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May 3, 2023

After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases

Regular readers surely recall prior posts about the McClinton case still before the US Supreme Court raising issues about the use of acquitted conduct at sentencing in which I filed an amicus brief in support of petitioner Dayonta McClinton.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

After various delays, the Justices considered the McClinton case (as well as a number of others raising acquitted conduct issues) at their conference in January 2023.  Upon initial review, these cases were all "relisted," which is usually a sign that at least one Justice is interested in taking a closer look at the case.  But then, interestingly, these cases did not appear in subsequent SCOTUS order lists nor did the docket sheet show that the case was rescheduled for future conferences.  A number of folks speculated, myself included, that the announcement by the US Sentencing Commission to consider an amendment to the federal sentencing guidelines on the acquitted conduct issue had led the Justices to put a hold on McClinton and the other acquitted conduct cases.

But, as reported here, last month the US Sentencing Commission ultimately decided not to advance any guideline amendments addressing the issue of acquitted conduct in this year's amendment cycle.  This USSC decision served, in a sense, to punt this matter back to the Justices.  (The issues and possible work of SCOTUS and the USSC on acquitted conduct are not identical, but they do overlap in various possible ways.)  Excitingly, SCOTUS seems to be back at it as the McClinton docket sheet now shows this case will be reviewed again next week by the Justices at their May 11 conference.

I still think the odds of a cert grant on this issue to be remote.  Stll, I think it important that SCOTUS indicate, one way or another, if it is inclined to review this important issue anew a quarter-century after its Watts ruling.  A host of new Fifth and Sixth Amendment jurisprudence raising questions about the practice of acquitted conduct sentencing enhancements could certainly justify review, but the Justices have been disinclined to revisit this issue for quite some time. 

A few recent of many, many prior related posts:

May 3, 2023 at 08:02 AM | Permalink


Well, Doug, you can always ask Schumer and his despicable crew to threaten to withhold funding for Supreme Court Justices' security until the Justices rule favorably on acquitted conduct.


Posted by: federalist | May 3, 2023 10:19:02 AM

If congressional Dems really cared, federalist, they could get on board with bipartisan bills to stautoriy preclude consideration of acquitted conduct. But I sense they are just as statist as GOP reps on this front.

Posted by: Doug B | May 3, 2023 4:00:29 PM

There's the "if they only would" device--but recall our discussions--defining acquitted conduct (in terms of when it has bite) ain't easy.

Love the Dems defund the Supreme Court police maneuver

Posted by: federalist | May 3, 2023 4:18:43 PM

I agree that defining acquitted conduct ain't easy, but that alone is no reason to leave it unaddressed for anyone seriously concerned about the importance of the jury trial right and about the need to respect just decision-making at sentencing.

Posted by: Doug B | May 3, 2023 4:25:25 PM

Or maybe the juice isn't worth the squeeze. Why not just require federal judges to explain themselves on this issue?

And I love the Dems' threats against SCOTUS--don't you just love living in a country descending into the politics of the Weimar Republic?

Posted by: federalist | May 3, 2023 4:49:48 PM

Federal judges already have, under 3553(C), stautory requirement that they, "at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence." Not much more to squeeze here, federalist, especially since the guidelines currently require calculation of a range based on findings by a prepoderance regardless of a jury verdict to the contrary.

Posted by: Doug B | May 3, 2023 5:05:48 PM

Federalist: attaching a rider requiring an ethics code of conduct is beyond the pale?

Posted by: defendergirl | May 3, 2023 5:16:19 PM

DOug, when I say explain, I mean explain why they chose to sentence in the face of the jury's verdict so that it shows that the judge grappled with it.

defendergirl, you cannot be serious . . . . Doug, you in accord with me or defendergirl?

defendergirl, do you disclose the home addresses of witnesses to your violent clients?

Posted by: federalist | May 3, 2023 5:28:06 PM

defendergirl --

How about an ethics code for attorneys to the effect that "every attorney is required to be fully truthful, open, candid, and forthcoming in dealing with the court and opposing counsel, even if the client would prefer deceit."

It's way past time the legal profession clean up its earned reputation for slickness and half-truths. An ethical rule like that would help, wouldn't it?

Posted by: Bill Otis | May 3, 2023 5:51:05 PM

Mr. Otis and Federalist, one would think you would both be concerned with the appearance of corruption among the Supreme Court members; yet you remain silent. How is it that every federal judge is bound by a Code of Ethics, but not the Supremes. Don't you folks care?

Posted by: public defender | May 4, 2023 12:25:27 AM

Mr. Otis, you write "How about an ethics code for attorneys to the effect that "every attorney is required to be fully truthful, open, candid, and forthcoming in dealing with the court and opposing counsel, even if the client would prefer deceit."

How about putting a dollar in the pot for every prosecutor who has overcharged defendants, withheld Brady material, intimidated witnesses, breached plea agreements, and who has assumed self-righteous, holier-than-thou airs?

