Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


US Supreme Court Update - Part II

In addition to the big Supreme Court case on out-of-guidelines sentencing, which I discussed a couple days back, the Court on Monday handed down two other decisions in the criminal law area.  The less significant was Watson v. US, which involved the somewhat abstruse question of whether someone who trades drugs for a firearm "uses" a firearm within the meaning of 18 USC 924(c)(1)(A), which adds a mandatory minimum five years to the sentence.  A few years back, the Court had determined that someone who trades firearms for drugs does fall within the statute's proscription, but in Watson the Court decides that doesn't work the other way around. 

It's tempting to think that Watson is of no interest to anyone who's not representing a client charged with trading drugs for firearms, but I found it somewhat thought-provoking.  There's a big difference between how having a firearm is penalized under Federal law and how Ohio law treats it.  Federal law requires that the gun be used in the crime, which the Court has interpreted to mean "actively employed."  In fact, merely possessing a gun kept near the scene of drug trafficking doesn't qualify.  It does under Ohio law; I've found cases in which the court upheld a firearm specification where the drugs were found in a house, and the gun was in a car parked outside the house.

That doesn't mean there's anything wrong with Ohio law; we're talking about statutes, not constitutional principles.  Congress has chosen to treat the subject one way, and the state legislature has chosen to treat it a different way.  But a constitutional principle may become involved:  the Supreme Court has accepted appeal on the decision by the DC Circuit that the District's gun-control laws are unconstitutional, and there's a lot of people who believe that the Court's going to declare that the 2nd Amendment guarantees an individual, rather than collective, right to bear arms.  If that happens, that could open up a can of worms with regard to gun offenses.  I can't imagine any construction of the 2nd Amendment which would prohibit the state from penalizing a person for using a gun in a crime, but if gun ownership is a constitutional right, can the state constitutionally penalize mere possession without some "compelling interest" in doing so, such as demonstrating a nexus between the crime and the gun?  Things to ponder...

The Monday decision of more immediate significance was Kimbrough v. US, which I'd discussed here.  Basically, Kimbrough had pled to trafficking in crack cocaine, and the judge had given him the minimum 15-year sentence.  That was based partially on his lack of prior record and his previous service to his country (Kimbrough was a decorated veteran), but primarily on the judge's belief that the penalty for crack, as opposed to powder (it would have taken 100 times as much powder cocaine for Kimbrough to have been subject to the same sentence) was "disproportionate and unjust."  The 4th Circuit had bounced the sentence back, holding that a sentence outside the guidelines is per se unreasonable when it is based upon a disagreement with the sentencing disparity between crack and powder cocaine.

And the Supremes bounced that, holding that it wasn't.  Especially since the US Sentencing Commission itself had determined some time ago that the disparity wasn't achieving the purposes for which it was designed, and had repeatedly recommended that the disparity be reduced.  Congress, of course, had just as repeatedly refused:  there wasn't much point for a Congressman to give a potential opponent a "soft-on-crime" campaign issue.

But the times, they are a'changin'.  The Sentencing Commission had recommended again last summer that the penalties for crack cocaine be reduced by an average of 16 months.  On November 1, those recommendations went into effect, since Congress this time decided not to object to them.  And on Tuesday, the Sentencing Commission announced that the reduction would be applied retroactively.

That doesn't mean everybody who got sentenced under the former law benefits:  as the Commission notes, many crack offenders can't get reductions because of the mandatory minimums -- five and ten years -- for crack offenses.  The Commission has suggested that Congress change the minimums, too, but good luck with that; even prominent Democrats, like Hillary Clinton, oppose that (Clinton opposed retroactivity, too).

Still, in light of the reduction and Kimbrough, it's hard to quibble with the (hopefully) tongue-in-cheek assertion of one commenter on the Volokh Conspiracy blog:  "Man, did I start my crack habit at the right time, or what!"


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech