Sentence Explanation in the Seventh Circuit: What’s Good for the Goose . . .

Ever since the Supreme Court converted the federal sentencing guidelines from mandatory to advisory in 2005, I’ve followed with particular interest the case law on how sentences must be explained in the new regime.  Even more specifically, I have focused on the question of when sentencing judges are required to respond expressly to defendants’ arguments for lenience.  (See, for example, my post here.)  I’ve also wondered about the flipside of that question — when must judges respond expressly to prosecutors’ arguments in aggravation? — but cases on this seem far less common.  Last week, though, the Seventh Circuit addressed an issue that seems closely related to my hypothetical question.

In United States v. Glosser (No. 08-4015), the judge made a promise to the defendant at his change-of-plea hearing that he would impose the statutory minimum 120-month sentence in the case, notwithstanding the prosecutor’s suggestion that the government might seek more.

Continue reading “Sentence Explanation in the Seventh Circuit: What’s Good for the Goose . . .”

Upcoming SCOTUS Oral Arguments

With the new term Supreme Court term kicking off next week, I’ve been previewing the upcoming oral arguments.  Here are the cases I am especially interested in following:

United States v. Abbott (09-479) & Gould v. United States (09-7073): is a defendant eligible for the mandatory minimum of 18 U.S.C. § 924(c) when he is also subject to a greater mandatory minimum for a different count of conviction charging a different offense?

Continue reading “Upcoming SCOTUS Oral Arguments”

Burglary and Violence

The U.S. Bureau of Justice Statistics has issued a new report on victimization during household burglary, which might have important implications for the application of the Armed Career Criminal Act.  First, here are the report’s highlights on the burglary-violence connection:

  • A household member is present in about one-quarterof residential burlgaries.
  • A household member is violently vicitmized in about seven percent of residential burglaries (or about one-quarter of the burglaries in which a household member is present).
  • In residential burglaries, simple asault is the most common violent crime (3.7 percent of all burlgaries), while more serious violent crimes like rape (0.6 percent) and aggravated assault (1.3 percent) are far less frequent.
  • In a majority of even the “violent” burglaries, the victim reports no injury; a “serious injury” is sustained in only 8.5 percent of the violent burglaries.
  • Even in the violent burglaries, fewer than forty percent of the offenders are armed.

Now, for the ACCA link.  Continue reading “Burglary and Violence”

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?