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March 10, 2023

"Defining 'Victim' Through Harm: Crime Victim Status in the Crime Victims' Rights Act and Other Victims' Rights Enactments"

The title of this post is the title of this new article authored by Paul Cassell and Michael Ray Morris, Jr. now available via SSRN. Here is its abstract:

Who qualifies as a “victim” is the critical foundational question for the Crime Victims’ Rights Act (CVRA) and other crime victims’ rights laws.  This article provides the first comprehensive exploration of this “victim” definition question.  It traces out how the CVRA (and many states) define the term “victim” as broadly covering anyone who has been harmed as the result of a crime.  This article begins by reviewing how issues surrounding the definition of “victim” have evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” with precision.  The definition of “victim” has gradually evolved from a person who was the target of a crime to a much broader understanding of a person who has suffered harm as the result of a crime.

The CVRA provides a good illustration of the expansive contemporary definition of “crime victim” — a definition whose implications frequently are not fully appreciated by courts, prosecutors, and other actors in the federal criminal justice system.  The Act defines victim as a person “directly and proximately harmed” by a crime.  This definition extends crime victims’ protections to many persons who may not have been the target of a crime.  This article also analyzes important categories of crimes — violent, property, firearms, environmental, and government process crimes — where “victim” definition issues often occur.  It also takes a close look at a significant recent case involving the CVRA’s crime victim definition: the Boeing 737 MAX crashes case.  The article concludes by arguing that legislators should adopt, and courts should enforce, a far-reaching conception of a “crime victim” as anyone who suffers harm from a crime.  This conception is needed to ensure that important victims’ rights are extended to all who need their protection. 

March 10, 2023 at 04:08 PM | Permalink

Comments

Doug --

Thank you for publishing this piece co-authored by my good friend, former AUSA colleague, former US District Judge, and now law professor Paul Cassell.

Posted by: Bill Otis | Mar 10, 2023 4:48:46 PM

But who should be counted as a victim of the criminal justice system?

Posted by: Keith Lynch | Mar 11, 2023 9:32:12 AM

"But who should be counted as a victim of the criminal justice system?"

The thousands and thousands of actual victims -- people who have been beaten up, raped, burglarized or swindled, etc. -- and whose victimizers are never brought to justice because of lack of resources or lack of will.

Posted by: Bill Otis | Mar 11, 2023 1:27:21 PM

No, those are victims of criminals, not of the so-called justice system.

The many victims of the system include most of the following 20 people who have been executed in the US since 1989:

https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possibly-innocent

(I say "most" since some of those 20 may have been guilty. But many more not on that list were almost certainly innocent.)

And of course for every one innocent person executed, hundreds were "merely" imprisoned for a few years or decades, destroying reputations, shattering families, and derailing careers.

You recently described me as a hater. It's true. I hate lies, coercion, corruption, and injustice. I hate it when it's done by a desperate poor person, but I hate it far more when it's done by a comfortable and privileged person claiming to act in my name, and being paid by my tax money. The great majority of free-lance crimes, as bad as they are, don't have consequences for their victims and their families that last a lifetime.

Posted by: Keith Lynch | Mar 11, 2023 4:11:10 PM

No, those are victims of criminals, not of the so-called justice system.

The many victims of the system include most of the following 20 people who have been executed in the US since 1989:

https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possibly-innocent

(I say "most" since some of those 20 may have been guilty. But many more not on that list were almost certainly innocent.)

And of course for every one innocent person executed, hundreds were "merely" imprisoned for a few years or decades, destroying reputations, shattering families, and derailing careers.

You recently described me as a hater. It's true. I hate lies, coercion, corruption, and injustice. I hate it when it's done by a desperate poor person, but I hate it far more when it's done by a comfortable and privileged person claiming to act in my name, and being paid by my tax money. The great majority of free-lance crimes, as bad as they are, don't have consequences for their victims and their families that last a lifetime.

Posted by: Keith Lynch | Mar 11, 2023 4:11:10 PM

"No, those are victims of criminals, not of the so-called justice system."

They are victims initially of the criminals, yes, but then later of a system (they pay tax dollars to support) that in case after case fails to impose consequences on those criminals. They are also victims of one sort of central actor in the system, to wit, defense lawyers. It's by now a sad commonplace that rape victims are first victimized by their rapist and then by the rapist's lawyer, who at trial routinely tries to portray them as whores. Have you ever criticized this disgusting tactic? Could you quote where you did?

