Monthly Archives: November 2011

Prison Time for Acquitted Conduct Remains a Reality in America

Will Turner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

After delivering Alabama’s Albritton lecture on November 16,[1] former U.S. Supreme Court Justice John Paul Stevens was asked by an audience member to recall an opinion he had written of which he remained especially proud. Without hesitation, Justice Stevens referred to his dissent in United States v. Watts, where he had disagreed with the majority’s holding that federal courts may consider acquitted conduct when determining prison sentences under the Federal Sentencing Guidelines. Although the Guidelines have since been made advisory, they remain the rubric by which virtually all federal sentences are determined, and federal district judges continue to enhance sentences based on conduct never proven beyond a reasonable doubt.

This past summer, I had the opportunity to intern at the Federal Defender’s office in Montgomery, where I witnessed Sentencing Hearings for the first time. Families of defendants were often stunned at the degree to which Sentencing Hearings “looked like trials,” and how prison time could be enhanced based merely on whether the sentencing judge found that some alleged (often uncharged) conduct had probably occurred.

Unfortunately, the perception is accurate. After a defendant has been convicted of a crime in federal court, the sentencing judge may take into account a myriad of alleged acts unrelated to the charge on which the conviction was applied. The standard for finding guilt for sentencing purposes is preponderance of the evidence, and after taking evidence and arguments from the prosecution and defense, a single district judge issues a final decision as to guilt, as well as the conditions and length of the sentence imposed. The hearings usually concern conduct for which the U.S. Attorney could not acquire enough evidence to convict beyond a reasonable doubt, and in my limited experience, the evidence presented mostly included “he said, she said” testimony, with judges, more often than not, believing the person not wearing shackles. In Watts, Justice Stevens fought a losing battle, arguing that the proof beyond a reasonable doubt standard was the traditional norm enshrined in the Court’s constitutional jurisprudence, and as such, should be read into the sentencing guidelines.

Regardless of the constitutionality of modern sentencing standards, enhancing prison time for conduct not proven beyond a reasonable doubt is bad policy. While it is relatively easy to make philosophical or moral arguments against such a policy, perhaps the most obvious argument against it is considerably simpler. Money.

The official estimated cost of housing one federal prisoner for one month is just under $2,000.[2] That estimate, however, is from 2001, and current levels are almost certainly higher. In 2006, over $68 billion was spent on corrections in the United States, and the overall prison population is now close to 2.3 million.[3] That population continues to grow exponentially and represents the highest per capita prison population in the world.[4] More than one of every hundred American adults is incarcerated.

Perhaps even more strikingly, only 7.9 % of federal prisoners are sentenced on convictions of violent crimes.[5] This particular statistic is confirmed anecdotally by my own experience. Last summer, virtually every probation report that I looked at noted that there were “no identifiable victims” of the crime at issue. The convictions in the reports I saw often involved unlawful possession of narcotics or firearms; less often did they involve material harm to a human being.

A major cause of the extraordinarily high rate of incarceration in the United States has been traced to the length of prison sentences, and sentence length comes directly from the Federal Sentencing Guidelines. Aside from the fact that sentences in the United States tend to exceed sentences in other nations for the same or similar offenses, enhancements based on acquitted or unprosecuted conduct add even more time to already to severe sentences.

Adding to the already burdensome inclusivity of the Federal Sentencing Guidelines is the Armed Career Criminal Act (ACCA), by which federal prisoners convicted of three past “violent felonies” or “serious drug crimes” are automatically sentenced to a minimum of fifteen years. Speaking at Alabama in 2010, Chief Justice John Roberts openly criticized mandatory minimum sentences such as the ACCA as being bad policy.

Yet despite recognition of the problems inherent to the system, it remains largely intact. At least one source of the problem is the broad appeal that “tough-on-crime” political platforms convey, and legislators at the state and federal level continue to be successful running on such a message. It would be unheard of to run a “soft-on-crime” campaign, even knowing the financial benefits that a softer on sentencing policy would entail.

