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February 13, 2009

Seventh Circuit reverses sentence based on insufficient evidence of "precrime" of attempted murder

Minority_Report The Seventh Circuit today in US v. England, No. 08-2440 (7th Cir. Feb. 13, 2009) (available here), suggests that we do not (yet) live in a Minority Report world in which special government agents can punish persons for crime they are predicted to commit.  Specifically, the Seventh Circuit in England finds error in a district court's decision to increase a defendant's sentence significantly based on the "court’s belief that the defendant would have committed the crime" of attempted murder if given the opportunity to be free on bond.  England, slip op. at 13. (emphasis in original).

The England opinion is fascinating for many reasons, and here is one particularly interesting passage discussing a sentencing judge's discretion (with some cites omitted):

We grant sentencing courts discretion to draw conclusions about the testimony given and evidence introduced at sentencing. Yet, this discretion is neither boundless nor is the information upon which a sentencing court may rely beyond due process limitations. To the contrary, we recognize that due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations. United States v. Santiago, 495 F.3d 820, 824 (7th Cir. 2007); see also United States v. Berry, 2009 WL 22890, at *8 (3d Cir. Jan. 6, 2009) (“A defendant cannot be deprived of liberty based upon mere speculation.”). Indeed, the Supreme Court has long recognized that “[n]o individual or body of men has a discretionary or arbitrary power to commit any person to prison.” Hurtado v. California, 110 U.S. 516, 537 (1884). If the district court relied on unreliable or inaccurate information in making its sentencing decision, we return the case to the district court for a new sentencing hearing.

Interestingly (and somewhat disturbingly), though the Seventh Circuit reverses the sentence in this appeal, it hints that the real problem was just that the district court did not have enough evidentiary support for its conclusion that the defendant would have committed attempted murder.  Consider how the England opinion ends:

[W]e respectfully — and with a degree of reluctance considering the district court’s diligence in attempting to arrive at the correct disposition in this matter — vacate England’s sentence and remand to the district court for resentencing....

In arriving at our decision, we want to underscore that we do not pass judgment on the reasonableness of the 210-month sentence imposed by the district court. As noted above, the able and experienced district court judge conducted a thorough and meaningful § 3553(a) analysis and the sentence that he imposed very well may be reasonable. The district court need not repeat this analysis at resentencing; it can adopt the § 3553(a) findings arrived at during the June 2, 2008 hearing. We only require that the district court make its sentencing determination without reliance on a finding that England would have attempted murder if out on bond unless further evidence is adduced which would justify such a conclusion.

So, by my reading, if the prosecution can come forward with more evidence to support the claim that the defendant here would have committed attempted murder, the Seventh Circuit would be fine with the sentence imposed.  Perhaps some of those weird psychic precogs can come testify at the next sentencing hearing against the defendant to make sure he does not get away with his "precrime" of attempted murder.

February 13, 2009 at 12:12 PM | Permalink


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Sounds a whole lot like "future dangerousness" -- used to increase the punishment from life to death in Texas.

Posted by: dm | Feb 13, 2009 1:19:38 PM

"Punish persons for crime they are predicted to commit".....

SVP/SDP cases anyone? I know, those are "civil matters".

We were to get a pilot program in my county to test for the same "future risk to reoffend" in felony cases. Never happened, thankfully.

Posted by: David Farmer | Feb 13, 2009 1:40:55 PM

With all due respect, Doug, I don’t think you get it. Accountability and risk are two different issues. It is perfectly reasonable to think of a crime and criminal offender in different ways, and respond to each separately. We punish people to hold them accountable and control/reduce their risk of committing another crime to protect the public. The more restrictive of the two should control at any given point in time.

For example, it is reasonable to plea bargain or offer good time credit with respect to accountability, but not risk.

Of course, it is not possible to predict with total accuracy that a given person will commit another crime, particularly a crime of a particular kind. But it is possible to predict within a probability range whether a person will reoffend. That’s the best we can do, the bottom-line. For example, is a 90 percent chance of recidivism unacceptable? Questions like this are what have to be answered.

Risk of recidivism changes over time. No one can say today what a persons risk of offending will be five years from now. Certainly the length of a sentence should not be predicated upon speculation of this kind. Judges should not be asked to do the impossible. Risk control decisions should be made and remade periodically or when new information bearing on this issue becomes available. Parole boards used to play this role, before they became mixed up in holding offenders accountable. An alternative would be an independent Risk Control Board that sets and resets the duration and level of restraint, based on risk.