As to your list from the far Left DPIC -- oh, sure. Name a single factually innocent person that any AUTHORITATIVE AND NEUTRAL organization (say, the ABA) has determined was executed in the United States in the last 50 years. And no, advocates and advocacy groups are not neutral.

But I can name people who were killed by convicted murderers who, having NOT been executed in part because of the bitter skepticism of people like you, lived to kill again. Does that second corpse count with you, or is that one not a "victim" because counting him/her as a victim undermines your (now admitted) hatefulness?

"You recently described me as a hater. It's true. I hate lies, coercion, corruption, and injustice. I hate it when it's done by a desperate poor person, but I hate it far more when it's done by a comfortable and privileged person..."

What complete nonsense, your attempt to portray the typical criminal as "a desperate poor person," as if they committed crime for subsistence rather than fun. Was Timmy McVeigh a desperate poor person? Ted Bundy? John Wayne Gacy? Dzhokhar Tsarnaev? Alex Murdaugh? Harvey Weinstein? R. Kelly? Michael Millken? Bernie Madoff? Any of the thousands of grifters, thieves and scam artists you have never criticized?

Your heart bleeds for the criminal, accounting for your flagrantly false (if wonderfully sympathetic) portrayals of them -- and your blanket, acid condemnations of the police -- but views the victims as human garbage.

Posted by: Bill Otis | Mar 11, 2023 6:00:56 PM

Keith Lynch,

I don’t remember if he was speaking nationally or only DC, but the chief came out this week and said the average murderer has been arrested 11 times prior to committing the murder.

Is it your position that the CJS did not let those murder victims down or victimize them in any way?

Also, your logic doesn’t seem too consistent.

Victim of crime=Victim of criminal only
Criminal=Victim of racism, dirty cops, prosecutors, and everything under the sun.

If the CJS is so flawed, as you claim, why do the flaws only impact criminals and not victims? Funny how it’s only your pet people. No bias there .

Posted by: TarlsQtr | Mar 11, 2023 11:10:24 PM

Keith stated: “And of course for every one innocent person executed, hundreds were "merely" imprisoned for a few years or decades, destroying reputations, shattering families, and derailing careers.”

Other than not having a criminal justice system, please name any system ever used that did not result in what you describe above.

Posted by: TarlsQtr | Mar 11, 2023 11:58:43 PM

Mr. Otis wrote:
> They are victims initially of the criminals, yes, but then later of
> a system (they pay tax dollars to support) that in case after case
> fails to impose consequences on those criminals.

It's unfortunate if the system you pay for with your taxes fails to
punish someone who victimized you. But it's enormously worse if that
system instead defames you, locks you in a brutal prison for years,
and permanently takes away your civil rights.

Extremely few free-lance criminals lock people up for years. There
was that one guy in Cleveland who kept three women locked in his
basement for a decade, but that's extremely rare. And the next time
I say anything good about that guy will be the first.

> They are also victims of one sort of central actor in the system,
> to wit, defense lawyers. It's by now a sad commonplace that rape
> victims are first victimized by their rapist and then by the
> rapist's lawyer, who at trial routinely tries to portray them
> as whores.

If you were ever falsely accused of rape, wouldn't you hire a lawyer
who would effectively cross-examine your false accuser and impeach her
character? How else is the jury to decide whether it's more likely
that you're lying or that she is?

Yes, we were all taught that every accused person is presumed innocent
until proven guilty beyond all reasonable doubt. We were also taught
that Santa Claus and the tooth fairy were real. But we're both adults
now, and we both know that an accused wealthy person is presumed
guilty until proven innocent, and that an accused non-wealthy person
is automatically guilty unless he gets very lucky.

You implicitly admitted that you prefer a preponderance-of-the-evidence
standard when you argued that someone who is probably a killer should
be executed because if he isn't executed he's likely to kill again, so
his prompt execution would reduce the total expected number of deaths.

That argument ignores the option of locking him in solitary, where he
can't hurt anyone else. It also implies that if ten people have been
arrested, one of whom has definitely killed a dozen people and if
freed is likely to kill at least a dozen more, that if it can't be
determined which of the ten he is, then all ten should all be promptly
executed, even though nine of them are totally innocent. Would you
agree? If so, please admit it.