Although politicization of the issue may make the prospect for reform weak, at least some precedent exists to allow for change outside of legislative action. In 2005, the Supreme Court held in United States v. Booker that judges would no longer be required to sentence within the sentencing guidelines. Now, judges may make either upward or downward “variances” outside of the guidelines. This has opened the door to allow judges to consider character evidence, the overall impact that lengthy sentences have, and to make a downward departure from the guidelines without having to have a codified reason for doing so.

Booker also held that the original calculation of the maximum possible sentence must be based on facts either found by a jury beyond a reasonable doubt or admitted by the defendant. Effectively, this aspect of the holding caps the effect that acquitted conduct can have on a sentence by requiring that the maximum possible sentence corresponds to the convicted conduct.

Also, since the passage of the ACCA, the Supreme Court has had to clarify on several occasions whether particular state offenses qualified as “violent felonies” or “serious drug crimes,” and on many occasions the Court has held that crimes held by lower federal courts to meet those standards were not, in fact, “violent” or “serious.”

These holdings by the Court have had piecemeal impact on sentencing practice, but broader reform is still needed. Most Americans can quote the “reasonable doubt” standard from an early age, and many probably assume that people don’t go to prison except when that standard has been met. The Federal Sentencing Guidelines, however, make that assumption incomplete because federal inmates often stay in jail much longer because of alleged conduct never proven beyond a reasonable doubt. A heightened public awareness of the impact and expense of the guidelines would go a long way towards a much needed overhaul of U.S. practice.

General Sources:

United States v. Watts, 519 U.S. 148 (1997)

United States v. Booker, 543 U.S. 220 (2005)

http://en.wikipedia.org/wiki/Armed_Career_Criminal_Act

http://www.nj.com/times-opinion/index.ssf/2011/06/opinion_families_against_manda.html

http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines

[1]http://www.law.ua.edu/resources/podcasts/lectures/Albritton_Lecture_John_Paul_Stevens-11-16-11 (41:30).

[5] http://bjs.ojp.usdoj.gov/content/pub/pdf/p09.pdf

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Don’t Cross Justice Thomas on the Establishment Clause

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review , Vol. 3

On Halloween Monday, the Supreme Court fittingly played “trick” rather than “treat” by declining to hear Utah Highway Patrol Association v. American Atheists. The question of the case in controversy is whether public displays of religious symbols violate the Constitution’s Establishment Clause of the First Amendment. If certiorari, or cert, was granted, the Supreme Court could have potentially clarified the muddled area of law. Rather, the Court denied cert.

A grant of certiorari is the usual way the Supreme Court hears a case. If four justices agree that a case should be heard, it is. Because five justices have been highly critical of the Court’s treatment regarding this issue, it is quite puzzling why only Justice Thomas dissented. But the fact that Justice Thomas was the sole dissenter does not mean another justice did not want to hear the case. Rather, it only means that four justices did not agree. We cannot tell how the justices voted, because they typically do not reveal their votes on certiorari.

Regardless, the facts of Utah Highway likely strike a chord with most Americans. The Utah Highway Patrol Association is a private organization dedicated to supporting the Utah Highway Patrol Office and their families. In 1998, the Association, in an effort to honor officers who died in the line of duty, built 12 by 6 foot white crosses at or near the locations where the officers were killed. Each cross included the slain officer’s name, rank, badge number, and the Utah Highway Patrol’s symbol, among other biographical details. In total, the Association built thirteen memorials. To ensure a memorial’s visibility, safety, and accurate location, some needed to be placed on public land. After the Association requested and received permission from the State of Utah, memorials were built on roadside public rights-of-way, at rest areas, and on the lawn of the Utah Highway Patrol Office.

American Atheists sued several state officials. They alleged violations of the Establishment Clause because some of the crosses were on state property and all of the crosses had the Utah Highway Patrol’s symbol. The Association intervened and defended the claims. The District Court found in favor of the Association. A Tenth Circuit panel reversed. The panel applied the highly contextual, and often criticized “endorsement” test from Lemon v. Kurtzman, 403 U.S. 602 (1971).