Posted by: public defender 23 | May 4, 2023 12:30:42 AM

federalist, I do not understand what you mean by "grappled with it." Judges already have to make factual findings to support guideline determinations and also have a duty to explain the reasons for their sentences. Should a new statute say, "and we really mean it when acquitted conduct is involved"? Or are you suggesting some presumption against the use of acquitted conduct that can be overcome only if/when a judge can articulate some special reasons for ignoring the jury acquittal? I sincerely do not know what you are suggesting as an alternative.

As for a code of ethics for Justices, my understanding is that all federal judges in lower courts follow such a code and that has not produced difficulties. By the same measure, none of the recent SCOTUS stories leads me to think there are huge ethics problems that demand a huge remedy from Congress or anyone else --- the recent NYT piece about law schools having Justices teach in the summer was truly comical --- plus the only obvious enforcement mechanism would be impeachment (which already exists if a Justice were to be truly corrupt). But this is not my area of specialty, either with respect to the rules of judicial ethics or the constitutional authority of Congress to seek to influence judicial ethic rules.

Posted by: Doug B | May 4, 2023 5:15:34 AM

public defender --

Since you avoided the question, I'll ask it again: "How about an ethics code for attorneys to the effect that 'every attorney is required to be fully truthful, open, candid, and forthcoming in dealing with the court and opposing counsel, even if the client would prefer deceit.'"

Please note that this would apply to all lawyers, not just defense counsel.

Posted by: Bill Otis | May 4, 2023 9:48:42 AM

Doug --

"...the recent NYT piece about law schools having Justices teach in the summer was truly comical."

Use of the word "comical" is spot on in this instance. The NYT might think about assigning a reporter who at least knows a little something.

Posted by: Bill Otis | May 4, 2023 9:51:14 AM

Doug, the issue is not the ethics, but the threat to withhold funding for security unless they agree to the Dems' demands. You really ok with that?

publicdefender--you cool with what Sotomayor did?

Posted by: federalist | May 4, 2023 10:06:02 AM

re: "acquitted conduct"---I think if the judge had to explain, in writing, why he or she decided to use acquitted conduct (whatever that means) and that were subject to some standards--and I don't know what they would be---but given the definitional problems, I think that this is a fool's errand, unless the goal is to hook up guilty criminals.

Posted by: federalist | May 4, 2023 10:10:15 AM


That's the threat right there . . . .

Posted by: federalist | May 4, 2023 10:27:34 AM

federalist: I am not okay with withholding security funding for any reason.

And I still cannot understand your acquitted conduct proposal. It sound like you are really ultimately just fine with sentencing judges ignoring a jury acquittal based on the judge’s own feelings about what he thinks “really” happened. Such a view seems in serious tension with the principles of Apprendi/Blakely et al. But these doctrines have coexisted for 20+ years.

Posted by: Doug B | May 4, 2023 10:48:52 AM

Mr. Otis, I'll respond to your query as soon as you and Federalist respond to mine.
How come you both remain silent in face of the Supreme Court Justice Thomas' (among others) apparent corruption, which, I might add, just continues to spread like a virus.

Posted by: public defender | May 4, 2023 10:55:00 AM

Well, that all depends--someone can be acquitted of murder, but still responsible for a killing. Let's take example of criminal who robs someone, and that person gets heart attack while being robbed and dies. Are you saying the judge has to ignore the death?

And you're not ok with withholding security funding--so why not call out defendergirl or the 'rat Congressmen who made this threat.

Posted by: federalist | May 4, 2023 10:55:08 AM

public defender--I don't see where the fire is. You're not allowed to have friends--you know like friends from the publishing company that has business with the Court, and Sotomayor didn't recuse.

And while we are at generosity towards relatives, I assume that you're up in arms about the payoffs to Hunter.

Posted by: federalist | May 4, 2023 11:05:08 AM


Posted by: federalist | May 4, 2023 11:41:19 AM

Abe Fortas resigned relatively soon for doing far less than Thomas has. He didn't want to tarnish the reputation of the Supreme Court. We're clearly in a new era: tarnishing reputation does count for much any more. What is reputation anyway? Well, there are two views:

CASSIO Reputation, reputation, reputation! O, I have
lost my reputation! I have lost the immortal part of
myself, and what remains is bestial. My reputation,
Iago, my reputation!

IAGO As I am an honest man, I thought you had
received some bodily wound. There is more sense
in that than in reputation. Reputation is an idle and
most false imposition, oft got without merit and lost
without deserving. You have lost no reputation at
all, unless you repute yourself such a loser.

I think Justice Thomas (and most Republicans) adhere to Iago's view rather than Cassio's. What do you folks think?

Posted by: Michael R. Levine | May 4, 2023 12:15:16 PM

Allegations of corruption among members of the Supreme Court raises the eternal question:

Quis custodiet ipsos custodes?

Posted by: Latin Scholar | May 4, 2023 12:38:00 PM

We have gone through this before, federalist: when I advocate against sentencing based on acquitted conduct, I am saying that a judge should not be able to sentence with reliance on the acquitted conduct exactly as if that conduct had been the basis for a conviction or had been uncharged. That is how it works now (acquittal irrelevant for guideline calculation), and that serves to gut the jury trial right for the defendant and disrespects the work of the jury in our system.