> As to your list from the far Left DPIC -- oh, sure. Name a single
> factually innocent person that any AUTHORITATIVE AND NEUTRAL
> organization (say, the ABA) has determined was executed in the
> United States in the last 50 years. And no, advocates and advocacy
> groups are not neutral.

The DPIC *is* authoritative and neutral, and is neither an advocacy
group nor on the left. It provides accurate unbiased information
about the death penalty, but does not advocate for it or against it.

Have you read that page?
https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possibly-innocent

Unless they're simply lying and making up dozens of citation to
legitimate newspapers, there is strong reason to believe every one
of those 20 people are completely innocent.

Or are you defining "authoritative and neutral" as agreeing with
you? Are you one of those people who considers Alex Jones to be
authoritative and neutral?

> But I can name people who were killed by convicted murderers who,
> having NOT been executed in part because of the bitter skepticism of
> people like you, lived to kill again.

So can I. Many of them were cops who killed multiple times, and
weren't even fired, much less prosecuted. Some of them were
"sentenced" to to temporary leave with pay, or to retraining.

The second corpse is a victim of that killer, not of everyone who
failed to stop the killer.

You mention Tim McVeigh. We all agree that, in response to the Ruby
Ridge and Waco massacres, he killed 168 people in a federal building
that contained an FBI office. He was executed for that crime, and
I've never objected to that specific execution. But your argument
would seem to imply that if he had *refrained* from detonating that
bomb, he would then have been guilty of any murders later committed
by any FBI agents who were in that building on that day, as he failed
to stop them. That's not how guilt works, at least not in my moral
universe.

But then my answer to the trolley problem is that I would do nothing.
I would rather that five innocent people died because I did nothing
than that one innocent person died because I did something.
Apparently most people answer that problem differently. If that makes
me a bad person, so be it. But by that standard everyone is a bad
person. Everyone could have saved lives they didn't, even without
killing anyone, had they devoted their whole life and all their money
to saving lives.

> Was Timmy McVeigh a desperate poor person? Ted Bundy? John Wayne
> Gacy? Dzhokhar Tsarnaev? Alex Murdaugh? Harvey Weinstein?
> R. Kelly? Michael Millken? Bernie Madoff?

As you know, those were all very unusual cases. The great majority of
people in prison are poor and desperate.

After your system did its best to destroy my life 45 years ago, I'm
lucky that I had the full support of my friends, my family, and the
crime victim. Otherwise I would have been unemployable and broke when
I left prison, and would have had no choices except to either begin a
life of crime or to commit suicide.

> Any of the thousands of grifters, thieves and scam artists you have
> never criticized?

I have criticized plenty of free-lance criminals. It's true that
there are thousands I haven't specifically named. You haven't named
them all either.

> Your heart bleeds for the criminal, accounting for your flagrantly
> false (if wonderfully sympathetic) portrayals of them --

I don't defend criminals (except those guilty only of victimless
crimes). I defend those who are falsely accused of being criminals.

> and your blanket, acid condemnations of the police --

The police kill at about 50 times the rate of the general US
population.

The police aren't all killers, but they are all liars. It's a job
requirement. Lying is a central part of the Reid Technique, which
involves preying on the gullible, convincing them that they're
criminally insane for not remembering committing the crime. And yes,
I do condemn all liars. Maybe not those who tell social or white lies
("no, you don't look fat in that dress"), but certainly all those who
use lies to hurt other people.

> but views the victims as human garbage.

And that is a lie.

Of course not everyone who claims to be a victim is telling the truth.
I do regard false accusers as "human garbage." Don't you? Or do you
regard them as a prosecutor's best friend?

Maybe I should have been executed 45 years ago. Nothing less would
have kept me from pointing out the truth about your beloved system of
lies and coercion, i.e. America's largest, most powerful, and most self-righteous and hypocritical criminal gang.

Posted by: Keith Lynch | Mar 12, 2023 3:42:08 PM

Keith Lynch --

"The DPIC *is* authoritative and neutral, and is neither an advocacy
group nor on the left. It provides accurate unbiased information
about the death penalty, but does not advocate for it or against it."

This time you're not lying; you're just out of your mind.

Could anyone here help this guy? He thinks that perhaps the foremost anti-DP advocacy group in the country is not an advocacy group.

Posted by: Bill Otis | Mar 12, 2023 6:15:50 PM

Bill,

Osama bin Laden was an ecumenical hero of religious freedom.

This could be a game.

