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March 16, 2009

The "mire" and (slow-moving) "train wreck" that is federal criminal history sentencing

In recent months, I have not blogged much about the lower-court mess that constitutes federal sentencing law and policy concerning the use of a defendant's state criminal history as an aggravating sentencing factor.  Part of the reason for not discussing the lower-court mess has been the Supreme Court's recent efforts to try to clean up some of the mess through its rulings in James and Logan and Begay and Rodriquez and Chambers (all of which have come down over the last two years).  But the mess is hardly going away.

Notably, Justice Alito wrote separately in Chambersin order "to emphasize that only Congress can rescue the federal courts from the mire into which" federal statutes and SCOTUS jurisprudence has cast federal law.  And today, though a separate opinion in US v. Mayer, No. 07-30274 (9th Cir. March 16, 2009) (available here), some federal circuit judges are noting a "train wreck in the making" in the middle of this jurisprudential mire.  Here is the start of Chief Judge Kozinski's denial from en banc review in Mayer:

This is a train wreck in the making.

The panel cleaves a formerly uniform doctrine — the Taylorcategorical approach — into two branches. One approach for most things; a separate, incompatible version for a single clause of the Armed Career Criminal Act.  This approach is novel, difficult to administer and will encourage future panels to splinter the categorical approach into even smaller pieces.  That’s not all: The panel also reads ACCA’s residual clause so broadly that nearly any crime will qualify.  And it does so by embracing an argument that the Supreme Court rejected this Term, in an opinion on which the ink is barely dry. This is precisely the sort of case we need to take en banc in order to prevent serious damage to the fabric of our circuit law.

March 16, 2009 at 01:57 PM | Permalink


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I absolutely agree. The only way to accurately describe the residual/"otherwise" clause is "train wreck," "incomprehensible," and "unconstitutionally vague." One of the Justices asked in Chambers oral argument “so how many more of these cases are we going to need to hear?” (paraphrased). The correct answer should have been “one, enough to invalidate the provision."

Posted by: DEJ | Mar 16, 2009 3:48:28 PM

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