Court Wrestles With Vagueness and Retroactivity in Sentencing Context

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Category: Constitutional Interpretation, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
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honore%20daumier%20-%20le%20proveYesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.

With her opening question, Justice Ruth Bader Ginsburg forced Janice Bergmann, representing Beckles, to focus on the third issue in the case: the relationship between the guidelines’ residual clause and the commentary, which specifically listed Beckles’ offense of conviction as a crime of violence. A number of justices took issue with Bergmann’s assertion that the commentary cannot define “shapeless” language, a term taken from Johnson. After all, they noted, the guideline commentary, at least in part, interpreted the residual clause, presumably providing meaning in that manner. They also questioned whether the commission was not in the best position to clarify its own language. Bergmann responded that the guideline language was not the commission’s, but rather was drawn from the ACCA residual clause. Any interpretation and examples offered by the commission, she argued, would therefore be arbitrary.

Justice Samuel Alito was the first to direct the argument to the question of what vagueness would mean in a guideline-free world. Along with Justice Stephen Breyer, Alito reminded Bergmann that pre-guideline sentencing appears substantially more vague and arbitrary than the residual clause, as do many of the current guideline provisions. In response, Bergmann asserted that the guideline residual clause is unique among those provisions because of its identity with the ACCA residual clause, and that it shares the same characteristics embodied in the categorical approach that ultimately caused the court to declare the ACCA provision void for vagueness.

Chief Justice John Roberts and Justice Anthony Kennedy continued along similar lines by pointing to the decrease in vagueness any guideline, even a vague one, would provide as compared to the previous system of discretionary sentencing. Why, they asked, should greater precision lead to greater vagueness? Read more »

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Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

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Category: Criminal Law & Process, Federal Sentencing, Judges & Judicial Process, Public
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galler_hornsgatan_2012aMy recent article, “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” examines judicial decisions that reflect an increasing dissatisfaction with harsh criminal penalties and severe collateral consequences for nonviolent offenders.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

A full copy of the article can be downloaded at the New York University Law Review Online.

Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School.

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Electoral College – Keep or Toss?

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Category: Constitutional Law, Election Law, Political Processes & Rhetoric, President & Executive Branch, Public
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electoral-college-2016By Mathew O’Neill

During the Twilight craze, the country was split between Team Edward and Team Jacob.  The battle was over Bella Swan’s heart.  Edward, a 200-year old vampire, was devastatingly handsome, kind, chivalrous, and his skin sparkled in the sun.  Jacob, a teenage werewolf, was brash, muscular, impulsive and fiercely protective of his tribe and Bella.  Oh, and Edward murdered a few thousand people but felt badly about it, while Jacob only killed vampires but had a bad mullet.  I was decidedly Team Jacob.

After the 2016 election, the country is split about the Electoral College.  There are again two camps: Team Keep and Team Toss.  Before going into the merits of each, some brief background.

As of this writing, Donald Trump won 56% to 44% in the Electoral College (290 to 232), while Hillary Clinton leads in the popular vote count 62,523,844 to 61,201,031.  So, while Trump romped to an 11-point Electoral route, he actually got clobbered by 1,322,813 votes.  What gives?  I thought this was a democracy.

This anomaly is the work of the venerated Electoral College.  The College was created in Article II, Section 1 of the Constitution, which states in part:

The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and representative to which the State may be entitled in Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The 23rd Amendment granted at least three Electors to the District of Columbia, bringing to 538 the total number of current Electors: 435 Representatives, 100 Senators and the D.C. trio.

The Constitution does not direct how the states must “chuse” their Electors.  In colonial times, most states did not call for a popular election to select their Electors.  Instead, party bosses made those decisions.  Eventually the cigar-smoke cleared, and today all states and D.C. hold a general election for President and Vice President, and nearly every state (48 of 50) has chosen to award all of its Electors to the winner of that state’s popular votes.  Thus, because the margins in various states can differ (Clinton won California by 3.5 million votes; Trump won Florida by 20,000 votes), it is possible to win the Electoral College, and thus the keys to the White House and a cool plane, while at the same time lose the overall popular vote.

