Crime and Excessive Punishment: How the Courts Accelerate the Race to Recidivism

Authors

Rachel Kunjummen Paulose, University of St. Thomas School of Law

First Page

831

Abstract

Congress wants citizens to believe that it is very tough on crime. In federal statutes, as well as in the United States Sentencing Guidelines, authorities have imposed heightened penalties on criminals whose history demonstrates violence, a propensity for aggravated conduct involving guns and drugs, or a repetitive disregard for the law.

Who is an armed career criminal? What is an aggravated felony? Who is a career offender? Congress cannot be bothered with the details, but it assures an anxious public that it will lock up all these bad guys and throw away the key. Words matter in the law. By failing to define recidivist terms, Congress has allowed the courts to finish the job, badly. The Supreme Court tried to remedy congressional sloppiness by creating a “categorical approach” for analyzing past predicate crimes in Taylor v. United States. However, the Court’s legislative drafting has subjected countless defendants to a constitutionally infirm process by forcing courts to wade into the details of ancient convictions.

In the years since Taylor, the federal courts have adopted varying approaches when applying the categorical approach in considering past crimes. One contested category of qualifying offenses involves inchoate crimes and secondary liability in a situation wherein a defendant took steps toward (by, e.g., aiding, attempting, or conspiring) an otherwise qualifying felony.

No legal scholar has yet written about the Taylor secondary and inchoate liability landmine in the context of recidivist regimes. This Article undertakes that analysis to consider how secondary and inchoate liability change the meaning of crimes that directly impact who will be convicted and sentenced under federal recidivism statutes and sentencing protocols.

Recommended Citation

Rachel K. Paulose, Crime and Excessive Punishment: How the Courts Accelerate the Race to Recidivism, 26 Lewis & Clark L. Rev. 831 (2022).
Available at: https://lawcommons.lclark.edu/lclr/vol26/iss3/5