Still more on Boyd

I am still gaining wisdom from thinking and talking with others about Judge Posner’s work for the Seventh Circuit in Boyd (my prior rants here and here).  And the folks at The Volokh Conspiracy provide still more food for thought with posts by Jonathan Alter and Orin Kerr.  In part because Orin partially defends Boyd, I wanted to clarify a few points and also spotlight some of the VC comments.

First, it seems that Orin reads Boyd to indicate that “a federal district court determined beyond a reasonable doubt [that defendant Artemus Boyd] violated state law.”  My reading is that the district court only applied a preponderance standard (if that), and the many factual “gaps” stressed by Judge Posner in Boyd suggests that the facts probably weren’t sufficient under either fact-finding standard.  Relatedly, I am not at all concerned about federal courts conducting traditional jury trials with standard procedures for state-defined crime (Orin rightly notes this has been held constitutionally permissible).  Rather, what rankles me is when, as in Boyd, federal judges at sentencing use cursory conclusions about possible state crimes to justify an increased federal sentence.

Second, the comments to Orin’s post thoughtfully develop other apparent problems with Judge Posner’s work in Boyd.  Marty Lederman notes that “Posner has eliminated one of the elements of the Indiana crime” in the course of affirming the sentence of Artemus Boyd.  Moreover, though some provide doctrinal cover for what Judge Posner is doing in Boyd, I found this comment captured the common-sense basis for my prior rants about Boyd:

Not a lawyer. “If you want a decision, go to court. If you want justice, go to church.” is becoming truer and truer. Sentenced because of a crime he was not tried for, is that correct? [snort]  Was bound to happen, and, I suspect, will be common practice.  After all, we’re all guilty of something.

I cannot fix this system, very few of you lawyers seem to think that there is even a problem, and so I think that things will get a good deal worse before they get better.  Once the lawyers start being convicted for the crimes of their clients, maybe.