Parking Garage Quietly Marks the 225th Anniversary of the Northwest Ordinance

This post is authored by J. Gordon Hylton and Jane Casper.

July 13, 2012 marked the 225th anniversary of the signing of the Northwest Ordinance.

As some users of the Eckstein Hall Parking Garage know, excerpts from the text of the 1787 Northwest Ordinance are transposed on the walls of the Tory Hill/Clybourn Street floor of the garage and on the elevator doors on the same level. (The Magna Charta excerpts are on the walls of the underground garage’s other level.)

The Northwest Ordinance was one of the first landmarks of constitutional government in the United States. It “organized” the Northwest Territory, the first United States territory, and it set down a series of guidelines that would dramatically affect the development of the “western” United States.

The Northwest Territory included the present day states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota, and its passage was made possible by the willingness of eastern states, particularly Virginia, to cede their western land claims to the national government.

The Ordinance dictated that new states would be created from the Territory when the population warranted; it abolished African-American slavery in the region during the territorial stage; it propagated the first bill of rights issued by the United States government; it committed the policy of the United States to the support of public schools (and religion generally); and it established the “gridded township” system of development advocated by Thomas Jefferson that defines to political organization of states like Wisconsin to this very day.

At the same time the Congress was enacting the Northwest Ordinance in New York City, our so-called “Founding Fathers” were meeting in Philadelphia and were in the process of drafting the Constitution that would replace the Articles of Confederation. That the Northwest Ordinance was unaffected by the ratification of the new Constitution was confirmed on August 7, 1789, when new President George Washington signed into law a re-enacted Northwest Ordinance (which contained only minor alterations).

Plans are in the works for a festive event in the summer of 2014 to celebrate the 225th anniversary of the signing of the re-enacted Ordinance.

 

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Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining.  More specifically, in Lafler v. Cooper, the Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant.  Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time.  In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years.  Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970′s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976).  The comparison is not meant as a compliment.  

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Dorsey v. United States: So Long, Saving Statute?

Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010.  The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986.  There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime.  However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it.  Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty.  However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication.  Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent.  By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.

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