And I am not an expert on judicial ethics nor have I been able to follow the congressional discussion while traveling, so I lack the knowledge bases to call out anyone (though I know that never stops you).

Posted by: Doug B. | May 4, 2023 1:10:31 PM

All you have to do is read the 'rat letter, Doug.

Mr. Levine: then you should be calling for the "wise [sic] Latina" to resign.

So in my heart attack hypo, the judge has to ignore???

Posted by: federalist | May 4, 2023 1:48:05 PM

federalist --

Correct. Corruption is taking money TO USE YOUR OFFICE FOR THE BENEFIT OF THE DONOR. The other side has produced zero evidence that Thomas did any such thing. He has voted consistently in accord with a view of the Constitution he's had since law school.

public defender --

"I'll respond to your query as soon as you and Federalist respond to mine."

No you won't. If you actually supported honesty in the legal profession, you'd have no trouble saying so without any conditions. The reason you won't answer is that injecting more rigorous candor requirements into professional ethics would spoil your fun making up fairy tales about the "mental illness" that supposedly exculpates your child rapist clients.

Posted by: Bill Otis | May 4, 2023 4:33:58 PM

federalist: If a defendant was acquitted by a jury on a charge that included causing the heart attack, in my view it undermines the constitutional jury trial right for a judge to then sentence based on that fact in complete disregard for the jury verdict of acquittal.

Is it your view that, after a jury acquittal, judges should and must sentence based on facts resolved against the government by the jury verdict and that the jury work is to have no legal significant whatsoever at sentencing now and in the future? That is how the US Sentencing Guidelines now function to disregard jury acquittals.

Posted by: Doug B. | May 4, 2023 4:50:29 PM

Mr. Otis, The relevant canon governing the federal judiciary is as follows:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behavior. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.

Nothin in this Canon requires actual corruption. To the contrary, the Canon emphasizes that concern is with the appearance of corruption or unethical conduct. Thomas's conduct has brought about what this Canon was specifically designed to prevent: the impairment of the public's trust in the impartiality of Thomas. For all your long history before federal judges, I am stunned at your silence about Justice Thomas's disregard of this Canon. You silence and that of Federalist can be taken only as approval of his conduct.

Posted by: public defender | May 4, 2023 6:19:48 PM

public defender --

1. The Canons do not apply to Supreme Court justices, as you should know.

2. I use my name. What's your name? Why are you hiding it? Not so proud of giving your all for child rapists?

3. Your statement that I've been silent about the Thomas controversy is false, https://ringsideatthereckoning.substack.com/p/the-attacks-on-justice-clarence-thomas?utm_campaign=reaction&utm_medium=email&utm_source=substack&utm_content=post.

4. Not that anyone should be surprised at false statements by a public defender. Kind of the name of the game.

5. Nor should anyone be surprised at anti-Black racist attitudes by defense counsel, since defense counsel gave every effort to defend racist jury strikes in the Holy Name of The Client, Georgia v. McCollum, 505 U.S. 42 (1992). Are you proud of that position?

Posted by: Bill Otis | May 4, 2023 10:08:19 PM

Bill Otis you note that the Canons do not apply to the Supremes. But that's the whole point. Why don't they. Shouldn't they. The miasma emanating from Thomas just grows worse. As a good attorney, you should know when to give up the argument.


Posted by: public defender | May 4, 2023 11:42:50 PM

public defender --

You want answers from me while utterly ignoring the questions I ask you.

Doesn't work that way sonny.

Posted by: Bill Otis | May 5, 2023 2:00:07 AM


No one ever has any good answers.

Doug, I see you've taken a page from me--remember my query about how someone who has served their sentence can be denied First Amendment rights (if locked up in prison). But the issue is clear here--there's no constitutional restraint on the judge seeing evidence before his or her own eyes. The question is the right policy choice. My view is that perhaps we start having judges evaluate the jury verdicts and give them an abuse of discretion standard as to whether something really is acquitted conduct, remember my racial epithets during robbery hypo--then they have to explain in detail why a sentence should be what it should be notwithstanding the jury's verdict. That will at least get the jury verdict in the door. Your position would just make up some law.

Posted by: federalist | May 5, 2023 12:37:58 PM

Perhaps public defender will comment on the Sotomayor scandal now brewing.

Posted by: federalist | May 5, 2023 12:38:32 PM

federalist --

Good question. I describe the Sotomayor story here: https://ringsideatthereckoning.substack.com/p/the-attacks-on-justice-sonia-sotomayor

We'll see if public defender has something responsive to say, or just hides out.

Posted by: Bill Otis | May 5, 2023 12:58:54 PM

federalist, not sure what you mean by "taken a page from you" or what process you imagine here, but you seem unable or unwilling to confront the essential issue head on: if/when a jury acquits because it has clearly rejected finding certain facts (let's imagine a special verdict with all sorts of express factual findings), should a judge thereafter still be able to rely expressly and conspiciously on these clearly jury-rejected facts to increase a defendant's sentence on that basis? That is what the current federal system allows (indeed requires at the guideline calculation stage), and I think that is constitutionally problematic. Do you?

