Why There Are Lawyers: "Custody" vs. "Confinement"

More language fun, this time from the 7th Circuit.

It is fundamental that to be eligible for habeas relief, one must be "in custody." After all, a habeas petition is a request that one's jailer produce one's body (the corpus part) before the court (instead of the king now) and justify the detention. It is also fundamental that "custody" includes parole or probation.

For the purposes of Federal Rule of Evidence 609(b) and the 10-year limit (absent extreme justification) on the use of prior convictions to impeach, however, it works a little differently. The 10-year limit runs from "the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date . . . ."

The 7th says (in a circuit first-impression case) that once released on probation, one has been released from confinement for Rule 609(b) purposes. But while on probation, for habeas purposes, as I said above one is still "in custody."

I guess it's the difference between Tyson's chickens and the free-range variety.

United States v. Rogers, Case No. 06-6730 (7th Cir. 9/4/08)

Quote of the Day: About Suicide Clauses in Insurance Contracts

"[A]n insured is not 'performing' a life insurance contract by not committing suicide." Dean Officer v. Chase Ins., Case No. 07-2826 (7th Cir. 9/3/08) (Judge Tinder), slip op. at 12.

Frivolous Sentencing Appeals in the 7th: Maybe It Just Depends on the Panel

Sentencing Law & Policy's own Doug B. is getting a little aggravated with our very own 7th Circuit. See this post from Doug about Judge Posner's complaint that reasonableness review of sentences within the Guidelines are frivolous. The complaints--both Judge Posner's and Doug's--caught my interest, because of United States v. Wasz, a 7th Circuit sentencing case from June about a mother and son theft ring.

It's a great story, set out in fine detail. But the mother got a sentence at the low end of the Guidelines; the son got a below-Guideline sentence despite his greater criminal history. And they were up there arguing about two levels plus or minus, depending on how the loss was calculated. And their method of calculating the loss makes no sense: cost to the victims, who were large retail chains like Home Depot. (The Waszes later sold the stuff on eBay.)

Now perhaps the discussion of how to value the loss was instructive. But I thought this a legitimate candidate for a frivolous appeal. I guess if Judge Posner had been on the Wasz panel, the appeal might not have been a mere candidate.

"Wasz," by the way, in Polish (and in Russian) means "your" (plural). The "Yours" might more appropriately have been named the "Ours." Just a switch of a letter: "Nasz."