Posted by: TarlsQtr | Mar 12, 2023 8:54:16 PM

TarlsQtr --

What's odd about Keith is that, not only does he say stuff that's blatantly and provably false; he says stuff that, even if true, is not possibly something he could know. Example: "The police aren't all killers, but they are all liars."

Sure, like this guy knows "all police." He knows maybe one one-hundreth of one percent of police, but just blasts away like the blowhard idiot that he is.

The other odd thing about him is that he's the Donald Trump of the comments section. Everybody was conspiring against him when he pled guilty to theft (or receiving stolen goods, I've forgotten). The cops, the prosecutor, his own lawyer, the judge -- CONSPIRATORS ALL!!! Like Donald, he wuz robbed!

Posted by: Bill Otis | Mar 12, 2023 10:29:32 PM

Bill,

If all you read was DPIC BS, wouldn’t you believe all cops are liars too?

I can’t wait to hear what he thinks about the SPLC.

Posted by: TarlsQtr | Mar 12, 2023 11:26:01 PM

Wow. Keith disappeared suddenly. I hope he wasn’t railroaded by prosecutors and cops again.

Posted by: TarlsQtr | Mar 13, 2023 7:01:42 PM

TarlsQtr --

Now, now Tarls. If a guy is really so far gone that he thinks the DPIC is neutral, it's time to show some compassion.

Posted by: Bill Otis | Mar 13, 2023 7:23:35 PM

If only Bill and Tarls could also make Donald Trump disappear!

Posted by: Doug B | Mar 13, 2023 7:57:41 PM

>> "The DPIC *is* authoritative and neutral, and is neither an
>> advocacy group nor on the left. It provides accurate unbiased
>> information about the death penalty, but does not advocate for
>> it or against it."

Mr. Otis wrote:
> This time you're not lying; you're just out of your mind.

> Could anyone here help this guy? He thinks that perhaps the foremost
> anti-DP advocacy group in the country is not an advocacy group.

I checked their website, and couldn't find anywhere that they express
a political position on the death penalty. Maybe it's hidden somewhere
in one of the subsidiary pages I didn't look at, but it would an odd
sort of advocacy group that doesn't make what they're advocating
obvious on their front page.

The Wikipedia page on them also claims they take no political
position. Maybe you think Wikipedia is also a "far left"
organization? It was founded, and is still run, by Jimbo Wales, a
follower of Ayn Rand, who was not exactly a leftist, to put it mildly.

Anyone can edit any Wikipedia page, but only if they give a pointer
to a reputable source. Any erroneous edit will soon be noticed and
reverted. If you think Wikipedia is wrong about DPIC, feel free to
"correct" it, but if you can't find a source, your change will quickly
be removed.

DPIC is against the execution of innocent people, but I wouldn't call
that a political position, any more than being against slavery or in
favor of motherhood is.

Anyhow, even if they were "far left," what would that have to do
with opposition to the death penalty? The political leader who was
responsible for the most deaths of his own citizens was Mao Zedong,
who killed at least 40 million. The foremost anti-DP advocacy group
is the Catholic Church. If the you think the latter is far left, and
that the former is not, you have a screw loose.

> What's odd about Keith is that, not only does he say stuff that's
> blatantly and provably false; he says stuff that, even if true, is
> not possibly something he could know. Example: "The police aren't
> all killers, but they are all liars."

> Sure, like this guy knows "all police."

As I said, it's a job requirement. Similarly, I also believe that all
firefighters climb ladders, even though I don't know all firefighters.

I bought a police training manual at a library used book sale. It
teaches how to most effectively lie to suspects.

> The other odd thing about him is that he's the Donald Trump of the
> comments section.

The only thing I have in common with the 45th president is that we're
both straight white American men who are over 60. I despise the guy.
Among much else, he took our full-page ads calling for the execution
of the Central Park Five, even though they weren't accused of killing
anyone. Unsurprisingly, they were all later proven innocent of what
they were accused of.

> Everybody was conspiring against him when he pled guilty to theft
> (or receiving stolen goods, I've forgotten).

I'm sorry to hear about your memory problems. Perhaps you're getting
senile. You've asked me multiple times about my case. Instead of
repeatedly answering, each time I point you at my answer at:

https://sentencing.typepad.com/sentencing_law_and_policy/2022/01/no-justice-no-pleas-subverting-mass-incarceration-through-defendant-collective-action.html

Also, in another thread, you suggested to Scott Greenfield that he
join you in denouncing what happened at Stanford, more than a day
after he already denounced it in his Twitter feed.

