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January 10, 2007

Another terrific Posnerian flourish calling for data-driven sentencing

In this post about a Seventh Circuit ruling a few months ago, I highlighted again the Kafkaesque reality that, as discussed before here and here, so many seemingly non-violent state offenses can qualify as crimes of violence to trigger severe federal sentence enhancements.  As the Seventh Circuit Blog has noted here, Judge Posner takes on these issues through a strong panel opinion in US v. Chambers, No. 06-2045 (7th Cir. Jan 9, 2007) (available here). 

Chambers, which echoes some themes that arose when the Supreme Court heard argument on a similar issue in the James ACCA case recently, is a must read for all federal sentencing fans.  Here are just some of the highlights:

[I]t is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences or fail to return from furloughs or to halfway houses....

The Sentencing Commission, or if it is unwilling a criminal justice institute or scholar, would do a great service to federal penology by conducting a study comparing the frequency of violence in escapes from custody to the frequency of violence in failures to report or return.  Should it turn out that the latter frequency is very low, this would provide a powerful reason to reexamine [recent Seventh Circuit rulings]. Alternatively, Congress, which has investigative tools, might examine the issue with a view toward a possible clarification of 18 U.S.C. ยง 924(e)(1)....

It is apparent that more research will be needed to establish whether failures to report or return have properly been categorized by this and most other courts as crimes of violence.  Notice too that if courts insist on lumping all escapes together in determining whether escape is a crime of violence, the enormous preponderance of walkaways could well compel a conclusion that escape is never a crime of violence.  Some disaggregation seems indicated, but to do it sensibly we judges need data.

January 10, 2007 at 05:38 PM | Permalink


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Posner's request is intellectually clear, but economically naive. Full prisons = $$$ for companies that build and manage prison facilities. Companies like Blackwater and Halliburton.

Minimum sentencing guidelines aren't about justice. They're about keeping prisons as full as possible for as long as possible.

Posted by: smiley | Jan 10, 2007 8:35:55 PM

The MPC Sentencing Revision is poised to contributing to the problem (leaving sentencing to conjecture) rather than to the solution (evidence based practices aimed at measurable goals such as reducing future criminal behavior). The present draft, up for approval at the ALI Annual Meeting in San Francisco, May 14-16, would encourage all sentencing to avoid accountability for best evidence-based practices by retreating to the unaccountable and dysfunctional rationale of ordered just deserts. I'm hoping ALI members will attend and participate, after giving some thought to the issues which I hope to raise by way of three motions of which I've posted drafts on smartsentencing.com.

Michael Marcus, Judge
Circuit Court, Oregon
Sentencing Support Project:

Posted by: Michael Marcus | Jan 11, 2007 10:50:51 PM

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