As applied in this case, the “endorsement” test asks whether the crosses had the actual purpose of endorsing religion or whether they had that effect from the perspective of a “reasonable observer.” The panel also considered whether the crosses had a secular purpose, had the primary effect of advancing or inhibiting religion, or fostered an excessive entanglement between government and religion. Allegheny County v. ACLU, 492 U.S. 573, 592-594 (1989). Despite finding that the crosses had a secular purpose, the Tenth Circuit panel concluded that the crosses would “convey to a reasonable observer that the state of Utah is endorsing Christianity.”

The Tenth Circuit, sitting as a whole, denied a rehearing, but not without harsh criticism from four dissenters. They criticized the panel’s reasoning and application of the endorsement test. Specifically, the panel presumed the crosses were unconstitutional and then analyzed whether the contextual factors rebutted that presumption. They also attacked the panel’s “unreasonable ‘reasonable observer,’” finding him to be “biased, replete with foibles, and prone to mistake.” Despite the Supreme Court ignoring the dissenters’ strong suggestion that the decision was worthy of review, Justice Thomas came to the rescue – as much as he could, anyway.

In a scathing review of Establishment Clause jurisprudence, Justice Thomas penned a nineteen page dissent. Through robust citation, Justice Thomas systematically presented cases using the Endorsement test to specific kinds of displays on government property. Focusing on displays of nativity scenes, menorahs, the Ten Commandments, and crosses, Justice Thomas demonstrated the wide divergence of the federal courts in deciding the constitutionality of similar cases. He sarcastically remarked that each display violates the Establishment Clause, “except when it doesn’t.” He added that some courts have applied a different test depending on the type of display, which “speaks volumes about the superficiality and irrationality” of the state of Establishment Clause law. Finally, Justice Thomas argued that Utah Highway, “which squarely implicates the viability and application of the Lemon Endorsement test, is as ripe a suit for certiorari as any.” This area of law is “more in need of clarity” and that the justices “should not now abdicate [their] responsibility to clean up [their] mess.”

As a result of the denial of certiorari, the decision of the Tenth Circuit panel stands. The Association’s memorials are no longer allowed on public land. To Clint Pierson, son of slain Trooper Lynn Pierson, the memorial reminds him of his father’s sacrifice. The decision hits him personally too, as he is also a police officer. The Association’s President, Trooper Chad McWilliams, called the decision a “slap in the face” for the families, serving as a death notification all over again. While it may seem to the contrary, neither side disputes whether the police officers should be honored – they should. Rather, the disputes centers around the appropriate site for the memorials. Brian Barnard, American Atheist’s attorney, says that memorials should include all Utahns and should represent both the religious and non-religious.

The Utah Highway case, and the scores of others like it, deeply divide most Americans on the placement of religious displays on government land. Some are horrified at the government’s “endorsement” of any religion, while others deem a display as “no harm, no foul.” Citizens wanting to erect religious symbols on public property may wonder the exact parameters of acceptable behavior. In fact, the law is rather unclear. The Utah Highway case is limited to the Tenth Circuit – Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. However one feels about this particular issue, the point is that the Court passed on an opportunity to let the public know the boundaries of public displays of religious symbols. Without a set of guidelines from which the public can channel its behavior, a similar situation will likely come before the Court again. Until that time, the Tenth Circuit is stuck with this rule that only convolutes Establishment Clause jurisprudence.

Sources:

http://www.scotusblog.com/2011/10/no-clarity-on-religious-displays/

http://www.deseretnews.com/article/705393443/US-Supreme-Court-declines-to-hear-Utah-highway-crosses-case.html?pg=2

http://www.supremecourt.gov/opinions/11pdf/10-1276.pdf

 Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

The Supreme Court Sacrifices the Individual in Citizens United

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Over the past few weeks, President Obama, hitting key political battlegrounds, has taken bus tours of North Carolina and Virginia and unveiled his Housing Refinance Program and his Student Loan Initiative in economically strapped Las Vegas and Colorado, respectively. Desperate to improve his public approval ratings, Obama has created programs designed to alleviate economic distress and has taken these programs directly to the people. This is how it should be—the candidate catering to the voiced needs of the people responsible for his election.