> The cops, the prosecutor, his own lawyer, the judge -- CONSPIRATORS
> ALL!!! Like Donald, he wuz robbed!

I think the judge was just clueless. The same judge later became
infamous for setting aside a jury's sentence for a rapist and giving
him probation instead. (Here in Virginia juries, not judges,
determine sentences.)

Did the cops and the prosecutor work together to get me convicted?
Yes. How is that controversial? As for my court-appointed lawyer, he
probably thought he was doing me a favor by lying to me to get me to
plead guilty, since he knew I would lose at trial and get a harsher
sentence. He knew I would lose at trial because he was either
unwilling or unable to defend me, or even to investigate the crime I
was accused of. I made it clear to him that I was unwilling to plead
guilty to anything I didn't do. He made it clear to me that he was
unwilling to defend me at trial.

How about answering some of my questions. For instance if you were
falsely accused of rape, would you really forbid your lawyer from
attempting to impeach your accuser?

TarlsQtr wrote:
> Wow. Keith disappeared suddenly. I hope he wasn't railroaded by
> prosecutors and cops again.

You posted that just 15 hours after my lengthy post. Unlike you and
Mr. Otis I have a life. I don't log in every hour. Sometimes I go
whole *days* without reading this blog. Sorry if you're bothered by
the delay.

Doug B wrote:
> If only Bill and Tarls could also make Donald Trump disappear!

If there's a way, I'd be glad to help them do so.

Posted by: Keith Lynch | Mar 13, 2023 10:13:22 PM

Keith Lynch --

If you actually think the DPIC is neutral on the death penalty, there is really no helping you, and I'm not going to try. Everyone in the field knows where they stand. When I have debated the death penalty at law schools, one of the first places the student sponsors have looked for an opposing speaker is the DPIC. Give it a rest.

As to defense lawyers attacking rape victims on the witness stand by implying they're whores, yes I'm against it. And I would instruct any lawyer I retained in any case in which I was involved that he was not to attack an opposing witness as a whore unless (1) it was relevant to an issue in the case and (2) it was true.

P.S. Even whores can be raped. Do you not know that?

P.P.S. You and Trump are exactly alike in thinking that It's Everybody Else Conspiring Against You -- a story you have relentlessly peddled about your felony conviction -- and in thinking that only other people bear responsibility for your woes.

Posted by: Bill Otis | Mar 14, 2023 10:49:50 AM

Can you name a single execution DPIC has supported? That’s a far more reliable indicator of their “political position” than their press releases.

Posted by: TarlsQtr | Mar 14, 2023 12:10:04 PM

TarlsQtr --

I've debated DPIC people; Keith looks them up on Wikipedia, then holds forth about what they really think. Like I say, it's hopeless. The guy is just a bitter old man still obsessed with The Grand Conspiracy Against Him -- 45 years ago.

Yikes.

Posted by: Bill Otis | Mar 14, 2023 3:55:08 PM

Doug --

"If only Bill and Tarls could also make Donald Trump disappear!"

DeSantis '24!!

But if I make The Donald disappear, Biden will be furious, since The Donald is by far his best hope of getting re-elected.

If it is DeSantis, I trust you'll endorse me for the Fourth Circuit. I'll need something to do in my old age.

Posted by: Bill Otis | Mar 14, 2023 4:21:20 PM

I am certain I could not endorse someone to a judgeship if I feared he did not properly understand SCOTUS sentencing jurisprudence. And so I have another basis for still seeking your answer to this question:

"Guideline 2D1.1(b)(1) says that, when sentencing a drug offender, 'If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.' If the guidelines are to be made 'mandatory' again, that finding of weapon possession -- which enhances the guideline range 2 levels --- would be subject to the BRD jury requirement per Booker. Do you disagree?"

Posted by: Doug B | Mar 15, 2023 11:02:53 AM

Doug --

Putting aside technical language, this is my understanding of current law: If the court sees a sentencing fact that under a commonsense understanding would elevate the offense of conviction to a new and more serious crime, then that fact must be proved BRD. If on the other hand the court sees a sentencing fact that keeps the prospective sentence within the statutory maximum for the stated offense of conviction, then that fact need only be proved by a preponderance.

