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The Prior Problem

Only one actual criminal law opinion issued from the US Supreme Court today, a minor federal sentencing case.

McNeill v. United States, No. 10-5258, decided today, dealt with the continuing problem of categorizing prior convictions for recidivist sentencing.  The three strikes provision of the Armed Career Criminal Act imposes tougher penalties on convicted felons if they have three priors for a violent felony or a "serious drug offense."  Sounds fine, but where do you draw the line on "serious"?  Congress drew it, for state priors, by the maximum penalty the state has chosen to impose for that crime.  If you can get 10 years for it, it's serious.  See 18 U.S.C. ยง924(e)(2)(A)(ii).

What if the state changes its mind and lowers the penalty between the time of the prior and the time the defendant is sentenced for the federal firearms offense?  Tough beans, said a unanimous Supreme Court.  No big surprise.  In similar cases, the Court has looked to the law in effect at the time of the prior offense without regard to subsequent changes.  See page 5 of the slip opinion.

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