Seventh Circuit Criminal Case of the Week: Crediting the Lost Opportunity to Serve a Concurrent Sentence

seventh circuitSince separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime.  But what if federal prosecution is delayed, and the state sentence has already been served by the time sentencing occurs in federal court?  The federal sentence cannot be made concurrent in those circumstances.  Is it permissible then for the district judge to reduce the federal sentence length in light of the missed opportunity for a concurrent sentence?

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer.  Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence. 

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Papal Encyclical – Caritas in Veritate

Mitch Rubinstein from Adjunct Law Prof Blog writes to me that, “this is a bit different, but I think readers may be interested in this posting about the Pope’s encyclical supporting unions.”  Here’s the post and a taste of Caritas in Veritate, issued on June 29, 2009:

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church’s traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

As a member of a Jesuit law school faculty, I am very proud that the Catholic Church has continued to take such a view on the value of unions and the need to protect historically exploited workers.  I checked with my favorite Jesuit and he tells me this at least the fifth in a series of encyclicals commentating on the importance of labor unions starting with Pope Leo XIII in the late 1800s.

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Storytelling in Appellate Brief Writing

2566241384_4264b1f0f3At the end of July, both Professor Michael Smith and I attended the Applied Legal Storytelling Conference at Lewis and Clark Law School in Portland, Oregon.  The conference was entitled “Chapter 2:  Once Upon a Legal Story” and focused on storytelling in “ways that will directly and tangibly benefit law students (i.e. future lawyers) and legal practitioners (i.e. former law students).”  The presentations I attended addressed ways to use storytelling to create a stronger narrative theme in a case and how to handle the ethical issues in storytelling.

One of the most intriguing presentations was Professor Kenneth Chestek’s talk “Judging by the Numbers:  an Empirical Study of the Power of Story.”  Professor Chestek conducted a study where he wrote four fictional test briefs:  two that focused heavily on stating the law and applying it (the “pure logos” briefs), and two that focused on creating a narrative story into which the law was inserted and applied (the “story” briefs).  (He wrote a logos brief and a story brief for both the petitioner and respondent.)  Professor Chestek solicited appellate practitioners, appellate judges, appellate judicial law clerks, appellate court staff attorneys, and legal writing professors to read these briefs and rate their strength of persuasion.  The participants knew they were taking part in a study, but they did not know who was conducting the study or what the purpose of the study was.

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