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August 21, 2007

Intriguing split First Circuit ruling on sentence for failing to appear

Anyone interested in statutory interpretation as well as sentencing should check out the First Circuit's work today in US v. Smith, No. 07-1246 (1st Cir. Aug. 21, 2007) (available here).  A split panel comes to different view on this issue (as stated in the majority opinion):

[In this case we must] decide a surprisingly controversial question: if the failure to appear relates to a supervised release revocation hearing, is the relevant punishment under the statute the period of incarceration available for the supervised release violation, or the period of incarceration available for the underlying offense which led to the imposition of the supervised release condition?

S.COTUS here in his summary at AL&P provides this amusing account of the First Circuit's work in answering this question:

Using the rhetoric of “plain language” (and, of course, looking outside the statute) the First concludes that a supervised release violation isn’t a “criminal offense.”

[Judge] Selya dissents, saying that the result doesn’t track Congress’s intent, which was “...plainly to create a hierarchy of penalties geared to the magnitude of the sentence that was at stake in connection with the proceeding for which the defendant failed to appear.”  Oh great.  The majority says the text is “clear” (and looks outside the statute) and the dissent says that the “intent” is clear.

August 21, 2007 at 03:58 PM | Permalink


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