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University of Miami Race & Social Justice Law Review

Noam Kozlov

Document Type

Article

Abstract

The law needs to be clear. This dictum is true especially with respect to criminal law. Defendants need to be made aware of the statutory and judicial rules surrounding their trial, and sentencing outcome should be foreseeable, even if not predictable. But we have failed. We have failed in granting defendants this sought-after clarity, exposing them to grossly disproportional and disparate sentences. One such failure is found in the Crime of Violence enhancement rules. COV enhancements add years or even decades to sentences of defendants whose previous convictions are classified as 'violent'. Despite this detrimental impact of the COV rules, their disparate application has plagued the justice system for years. Courts have struggled with determining what offenses should be considered 'violent,' creating discrepancies in the punishment of equally situated defendants.

The current contribution sets forth a comprehensive account of these disparities by surveying the treatment of COV enhancements in the Federal Circuits of Appeal. It pinpoints the absurdities created by COV enhancements, where offenses like kidnapping, robbery, rape, and even murder are sometimes excluded from the definition. At the same time, various petty offenses are classified as violent, subjecting defendants to significant sentence enhancements for relatively non-serious crimes. It is then argued that previous commentators failed to grasp the root cause of the problem - the adverse impact of the COV enhancements is not limited to specific types of offenses, nor is it the product of the Supreme Court's often confusing COV jurisprudence. Instead, COV enhancements are in themselves unworkable, and are doomed to failure regardless of the Supreme Court's treatment of them. Finally, it is argued that COV enhancements in their current form should be deemed unconstitutionally vague.

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