I agree that working through just what are jury-rejected facts can be complicated in some settings. But we can keep it simple to cover a common fact pattern in the federal system --- jury is asked if the defendant was a drug dealer and also whether he dealt more than a kilo to trigger a 10-year MM. Jury returns verdict that he was a drug dealer, but makes a special finding that he dealt less than 500g while acquitting on the charge that carries the MM. Do you think a judge can/should still be able to find that the amount of the drugs is over 1K and base a longer sentence expressly and only on that judicial finding?

Posted by: Doug B | May 5, 2023 12:59:24 PM

"constitutionally problematic"--interesting choice of words--kinda like the Dickerson v. US words describing Miranda.

Your hypo is a good one--obviously, there are niggling points I could make regarding the requirement of special verdict--I believe the constitutionally prescribed role of the jury is returning a verdict on elements, so someone could argue that the special verdict doesn't implicate the jury trial right (which is a fair argument, now that I think about it.) From a policy perspective, I agree with you wholeheartedly--from a constitutional standpoint, I think I'd side with you on idea that when Sixth Amendment was adopted, we didn't have such detailed criminal law schemes and that has eroded the Framers' understanding of the "bite" of an acquittal.

Posted by: federalist | May 5, 2023 3:37:21 PM

So please explain to me how someone who has served his/her time and is in prison does not have (a) his full 1A rights and (b) his full right to self-defense.

Posted by: federalist | May 5, 2023 3:40:14 PM

federalist: by definition, as I see it, there is a big problem with a hypo that starts "someone who has served his/her time and is in prison." If it is undisputed that someone has served his/her time, that person should no longer be in prison (and I think a state should be liable in damages for unlawful incarceration). If there is some dispute about whether a person should still be in prison and so that person is still in prison as that dispute is being resolved, then that person can still be treated legally as a prisoner and (only) has the same rights as every other prisoner.

Key point: I get letters every week from prisoners who sincerely believe that they have fully served their time and should be free. Are you saying that these prisoners' sincere belief that they have served all their time is all it takes to give them the full rights of non-prisoners even as the legal system still treats them as prisoners? As I see it, unless and until the legal system makes clear that a person is no longer to be a prisoner --- at which point the legal system has a duty to no longer keep a person confined in a prison against his will --- the legal system is permitted to treat all prisoners the same with respect to their rights.

What am I missing? Can you provide an example of someone who "has served his/her time and is in prison"? Part of "full 1A rights" would be the right to purchase a laptop and cellphone and connect to the internet to download adult porn. Are you saying some (but only some) people in prison have that right? Part of the "full right to self-defense" would be the right to attack someone seeking to lock a person in a cage. Are you saying some (but only some) people in prison have a right to attack guards who are just seeking to get prisoners back in their cells after a meal?

Posted by: Doug B | May 5, 2023 4:48:56 PM

The entire SCOTUS drama is a tempest in a teapot, and Roberts is doing the correct thing. Even if you believe the ethical standards should be increased, the current drama is just a political power play by Dems because they don’t like the makeup of the court.

If SCOTUS made any changes now, it would only embolden more political theater because they caved. Wait two years when this nonsense is over and do it quietly on the terms SCOTUS sets.

Posted by: TarlsQtr | May 5, 2023 6:17:39 PM

Bill Otis, I agree Sotomayor should had recused herself from the publishing case, but so then should have Judge Gorsuch.

"Conservative Justice Neil Gorsuch, who joined the court in 2017 and also has received hundreds of thousands of dollars in book deals with the publisher, declined to disqualify himself from the more recent case when it came before the court for consideration. s for Gorsuch, his financial disclosures note he's made at least $655,000 from Penguin Random House over the past few years from his book, "A Republic, If You Can Keep It." Gorsuch and Sotomayor's decision not to recuse themselves from the two publishing cases has received fresh scrutiny after a series of reports from ProPublica revealed that Supreme Court Justice Clarence Thomas accepted numerous lavish vacations and gifts from GOP megadonor Harlan Crow.
A key difference between the revelation about Gorsuch and Sotomayor compared with the recent news about Thomas, however, is the manner in which the news was collected. In Sotomayor and Gorsuch's case, the impropriety was discovered due to the diligent record-keeping of their earnings in their financial disclosures. In Thomas' case, however, his accepted gifts were only discovered due to whistleblowers and leakers coming forward to ProPublica." Found at


Can't we agree that all of this cries out for a Code of Ethics. That's no so hard is it? Even Tarls is bound by one, isn't he?

Posted by: public defender | May 5, 2023 11:35:04 PM

public defender --

Sotomayor actually voted on a case in which a company paying her millions was a party. That is vastly more ethically problematic than taking (very nice but still less valuable) gifts from a person who does not and never had business before the Court. Thus if Thomas should resign, Sotomayor should resign even faster.

