A Win for Judicial Sentencing Discretion in Armed Robbery Cases; Additional Reform Still Needed

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Law & Legal System, Federal Sentencing, Public, U.S. Supreme Court
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A photo of the Supreme CourtEarlier this month, in Dean v. United States, the Supreme Court ruled that federal sentencing judges retain some discretion to soften the notoriously draconian sentencing scheme of 18 U.S.C. §924(c). The statute establishes a mandatory prison term when a defendant uses or possesses a firearm in connection with a violent or drug trafficking crime. Unlike most minimums, though, this one must be imposed to run consecutively with any other sentences imposed at the same time. Thus, for instance, a defendant convicted of both a robbery and possession of a firearm during the robbery must get at least five years on top of whatever sentence is ordered for the robbery.

But what if a judge—in light of all of the facts of the case and the circumstances of the defendant—decides that five years is a sufficient punishment for the crime? Could the judge impose a sentence of just one day on the robbery count, so that the total sentence does not exceed what is necessary? In other words, in sentencing for the robbery count, can the judge take into consideration what she will have to impose for the §924(c) count?

Yes, said the Supreme Court in Dean.   Read more »




Supreme Court Permits Some Light Into the Black Box of Jury Deliberations

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Public, Race & Law, U.S. Supreme Court
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A photo of the Supreme CourtJury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.

Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.

Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails.  Read more »




More Doubts About the Court’s Resolution of the John Doe Investigation

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Category: Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme Court
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Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in  Independence Institute v. Federal Election Commission.  By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election.  In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.

However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.”  The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent.  “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.

The Independence Institute is a nonprofit organization.  It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election).  The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy.  As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.”  The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.

If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85).  Read more »




Ninth Circuit Rules 3-0 Against Trump Administration: Analysis and Explanation

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Category: Constitutional Law, Immigration Law, President & Executive Branch, Public, Religion & Law
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Tonight, the Ninth Circuit issued an unanimous ruling in State of Washington v. Trump rejecting the Trump Administration’s motion for an emergency stay of the District Court’s temporary injunction.  That order by the District Court had the effect of halting enforcement of the President’s January 27 Executive Order suspending entry of aliens from seven specified countries into the United States.  In prior posts here and here, I argued that the January 27 Executive Order violated statutory provisions such as the 1980 Refugee Act and also that the Order violated the United States Constitution by discriminating on the basis of religion in the entry of immigrants and non-immigrants.

Tonight’s ruling by the Ninth Circuit is necessarily limited by the procedural posture of the case.  The court states at the outset:

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.  (opinion at p. 3)

Despite this procedural posture, the opinion issued by the court goes out of its way to make several strong statements of law.  First, the court firmly rejects the assertion of the Trump Administration that “the district court lacked authority to enjoin enforcement of the Executive Order because the President has ‘unreviewable authority to suspend the admission of any class of aliens.’ ” (opinion at p. 13). Read more »




President Trump’s Executive Order is Still Unlawful

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Category: Constitutional Law, Federal Law & Legal System, Human Rights, Immigration Law, President & Executive Branch, Public, Religion & Law
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Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.”  The rollout of the Executive Order has been confused, and its implementation uneven.  Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries.  Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.

The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries.  Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country.  For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.

Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)).  This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries.  Section 212(f) says:

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (emphasis added)

By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens.  However, the Trump Administration has gone further.  The Trump Administration is turning aliens away from the border and returning them from whence they came. Read more »




A Trifecta of Illegitimacy

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Category: Federal Law & Legal System, Human Rights, Immigration Law, President & Executive Branch, Public, Religion & Law
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Let’s review a few basics about the Rule of Law in the United States of America.  First of all, the Executive Branch (in the form of the President) is given the power to enforce federal law by our United States Constitution.  In contrast, the Legislative Branch (in the form of the Congress) is given the power to make the law.  So, for example, if the Legislative Branch has passed a statute that grants all refugees seeking political asylum the absolute right to file such a claim when they reach our nation’s borders (which it has, in the Refugee Act of 1980), then the President cannot simply declare that right to be “suspended” and instruct officers with the Customs and Border Protection office to turn such refugees away when they arrive at U.S. airports or other ports of entry.

As a side note, none of the Executive Orders or Presidential Directives issued by President Obama relating to the enforcement of the immigration laws directly contravened explicit language contained in a statute passed by Congress.  The legal debate over the unilateral actions taken by President Obama concerned the scope of the President’s discretion to choose how to enforce the law and how to prioritize deportations.  They did not concern whether the President had the authority to order government officials to ignore explicit commands contained in the law.  The Order by President Trump to “suspend” the entry of refugees from specified countries without complying with the provisions required under the Refugee Act of 1980 is in direct conflict with an Act of Congress.

Second, the United States has signed treaties that obligate us to treat persons who are “refugees” in certain ways. Read more »




The Uncertain Future of Title VII LGBTQ Rights

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Category: Civil Rights, Federal Law & Legal System, Public
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Under Title VII of the Civil Rights Act of 1964 (Title VII), employers may not discriminate against individuals based on their gender.  Whether Title VII protections extend to sexual orientation and gender identity is less clear.  Numerous federal courts have taken the position that sexual orientation and gender identity are not covered and it is up to the legislature to amend Title VII to explicitly provide protection from or redress for discrimination on these bases. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000).