If I understand your question, the sentencing fact EFFECTIVELY elevates the offense of conviction to a more serious crime, to wit, trafficking while armed. That fact would therefore need to be proved BRD. This is in contrast to, say, the court's conclusion that the defendant was an organizer or supervisor of the drug ring. That (if memory serves) would raise the prospective sentence by 4 levels (that is, more of an increase than in your example), but, because it does not elevate the offense of conviction to a new and more serious crime, need only be proven by a preponderance.

Somehow, though, I suspect I'm still not getting your endorsement. Well phooey.

Posted by: Bill Otis | Mar 15, 2023 8:49:01 PM

Because you do not seem to understand existing SCOTUS jurisprudence, Bill, I would have a hard time endorsing you. Thanks for explaining your view, but it is not applicable law. Among many SCOTUS cases I could cite, the Court's opinion in Cunningham expressly rejected the California courts' comparable effort to elide its "bright line" Sixth Amendment jurisprudence:

"Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U. S., at 490.... If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. Blakely, 542 U. S., at 305, and n. 8."...

"Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, we have said, is the very inquiry Apprendi’s 'bright-line rule' was designed to exclude. See Blakely, 542 U. S., at 307–308."...

"Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies.... Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent."

Alleyne also makes clear that EVERY sentence-enhancing fact (other than a prior conviction) in any mandatory sentencing system is subject to proof BRD and jury requirements: "In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed."

I remain surprised and fascinated that you have labored under this misunderstanding of Apprendi/Blakely/Booker and their progeny for so long. But this serves as a good reminder of how opaque this area of law can be.

Posted by: Doug B. | Mar 15, 2023 10:15:35 PM

Doug --

Just read what you've quoted and you'll see that I'm correct.

Example 1 (emphasis added): "'any fact that increases the penalty for a crime BEYOND THE PRESCRIBED STATUTORY MAXIMUM must be submitted to a jury, and proved beyond a reasonable doubt.

That's exactly what I said. Aggravators that would take the sentence OUTSIDE the statutory max require proof BRD. Ones that still keep it INSIDE the statutory max don't.

Example 2 (emphasis added): "In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment ABOVE WHAT IS OTHERWISE LEGALLY PRESCRIBED." The italicized phrase does not mean the lowest possible sentence. "What is otherwise legally prescribed" means the STATUTORY RANGE FOR THE OFFENSE OF CONVICTION, from the lowest to the highest within the range.

So, yes, thanks for your endorsement. President DeSantis will appreciate it.

Posted by: Bill Otis | Mar 16, 2023 2:11:28 AM

Bill, you are quoting Apprendi's "statutory maximum" language which led folks to believe not every mandatory sentence-enhancing fact would be covered, but Blakely and Booker make clear that was not to be the case (which is why those cases were practically even a bigger deal than Apprendi):

Blakely: "Our precedents make clear, however, that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."...

"As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."

Booker: "Our precedents, we explained, make clear “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” The determination that the defendant acted with deliberate cruelty, like the determination in Apprendi that the defendant acted with racial malice, increased the sentence that the defendant could have otherwise received. Since this fact was found by a judge using a preponderance of the evidence standard, the sentence violated Blakely’s Sixth Amendment rights...."

"The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence. Thus, just as in Blakely, 'the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.' 542 U. S., at ___ . There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases."

Again, Bill, I am amazed you do not understand that Blakely and Booker make clear that every factual finding that enhances a sentence in a mandatory system MUST comply with the traditional constitutional trial rules. If you can find a case or anything else to support your view of the law, I would love to see it. I would like to believe that you do not just make up law as you want it to be, but I have no other way to understand your misunderstanding of a long line of Supreme Court cases.

Notably, key precedents and opinion in the Apprendi line were authored by Justices Scalia and Thomas. And Justice Scalia, writing for the Court, directly spoke to and rejected in Blakely (see Part III) the notion that judges at sentencing get to decide which sentence-enhancing facts ought to garner constitutional protections. That part concludes this way: "Whether the Sixth Amendment incorporates this manipulable standard rather than Apprendi’s bright-line rule depends on the plausibility of the claim that the Framers would have left definition of the scope of jury power up to judges’ intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury."

Posted by: Doug B | Mar 16, 2023 10:42:06 AM

Doug --

-- I guess you never heard of the old maxim that the contestants in a debate don't get to decide the winner. Still, every sensible person believes that, so just saying over and over and over again that you win and I lose is kinda pointless, no?

-- Again, you get the words right, but you miss what they mean. You'd have a better idea if you actually litigated cases rather than holding forth from academia. Learning by doing and all that.