Do you think Sotomayor should resign? I don't, and a fortiori neither should Thomas. https://ringsideatthereckoning.substack.com/p/the-attacks-on-justice-sonia-sotomayor

The question you ask about a Code of Ethics is reasonable, but I won't answer you on that while you continue just to walk past the questions I have asked you. This is not a one way street in which public defenders (if that's who you actually are) are royalty.

Posted by: Bill Otis | May 6, 2023 8:02:26 AM

Bill Otis, I'll answer your question. You write: "How about an ethics code for attorneys to the effect that 'every attorney is required to be fully truthful, open, candid, and forthcoming in dealing with the court and opposing counsel, even if the client would prefer deceit.'"

I agree 100 percent. As you know every attorney is already bound by a canon that requires candor towards the tribune. For a few years I sat on my state's disciplinary board judging other attorneys who have been accused of violating this and similar canons. When we found the attorney guilty, we did not hesitate to recommend discipline (to our Supreme Court), including disbarment in two cases.

So now that we agree on your point; and you seem to agree on my point about a canon of ethics for the Supreme Court, all is well that ends well, correct?

Posted by: public defender | May 6, 2023 9:47:14 AM

public defender --

It's fine with me if the Court adopts its own Code of Ethics. Separation of powers questions and the advantages of maintaining an independent judiciary counsel against the political branches trying to impose one.

Posted by: Bill Otis | May 6, 2023 9:53:27 AM

I find it hilarious that Congress, where people form a better nose for the stock market than Warren Buffet, have the gall to rail about a SC Code of Ethics.

I also cannot believe I agree with both Matt Gaetz AND AOC.

Posted by: TarlsQtr | May 7, 2023 9:59:19 PM

Doug, I am referring to the people in Louisiana who were kept over their sentences illegally.


Are you saying that they had the 1A/self-defense rights of ordinary prisoners? How do you get there?

Posted by: federalist | May 8, 2023 9:18:52 AM

I do not know LA law, but this NYT article highlights this key point: "Even well-intentioned corrections officials must navigate the state’s complex web of sentencing statutes and time calculation rules before signing off on the release of a prisoner." That suggests that in many cases, it is only in hindsight that it is 100% clear a prisoner is truly "free," and this is just another example of the many issues that can create all sorts of legal uncertainty about "freedom" on the back end of a prison term.

Moreover, it is clear from SCOTUS precedent that parolees have dimnished 4A rights and that there can be all sorts of significant restrictions on 1A rights for folks on community suppervision (eg, no association with known felons, no access to web in some cases). So even when no longer actual "prisoners," all sorts of constitutional rights are diminished for those still subject to state supervision outside of prison walls.

Gosh knows, I am very eager to give all prisoners as many "normal" rights as possible --- rights to vote, right to access mails/literature, etc. But prisons have to be able to function without every prisoner making (sometimes quite reasonable) claims that they really should be free and thus have many more rights that other prisoners (including the right to beat up armed guards that may be considered a threat).

The sensible response to the over-incarceration problems noted in this NYT article, since it may only get sorted soundly in hindsight, is to provide for folks to get (well) compensated for extra time served rather than to say Johnny Traweek had a right to beat to death the armed guard who ordered him to breakfast the first morning he thought he should be free. And, usefully, making the state pay for overincarceration, rather than having individual guards risk getting beat up by every prisoner who thinks he should be free, seems much more likely to get the state to release people on time.

Posted by: Doug B | May 8, 2023 9:38:43 AM

"But prisons have to be able to function without every prisoner making (sometimes quite reasonable) claims that they really should be free and thus have many more rights that other prisoners (including the right to beat up armed guards that may be considered a threat)."

Hmmm. I don't recall seeing that in the 1A--did I miss a day in law school? And why wouldn't a prisoner held past lawful sentence have diminished self-defense rights? I don't think self-defense encompasses beating a guard just sending the people to breakfast.

The NYTimes article should have asked hard questions along those lines---like how do you have the right to punish people for disrespecting a guard when they've served their lawful sentences? How do you make sure you don't punish those people?

Posted by: federalist | May 8, 2023 10:14:28 AM

I am not a 1A expert, but I recall Turner v Safely describing reduced rights for those in prison: "We hold that a lesser standard of scrutiny is appropriate in determining the constitutionality of the prison rules... When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Those legimate interests do not obviously change for the (handful? many?) prisoners who claim their prison term should be over.

If an armed guard threatens to send to the hole a prisoner (who sincerely believes he has completed his lawful sentence) for not going to breakfast, what do you think that prisoner can lawfully do in response? And how is the guard to sort through who is making sincerely/sound claims about their sentence and those who are not? And can a prisoner who knows he is innocent (so he knows he has not been lawfully sentenced) also invoke your special rules? And would the defense of others doctrine allow family members to storm the prison to seek to free anyone they think are wrongfully incarcerated?

As I see it, having a significant compensation scheme for the wrongfully incarcerated makes lots of sense (and is reasonably adjudicated by courts). Saying prisoners who sincerely think they are wrongfully incarcerated can attack guards and demand special treatment/rights relative to other prisoners seems very strange. And I have never seen any court say anything remotely like you are claiming.