Imagine, instead, the President designing his policies to garner the support of the likes of Exxon Mobil, General Electric, General Motors, or Bank of America. What if the Fortune 500 companies held the election in the balance and campaign stumping simply involved shaking hands with top corporate executives? Suppose town meetings and debates were replaced by question and answer sessions before stockholder meetings.

As a result of the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, the imagined scenario might offer a more viable means of securing election success. In Citizens United, the Supreme Court maintained that corporations are persons entitled to First Amendment rights. Hence, the government may no longer limit the campaign contributions of corporations because to do so, the Court claimed, would be to deprive the companies of their First Amendment right of free speech. The decision overturned two cases, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, which had authorized limitations on corporate spending.  Although the Citizens United decision did not overturn laws that restrict direct contributions to candidates, the justices at least recognized that the consequences of Citizens United could be tantamount to removing all restrictions.

In the name of free speech and unrestricted political discussion, the Court has raised a specter of corporate domination at the expense of individual freedom. By treating corporations as persons under the Constitution, and by protecting their personal rights, the Court necessarily dilutes the First Amendment rights of the individual. Responding to the Citizens United decision, President Obama labeled it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  Justice Stevens, who wrote a stinging ninety page dissent, aptly points out that the court erred in equating money with speech, and, in doing so, it furthers the risk of corruption.

The problem with Citizens United‘s ruling is that it goes to the very heart of our republican system of government–how to give a voice to each citizen. In other words, how does one keep the rights of the individual from being consumed by the demands of special interest groups? The framers of the Constitution addressed and grappled with this very issue. James Madison called these special interest groups factions, which he defined in the Federalist Paper No. 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Whereas he recognized these factions could never be eliminated, controlling the power of these factions was deemed of utmost importance, if the republic was to survive. Consequently, the Founding Fathers drafted the Constitution, separated powers and provided checks and balances, all in an effort to keep one segment of the population from becoming too powerful.

In the Federalist Paper No. 10, Madison argues the most common cause of factions is the unequal distribution of property or wealth. The tendency of the wealthy, caused by human nature, and hence impossible to eliminate, is to succeed by suppressing the rights of the weak. Consequently, the supreme task of the republic is to protect the rights of the weak. Otherwise, individual rights and freedoms become meaningless. If one applies Madison’s analysis of factions to modern corporations, the corporate structure provides the means by which a group of people can become “united and actuated” by their “passion.” This passion, to make money at all cost, is often “adverse to the rights of other citizens.” This passion, to cite only a few examples, has created a large populace addicted to nicotine, fast food, and gas-guzzling cars. It often exploits workers, by depressing wages, and consumers, by inflating prices. Left unregulated, this passion has little regard for the environment whenever conservation measures strain corporate profits.

Resonating the words of the Federalist Papers, Justice Stevens writes his dissent in the spirit in which the Constitution was drafted. He writes, “the Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” Referring back to the philosophy of Madison and other Framers of the Constitution, Stevens argues, “it was the free speech of individual Americans that they had in mind.” The chief problem with the Citizens United decision is that, by equating the First Amendment rights of corporations with those of individuals, it will, in the words of Justice Stevens, “cripple [efforts] to adopt even limited measures to protect against corporate domination of the electoral process.”  The Court has sacrificed its constitutionally granted power to keep the corporate faction in check for the good of the people.

Reality suggests that corporate millions are not spent to promote innovations that would benefit the general welfare of the public, but rather they are spent to promote and sustain managerial interests and to subvert legislation that operates against that interest. Hence the corporate voice is not even the voice of the individual shareholders. No language in the Constitution mandates the extension of First Amendment freedoms to corporations. To the contrary, the intent of the drafters is clearly otherwise—protect the rights of the individual from the encroachment of factions. As a natural extension of the Court’s logic, Justice Stevens points out that soon the Court will be granting corporations the right to vote in order to exercise their newfound freedom of speech. If the Court continues to equate the civil rights of individuals with those of corporations, why not?

Cites Used

http://www.prospect.org/article/real-problem-citizens-united

http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/

http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html

http://www.nytimes.com/2010/01/22/us/politics/22scotus.html

http://history.hanover.edu/courses/excerpts/111fed.html

http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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