Which raises the question: is this acceptable? Read more »

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Supreme Court to Tackle Constitutionality of Residual Clause in Sentencing Guidelines

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Category: Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, U.S. Supreme Court
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hardy_they_shall_show_you_the_sentence_of_judgmentIn 2015, in Johnson v. United States, the Supreme Court struck down the “residual clause” of the Armed Career Criminals Act (ACCA) as unconstitutionally vague, ruling that the provision did not give ordinary people adequate notice of what conduct was prohibited by the statute. The residual clause had included among the category of “violent felonies” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Next week, in Beckles v. United States, the court will confront the constitutionality of the sentencing guidelines’ version of the residual clause. This is one of two cases this term that address the effect of Johnson on the vagueness doctrine. (The other case, Lynch v. Dimaya, arises in a statutory context.) Two of the nine justices who joined in the six-justice majority opinion in Johnson, including its author – the late Justice Antonin Scalia – will not participate in this case. Because Justice Elena Kagan is recused, a seven-member court will render a decision.

The U.S. Sentencing Commission, which is responsible for drafting and amending the sentencing guidelines, removed the guideline residual clause earlier this year and supplanted it in part by commentary, which is also at issue here. It did not, however, make the change retroactive. This case brings the question of retroactivity squarely in front of the court, continuing the interplay between the commission and the court. The ostensible issues of vagueness and retroactivity, however, camouflage a broader question about the meaning and function of advisory guidelines.

Notably, the government has changed its position on both retroactivity and vagueness. Although it supported the defendant’s claims in the U.S. Court of Appeals for the 11th Circuit – and those of similarly situated defendants in other circuits – it opposes them now. Adding another dimension to the controversy, the court appointed an amicus, or “friend of the court,” to defend the 11th Circuit’s holding that the vagueness doctrine does not apply to the sentencing guidelines. The decision in this case, therefore, will have broad ramifications for vagueness jurisprudence, the meaning of advisory guidelines, and the respective roles of the commission and the court. Read more »

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The Teachings of Elections Past

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Category: Congress & Congressional Power, Constitutional Law, Election Law, Legal History, Political Processes & Rhetoric, Public
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john_quincy_adams_-_copy_of_1843_philip_haas_daguerreotypePart Five of a Six Part series on Election Law, providing context to our system of government, our election process and a little history to evaluate and consider in the candidate-debate.

In the run-up to Election Day, maps of the United States will be colored in as red or blue. This so-called “electoral map” is the focus of all the debate, particularly for the presidency, with pundits asking what color the “swing states” will shade. Of course, the maps don’t show green, purple, or even different tints of red or blue. There are only two colors, red or blue. So why is that?

Without getting too far in the weeds, as it were, and from a political science view, the shading is based on the “winner-takes-all” principle. One party wins and everyone else loses. When a party loses, that party is without representation. Weaker parties are pressured to join a more dominant party in hopes of gaining a voice. This leads to party-dominance. Voters learn that, because of party dominance, voting for a third party candidate is ineffectual to the result, and hence alignment into a two-party race between winners and losers.

And, in terms of the presidency, by devising a system of “electors” as opposed to popular vote, history teaches us that an indirect electoral-election scheme can lead to odd results.

The elections of 1876, 1888, and 2000 produced an Electoral College winner who did not receive at least a plurality of the nationwide popular vote. What did this mean? It meant that in 2000, Al Gore received 543,895 more popular votes than George Bush, yet lost the election. The same was true for Samuel J. Tilden (New York) losing to Rutherford B. Hayes in 1876 and Grover Cleveland (New York), the incumbent President, losing to Benjamin Harrison (Indiana) in 1888.

There is also tie-breaker history. Per the Twelfth Amendment, a candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency. If no candidate receives a majority of electoral votes in the election, the election is determined by the House of Representatives. The House chooses the President from one of the top three presidential electoral vote-winners. (A run-off vote for Vice President belongs to the Senate.)

