Cracked Cases

Two new decisions, one from the Sixth Circuit and one from the Eighth, weigh in on some interesting issues relating to crack sentencing.  First, in United States v. Bowie (No. 09-2018), the Eighth Circuit held that the sentencing judge was not required to address the defendant’s argument for a below-guidelines sentence based on the sentencing disparity between the crack and powder forms of cocaine.  Of course, under Kimbrough, we know that the judge had wide discretion to follow or not follow the harsh advisory guidelines for crack sentences, but it is at least regrettable that the judge did not see fit to explain why the defendant’s argument for a more lenient sentence was rejected.  Indeed, I’ve argued elsewhere that sentencing judges ought to be required to respond to nonfrivolous arguments for a below-guidelines sentence.

For that reason, I appreciate Judge Bright’s dissenting opinion in Bowie. Continue reading “Cracked Cases”

The ACCA Saga Continues

The U.S. Supreme Court granted cert today in several interesting new cases.  As I noted here, there has been a great deal of appellate litigation over the past couple years as to what counts as a “violent felony” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.  The Supreme Court initiated this period of ferment with its 2008 decision in Begay v. United States (see my commentary on Begay here).  The Court will now be returning to the issue in Sykes v. United States (No. 09-11311).  The specific question is whether using a vehicle while fleeing from a law enforcement officer constitutes a “violent felony.”

The other new case that I will have a particular interest in following is Freeman v. United States (No. 09-10245).  The case involves a defendant who pled guilty under Fed. R. Crim. P. 11(c)(1)(C) and thereby agreed to a specific sentence or guidelines range.  The applicable sentencing range was subsequently reduced by the Sentencing Commission.  The question now is whether the plea agreement disqualifies the defendant from taking advantage of the reduced range under 18 U.S.C. § 3582(c)(2).

More Moore

As I noted here, I have been rereading Michael Moore’s Placing Blame and particularly appreciating his fascinating discussion of the connection between emotion, moral judgment, and punishment.  This discussion occurs within his broader defense of retributivism.  Moore acknowledges, and I agree, that “the most serious objection to retributivism as a theory of punishment lies in the emotional base of retributive judgments” (119).  This was the thrust of Nietzsche’s critique of retributivism, and Moore accepts Nietzsche’s view that the retributive urge is closely linked to such emotions as fear and resentment.  Moore writes:

It may well be that insofar as the retributive urge is based on such emotions as these or causes us to instantiate traits such as self-deception, the urge is bad for us.  It makes us less well formed, less virtuous human beings to experience such emotions — or, more accurately, to be the sort of person who has such emotions.  This insight about what are and what are not virtuous emotions to have persuades many people that they ought not to make retributive judgments.  (125)

But, even if the retributive urge is often connected to the darker emotions that Nietzsche labeled ressentiment, does that mean the connection is inevitable?  Moore thinks not.   Continue reading “More Moore”

Emotions and Sentencing

Do emotions have any role to play in determining sentences, or should sentencing be purely a matter of cold logic?  It is certainly risky to base sentences on unexamined emotional responses to crime, which are often quite unattractive.  Following in Nietzsche’s footsteps, the philosopher Michael Moore offers this unsavory catalog of reactions to crime and criminals: resentment, fear, anger, cowardice, hostility, aggression, cruelty, sadism, envy, jealousy, guilt, self-loathing, hypocrisy, and self-deception.  Unchecked, such reactions can give punishment a vicious character that debases the punisher as much as the punished.  Additionally, as Moore also suggests, there seems a connection between some of these emotions and our primal fear of strangers, such that hot-blooded punishment may serve as a vehicle for all manner of bigotries to be expressed.  (See my earlier posts on inflammatory remarks at sentencing here and here.)

Yet, even though they sometimes lead us astray, emotions seem to play a vital role in our day-to-day moral judgments, and it is hard to imagine how sound sentencing decisions could be reached in the absence of any emotional response at all to the crime or the criminal.   Continue reading “Emotions and Sentencing”

Convictions Overturned Based on Prosecutorial Tactics in Avoiding Juvenile Court

Proof and Hearsay reports here on a new Wisconsin Court of Appeals decision overturning a defendant’s burglary and bail-jumping convictions based on the government’s intentional delay in bringing charges so as to prosecute the defendant in adult court.  (The full opinion in State v. Bergwin is available here.)  Bergwin committed a series of burglaries when he was sixteen.  The police completed their investigation of the burglaries a month and a half before Bergwin turned seventeen, but the state delayed bringing charges until three days after Bergwin’s birthday.  The Court of Appeals characterized the delay as a violation of Bergwin’s due process right to juvenile adjudication.

The case stands in marked contrast to the Armstrong case, which I blogged about here.  Armstrong turned on the strict separation of executive and judicial functions and a belief that judges are not competent to second-guess prosecutors’ charging decisions.  My impression is that there are many more Armstrong-type cases than Bergwin-type cases out there, but it is good to see an appellate court asking some hard questions about prosecutors’ motives every so often — courts play (or ought to play) an important role in ensuring prosecutorial accountability.

Hat tip to Kevin Weiss.

Risk Assessment and Racial Disparity

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.”  (A copy is available here on SSRN.)  Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.”

