In Madison Lecture, Judge Jane Kelly argues for reexamining how prior convictions affect federal criminal sentencing

Judge Jane Kelly of the US Court of Appeals for the Eighth Circuit represented hundreds of clients during her nearly two decades as a federal public defender, witnessing firsthand the effects of federal recidivism statutes and sentencing guidelines on defendants with prior convictions. That experience informed the 53rd James Madison Lecture, “The Power of the Prior Conviction,” which Kelly delivered to a virtual audience on November 3.

In her lecture, Kelly provided a historical perspective on recidivist statutes, which date back to colonial times, before examining how prior convictions figure into federal criminal sentencing in practice. She reviewed common criticisms of the current framework, and suggested how to think about potential improvements.

Watch video of the James Madison Lecture:

Selected remarks by Judge Jane Kelly:

“A prior robbery conviction counts as one violent felony whether the defendant peeled a victim’s fingers back to take a few dollars from an arcade counter, or instead pointed a gun at a victim’s head, or worse, fired a shot at someone in the course of that robbery. A qualifying assault conviction might as well be a conviction for murder, as both offenses count the same way as a single violent felony…. Conversely, if a person was originally charged with a violent crime but was able to negotiate for a plea to something significantly less serious, the resulting conviction may not be one that would count to increase a sentence under either recidivist statute.” (video 21:12)

“Our singular focus on the elements of the offense and the straightforward fact of the prior conviction has other consequences that go beyond the criticisms. Our current approach makes no room for the countless factors that may contribute to a person being convicted of a criminal offense. And if we ignore that, we risk operating a criminal justice system that fails to recognize the realities of how our society operates in fact. Research tells us there are significant racial and socioeconomic biases and inequities, which manifest themselves as early as preschool, that correlate to an increased likelihood of involvement in the criminal justice system. My concern is that when we rely so heavily on a prior conviction at sentencing, those same biases and inequities make their way into and become a part of the current sentencing structure.” (video 53:58)

Posted December 21, 2021