Transitional Justice, Anti-Democratic Riots, and Private Responses

LESLEY WEXLER, COLLEEN MURPHY

In light of the events of January 6, Illinois law professors Lesley M. Wexler and Colleen Murphy identify some preliminary questions raised by private actors sanctioning other private actors for the latter’s potentially criminal activities at the Capitol. In particular, Professors Wexler and Murphy explain why the event gives rise to transitional justice concerns, and through the transitional justice lens, they assess the advantages and disadvantages of private action in this context.

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Hawley’s Excuse for a Coup: Dangerous Nonsense in Search of a Legal Fig Leaf

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan challenges Senator Josh Hawley’s proffered reason that the Senate should have heard challenges to the counting of electoral votes. Professor Buchanan argues that, no matter how he tries to justify his approach, he was willing to violate the U.S. Constitution to overthrow the duly elected incoming President and to further his own cynical plans to run for President in a future election.

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Williams v. United States

Docket: 19-10308

Opinion Date: January 13, 2021

Judge: Brasher

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 1998, Williams was convicted of robbing a bank while carrying a firearm. The Armed Career Criminals Act (ACCA) sentencing enhancement, 18 U.S.C. 924(e)(1), applies to defendants who committed three previous “violent” felonies. Williams had convictions for first-degree robbery, armed robbery, and federal kidnapping, 18 U.S.C. 1201(a)(1). The federal kidnapping PSR recounted that Williams “accosted” a man in Kentucky, threatened him with a revolver, and demanded a ride to Tennessee. In Knoxville, the victim leaped from the car and signaled a police officer. The federal statute provides that a person commits a federal kidnapping when he “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away" a victim. The court never addressed why his previous felonies counted as violent but sentenced Williams to 327 months’ imprisonment, with a consecutive 60 months for carrying a firearm during and in relation to a crime of violence. Williams obtained leave to file his third 28 U.S.C. 2255 motion and disputed the classification of his kidnapping conviction as a “violent felony” under ACCA's “residual clause,” which the Supreme Court found unconstitutional in 2015. The Eleventh Circuit affirmed the denial of relief, finding it unclear whether the sentencing judge applied ACCA’s residual clause or the elements clause. Williams did not establish that the sentencing court committed a retroactive constitutional error. It is not enough that the court might have committed a statutory error by applying the elements clause in a case that did not warrant it; that error would not be retroactive on collateral review. Requiring Williams to provide “clear precedent showing that the court could only have used one clause” is not arbitrary.