I’ve heard variations on this argument before, but Harcourt’s new paper adds some interesting historical dimensions to the analysis.  For instance, as a “cautionary tale,” he discusses the turn to risk-based institutionalization in the 1970’s, which resulted in a dramatic increase in racial disparities in mental hospitals.  “[T]he proportion of non-whites admitted to mental facilities increased from 18.3% in 1968 to 31.7% in 1978 . . . .”

Harcourt also describes the explicit use of race as a predictor of dangerousness in parole decisions between the 1930’s and 1970’s — a shocking practice to contemporary ears.  Although criminal history may correlate closely with race, it does not seem nearly so pernicious to rely on criminal history as to rely expressly on race.  Nonetheless, I share Harcourt’s sense that progressives are apt to be disappointed by risk-based early release initiatives.  Simply quantifying risk more precisely still leaves unanswered the critical ethical question of why we should want to release anyone who poses any degree of risk, no matter how small.

Cross posted at Marquette Law Faculty Blog.

Intimidation Offense Not a Violent Felony, Seventh Circuit Rules

Under the Armed Career Criminal Act, a felon in possession of a firearm faces a fifteen-year mandatory minimum if he has three previous convictions “for a violent felony or a serious drug offense, or both.”  There has been much ferment over the past couple of years as to what qualifies as a “violent felony” under the ACCA.  Most recently, the Seventh Circuit has ruled, in United States v. Ellis (Nos. 08-2512 & 08-2443), that an Indiana conviction for felony intimidation does not qualify.

“Violent felony” is a defined term in the ACCA, and encompasses any felony that “has as an element the  . . . threatened use of physical force against the person of the other.”  The Indiana statute under which Ellis had been convicted prohibited threats to “unlawfully injure” a law enforcement officer.  Although the phrase “threat to unlawfully injure” probably conjures up the same mental image for most people as the phrase “threat to use physical force against the person of the other,” the Seventh Circuit noted that “injury” is a broader term than “physical injury” and might also encompass emotional or reputational injury.  As a result, Ellis’s offense did not qualify as a violent felony under the ACCA.  (The court declined to consider whether the offense fell within the terms of the so-called “residual clause” in the statute because the government had advanced no argument to that effect.)

Why can I not get the picture of angels dancing on the head of a pin out of my head?

Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel

Last spring, the U.S. Supreme Court ruled in Padilla v. Kentucky that an attorney’s incorrect advice regarding the deportation consequences of a guilty plea might violate the client’s Sixth Amendment right to effective assistance of counsel.  Padilla was a surprisingly broadly worded expansion of the Sixth Amendment right into the realm of advice on the collateral consequences of a conviction.  Although Padilla raised more questions than it answered, the decision may prove an extraordinarily important one in light of the proliferation of collateral consequences over the past couple of decades.

Now the Eleventh Circuit has indicated that Padilla does indeed extend beyond deportation advice.  In Bauder v. Dep’t of Corrections (No. 10-10657), the court affirmed a grant of habeas relief based on an attorney’s incorrect advice that the petitioner would not face the possibility of civil commitment as a sexually violent predator if he pled no contest to a stalking charge.

In addition to its extension of the Padilla reasoning to a new collateral consequence, Bauder strikes me as quite significant for at least two reasons.   Continue reading “Wrong Advice About Civil Commitment Law Constitutes Ineffective Assistance of Counsel”

No-Merit Appeal in WI Triggers Procedural Bar to Post-Conviction Claims

In order to prepare for an upcoming talk on the past term in the Wisconsin Supreme Court, I just read State v. Allen, 2010 WI 89 (2010), a new case elaborating on State v. Escalona-Naranjo, 185 Wis. 2d 168 (1994).  I teach E-N in my post-conviction remedies class, and I’ve never found its reasoning persuasive.  The E-N court held that a direct appeal raises a procedural bar to any subsequent attempt to gain post-conviction relief based on issues that could have been, but were not, litigated in the direct appeal.  It seems to me that the court gave too much weight to the state’s interest in avoiding a second round of post-conviction litigation, particularly in light of the woeful underfunding of indigent defense in Wisconsin and the real possibility that important constitutional issues might be missed in the first round.  Moreover, despite the court’s desire to reduce the volume of post-conviction litigation, the E-N procedural bar has actually spawned considerable collateral litigation over the questions of what could have been raised on direct appeal and what constitutes good cause to excuse a procedural default.  Rather than expending so much energy on the resolution of unnecessary procedural questions, I would much rather see the courts reaching the merits of the underlying constitutional claims.

In any event, Allen, the new case, nicely illustrates the sorts of puzzles the courts have to grapple with under E-N.   Continue reading “No-Merit Appeal in WI Triggers Procedural Bar to Post-Conviction Claims”

MO Gives Sentencing Judges Cost Information

As reported in the New York Times here, Missouri has implemented a new information system for sentencing judges that supplies them with the expected cost of various sentencing options.  Missouri is apparently the first state to attempt to provide such information on a systematic basis.  Although some critics charge that putting the information in front of judges will cause judges to give too much weight to costs, it’s hard for me to imagine why that would be so — the money does not come from their pockets.  Surely, cost is a relevant variable in deciding what the best sentence would be in any given case, and I see no more risk that this variable will be given too much weight than any number of other potentially distorting variables, such as criminal history or victim impact statements.

Indeed, I would go one step further than Missouri and require judges to announce the expected cost in open court when they impose a sentence.  This would not only force judges to pay greater attention to the information, but also better inform the public regarding the consequences of existing sentencing policies.