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December 1, 2005

The harsh consequences of old criminal history

Earlier this week, I expressed concerns about the Cannon case from the Seventh Circuit in which an apparently small-time drug user, because of two minor state drug offenses from a decade earlier, was require to receive a mandatory life sentence.  Continuing the theme of the harsh federal consequences of a long-ago criminal history, consider today's First Circuit decision in Powell v. US, No. 05-2222 (1st Cir. Dec. 1, 2005) (available here). 

The ultimate legal issue in Powell is whether a 11-year-old state evasive driving offense qualified as a "violent crime" for purposes of sentencing the defendant to the mandatory minimum term of fifteen years imprisonment under the federal Armed Career Criminal Act (ACCA).  Though that legal issue is interesting, and well discussed in Powell, the decision really caught my eye because the defendant is ultimately receiving a 15-year term of imprisonment "for possessing shotgun that [Powell] says he inherited from his deceased father."  I wonder what the NRA might think of such a harsh federal sentence for inheriting a shotgun.

December 1, 2005 at 03:36 PM | Permalink


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Tracked on Mar 19, 2009 12:29:14 AM


There are some important points in this case that the main post misses.

Appellant was urging the Court to find ineffective assistance of counsel. This was necessary, because trial counsel had not objected below. That puts the case in a different posture than if the objection had been preserved.

This defendant was convicted of evasive driving (while being chased by a police officer) and two burglaries while in his twenties. It is true that there was a nearly 10-year gap before he was found with the shotgun. Read more closely, and you find he was also charged initially with "a number of stealing offenses, plus drug possession."

Although the opinion is unclear, it appears the stealing and drug possession charges were dropped in exchange for his guilty plea on the Felon in Possession charge.

The defendant may well have inherited the shotgun from his father, but he was indeed an armed career criminal -- the type of defendant who is in and out of trouble repeatedly, whom the statute was intended to punish.

Posted by: Marc Shepherd | Dec 1, 2005 5:00:04 PM

All fair points, Marc, but it is still the case that, whatever took place behind the scenes, the defendant got a 15-year minimum sentence for the crime of possessing an inherented shotgun and having a bad (and old) past.

I am sure Powell is not a saint, but few defendants are. My concern is whether he might be overpunished in light of what has been charged and proven. I think my initial post reasonably raises this question.

Posted by: Doug B. | Dec 1, 2005 5:20:10 PM

As a matter of public policy, I believe a 15-year sentence is grossly disproportionate to the crime of conviction, if that's the only thing he did.

I would also say that, from a public policy standpoint, this is conduct that traditionally would have been punished at the state level (assuming it warranted punishment at all). I question the efficacy of expending federal resources to punish local conduct that is already covered under state law.

Those issues notwithstanding, the critical point is that the government apparently dropped several other charges in exchange for the defendant's guilty plea. We don't know how good a case the government had for those other charges; but if they are true, then it's not really correct to say that all of the defendant's bad conduct was in the distant past.

Posted by: Marc Shepherd | Dec 2, 2005 10:09:30 AM

Basic question that comes up in this blog a lot: how do you calculate a sentence that is "proportionate to the crime"? I've always thought that one of the weaknesses of the USSG was that they tried to make "proportionality" the focus of the sentence. This obviously turned out bad for defendants (but good for the public, in my opinion). For those of you on the left, wouldn't you rather judges have greater ability to look at mitigating circumstances? It's a risk, with "hanging judges" willing to put the hammer to defendants, but that is certainly a better risk than forcing society (which benefits from a proportionality-focused debate) to determine what sentences it considers "proportionate" for given crimes.


Posted by: Mark | Dec 2, 2005 11:29:12 AM

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