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June 13, 2011

Thoughtful comments on the ugly ACCA bigger picture from an informed reader

A federal public defender today sent me a terrific e-mail about ACCA litigation, which he has allowed me to reprint in full below:

Between and among the various opinions written in Sykesand upon commentary found at SL&P and other places (i.e., the New York Times), I fear that a meaningful opportunity for more meaningful discussion is being missed.

The litigiousness of the Armed Career Criminal Act, as colorfully depicted by Justice Scalia, involves, invites, and permits all involved in the federal criminal justice system to approach the meaningful task of sentencing on "can't see the forest for the trees" terms. By this I start from the proposition that reasonable minds can surely disagree as to whether an armed recidivist like Sykes should properly receive a sentence of not more than 10 years (and, often, significantly less) or one of not less than 15 years (and, sometimes, slightly longer).  But the proper and just resolution to such disagreements simply shouldn't turn doctrinally upon whether or not the Indiana crime (and, pursuant to the categorical approach, it is indeed the Indiana crime, rather than the crime that Sykes actually committed) of vehicular flight from an officer is or is not sufficiently similar to the crimes of burglary, arson, extortion, or explosives in terms of the kind and degree of purposeful risked harm at issue. To premise a significant decision involving literally years of a man's liberty, with the attendant cost attached to the deprivation of liberty, upon such minutia seems only slightly more principled than deciding between a sentence of A or a dramatically greater sentence of B upon the outcome of a game of rock-paper-scissors (the latter being a methodology less susceptible of frequent Supreme Court litigation than the ACCA).

The point here is not that Sykes is wrongly decided nor is it that the nuances of a defendant's prior criminality have no place at the figurative (and, for that matter, literal) sentencing table.  Rather, the point is that premising punishment in substantial manners upon such fine lines seems inconsistent with the Section 3553(a) "parsimony" clause: if not more than 10 years is "sufficient" for Sykes if the Indiana crime is not violent, how does at least 15 years become "sufficient but no greater than necessary" simply upon the same Indiana crime being deemed "violent"?

And, as you know, the cited concern extends beyond statutory minimums to guideline application.  A recidivist drug dealing client of mine is on the verge of signing a plea agreement that stands for either of two outcomes: (1) his post-acceptance number, prior to an anticipated reward for substantial assistance, will be 121 months; or (2) the relevant number will be 262!  The more than double-down contingency has nothing to do with his federal offense, his personal characteristics, or even an actual assessment of his prior criminality.  Instead, more than 10 pre-5K years of his life turn on whether or not a court's contemplation of note 1 to Section 4B1.2, with an attendant Shepard analysis of the relevant statute and underlying state court file, results in a finding that the client's 2001 conviction for "maintaining a drug trafficking place" in violation of Wisconsin law constitutes a "controlled substance offense" for purposes of career offender status. Comparable to Sykes, reasonable minds may differ as to whether my client should get 10 years or 22 years but contemplation of the meaningful matter should be more principled than it will be.

I wholly agree with this commentary and its justifiable consternation about the impact of criminal history diktats on federal sentencing outcomes.  And, among other important insights, this commentary spotlights that detailed mandatory sentencing systems can often get bogged down pursuing a (false and confusing) form of highly formalized consistency based on the interpretation of opaque legal rules rather than staying focused on producing a (transparent and understandable) form of substantive punishment justice for each individual offender.

Some related recent posts on Sykes:

June 13, 2011 at 02:06 PM | Permalink


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Posted by: another AFPD | Jun 13, 2011 3:08:37 PM

SC'ss 1-2-3 D is looking more appealing all the time.

Posted by: Soronel Haetir | Jun 13, 2011 3:54:46 PM

Because I am a high school grad and cannot understand the utter nonsense of that note and of all the decisions referenced, I am dismissing it as pointless lawyer wind. The law belongs to me, a member of the public. Lawyer gibberish is criminal conversion of my chattel, the law. Not a single word about protecting the public from this maniac client in the garbage lawyer utterance above.

Why not shut out the lawyer from all policy decisions on crime? The lawyer's sole aim in the criminal law is to plant complexity, requiring the services of a lawyer. When complexity gets mislabeled as fairness, lawyer slickness becomes bad faith and theft of government funds. The lawyers on the Supreme Court betrayed the Constitution, a crime, by any judicial review they have done. Their second crime is the suborning of theft of government funds by the members of the cult whose interests they represent.

Anticipating being called insane by cult indoctrination victims, I suggest that intelligent, modern people who believe in mind reading, future forecasting, and standards of conduct set by fictional characters look in the mirror to gaze on delusion and insanity. Why a fictional character? To make the standards of conduct objective, of course. You are all nuts. I have yet to meet any lawyer who questions this Medieval garbage. What a Twilight Zone, waking nightmare for the public, your lawyer profession is.

Also, I am not responsible for allowing 20 million serious crimes a year as the lawyer is fully responsible, including 1000's of murders, and 100,000 people going permanently missing a year. I am not responsible for the huge drop in real estate value caused by crime. The self dealing, cult indoctrinated, totally incompetent, gibberish spouting lawyer is. Yet this lawyer makes 99% of government policy decisions, and there is no peaceful way to exclude him from government.

Posted by: Supremacy Claus | Jun 14, 2011 2:30:23 AM

SH: 123D is not really from me. It is from the crime weary people of California. Had it been allowed, the public of the 1980's would have enacted that form of the Three Strikes law.

Posted by: Supremacy Claus | Jun 14, 2011 6:46:44 AM

Good post, I like it very much! I would like to leave a comment, because it gives more bloggers who participate and the opportunity to perhaps learn from each other.

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