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October 7, 2012

A musical message from Milbarge in honor of Harris reconsideration

Very long-time readers may recall some comical song parodies by the mysterious Milbarge concerning Blakely and Booker (example here). The classic of the genre was "'Twas the Night Before Booker," and even a re-reading of this 2004 ditty brings to mind a more innocent sentencing era.  I was thus excited to receive the following e-mail from Milbarge this weekend:

I'll confess that I'm just as excited for the Court's decision to reconsider Harris [basics here]. So even though my blog is on semi-permanent hiatus..., I decided to dust off the ol' parody song pen and see what I could come up with.

You may recall the old tv Western called "Branded," starring Chuck "The Rifleman" Connors. Here is a video of the opening credits and theme song. And here are the lyrics to the song.

It's kind of a weird song (it's used in "The Big Lebowski," by the way), which makes it difficult to parody, but I couldn't resist the branded/brandished wordplay. So here's my stab at a song to honor what will hopefully be the next sentencing watershed decision:


What did the jury find?
What will the sentence be?
Is Apprendi here to stay...?


Apprendi’s odd man out.
But can they say it was brandished
By a reas’nable doubt?!


Harris hung around...
Never overruled...
But now they’ve taken up Alleyne...


Mandatory prison time.
How can the judge say you brandished
When the jury didn’t bite?!


And it should be just five
But it’s seven to life.
Did they prove
Or indict...



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October 7, 2012 at 10:33 PM | Permalink


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Is there some old saying about counting the chickens before they hatch?

Posted by: Bill Otis | Oct 8, 2012 9:01:19 AM

Are you rooting for Harris to survive, Bill?

I had for some reason thought that you, like Justice Thomas, believed the Sixth Amendment ought to be given full reach even in the mandatory minimum context.

Posted by: Doug B. | Oct 8, 2012 9:33:42 AM

Doug --

There is a long and excellent discussion of Harris going on on this blog, largely between bruce cunningham and federalist -- the kind of discussion that represents SL&P at its best. Readers who want to get educated on this difficult issue should take a look at it.

But for however that may be, surely you can't be saying that the Justices (or anyone else) who agreed with the Harris outcome are out to trash the Sixth Amendment...are you?

That would be out of character. Plenty of your commenters say that to disagree with the pro-defense position du jour is to be a Nazi. You have never been like that, not at all.

As is perfectly obvious, reasonable minds differ on the application of the Sixth Amendment to mandatory minimums. To reach a pro-government conclusion on that question is hardly to disrespect the reach of Sixth Amendment. It is merely to come to a different conclusion about what that reach is.

Conservative like me generally agree with Justice Thomas, just as liberals like you generally agreed with Justice Stevens. But general agreement is not uniform agreement, as was proved, for example, when the liberals howled at Justice Stevens for writing the Raich majority.

Conservatives often emphatically disagree among themselves, see, e.g., the dueling majority (Alito) and concurring (Scalia) opinions in Hein, concerning the continuing validity of Flast v. Cohen.

I'm for letting a thousand flowers bloom. And all I said in my post this morning was that there's an old saying about counting the chickens. Conservatives were doing a lot of chicken-counting before the Obamacare decision came down, and I see exactly the same kind of giddy chicken-counting going on now with the liberals (hence the Milbarge melody).

Posted by: Bill Otis | Oct 8, 2012 10:11:14 AM

Doug B., your comment to Bill was ill-considered. Reminded me a lot of Biblos' comment that Scalia wasn't a he-man originalist because he accepted the constitutionality of the plea bargain.

Posted by: federalist | Oct 8, 2012 3:11:59 PM

Wow Bill and federalist, why so touchy here? How did you get the notion of my comment seeking to "trash" you, and why so quick to play the "Nazi" card, or the view that I was "ill-considered" when seeking clarification of my prior belief that you were in the Thomas camp (rather than the Kennedy camp) when it came to the ruling in Harris and the Sixth Amendment's "full reach" with respect to mandatory minimums.

It would be especially foolish for anyone to paint anyone else with a broad political-label brush in the Sixth Amendment context, especially given the remarkable voting patterns in Apprendi and Harris and Blakely and Booker and Ice and most recently Southern Union. The only reason I referenced Justice Thomas was because he wrote the lead dissent in Harris. And I truly was merely looking for clarification on this front given that your comment hinted that you are hoping for Harris to be reaffirmed rather than reversed.