Posted by: Doug B. | May 8, 2023 1:08:57 PM

Rights just aren't really rights--state power supersedes. That's fine, but we should be honest about it.

But the fact is that the state has zero right to punish a prisoner who is past his release date for self-defense or speaking his mind. It may have the power, but it does not have the right.

And I presume that you agree that the Times should be asking hard questions along these lines.

Posted by: federalist | May 9, 2023 8:38:33 AM

fedralist: would you say the state has "zero right to punish" an actually innocent person? An actually innocent person surely knows of his actual innocence better than he knows if/when he might be "past his release date." Richard Glossip and his supporters all think he is innocent --- should more people be "asking hard questions along these lines"?

I raise the point because you keep eliding the hard issues here. I hope most would agree that the state formally lacks the legal right to label as "prisoner" any factually innocent and "past-release date" persons. But how do conviction/mistakes get properly identified and what rights do prisoners have when their status is contested/uncertain? Unless/until you are prepared to say Richard Glossip and his supporters who think him factually innocent have a "self-defense" right to break him out of prison to defend him from what they all think would be an illegal execution, you need to have some explanation for how you think these rights can be sensibly operationalized.

Relatedly, you are in a sense making the case for aggressive bail reform advocated now by many on the left. As you know, roughly 2/3 of those incarcerated in jails (around 500,000) have not yet been convcicted of charges and yet are being held in jails and are subject to the reduced rights of convicged prisoners. Many advocates for bail reform make the case, as you seem to be doing here, that it is very problematic for these individuals to have reduced rights and to be locked up prior to a lawful conviction and sentence being imposed.

Posted by: Doug B | May 9, 2023 9:01:49 AM

The conviction of a factually innocent person does not offend the constitution so long as (a) Due Process was observed, and (b) the powers that be don't know (or have reason to know) otherwise. But you knew this.

But we are getting somewhere--you speak in terms of rights being operationalized--ha ha.

Posted by: federalist | May 9, 2023 1:26:01 PM

And yes I agree that it is problematic for certain rights to be withdrawn when someone is jailed but not convicted, but there is a tradition for that. Probable cause etc. etc. But I'd argue that such a person gets to vote, gets heightened protections from jail violence, maintains self-defense rights vs. unlawful activity from prisoners/guards.

Posted by: federalist | May 9, 2023 1:29:00 PM

Again, federalist, you keep eliding the real issues. Would you also say that "so long as (a) Due Process was observed, and (b) the powers that be don't know" that someone is being held past a release date, all your claims melt away? And I did not think we were talking about what "offends the constitution," but rather about the exercise of self-defense rights in prison. And now you are somewhat recasting your hypo in talking about "UNLAWFUL activity from prisoners/guards." What counts as "unlawful" activity from a guard if a prisoner is factually innocent and/or being held past a release date (though the "power that be" are unsure about that status)?

I can readily talk about prisoner rights being operationalized because I am not aware of anyone who argues that prisoners lose all rights under all circumstances in prison. But that's not the issue I understood you to be pressing, federalist. I thought you were pressing the idea that certain prisoners (unclear exactly who) have some kind of special 1st A and self-defense rights (and other rights?) relative to all other prisoners. I am not aware of any doctrines or holdings to that effect --- though this is not my area of expertise. (It is true that state law sometimes functions to distinguish voting rights among the incarcerated (and those under community supervision), but that is a function to the terms of state law, not constitutional doctrines.)

Of course, you are welcome to make up your own doctrines that lack support in established law. Gosh knows I see lots of legal scholarship doing that. But, absent a full exigesis of what you are claiming/saying, it is hard to understand the reach and implications of your made up special prisoners doctrines.

Posted by: Doug B | May 9, 2023 1:48:58 PM

I am just saying that there is no basis to conclude that a person who is incarcerated past the date authorized by law has the full panoply of his constitutional and self-defense rights. You flip the inquiry on its head--the First Amendment, for example, doesn't have a clause which says that those who are held past their release date somehow have only the 1A rights of those who are not past their release date. The answer, of course, is a species of necessity, but where's the case law for that. This is the deceit of lawyers. I can look at the First Amendment, and I can see that people who are jailed pursuant to an arrest/indictment supported by probable cause lose some, as there is a constitutional tradition. But what constitutional tradition obtains when someone is held past their release date--unless you are going to make up an exception to the First Amendment, that person has his full panoply of 1A rights. So make up an exception.

Posted by: federalist | May 9, 2023 4:19:20 PM

federalist: technically, the First Amendment only speak to Congress. Also, the First Amendment does not say any prisoners have any reduced rights to speech or assemble. But SCOTUS has watered down 1A rights in the prison setting in order to enable prison functioning.

