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June 27, 2016

Eager to hear various perspectives on the SCOTUS sentencing Term that was

R-2958783-1407368094-7528.jpegIn this post last September, I previewed the SCOTUS Term that just wrapped up this morning by asking "Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?".  (I thereafter followed up with a grand total of one post promoting the silly hashtag, #BESTEA = Best Ever SCOTUS Term for Eighth Amendment for this Supreme Court Term.)  

Looking back now, I do not think this past SCOTUS Term proved to be truly monumental for the Eighth Amendment, although I do think the Montgomery ruling is a (so-far under-examined) big deal.  Ironically, the surprising and sudden death of Justice Antonin Scalia may have been the biggest Eighth Amendment development: Justice Scalia had long been among the most vocal and frequent critics of the Court's modern "evolving standards" Eighth Amendment jurisprudence, and his eventual replacement, no matter who that ends up being, seems unlikely to be as hostile to this jurisprudence.  Indeed, the next new Justice will be joining a Court that seems to already have at least five, and maybe even six, Justices open to continuing to interpret the Eighth Amendment as a serious limit on serious punishment other than just the death penalty.  (I am counting the Chief Justice as the sixth, based in part on his surprising vote with the Kennedy majority opinion in the Montgomery case.) 

Of course, there were a number of notable constitutional cases/developments outside of the Eighth Amendment context this past Term involving important sentencing issues.  For death penalty followers, the Sixth Amendment ruling in Hurst was and will remain a very big deal for the forseeable future (especially in Alabama, Delaware and Florida).  And the shock-waves of the Johnson Fifth Amendment ruling from the end of last SCOTUS Term has and will continue to rumble through the Welch retroactivity ruling and today's grant in the Beckle case to address the application of Johnson to the career offender provision of the federal sentencing guidelines.

In the coming days and weeks, I will likely to some writing about the SCOTUS sentencing Term that was along with some predictions about what the future might hold for SCOTUS sentencing jurisprudence.  In the meantime, though, I would be eager to hear from readers (in the comments or via email) concerning what sentencing case(s)/opinion(s) they think were most important or significant or telling or consequential.  And anyone who can provide perspectives on the SCOTUS sentencing Term that was wth a Tom Lehrer flair will be sure to get extra praise and promotion in this space.

June 27, 2016 at 12:22 PM | Permalink


Lawlessness, lawlessness and more lawlessness.

Posted by: federalist | Jun 27, 2016 12:55:23 PM

Sorry to be off-topic, Doug, but your tut-tutting of the very real threat to the First Amendment posed by a Dem replacement for Scalia seems to have been misinformed. Just a few days ago, the US Attorney for Idaho threatened criminal prosecution for false comments on a budding controversy in Idaho with respect to the apparently awful abuse of a five year old girl.


Posted by: federalist | Jun 27, 2016 2:25:14 PM

Federalist: How does a US attorney indicating, accurately in the wake of Elonis, that threatening on line speech may be a federal crime have anything to do with our prior discussion of Citizens United? Just curious how you link all this.

Posted by: Doug B. | Jun 27, 2016 2:45:04 PM

Doug, the USA's comments threatened prosecutions for false or inflammatory speech, not just threatening speech.

If government officials are willing to threaten prosecution for inflammatory speech (and speech that just so happens to call into question the president's policies), what can we think about the judges that would be appointed by such a president? The issue in CU was criminal prosecution for political speech--just the same as the speech that is being threatened by a US Attorney on a government website. But hey, what's a little First Amendment freedom when there are juvenile murderers to hook up?

Posted by: federalist | Jun 27, 2016 3:27:14 PM

I'm with federalist (and I don't day that often). I thought the prosecutor's comments were blatant intimidation. Looked at from a completely abstract point of view, nothing she said was untrue. But most people aren't lawyers and most people can't afford to go up against government lawyers. So why risk it? When 1A advocates talk about the chilling effect the speech of powerful government officials can have on others 1A rights the Idaho comments under discussion are as good an example as any.

Posted by: Daniel | Jun 27, 2016 7:21:36 PM

"nothing she said was untrue"
The United States Attorney’s Office extends its support to the five-year-old victim of assault, and her family, at the Fawnbrook Apartments in Twin Falls. The United States Attorney’s Office further encourages community members in Twin Falls and throughout Idaho to remain calm and supportive, to pay close attention to the facts that have been released by law enforcement and the prosecuting attorney, and to avoid spreading false rumors and inaccuracies.

Grant Loebs is an experienced prosecutor, and Chief Craig Kingsbury is an experienced law enforcement officer. They are moving fairly and thoughtfully in this case,” said Wendy J. Olson, U.S. Attorney for Idaho. “As Mr. Loebs and Chief Kingsbury informed the public, the subjects in this case are juveniles, ages 14, 10 and 7. The criminal justice system, whether at the state or federal level, requires that juveniles be afforded a specific process with significant restrictions on the information that can be released. The fact that the subjects are juveniles in no way lessens the harm to or impact on the victim and her family. The spread of false information or inflammatory or threatening statements about the perpetrators or the crime itself reduces public safety and may violate federal law. We have seen time and again that the spread of falsehoods about refugees divides our communities. I urge all citizens and residents to allow Mr. Loebs and Chief Kingsbury and their teams to do their jobs.

Take that in. Compare this with DoJ statements on Ferguson.

Posted by: federalist | Jun 27, 2016 7:54:28 PM

This recent press report leads me to believe that the US Attorney's statement was an effort to calm down a community getting worked up by the circulation of rumors, falsehoods and misinformation: http://magicvalley.com/news/opinion/columns/from-the-editor-inside-our-reporting-on-the-fawnbrook-case/article_38d5fcf3-af8e-5beb-955f-a08e2361ec5c.html As I understand matters, there were assertions that this incident involved adults gang-raping the 5-year old victim at knifepoint, and further suggestions of an effort to cover-up such a crime by authorities.