As to a run-off presidential vote, this has happened only once since 1804. Read more »

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Ribble Eager to Discuss Issues, Not Presidential Race at Law School Program

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Category: Congress & Congressional Power, Political Processes & Rhetoric, Public, Speakers at Marquette
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It was more than a half hour into an hour-long conversation with Rep. Reid Ribble, a Republican who represents much of northeastern Wisconsin in the US House of Representatives, when Mike Gousha, the host, said he wanted to talk about the presidential election.

“Do we have to?” Ribble replied.

Well, yes. You can’t exactly ignore it these days. But Ribble made it clear that he would much rather talk about issues that are central to the nation’s future, and he would much rather if everybody else did, too.

That’s why the first 25 minutes or so of the “On the Issues with Mike Gousha” program at Marquette Law School on Tuesday focused on Ribble’s proposals for altering Social Security to assure the system functions well for many decades to come. Read more »

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What Happens if Trump Drops Out?

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Category: Constitutional Law, Election Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court
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Donald_Trump_-_CaricatureWhat happens if Donald Trump drops out of the presidential race?  Some Republican politicians have begun to call on Mr. Trump to step down as the Republican nominee for President (he cannot be forced out).  If this happens, the Republican Party would then select a new nominee for President.

It might be conceivable for Donald Trump to voluntarily step down, and for the Republican Party to select an alternative nominee.  However, the real issue is whether the name of the alternative nominee would appear on the ballots of a sufficient number of states to permit an Electoral College victory.  At this late date in the election cycle, the names of presidential candidates on absentee ballots have already been finalized in many states.  In fact, early absentee voting using the final ballots already is underway in Wisconsin and many other states such as California, Ohio and Indiana.  Every day, more state deadlines for placing names on the ballot pass, and it is probably already too late to prevent Donald Trump’s name from appearing as the Republican nominee on a majority of the ballots used by states across the country.  To get state officials to print new ballots and then allow re-voting of ballots already turned in would require 1) litigation in state courts across the country and 2) the willingness of a large number of these state court judges to adopt an unprecedented procedure based upon vague “emergency” arguments.  Such a high stakes multi-state litigation effort would make the combative Bush v. Gore lawsuit look like a law school moot court competition in comparison.   Read more »

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How Many Years Does It Take to Bake a Constitution?

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articles_of_confederation_13c_1977_issueAs the first Tuesday following the first Monday in November approaches — that is, National Election Day — the talking-head debate intensifies over candidates, politics and what is right/wrong with the American system of governance.  There is one missing piece to the debate — context — that is seldom discussed, or understood. Indeed, if the average voter dislikes the candidates and the election process (something I hear a lot), then it’s time to take a step back and look at the big picture question of how we got here. In what I hope will be a six part series, I will attempt to provide context to our system of government, our election process and, hopefully, a little history to evaluate and consider in your next candidate-debate.

Part One – How Many Years Does it Take to Bake A Constitution?

If you polled the average American citizen, asking if they heard of the Declaration of Independence, most would answer yes. The citizen might even know the year and date — July 4, 1776.

But ask the same citizen when the Constitution of the United States was adopted (which technically means when it was “ratified” by the States), and you’ll likely get a blank stare, an “I don’t know”, or a guess — likely July 4, 1776.

The correct answer to that question is: June 21, 1788. Read more »

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My Client Was Accused of Violating the Cuba Trade Embargo (But What Trump Did Was Worse)

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Category: Constitutional Law, Federal Law & Legal System, International Law & Diplomacy, Political Processes & Rhetoric, Public, Uncategorized
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800px-havana_-_cuba_-_1366I received a phone call from Larry Dupuis of the Milwaukee Office of the American Civil Liberties Union in November of 2003.  He described a Wisconsin resident who had contacted the ACLU after receiving a PrePenalty Notice from the Department of Treasury.  In severe language, this form accused this individual of violating the Cuban Assets Control Regulations which were promulgated pursuant to two federal statutes: the Trading With the Enemy Act and the Cuban Democracy Act.  In essence, by sending him this notice, the Treasury Department wanted this individual to admit that he had traveled to Cuba and that while there he had spent money in violation of the Cuba Trade Embargo.  Technically, any financial transaction between a U.S. citizen and a Cuban national was a violation of U.S. law, no matter how small.  If he didn’t respond to the formal Requirement to Furnish Information (RFI), and thereby admit to violating the Cuba Trade Embargo, then he would be fined $10,000.