I am certainly not questioning anyone's principles or perspective. Rather, I really just was trying to figure out where you stood. I think valid arguments can be made for upholding Harris, though my own affinity for a constitutional distinction between offense/offender sentencing facts makes me want to refine even further the purported "bright line" that is the Apprendi Sixth Amendment rule.

Indeed, I fear that it is you Bill (and federalist) who are too quick to judge based on labels: why would all purported "liberals" be excited to see the Sixth Amendment extended in Alleyne given that the purported "liberals" of Stevens and Ginsburg and Breyer all resisted the Sixth Amendment's extension in Ice and given that Thomas and Roberts and Scalia all endorsed its extension in Souther Union.

In short, all I was just trying to figure out where you stood on this matter. I am sorry if somehow you read my comment as some sneaky way to question your principles; I rather just want to better understand what your principles are.

Posted by: Doug B. | Oct 8, 2012 3:51:00 PM

I am most curious as to why the Court bothered to take this case. Prosecutors routinely include the facts necessary to trigger a mandatory in the indictment; otherwise it simply is a fact pled to. Exceedingly few cases will be effected by Harris being overturned; basically only those who are lucky enough to be in a district and get an AUSA the forgets to use a template indictment. So I see this nothing more than a Pyrrhric victory, unless..... unless, like Apprendi during its evolutionary stage as it worked its way to the Court, there is something so obvious that it is too subtle for my feeble mind to grasp.

What I'm tryly amazed by is the fact that overruling WATTS was not part of the petition. Watts is front and center here. Just amazed that, unless some fabulous amicus comes along (hint hint Prof. Berman), this issue is lost (and, of course, it is lost since it wasn't in the petition, but still maybe an amicus can raise?).

Posted by: Mark Allenbaugh | Oct 8, 2012 5:34:51 PM

Doug --

My initial comment here was simply to remind those who think Harris is done for not to count the chickens before they hatch. It seems to me that you are doing that sort of pre-emptive celebration by virtually singing about Harris's demise; the sense of giddy anticipation is palpable. It reminds me of those who thought, upon the graning of cert in Miller v. Alabama, that LWOP for juveniles was done for.

Wrongo. MANDATORY LWOP for juveniles was done for, but the big enchilada exceeded the liberals' grasp. They were so disbelieving that they didn't get all they anticipated that the first few news stories, EVEN AFTER the opinion, falsely reported that LWOP for juveniles was in fact held unconstitutional.

What it seems to me that you were saying is that, if I believed in giving "full reach" to the Sixth Amendment, I would agree with the Thomas dissent. The implication is that, if I don't agree with it, I prefer a scaled-back Sixth Amendment. But I would respectfully submit that that misconceives the controversy. It's not whether I favor or oppose the Sixth Amendment; it's what I believe its correct reach to be. As I said, reasonable minds differ on that question. They did at the time of Harris and they still do.

I have not reached a firm conclusion. But I will say that my enthusiasm for a full-throated Sixth Amendment is already on the record. One of my main objections to the Booker remedy is that it fails to give Apprendi its full logical force. That is, instead of requiring proof of some sentencing facts BRD, the Court left the preponderance standard in place for sentencing, and simply made the guidelines advisory.

The defense bar is, by-and-large, perfectly happy with that remedy, but I'm not, precisely because it walked past the more obvious Apprendi-grounded remedy in favor of adopting the easily manipulable voluntary system that Congress considered and rejected (as Stevens proved in his blistering dissent).

Thus, to the extent you believe that, by failing vocally to support Thomas's Harris dissent, I am branding myself an opponent of the Sixth Amendment, I believe you are mistaken. I am a great admirer of Justice Thomas as a principled jurist, a courageous man and a gentleman -- and I was appalled at the gutter campaign the Democrats waged against his confirmation -- but I am not required to agree with him all the time, and I don't. As I say, I have not made up my mind on this particular question.

P.S. I'll quit playing the "Nazi card" when the word "Nazi" disappears from the criticism of federalist, Kent, alpino, adamakis, me and some of the other more conservative commenters who show up here. As long as the Left persists in using it, however, I will persist in pointing out the kind of manners they display.

