SCOTUS Okays Piling on Mandatory Minimums — In the Name of Proportionality?

Yesterday, the Supreme Court held in Abbott v. United States that the five-year mandatory minimum prescribed by 18 U.S.C. § 924(c) must be imposed consecutively to other mandatory minimums imposed pursuant to other statutes.  The 924(c) mandatory minimum targets defendants who have used, carried, or possessed a firearm in connection with a crime of violence or a drug trafficking crime.

The defendants in Abbott illustrate how the same conduct that triggers 924(c) can also trigger other mandatory minimums.  

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Criminal Court: Guilty by the Preponderance of the Evidence?

One of our fundamental beliefs is that before a jury may convict a person of a crime, it must be satisfied of guilt beyond a reasonable doubt.  However, upon even minimal scrutiny, this belief starts to crumble.  For example, Wisconsin criminal jury instruction number 140 concludes with the following two sentences: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt.  You are to search for the truth.”

This instruction is problematic for several reasons.  First, it invites — in fact, instructs — the jury to disregard the evidence and instead speculate on, or “search for,” what it believes to be “the truth.”  This capitalizes on the human tendency to think we can know things without evidence.  How often have you heard someone say, for example, “I know it, I just can’t prove it”?  The jury instruction only emboldens that kind of sloppy thinking, and at the worst possible time with much at stake.

Second, this concept of truth-seeking is actually misplaced.

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Reform?

On November 7, 2010, Senator-elect Ron Johnson was a guest on “Up Front with Mike Gousha.” He made a comment that hit the heart of an issue I have often pondered. This past summer, I had the opportunity to clerk for a law firm that handles primarily medical malpractice actions. So, this conversation sparked my interest.

Mr. Johnson referred to “Tort Reform” and the frivolous lawsuits against medical professionals.  He said that an estimated $2-3 billion dollars was spent on frivolous suits that have forced doctors to practice “defensive medicine” in Wisconsin.  Whether accurate or not that number has raised eyebrows.

The healthcare crisis facing our nation seems to be the driving forces behind the particular interest in frivolous (or at the least possibly frivolous) medical malpractice actions.

 What is tort reform? Generally, tort reform seeks to limit the costs associated with medical malpractice claims by adopting statutory or other regulatory law to limit civil liability.

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