Supreme Court to Tackle Constitutionality of Residual Clause in Sentencing Guidelines

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.

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Microsoft President Calls for Protecting Privacy as the Cloud Reshapes Lives

You only needed to read the title of the 2016 Nies Lecture in Intellectual Property presented Tuesday at Marquette Law School to know that Brad Smith was offering a generally positive view of the future of technological innovation. “A Cloud for Global Good: The Future of Technology—Issues for Wisconsin and the World” was the title.

Indeed, Smith spoke to the potential for what he called the fourth industrial revolution to improve lives across the world. But he also voiced concerns about the future of privacy and security for personal information in a rapidly changing world, and he called for updating of both American laws and international agreements related to technology to respond to the big changes.

All of this came from a standpoint of unquestionable knowledge of the subject matter. Smith is the president and chief legal officer of Microsoft. The Appleton native has been with the company since 1993 and his duties include overseeing corporate, external, and legal affairs for the global technology giant.

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There Is Real Election Fraud (Just Not What You Think)

stamp_us_1977_3c_americanaI have been working on elections since 2000, when I helped organize a team to defend a potential recount of Wisconsin’s narrow victory for Al Gore (never happened; see Bush v. Gore).  Since 2004, I have trained thousands of attorneys to observe at polling places to ensure every eligible voter is allowed to cast a regular ballot.  That is, and should be, the only goal of our election laws: enfranchisement!

In 2005 I testified before Congress about Wisconsin’s voting laws, the lack of any actual voter fraud, and the many real administrative problems caused by running a national election in one day.  In subsequent years, I helped compile reports of Election Day issues, defended individuals accused of voting irregularities, and was part of the GAB committee to create formal rules for observers.

So, I have some background in election law.

To put it mildly, I was surprised to hear a candidate for President state: “Voter fraud is very, very common.”  Not just common, but VERY, VERY common.

The statement, if meant to suggest rampant fraudulent voting, is categorically false.  Fraudulent conduct by voters is exceedingly rare.  A comprehensive study published in 2014 confirmed 31 cases of in-person voter fraud from 2000 to 2014, out of more than a billion votes.  In stark numerical terms, that is one act of fraud for every 32 million votes.  When defending Wisconsin’s harsh Voter ID law, the State “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.”  Frank v. Walker.  In other words, voter fraud is very, very, very uncommon.

There is, however, an election fraud that has become common in the past decade: the suggestion that voting laws need to be tightened to combat voter fraud.  This is the BIG LIE. It has been used across the country to justify a stunning array of laws designed to make it harder to vote.

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