Posted by: Bill Otis | Oct 8, 2012 5:36:19 PM

Bill, you continue to protest so much and seem to think I have some hidden left-wing agenda simply because I reprinted a song-parody sent to me by another and thereafter wondered aloud whether you were rooting for Harris to survive.

As you note, your "enthusiasm for a full-throated Sixth Amendment is already on the record." That is why I was inclined to assume that you saw the Sixth Amendment as Justice Thomas did in Harris rather than as seen by Justice Kennedy (a persistent Apprendi opponent) in Harris. (Justice Scalia was, intriguingly, silent in Harris, the one case in which he split with the Apprendi/Blakely five).

As I hope you know, I try not to make assumptions about the views of others based only on labels or opaque comments. That is exactly why I asked the follow-up question which still, upon re-reading, does not seem to me in any way offensive or Nazi-like or even "ill-considered." Upon reflection, perhaps you would not have reacted so strongly if I had phrased the end of my comment with the words "should apply even in the mandatory minimum context" rather than saying "ought to be given full reach even in the mandatory minimum context." But I continue to find curious that you are so bent out of shape by my query.

I readily surmise, Bill, you want "liberals" and "the Left" to be disappointed. Fine. But I have no idea if Milbarge is a liberal (I do not even know who he/she is), AND I am not even sure this song-parody is obviously a "pre-emptive celebration ... about Harris's demise." It is just an attempt by another to have some fun with a serious subject (like 'Twas the Night before Booker).

In any event, I am pleased that after all this curious sturm und drang that you finally answered what I intended to be a basic question about your views on Harris: you say "have not reached a firm conclusion" and that you "have not made up [your] mind on this particular question." Great, this is all I wanted to know and all I was trying to find out with my initial comment.

That said, I now am curious as to what your uncertainty hinges upon (and I am not seeking to imply anything, I just want to know how another smart and informed person thinks through these interesting issues). Perhaps you are, sensibly, keeping an open mind until you read the briefs in Alleyne. Perhaps you want some empirical assessment of how many federal mandatory minimums could be impacted by Harris. Perhaps you are eager to hear at oral argument just what Justice Scalia may have had in mind when he cast his Harris vote in 2002. Perhaps some other factors is in play. I am curious and interesting in a dialogue, not name-calling or throwing around implications.

Finally, let me say again I am sorry what I intended as a simple question about your position gots you so worked up about so many other issues.

Posted by: Doug B. | Oct 8, 2012 6:44:04 PM

Doug, come on. The remark was ill-considered because it implied that Bill wanted to truncate the Sixth Amendment.

Posted by: federalist | Oct 8, 2012 8:01:28 PM


I interpreted the remark as federalist notes, but of course my interpretive skills are fallible, all the more so in written exchanges. And I'm not worked up or put off or bent out of shape at all; I have disagreements all the time with principled liberals, and I understand that that's what a healthy debate is all about. Nor have you ever been in or anywhere near the call-'em-Nazis camp. To the contrary, you have from time to time called on commenters to try to clean it up.

The Court finds the Harris issue tough, obviously, and so do I. As you note, it was the one and only time that Scalia and Thomas split in a post-Apprendi case.

To answer your question directly, my uncertainty hinges upon factors less elevated than the ones you describe. Specifically, it hinges on ignorance. The reason I have stayed out of the principal substantive debate between federalist and bruce is that it's clear they have thought more about the issue than I, so it is, as my father used to say, time to give my ears a chance. There are some issues I know pretty well, and, in those cases, I'm not shy. When I know them less well, I'm more reticent. This Harris issue strikes me like an optical illusion: If you look at it one way, it looks like X, but if you look at it in a slightly different way, it looks like Y.

I value your blog and your substantial contributions to legal debate, and count you as a friend. I hope nothing I have said here will make you think otherwise, and if it has, I take it back.

Posted by: Bill Otis | Oct 8, 2012 9:11:13 PM

I wouldn't take too seriously criticism about a comment being "ill-considered" from someone who's main contribution to this blog is years of posting ad hominem one-liners against judges who reach results with which he disagrees.

Posted by: Jay | Oct 8, 2012 9:43:00 PM

Sorry, "whose."