Against that backdrop, I am inclined understand why the US Attorney was eager to encourage her community to trust the criminal justice system and not foster on-line rumor mills that could lead to mob violence. At the same time, I understand concerns about the addition of the phrase "may violate federal law" as an effort to chill legitimate (even "inflamatory") speech. That said, this still seems like quite a stretch from debate over what could happen if CU were to be reconsidered (which still seems to me unlikely), and I am much more inclined to lament the tendency of federal prosecutors, appointeds by folks in both parties, to think they have a central role in trying to fix every community problem through the application of federal laws.

More interesting at this point, federalist, is why you are bringing up this tangential matter while not addressing the Voisine opinion and especially Justice Thomas's notable assertion that Justices on the left and the right are far more likely to protect First Amendment rights than Second Amendment rights. I know Justice Scalia is no longer around to help you figure out how to figure out how to think about issues, federalist, but I still trust you can figure out that the Voisine opinion today is FAR more significant for constitutional rights and over-use of federal criminal laws than any press release from a single US Attorney Office in Idaho.

I know, federalist, that you and others enjoy turning legal issues into political talking points, but even with that interest I hope you will try to focus on legal rulings of true national import and impact.

So, with all that said, I wonder if you think the Voisine opinion is a prime example of the "Lawlessness, lawlessness and more lawlessness" that you lamented in your first comment.

Posted by: Doug B. | Jun 27, 2016 9:01:55 PM

I haven't yet gotten the chance to read Voisine so I cannot comment on it. I don't think the taking of core constitutional rights for misdemeanor convicts are a good idea at all--as to their constitutionality, I don't know. Voisine apparently involved additional issues such as statutory intent and fair warning.

As for CU, Hillary Clinton is on record as thinking the case should be overturned (let that sink in---she thinks that there is a set of circumstances under which political speech is a crime)---think she won't appoint some lunatic (and guess what, if you think that the government should be able to criminally punish political speech under our traditions, you are a lunatic).

As for the community getting worked up, the facts as they seem to be---5 year old assaulted by people who should be grateful to the society who took them in--seem to be bad--there are allegations based on eye-witness testimony that the girl was urinated on. But it is surpassing amazing that a law prof would minimize the outrageous behavior here. Not only is this un-American prosecutor trying to chill speech, she is weighing in politically on the issue. Yes, a sexual assault by refugees is a big deal, and there are a lot of politics.

And the DoJ has no business anyway--Ferguson, anyone?

Posted by: federalist | Jun 27, 2016 9:36:04 PM

By the by, Doug, did you check out the Dem party platform? Punishing corporations for political speech---but, oh, they are deniers, so it's all good.

Posted by: federalist | Jun 27, 2016 9:48:52 PM

Yet again, federalist, you showcase your eagerness for political bashing rather than sober analysis (e.g. what basis do you have for saying I am minimizing the behavior here?). So be it, though I again find telling and disappointing your effort to use a USA press release from Idaho for your political grandstanding when Voisine (not to mention McDonnell) are so much more germane and consequential for anyone (purportedly) concerned about federal criminal justice overreach.

Posted by: Doug B. | Jun 28, 2016 3:47:40 AM

"Against that backdrop, I am inclined understand why the US Attorney was eager to encourage her community to trust the criminal justice system and not foster on-line rumor mills that could lead to mob violence. At the same time, I understand concerns about the addition of the phrase "may violate federal law" as an effort to chill legitimate (even "inflamatory") speech."

Doug, I value freedom of speech. I also value the DoJ being neutral. ANd I like tweaking you about CU.

Posted by: federalist | Jun 28, 2016 10:07:44 AM

Oh come one Doug, you get upset because federalist is using the law to engage in political grandstanding but you seem to ignore that it was the prosecutor who started the political grandstanding in this instance.

You write, "I am much more inclined to lament the tendency of federal prosecutors, appointeds by folks in both parties, to think they have a central role in trying to fix every community problem through the application of federal laws."

Well sure but that ignores WHY federal prosecutors think they have a central role. They think they have a central role because they know they can use their position of power to engage in political grandstanding and because of their position of power the press will cover it.

What bothers me about this case is not the political grandstanding, it is not the tendency for federal prosecutors to stick their noses in local affairs. Those may be problems but they are not new issues. What galls me is the act of legal intimidation that was so unnecessary. She could have accomplished everything she wanted to accomplish without including that sentence in the press release. But when all you have is a hammer everything looks like a nail and she could not resist the temptation to throw her weight around.

Now is this one incident tangential to some more recent significant legal developments? Yes. Yet over-criminalization is as much caused by overly aggressive prosecutors (see Yates) as it is by vague laws (Johnson/McDonnell) or judges reaching for politically correct interpretations of statutes (Voisine). So federalist is quite correct to add it to the mix.

Posted by: Daniel | Jun 28, 2016 12:46:13 PM

Daniel, I can't add a whole lot to that.

Posted by: federalist | Jun 28, 2016 1:28:31 PM

I largely agree with what Daniel has to say, too. But his sound comments do not serve to rehabilitate the silly effort by federalist to connect this Idaho case to the future of Citizens United when there is a seated replacement for Justice Scalia. I think we all agree about the problems of overcriminalization, but all the rulings Daniel cites go to the heart of those problems far more than CU. In addition, and tellingly, unlike CU, the overcriminalization cases tend to break up the usual political alignment of the Justices AND the Justice that federalist most often attacks (Sotomayor) arguably has the very best pro-individual-Liberty record in all these cases.

Posted by: Doug B. | Jun 29, 2016 1:18:35 AM

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