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September 15, 2014

Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells

I am pleased to see that by LawProf Richard M. Re  now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here).  Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells.  I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.

Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note.  As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.”  The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency.  First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about.  A robust clemency tradition would bring those factors to light.  Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Prior related posts on Young case:

September 15, 2014 at 02:46 PM | Permalink


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I think you have very ably demonstrated, through a number of recents posts, the poor quality of judges at every level of the US justice system and the lack of leadership and proper oversight by the executive authorities. I hope this administration or the next begins to tackle this lamentable situation. Of course, this is a generalization, but when it comes to judges in the most senior of positions, this state of affairs can only lead to a serious loss of faith in the judicial system.

Posted by: peter | Sep 16, 2014 9:30:52 AM

Well, the problem here is that the criminal law mixes apples and oranges. Risk is about probability. The nature of prior crimes is one kind of evidence indicating risk. Others include current age. time since the last crime and so on. Possessing a few shotgun shells and the possible possession of stollen tools does not tell us enough to make a definitive risk determination.

Beyond that, how can anyone make a reasonable prediction about the dangerousness of someone in five years, let alone fifteen?

I would suggest that the court enroll in a graduate level course on social statistics. A finding of guilt and the determination of a person's level of risk are two entirely different questions.

Posted by: Tom McGee | Sep 16, 2014 1:36:57 PM

This is a due process case. Constituting a risk is not a criminal offense.

Posted by: Tom McGee | Sep 16, 2014 6:17:32 PM

We do not punish people because they are dangerous; we incapacitate them in proportion to their risk.

We punish people to underwrite certain social norms; e.g., domestic tranquility, justice and civility.

Often we use deprivations that both incapacitate and punish at the same time. Sentencing is a far more complex task then just shipping offenders off to prison for a set period of time.

Posted by: Tom McGee | Sep 17, 2014 5:12:06 AM

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