Supreme Court Reaffirms “Categorical Approach” in Applying Armed Career Criminal Act

Has Congress ever made the federal courts do more work to little so good effect than it did when it passed the Armed Career Criminal Act in 1984?  The ACCA imposes a fifteen-year mandatory minimum on certain federal defendants who have three prior convictions for a violent felony or serious drug crime, which are defined terms in the statute.  The basic application problem is that we have fifty different state criminal codes, and state legislatures never saw fit to amend their laws so as to fit their crime definitions to the ACCA terminology.  As a result, figuring out which state convictions count as ACCA predicates has consumed — and continutes to consume — an enormous amount of judicial time and effort.  A few lines of statutory text have generated a marvelously intricate, uncertain, and ever-changing body of jurisprudence.

The Supreme Court offered its latest foray into the ACCA quagmire yesterday in Descamps v. United States (No. 11-9540).  At issue was whether Descamps’s prior burglary conviction in California could be used as a predicate for the fifteen-year ACCA mandatory minimum.  The statutory definition of “violent felony” does include “burglary,” but the Court has previously held that not all burglary convictions count; rather, the crime of conviction must have the elements of “generic burglary” — if a state has chosen to define the crime of burglary in an unusually broad manner, then convictions of burlgary in that state may not be treated as burglary convictions for ACCA purposes.

And it turns out that California does have an idiosyncratic burglary definition.  Continue reading “Supreme Court Reaffirms “Categorical Approach” in Applying Armed Career Criminal Act”

SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections

So just how advisory are the “advisory” federal sentencing guidelines?  That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.

The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.”  Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts.  Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences.  Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.

The new system also raised Ex Post Facto Clause issues, which divided the lower courts.  Peugh nicely illustrates the problem.

Continue reading “SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections”

Seventh Circuit: Defendant’s Punches Created Substantial Risk of Serious Bodily Injury

In the course of being arrested on drug charges, Freddy Alexander took a couple of swings at a police officer.  As Alexander’s sentencing judge saw things, these punches boosted his guidelines offense level by six under §3A1.2(c)(1), which applies when a defendant creates a substantial risk of serious bodily injury to a law enforcement officer.  This despite the fact that Alexander only connected with one of his punches and caused only a minor injury that did not require medical attention.

The Seventh Circuit nonetheless affirmed Alexander’s sentence earlier today in United States v. Alexander (No. 12-1084) (per curiam).  The court observed that “§3A1.2(c)(1) applies to substantial risk of serious injury and does not require that the defendant actually have inflicted serious injury.”  Fair enough, but why think that Alexander’s punches posed such a risk?  I don’t know anything about Alexander’s size and strength, but I’m pretty sure that if I took a couple of swings at someone, I’d be much more likely to injure myself than my opponent.   Continue reading “Seventh Circuit: Defendant’s Punches Created Substantial Risk of Serious Bodily Injury”

New Essays on Restitution and Sentencing Commissions

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively.  These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions.  In considering these case studies, as well as the experience with sentencing commissions in a few other states, my

primary theme is the relationship between sentencing commissions and legislatures. Although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.” A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

At sentencing, defendants are expected to express remorse for their crimes.  Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis.  But what if the defendant chooses to say nothing at all at sentencing?  On the one hand, a judge might infer a lack of remorse from the defendant’s silence.  But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.).  Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing.  The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis.  On appeal, Keskes argued that the sentence violated his right to remain silent.  The Seventh Circuit, however, affirmed.

Continue reading “Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules”

Which Cities Have the Largest Sentencing Disparities?

For a generation, federal sentencing policy-makers have been preoccupied by the ideal of national uniformity — the ideal that federal judges in Milwaukee should sentence the same as federal judges in Maine and Miami.  I’m a long-time skeptic of this ideal; since most of the impact of most crime is local, why shouldn’t local needs and values determine the punishment?  But even I am troubled by judge-to-judge disparities within a single federal courthouse.  The random assignment of a case to one judge instead of another should not govern the punishment.

Although there has been a great deal of anecdotal evidence of such local disparity, it has been very hard to quantify because of a longstanding agreement between the U.S. Sentencing Commission and the federal judiciary that blocks the release of judge-specific setencing data.  However, thanks to a great deal of painstaking effort by the Transactional Records Access Clearinghouse, it is now possible to analyze the sentencing practices of individual judges.

Earlier this year, TRAC made waves with a public announcement of which districts had the greatest inter-judge disparity.  However, TRAC’s methodology was sharply criticized, and with good reason.  More recently, TRAC published a new and improved version of its report at 25 Fed. Sent. Rep. 6 (2012).

So, which cities have the greatest disparities?   Continue reading “Which Cities Have the Largest Sentencing Disparities?”

District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds

The U.S. Sentencing Commission wisely made its 2011 reductions to the crack sentencing guidelines retroactive, but this decision left district judges with discretion to deny sentence-reduction requests based on, among other things, a defendant’s post-sentencing misconduct.

Larry Purnell has learned the scope of this discretion the hard way.  Purnell pled guilty to crack and firearms offenses in 2007.  In his plea colloquy, Purnell admitted to the gun allegations under oath.  Based on various concessions from the government in return for his guilty plea, Purnell’s guidelines range for the crack offense was 78-97 months, and he received a sentence at the bottom of this range.  Despite the relative lenience of this treatment, Purnell later mounted collateral attacks on the gun conviction, claiming that his alleged weapon was really only a BB gun — in contradiction to his own statements at the plea colloquy.

These collateral attacks failed, but Purnell was given a fresh opportunity for a sentence reduction thanks to the Commission’s retroactive changes to the crack guidelines.   Continue reading “District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds”

Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.   Continue reading “Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions”

Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970’s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years.  (Eight of these, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, strongly reminiscent of a modern “fast-track” plea-bargaining system.  Continue reading “Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different”

Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea.  Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea.  While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation).  Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.  Continue reading “Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context”