I'm kind of curious why the quality of comments on this blog is so poor generally, given the high reputation of the blog itself. Why is the comment section almost exclusively the domain of hacks (Bill Otis, federalist, the European guy who pops up to give the same lecture about the death penalty periodically) and nuts (rodsmith, SCOTUS)? It seems odd given that many other legal blogs manage to cultivate a much more serious comment section, where people are able to address issues in an open-minded way, or share real world experiences, rather than just spout off rhetoric. I guess most everyone involved in criminal law has to pick a side, but it's still sort of sad.

Posted by: Jay | Oct 8, 2012 9:53:13 PM

Jay --

Please name the person who is forcing you to read the comments. Also, weren't you just bemoaning "ad hominem one-liners?"

Posted by: Bill Otis | Oct 8, 2012 10:43:02 PM

No one's forcing me, I just think it's weird than whenever I click on the comments of a post here, it's the same 5 people having the same endless unenlightening argument. I always hope I'll find something more substantive, but it's not to be.

As for ad hominem arguments, they are a fallacy when used to avoid addressing the merits of an issue, as in a typical Federalist post, which responds to, say, an 80-page habeas opinion by saying something about the blood of the victims being on the hand of the judge.

It's not an ad hominem to point out that someone's (yours, e.g.) views appear to be entirely results-oriented cheerleading for a team, rather than an attempt to engage in any issue in an intellectually honest way. (And please, don't start with some lecture about liberal bias -- I know many conservatives whose default worldview is not to favor an endless expansion of the federal criminal justice complex. And anyway, like I said, I find the anti-capital punishment people who post the same thing in every death penalty thread as annoying as you.)

Posted by: Jay | Oct 8, 2012 11:04:54 PM


"I'm kind of curious why the quality of comments on this blog is so poor generally, given the high reputation of the blog itself. Why is the comment section almost exclusively the domain of hacks (Bill Otis, federalist, the European guy who pops up to give the same lecture about the death penalty periodically) and nuts (rodsmith, SCOTUS)? It seems odd given that many other legal blogs manage to cultivate a much more serious comment section, where people are able to address issues in an open-minded way, or share real world experiences, rather than just spout off rhetoric. I guess most everyone involved in criminal law has to pick a side, but it's still sort of sad."

Maybe it's the NUTS that make the difference since i understand this one is ONE of the best out there. Plus the fact that we nuts can still get together and see and realize a hack when we see one.

Of course i guess now that i'm a "NUT" that could be considered a compliment. Last drivebye decided i'm a sex offender!

so thanks for the compliment!

Posted by: rodsmith | Oct 8, 2012 11:23:44 PM

Jay --

1. When confronted with the same arguments again and again against the death penalty, I am quite likely to give the same responses again and again. Should I make up new ones for novelty's sake?

2. When the majority of commenters uniformly or almost uniformly take a let's-see-how-much-we-can-reduce-the-sentence approach, there is likely to be blowback, even if only from a minority. I am in that minority. But that hardly means that I favor "an endless expansion of the federal criminal justice complex." It is more nearly correct to say that the majority of the board favors an endless reduction in punishment for criminals. If that bothers you, you don't say so. Would that be because you're in that majority?

3. The old saying is that it's better to light a candle than curse the darkness. If you think the comments section is deficient in thoughtful posts, no one is stopping you from adding some.

Posted by: Bill Otis | Oct 9, 2012 10:37:42 AM

Jay, I don't think ad hominem means what you think it means. In the context of argument, ad hominem means that you are attacking the person rather than the argument. Your comment about my past commenting, perhaps unwittingly, is a classic example. I think when you say "ad hominem," you simply mean generalized insulting---why don't you just say generalized insulting?

You are right--I do toss around nasty barbs at judges, e.g., "the wise Latina," "dim bulb" and "blood on their hands." So what? Almost every single time, I back that up with argument about the substance of what the particular judges have written. I note, Jay, that even though you obviously pay attention to what I have to say, you don't refute any of it. And I don't think you can fairly say that I am results-oriented, nor can you say that about Bill.

And if you don't want to engage with me, fine, your call--but the bottom line is that many who do feel the sting of well-supported arguments that make them look like fools--even a U Penn law prof. My guess is that if you took me on, you'd feel the sting too.

Posted by: federalist | Oct 9, 2012 11:13:49 AM

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