The Equal Employment Opportunity Commission (EEOC) has been critical of the federal courts’ position.  Beginning in 2013, the EEOC issued a number of decisions finding that gender identity and sexual orientation discrimination were forms of “sex discrimination.” In the recent past, the EEOC has been the driving force behind seeking protection for employees from discrimination based on their sexual orientation and gender identity.  For this reason, many people expressed concern that the Department of Labor (DOL) took down the EEOC’s “Advancing LGBT Workplace Rights” document from their website the day President Donald Trump was elected.   Activists worry that the EEOC will not continue to advance LGBTQ protections under the new administration.  It is unlikely that Congress will advance any express protections based on gender identity or sexual orientation.

Reprieve may come from the courts. Read more »




A New Era: The Rule of Law in the Trump Administration

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Category: Civil Rights, Constitutional Law, Federal Law & Legal System, Federalism, First Amendment, Human Rights, Immigration Law, Labor & Employment Law, Legal History, Political Processes & Rhetoric, Public, Race & Law
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Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Read more »




U.S. Prison Population Continues Slow Decline; Wisconsin’s Inches Up

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Public, Wisconsin Criminal Law & Process
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Ringing in the new year, the U.S. Bureau of Justice Statistics recently released its data on prisoners in the United States in 2015. After rising consistently for about four decades, the U.S. prison population (state and federal combined) peaked at a little over 1.6 million in 2009. Since then, the population has declined steadily, but very slowly. For 2015, the total was a little over 1.5 million, or about 35,000 less than 2014. The continued reductions are encouraging, but must be kept in perspective: the population remains many times above its historic norms. The current rate of 458 prisoners per 100,000 U.S. residents is over four times greater than the long-term rate of about 100 per 100,000 from before the imprisonment boom. We are still very much in the era of mass incarceration.

The Wisconsin numbers continue to be lower than the national norms, but are moving in the opposite direction. At yearend 2015, Wisconsin’s prison population numbered 22,975, up 1.7 percent from 2014. This amounts to 377 prisoners per 100,000. By comparison, Minnesota’s rate was just 196 per 100,000.

Here are a few additional observations:   Read more »




Big Dreams and Hidden Harms

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Category: Federal Law & Legal System, Immigration Law, Political Processes & Rhetoric, Public
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One of the first choices that the Trump Administration will face after the upcoming inauguration is what to do about the “Dreamers.”  The name Dreamer has been used both to refer specifically to the young adults currently participating in the Deferred Action Childhood Arrival program (DACA) and, more generally, to any undocumented residents of the United States who were brought to this country by their parents when they were minors.

It is not difficult to be sympathetic to the plight of the Dreamers.  As undocumented residents of the United States, they were subject to immediate deportation under the law as it existed prior to 2012.  However, these longtime residents of the United States often had little memory of their birth country and may not have spoken any language other than English.  They grew up in the United States, and attended U.S. schools, and as a result they share the same hopes and dreams of any native born young adult.  Moreover, they were not morally complicit in their parents’ decision to enter the United States.  Prior to 2012, approximately 2 million people essentially found themselves trapped in a form of limbo – feeling American, unconnected to any foreign country, and yet unable to work lawfully in the United States or to plan for their future.

Legislation was first introduced in Congress in 2001 to resolve this situation and to permit these persons to obtain legal residence in the United States.  Titled the Development Relief and Education of Alien Minors Act (or DREAM Act), this first bill and similar versions introduced in subsequent years were designed to create a 6-year pathway to permanent legal residency.  To be eligible under the DREAM Act, a young adult had to have been brought to the United States at a young age, was required to be a college graduate or a military veteran (or be currently enrolled or enlisted), and could not have a criminal record.  The DREAM Act and its successor bills boasted bipartisan support but never passed both houses of Congress, either as a standalone bill or as a component part of a comprehensive immigration reform package.

Frustrated by congressional inaction, President Obama chose to extend relief to the Dreamers in the form of a Presidential Directive. Read more »




That Extra Incentive

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Category: Business Regulation, Federal Civil Litigation, Health Care, Labor & Employment Law, Public
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Most of us are familiar with wellness programs—programs sponsored by our employer or health plan that try to incentivize us to eat healthier, sleep well, and get more exercise.  If you’re anything like me, it helps to have that extra push or incentive, especially around the holidays when sweets abound, to stay on track—or at least, to not stray too far from health goals. Most of these programs have the added advantage of lowering health care costs, both by providing financial incentives to reduce immediate costs to the individual employees and by boosting the overall health of the employees as a whole, which could reduce future health care costs.   However, extensive technical regulations and recent litigation by the AARP make implementing health and wellness programs increasingly tricky for employers.

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and the regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) thereunder, generally prohibit “an employer [from] request[ing], require[ing], or purchas[ing] genetic information [which includes an individual’s family medical history] with respect to an employee or a family member of the employee.”  42 U.S.C. § 2000ff–1(b). However, there is an exception for wellness programs, as long as employers jump through a set of hoops. 29 CFR § 1635.8(b)(2).  While not without its own problems and excesses, the exception in the EEOC regulations at least allows employers to provide incentives to those employees willing to participate in employer-sponsored wellness programs.

The AARP doesn’t like this whole “incentive” idea to begin with. It recently filed a lawsuit against the EEOC in an attempt to vacate the regulations entirely.  AARP v. U.S. Equal Employment Opportunity Commission, No. 1:16-cv-02113 (D. D.C. 2016) (hereafter the “AARP Complaint”).  This actually might not be a bad idea, except for the fact that the AARP thinks that the regulations do not have enough hoops.  In fact, the AARP would prefer that the regulations abolish any permission for any incentives or penalties to induce participation in employer-sponsored wellness programs. The AARP alleges in its complaint that all employer incentives or penalties to induce participation in employer-sponsored wellness programs violate Title I of the ADA and Title II of GINA.  AARP Complaint at 3Read more »




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 »