Part I: PPGs and Halfway Houses

The Seventh Circuit had six new opinions in criminal cases this week, all dealing with sentencing issues.  Two focused on supervised release questions, which will be the subject of this post; the remaining four with be covered in another post.

First, in United States v. Rhodes (No. 07-3953), a sex offender challenged penile plethysmograph (“PPG”) testing as a condition of supervised release.  PPG testing involves attaching a monitor to the male subject’s genitals, presenting him with an array of sexually stimulating images, and then determing the degree of arousal by measuring erectile responses.  When used with sex offenders, the hope is that arousal patterns can be studied to determine how great the risk is that an offender will commit new sex crimes.  Although experts disagree as the effectiveness of PPG testing, it has become a routine part of adult sex offender treatment programs. 

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“Ah, Bartleby! Ah, humanity.”

 

Herman Melville’s novella “Billy Budd” has firmly secured its place in the law and literature canon, but a different law-related work by Melville is my favorite.  Over the last twenty-five years or so I have almost annually read “Bartleby the Scrivener – A Story of Wall Street” (1853), being moved by it more each time.

The narrator of the story is a humane, tolerant lawyer who was formerly a Master in Chancery and who now presides over a small Wall Street law office.  His employees include an office boy and three scriveners, the most eccentric of whom is Bartleby.  Demonstrating a certain “pallid haughtiness,” the latter at first refuses to complete small assignments and then over time declines to do anything at all.  His signature statement when asked to copy a legal document, to run an errand, or – ultimately – to seek work elsewhere is “I would prefer not to.”  In one of the lighter interludes of the story, all of the characters, the narrator included, cannot stop using the word “prefer” in their own comments.

However, the story is neither farcical comedy nor romantic fantasy.  With the lawyer/narrator as our introspective vehicle, we as readers are invited to make sense of Bartleby as a symbolic representation of humankind.  Is Bartleby basically an alienated worker, doggedly copying documents to the detriment of his eyesight?  Is he mentally ill, staring for hours out his small window at a black wall only three feet away? Does he display a hostile passive aggressiveness, refusing to be remunerated, fed, or simply helped?

The questions of course trump the answers.  After the lawyer/narrator realizes Bartleby is sleeping in the Wall Street office, he grasps the true seriousness of the situation.  The lawyer finds going to church useless, and he instead wanders the streets of antebellum Manhattan desperately trying to understand both Bartleby and the human condition.  “My first emotions had been those of pure melancholy and sincerest pity,” the lawyer says, “but just in proportion as the forlornness of Bartleby grew and grew in my imagination, did that same melancholy merge into fear, that pity into repulsion.”  The lawyer realizes that alms cannot solve the problem.  It is Bartleby’s soul that suffers, and his soul cannot be reached.

In the end, the lawyer relocates his office on Broadway closer to City Hall, and the owner of the Wall Street building has the police remove Bartleby.  He is taken to the Tombs, where he refuses to eat or communicate. The lawyer visits several times but to no avail.  On his last visit he finds Bartleby curled up and dead with his face against a wall in the prison courtyard.  “Ah, Bartlelby.  Ah, humanity.”

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