-- But for however that may be, you already gave away your case. Remember, you admitted that the court DOES NOT have to find BRD that the defendant has an unrepentant attitude in order to increase the sentence (within the range) to take account of that fact. Since what the defendant's attitude is a question of fact, that it does not have to be decided BRD -- as you concede -- is the end of the road for your argument.

Posted by: Bill Otis | Mar 16, 2023 10:12:49 PM

Mr. Otis wrote:
> If you actually think the DPIC is neutral on the death penalty,
> there is really no helping you, and I'm not going to try.

Never mind what I think. Pay attention to what Wikipedia thinks. If
it's wrong, correct it. All it requires is a pointer to a reputable
source.

Unlike you, I'm always open to new evidence. So is Wikipedia.

There's a Wikipedia page about you. Is it accurate?

> P.S. Even whores can be raped. Do you not know that?

Prostitution is illegal everywhere in the US, except parts of rural
Nevada. If a defense attorney can get a witness to admit that she
routinely breaks the law, jurors are less likely to believe her
testimony. Especially since prosecutors may have used threats of
prosecution to get her to testify the way they wanted her to.

For instance when Crystal Magnum accused three student athletes at
Duke University of rape, charges against her were dropped. The
accused won the case, but only because they had airtight alibis and
spent more than a million dollars -- each. Had they been non-wealthy,
they would have been found guilty and would still be locked up to this
day. (Ms. Magnum was subsequently convicted of an unrelated murder.)

> P.P.S. You and Trump are exactly alike in thinking that It's
> Everybody Else Conspiring Against You -- a story you have
> relentlessly peddled about your felony conviction --

No, I think extremely few people ever conspired against me. A handful
of cops and a prosecutor. And that was more than 45 years ago.

> and in thinking that only other people bear responsibility for your
> woes.

Not a week goes by that I don't blame myself for my gullibility.
Do you think this is constructive? What more should I do? Wear
a hairshirt? Whip myself? Seppuku?

You apparently think nobody else bears the slightest responsibility
when an innocent person pleads guilty, no matter how much he was lied
to or how many threats were made against him.

> Can you name a single execution DPIC has supported? That's a far
> more reliable indicator of their "political position" than their
> press releases.

If, as seems to be the case, they have no political position, but
only present undisputed facts, then obviously they never favor any
execution. And neither do they ever oppose one (except presumably
when the suspect is obviously innocent, as would anyone who isn't
a monster).

> I've debated DPIC people; Keith looks them up on Wikipedia, then
> holds forth about what they really think.

I follow the evidence. Similarly, I believe the world is round even
if someone swears they've been to the edge, and even if they have lots
of credentials.

Do you think the world would be a better place if everyone always
deferred to their "betters" rather than following the evidence or
their own conscience?

> Like I say, it's hopeless. The guy is just a bitter old man still
> obsessed with The Grand Conspiracy Against Him -- 45 years ago.

If I'm bitter, I'm not very good at it. Since I retired, I've spent
maybe two percent of my time thinking, talking, reading, or writing
about the criminal justice system and my encounter with it. The
rest of the time I do lots of unrelated things. Indeed, your friend
TarlsQtr was recently upset that I went 15 hours without responding
to him.

I had a very successful career, despite the best efforts of
prosecutors just like you, who tried to destroy my life.

Am I old? I'm much younger than you, and in excellent health. My
medical expenses over the past four years are zero. Unlike you I have
no problems with memory, reasoning, or physical activity. (You keep
asking me questions I've answered.) (You've said you're incapable of
walking from DC to Arlington Courthouse.)

I admit that there are people who think I'm deranged. They think so
when I make seemingly absurd claims about the criminal justice system,
such as that people can be sentenced for dropped charges and acquitted
conduct; that people proven to be innocent can be kept in prison or
even executed if they have exhausted appeals, missed a deadline, or
waived a right; that people can have their property seized and kept by
the police even if they aren't charged with any crime; that people can
have their children taken away even if they aren't charged with any
crime; that they can be kept locked up after they've finished serving
their sentence; that they don't get their civil rights back after
they've "paid their debt to society"; that most forensic science has
no scientific validity; and that for every dollar of taxpayer money
spent prosecuting the indigent, less than three cents is spent
defending them. Most people who aren't lawyers consider these claims
to be absurd. But lawyers like you know better.