Posted by: Tom McGee | Feb 13, 2009 2:27:41 PM

"It is perfectly reasonable to think of a crime and criminal offender in different ways"

I totally disagree. There is no criminal without a crime and there is no crime without a criminal. The two are inextricably interwoven in such a manner that one cannot seperate the two without eliminating the whole thing. It's like the idea that you could eliminate one side of a ladder and still claim you have a ladder. Stuff and nonsense.

It's true that risk and accountability are two different concepts. But it is silly to punish people for future risk just as it is silly to give someone credit for accepting accountability for something they haven't even done yet. Indeed, the very definition of "account" means "to count" and any person who claims they can count what doesn't actually exist is mentally delirious.

The future is by definition unknown and only madman think they can predict it. Predicating sentences on future risk is nothing more than hocus pocus.

Posted by: Daniel | Feb 13, 2009 5:07:49 PM

Yes Daniel, “crime” and “criminal” offender are two different concepts, or ways of thinking about the same problem, an instance of antisocial behavior. "Crime" is what scientists call a classical concept, which has fixed boundaries. “Criminal offender” is what scientists call a modifier-head conceptual combination. "Offender" is a relational concept, which has fuzzy boundaries.

People do not have single-track minds. As I said, it is perfectly reasonable to think of crimes and criminal offenders in two different ways; in fact, it would be unreasonable not to do so.

Accountability is fixed; it does not change once established. Accountability is determinate. Risk is changeable, or indeterminate. You are mixing apples and oranges.
I agree that it would be silly to punish for a future risk. We punish people to hold them accountable. We incapacitate them to control their risk, and rehabilitate them to reduce that risk.

You’re right, we cannot predict the future with accuracy. Judges should not be expected to do so. But we can and do estimate within a probability range what the likelihood is that a person will behave in a certain way over a fairly short time span. Corrections people do it every day when they classify offenders. Insurance people do so when they sell you auto insurance, but for only six months at a time.

Posted by: Tom McGee | Feb 13, 2009 7:46:26 PM

DM, I agree with your point about "future dangerousness" aggravator in the capital context. talk about speculation. Can you explain to me how the future dangerousness ag works in Texas? Can a def receive the death penalty without a finding of future dangerousness? By whom? At what standard of proof?

If there can be no death sentence without such a finding, seems to me that "future dangerousness" would be an Apprendi/Ring fact, or an element of a greater offense than capital murder, i.e. capital murder by a person who presents a danger in the future.

If it is an Apprendi/Ring fact then , in my opinion, there are all kinds of constitutional issues because the fact would be an element of a substantive crime. It is an offender characteristic, which creates an issue with respect to what Scalia calls in Brown v Sanders a "death eligibility factor" There are void for vagueness and arbitrariness issues.

We had a discussion on the North Carolina capital listserve about the Texas ag of future dangerousness but nobody really understood it.

thanks, bruce cunningham

Posted by: bruce cunningham | Feb 13, 2009 9:51:19 PM

Bruce, dangerousness or risk is not an element of an offense. An offense is an affront that makes people angry. Most crimes are offenses. Many offenses are not crimes. Some crimes are not offenses; i.e., strict liability crimes.

Think of it this way. There is a difference between what a person does (crime and offense) and the nature of that person i.e., poor, dangerous and so on. Some people who commit serious crimes have a low probability of committing another crime. Some who have committed less serious crimes are really dangerous. For example, on average people who have committed murder are much less likely to recidivate than those who have committed a burglary.

Again, risk and accountability are two different issues; they should not be conflated. Current sentencing practice is a good example of what sociologists call cultural lag. Sentencing practice lags far behind our knowledge about how things really work.

Posted by: Tom McGee | Feb 14, 2009 12:39:44 AM

See Baylor College of Medicine’s Initiative on Neuroscience and Law:

"In conjunction with study and development of policy, the initiative will fuel the development of new technologies for diagnosis and rehabilitation – for example, describing neural signatures that predict recidivism, and developing feedback in real-time brain imaging as a strategy for rehabilitation."