Larry asked me to consider taking on this individual as a pro bono client, and represent him in administrative proceedings before the Treasury Department.  The case raised some interesting constitutional issues.  There were possible issues relating to a Fifth Amendment right not to be punished for the failure to admit to having spent money in Cuba.  In addition, the Treasury Department regulations seemed to provide that the only way to dispute the RFI was to do so in person in front of an administrative law judge in Washington, D.C., an expensive proposition that raised due process concerns.  The ACLU was hoping to find a “test case” that would challenge the Treasury Regulations on constitutional grounds.  I agreed to take the case.

Soon after, I met with my client, a retiree on a fixed income.  He was a soft-spoken man, who had gone to Cuba in 1998 on a trip with a church group.  While there, he had spent a few days with his fellow church members bicycling around the island and meeting locals.  This was a goodwill trip, intended to foster greater understanding between the people of Cuba and the people of the United States.  Several years after his return, he received the RFI from Treasury Department alleging that while in Cuba he had spent money that went to Cuban nationals, in violation of the Cuba Trade Embargo, and demanding that he provide further information about the monies spent or else pay a fine. Read more »

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Obama Clemency Grants Pick Up Steam

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Marquette Law School, President & Executive Branch, Prisoner Rights, Public, Race & Law
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Somewhat lost amidst the wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined. The August 30 grants, however, had special significance for me and a small group of recent Marquette Law School graduates.

Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Reinforcing the negative perceptions, President Bill Clinton’s pardon of financier Marc Rich and President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby seemed to confirm that clemency was mostly used to benefit wealthy, powerful defendants.

The Obama Administration, however, envisioned a very different way to use clemency.   Read more »

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Time is Running Out to Confirm Judge Garland

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Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Political Processes & Rhetoric, Public, U.S. Supreme Court
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Merrick_Garland_speaks_at_his_Supreme_Court_nomination_with_President_ObamaThe unprecedented, and unconstitutional, obstruction of Supreme Court nominee Judge Merrick Garland is just one of many recent missteps by Republican leaders.  For example, mainstream Republican presidential candidates strategically withheld their attacks on Donald Trump during the primary season, in the hopes that he would be an easy target to topple once the field sorted out.  This was a major blunder.  More broadly, the decision of Republican leaders in Congress to make the repeal of the Affordable Care Act the centerpiece of their legislative agenda, at a time when Republicans lacked a veto-proof majority, was an empty gesture which merely fueled anger among their Party’s base and ultimately made Trump possible. Both of these decisions were political calculations that seemed clever at the time, but which turned out to have disastrous consequences for the Republican Party.   However, the unjustified refusal to hold hearings on a highly-regarded and moderate Supreme Court nominee has the potential to dwarf every other political miscalculation that Republican leaders have made over the last eight years.

First of all, it is important to recognize that Judge Merrick Garland is a laudable nominee for the U.S. Supreme Court.  He is a former federal prosecutor, a highly respected Judge on the U.S. Court of Appeals for the District of Columbia, and someone identified by Senator Orrin Hatch and other prominent Republicans (prior to his nomination) as the type of judge who would receive bi-partisan support in Congress.  Post-nomination arguments raised about Judge Garland’s supposed lack of respect for the Second Amendment are not justified by his actual opinions and, in reality, are merely a fig leaf contrived to rationalize opposition to the nomination by Republican lawmakers.

In addition, the refusal of the Senate to take up the nomination is a clear violation of the Constitution. Read more »

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Insights Offered on Working in the White House and Judicial Nomination Gridlock

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It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea. Read more »

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