Speaking of functioning, a person held in prison who was wrongfully convicted and/or a person in prison who is held past his release date is still a prisoner, and prisoners FUNCTIONALLY have reduced rights while they are still actually in prison. Your point is that they are not lawfully to be in prison anymore --- agreed --- but while in prison they are still subject to the rules of the prison like other prisoners. And being in prison functionally curtails many 1st A rights -- eg, the right to go to the church of choice, to access the internet, to talk to the media, to attend protests and so on and so on. More fundamentally, the wrongfully incarcerated are also subject to an unreasonable seizure and cruel and unusual punishment. Wrongful incarceration is an affront to many rights. But that reality does not mean prisoners, even though who claim to be wrongfully/illegally incarcerated, get to ignore prison rules that keep them from doing thing that those outside prison obviously have a right to do.

Over-incarcerated folks should have tort/1983 remedies to secure damages from local/state coffers for state action violating all these rights when keeping persons as prisoners past when they should no longer be prisoners. But when and while persons are still functionally prisoners, how do you imagine operationalizing the notion that certain prisoners --- still unclear exactly who --- have many more rights relative to all other prisoners?

Posted by: Doug B | May 9, 2023 5:15:23 PM

"technically, the First Amendment only speak to Congress"--I trust you know about selective incorporation . . . .

But putting that to one side, the law doesn't always deal in reality--for example, what rights do people have to resist police brutality?

My point is a hard one--rights are rights, and while a regime of redress for a rights violation is a necessary condition for the actual existence of said rights, it is not necessarily a sufficient one. Here's an actual fact pattern: Police officer ex-husband gets ticked because ex-wife criticizes him on Facebook. Police officer gets his buddy the magistrate judge to issue an arrest warrant for this post. She is arrested and taken to jail. Query: why can's she defend herself against what is essential armed kidnapping, and before you go talking about the process, how does she know that they're not going to do something to her while she is in custody? They have already egregiously violated the law to put her in handcuffs--how does she know she's not going to be roughed up in jail? Why does a statute saying she cannot resist arrest trump the constitutional guarantee of free speech? And before you answer that--what if Rosa Parks had resisted her arrest? Why did she not have that right?

Posted by: federalist | May 10, 2023 6:30:39 PM

federalist, you referenced the text of the First Amendment, and I was making sure you realized how limited that actual text is.

Shifting, lots of folks view marijuana prohibitions (especially with stop-and-frisk policing) to be unconstitutional and unjust. Did the folks in NYC subject to what was later deemed an unconstitutional policy have a right to resist with force those police who implemented that policy?

And, again, what of the thousands of persons who have been convicted and imprisoned though innocent and later exonerated? Did all those people have a right to attack all the police and guards involved in imposing thousands of decades of "armed kidnapping"? See https://www.law.umich.edu/special/exoneration/Pages/about.aspx (noting over 3,000 exaonerations and nearly 30,000 years lost).

You are essentially calling for a certain kind of anti-law-enforcement anarchy if claiming that anyone and everyone who believes they are being subject to unjust law enforcement actions has blanket authority to use force on any and everyone in response. I am sure Richard Glossip's supporters would love to hear more about the right to attack those who are holding him and seeking his execution.

Posted by: Doug B | May 10, 2023 9:39:46 PM

I started by asking the legal basis of the conclusion that someone incarcerated past his sentence date had lost 1A rights. Basically, the answer is that he does lose such rights because we'd have anarchy. Hence my Rosa Parks anecdote.

Posted by: federalist | May 11, 2023 1:15:43 PM

Prisoners do not lose 1A rights, they are just diminished consistent with legitimate needs for running a prison. Whether a prisoner is innocent, has a strong claim their conviction is illegal for other reasons, or that their prison sentence should be deemed over, while they are still being held as a prisoner, they still are subject to the rules of being a prisoner. I am not sure how you could otherwise run prisons. Is this a stealth prison abolition argument?

As for Rosa Parks, are you saying that any and every prisoner who views the criminal justice system as racist has a constitutional right to violate all prison (and law enforcement) rules?

Posted by: Doug B | May 11, 2023 2:01:10 PM

You fail to answer the question--how does a person who is beyond his term of incarceration lose any 1A right? And the "innocent" issue isn't really an issue--if the person was lawfully found guilty--due process. You're right, you can't run prisons that way--but how do you do the risk allocation against a prisoner held illegally and a prison system that knows it has 20 people past sentences on any given day? Why should those people bear the risk?

As for Rosa Parks, the law said she had the right not to be arrested--the Supreme Law of the Land. How do you say she didn't have the right to vindicate herself?

Posted by: federalist | May 11, 2023 2:27:23 PM

How are you defining "the Supreme Law of the Land" for Rosa Parks? Does a modern pro-life Rosa Parks who views life, for constitutional purposes, as starting at conception have a right to vindicate "the Supreme Law of the Land" by attacking legal abortion clinics? Does a modern pro-weed Rosa Parks, who thinks the right to medical marijuana is constitutionally protected by the 9th Amendment, have a "right to vindicate herself"? Or how about a modern Angel Raich who, perhaps quite rightly, thinks the current SCOTUS would strike down federal marijuana prohibition on commerce clause grounds? Do we all get to "vindicate" our own personal interpretation of the Constitution until the Supreme Court finally sees matters our way?