Posted by: George | Feb 14, 2009 11:38:30 AM

Tom, I believe if a def in Texas cannot be exposed to death without a finding of future dangerousness, then under Apprendi/Ring,/Blakely/Cunningham that fact is an element of a greater offense than capital murder. Whether the use of such an offender characteristic as future dangerousness can pass constitutional muster as an element of a crime is a different story.

bruce cunningham

Posted by: bruce cunningham | Feb 14, 2009 4:33:53 PM

§ 3553(a)(2) authorizes judges to depart upward "to protect the public from further crimes of the defendant."

Posted by: stb | Feb 14, 2009 5:56:35 PM

and it's certainly not easy to prove by a preponderance that a defendant would have committed a crime. the 7th circuit opinion seems to properly balance 3553(a)(2) and the fears expressed by Prof Berman.

Posted by: stb | Feb 14, 2009 6:01:56 PM

For what its worth, people who have committed a burglary have a fairly high risk of committing another burglary. Those who have committed a murder have a fairly low risk of committing another murder, as I recall about a 30 percent probability. It is not the crime alone that makes a difference, but the circumstances surrounding that crime.Predictions are far more accurate when they encompass a range of factors.

Bruce the point I wanted to make is that crimes have elements; they are classical, Aristotelian concepts with fixed boundaries. Offenses are relational concepts, with fuzzy boundaries. Offenses do not have elements, but variable attributes. We penalize people for committing crimes. Penalties are fixed before the fact (when the problem is not fully knowable) and enforced after the fact. We punish people for committing criminal offenses. Punishments are fixed after the fact (when the problem is fully knowable), within a range that was established before the fact.

For example, robbery is a crime. It is also a criminal offense. These are two different ways of thinking about the same provocation. A third way to think about robbery is that the person in question is a criminal offender. Scientists have shown that decisions about taking action are better when they are approached in more than one way. For one thing, decisions of this kind call more information into play.

Posted by: Tom McGee | Feb 14, 2009 7:07:44 PM

Tom, please read Justice Thomas' concurrence in Apprendi v New Jersey where in the opening paragraph he writes that the issue presented is ,"simply put, what is a crime?" I think we are both saying the same thing, although you are talking about how things should be and I am talking about how they are.

Bruce Cunningham

Posted by: bruce cunningham | Feb 15, 2009 8:31:55 AM

Thank you Bruce, I have reread Justice Thomas’ concurrence in Appredi. I do think this case “turns on the seemingly simple question of what constituters a ‘crime’.” Decision-makers do no reach the question of whether a person committed a criminal offense until it has first been determined that the person committed a crime. Of course that person has the right to a jury trial with respect to the crime. The holding in Appredi makes perfect sense up to a point; namely, “The Constitution requires that any fact that increases the penalty for a crime beyond the statutory maximum…must be submitted to a jury and proven beyond a reasonable doubt.”

A finding that the person committed a crime is the starting premise in a jeopardy argument. It is followed by the second premise, namely that the person committed a criminal offense. The conclusion to this argument is that the person is a criminal offender that has a substantial risk of committing another crime. Prior convictions are relevant when substantiating this proposition. They are concerned with risk, not a penalty or punishment. This gets to the question in Almendarez-Torres.

Of course a sentencing system should respond to each of these premises and their conclusion. In other words, current sentencing practice is vastly oversimplified.

I believe what happened in Booker is that Justice Stevens and some others thought of the problem as a “crime” and applied the Apprendi rule. Justice Breyer and the remaining justices thought of the problem as a “criminal offense” and adopted their remedial opinion. Justice Ginsburg thought of the problem in both ways, but unfortunately, she did not explain her decision.

Thanks again, Bruce. I agree, we are talking about the same thing, but you are concerned with how things are; I am focusing on how they should be.

Posted by: Tom McGee | Feb 15, 2009 4:12:36 PM

In Texas, after conviction, the jury must agree unanimously (CCP 37.0711(3)(d)(1)(b)) and BARD (id at (3)(c)) that "there is a probability that the defendant would commit criminal acts of violaence that would constitute a continuing threat to society" (id at (3)(b)(2)).

So Doug, you're wrong that we're not living in a pre-crime system, at least in Texas. The jury must make a pre-crime finding before giving the death penalty.

Of course, in Booker the Court wrote "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."

Shouldn't the pre-crime be proven BARD?

Another interesting point, since the statute requires a BARD finding (of a probability, whatever that means), is whether FD must be alleged in the indictment, and how specifically.

Posted by: rothmatisseko | Jun 12, 2009 12:51:48 PM

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