More and more Americans every year are realizing that the criminal
justice system is profoundly broken and that cops and prosecutors and
their expert witnesses should never be trusted. In helping people
make this realization, I'm helping to make the US a better place.

Posted by: Keith Lynch | Mar 17, 2023 1:48:46 AM

Bill, can you point to a single case in the two decades since Booker that says a fact-finding that enhances the mandatory sentencing range for an offense is not subject to the BRD/jury constitutional rights as explained in Blakely and Booker and Cunningham and Alleyne? This is not about "winning," it is about elemental sentencing law.

As SCOTUS rulings in Blakely and Booker explain, WITHIN RANGE findings that do not have legally binding force are not subject to Apprendi/Blakely rights. That is not giving away the case, that is explaining legal basics after Blakely/Booker/Alleyne: all fact-finding (other than a prior conviction) that enhances the mandatory range triggers BRD/jury rights while findings "within the range" do not. That's why making the federal guidelines advisory elides these issues, because now all guideline findings/determinations are technically "within the range" because there is no legally binding guideline range.

But this conversation started because you advocated making the guideline mandatory again so that guideline findings would enhance the legally-binding range. I noted that, if we do that, Blakely/Booker make plain that any fact-finding (other than a prior conviction) which would enhance the mandatory range would trigger BRD/jury rights. I remain stunned you do not understand this elemental law, and I hope you do not teach in this area when you fail to misunderstand the "bright-line" rule set forth in multiple Supreme Court decisions.

Please talk to your litigator pals or any lawyer who understands basic sentencing law if you do not credit my explanation of clear SCOTUS law. Or just credit Judge Bill Pryor, former USSC Chair, who has explained the point in his advocacy for a return to a "presumptive"/mandatory federal guideline system:

"The Supreme Court’s decisions in Blakely and Booker mandate that, in a presumptive guideline system, constitutional procedures not required in the current advisory system would have to be followed. With the exception of a defendant’s prior convictions, the indictment would have to allege aggravating guideline factors in addition to the elements of the offense, and the prosecution would have to prove those aggravators to a jury beyond a reasonable doubt (unless the defendant pleaded guilty to them)."

See Pryor speech at p.3, at https://www.ussc.gov/sites/default/files/pdf/news/speeches-and-articles/20170517_Pryor-Remarks.pdf

I am now inclined to stop trying to explain what should be clear, but I am am not going to stop being shocked that you think mandatory guidelines can lawfully function with mandatory enhancements without the constitutional procedures that the Blakely and Booker planly mandate.

Posted by: Doug B | Mar 17, 2023 2:25:38 AM

Doug --

"Bill, can you point to a single case in the two decades since Booker that says a fact-finding that enhances the mandatory sentencing range for an offense is not subject to the BRD/jury constitutional rights as explained in Blakely and Booker and Cunningham and Alleyne?"

In the immortal line from Cool Hand Luke, what we got here is failure to communicate.

How many times do I have to say this? If a sentencing fact would take the sentence ABOVE the range applicable for the offense of conviction, then you bet it has to be proved BRD. But if the fact merely increases the sentence WITHIN the range, the standard is preponderance -- as you admitted some time ago, in the context of a judge who adds a few months (but stays in the range) for an unrepentant defendant.

I do agree with you on this much, though: We've gone as far as it's productive to go on this particular debate.

Posted by: Bill Otis | Mar 18, 2023 3:36:32 PM

I am a bit comforted, Bill, if you now recognize/understand that within a mandatory guideline system (which you say you prefer) --- eg, the federal system before Booker found its operation unconstitutional --- EVERY fact (other than a prior conviction) that the guidelines provide must INCREASE the mandatory guidelines range will have to be proven BRD. That means that any and every fact that is associated with any kind of mandatory guideline enhancement --- like drug quantity, loss amounts, weapon use, vulnerable victims, use of a minor, role in the offense and every other factual enhancement that drives up a guideline range --- has to be proven BRD/jury.

Many of your prior comments, Bill, seemed to claim that, in a mandatory system, some range "enhancements" can still be proven by a preponderance. That is clearly wrong under Blakely/Booker, but maybe you are now disavowing this mistaken position. I am still unsure based on your prior comments, but I will assume you now do understand basic sentencing law and will not longer wrongly suggest that some mandatory enhancements can be lawfully proven at a lower standard.

Posted by: Doug B. | Mar 18, 2023 4:06:11 PM

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