On the prison front, you keep building your hypos around the assumption that "the prison system" is 100% sure that the person is being held past his sentence. My understanding is that's never so clearly the case, just like it is (almost) never the case that "the justice system" is 100% sure that it has convicted an innocent person. And that is the rub -- since there's likely always going to be some degree of uncertainty about which prisoners have what status, how can prison administrators know which prisoners get "regular rights" because they should not be in prison and which prisoners are the "real prisoners" subject to regular prison rules?

Let's put you in the role of a prsion warden and ask this question: "Hey warden federalist, if and when you know for sure a prisoner has finished his sentence, do you start the process for letting him out of prison or do you keep him locked up and just give him 1A rights?"

Posted by: Doug B | May 11, 2023 4:27:55 PM

If Warden Federalist knew that there were serious issues with keeping people past their sentences, Warden Federalist would work day and night to fix problem.

Embedded in my thoughts is that you gotta be right about things. I would say she had the right to resort to 2A remedies.

Posted by: federalist | May 11, 2023 4:56:36 PM

And if a group of prisoners who thought they were due to be free took a couple of guards hostage, would warden federalist be rooting those prisoners on?

And the weed loving modern Rosa Parks gets to now threaten law enforcement with guns? And I am still waiting to hear what you think the Glossip supporters who are sure he is innocent are allowed to do as a matter of self help.

It seem hard enough to get folks to follow the law, but you seem cool with everyone just making it up as they see fit (or maybe really just as you see fit).

Posted by: Doug B. | May 11, 2023 5:36:30 PM

First of all, I don't think that Rosa Parks would be "making up the law" if she resisted her armed kidnapping. The law was exceedingly clear, as the EPC flatly barred an arrest of her for refusal to give up her seat to a white woman. Second, factual innocence isn't necessarily an issue under the Constitution, and GLossip is f'in guilty as the original sin.

If the prisoners were right, that's a tough question for me--the guards are innocent. Feels like if one of those prisoners escaped, he shouldn't be prosecuted.

Posted by: federalist | May 12, 2023 10:53:19 AM

"It seems hard enough to get folks to follow the law, but you seem cool with everyone just making it up as they see fit (or maybe really just as you see fit)."

When the people with the badges don't follow it, it's hard to fault citizens who resist. Do you really think that a mother, confronted with an arrest warrant for criticizing her cop ex-husband, should be required to meekly submit to the arrest? Obviously, she's never ever going to get any justice against the magistrate, and what of the fact that if people are so willing to blow off the law, the question would naturally arise of what else are they going to do? When you're in jail, the cops aren't the insurer of your safety.

We need to flip the script in this country. Nowak got no justice. And no one is prosecuting the cops or yanking the tickets of the thug prosecutors.

Posted by: federalist | May 12, 2023 11:03:11 AM

federalist: there is a big difference between faulting/prosecuting someone for resisting what they perceive to be (and others may later say is) illegitimate state action and stating that persons have a right to take the law into their own hands if and whenever they think they are "never ever going to get any justice" from our legal system. Many BLM protestors sincerely believe they are "never ever going to get any justice" from a justice system they they believe is deeply racist and ignores the EPC to allow, eg, stop-and-frisk policies and the drug war and "driving while black" arrests and so on and so on. Do you really think that every BLM protestor who sincerely sees our CJ system as racist should be able to resist forcefully any/every arrest rather than "meekly submit to the arrest"?

The entire BLM and abolish movement is about the claimed "need to flip the script in this country" (and they very much claim Rosa Parks as an icon). Are you now down with the entire abolish/BLM movement? Sound like you are, which is really interesting. Perhaps the Anthony Novak case radicalized you, though you should realize a whole lot of people of color would assert that they know dozens of people from their community treated far worse by law enforcement than Mr. Novak.

Posted by: Doug B | May 12, 2023 11:28:43 AM

The unstated premise of my point is that the person has to be right.

There was no doubt that what was being done to Rosa Parks was illegal. Or is the government the only arbiter of "legal"? Isn't that how China works?

Posted by: federalist | May 12, 2023 3:39:54 PM

I assume the majority of the sincere BLM folks think they are right about racism in the application of the criminal justice system and that most of those claiming to be innocent likewise think they are right, too. But we have an established legal process, not self-help, to adjudicate who "is right." If it is not the courts that detemines who "is right," then who does? To whom should the innocents wrongly incarcerated go to get authority to attack those imprisoning them? To whom should the BLM crowd go to make the case that they are right to resist a CJ system they view as structurally racist? Or is this yet another case in which, as many of our conversations show, we are debating the particulars "rule of federalist" rather than the "rule of law"? If federalist thinks you are "right," then other laws do not apply. Otherwise...

Posted by: Doug B | May 12, 2023 4:41:14 PM

First of all, the BLM folks thinking they are right doesn't give them the right to attack completely innocent people, and it certainly doesn't give them the right to block highways.

That's a far cry from the Rosa Parks situation--unless you're seriously arguing that society had the right to ask her to submit to what was essentially an armed kidnapping--or what about the ex-wife Facebook poster against whom the her cop ex-husband got an arrest warrant--should she have to submit? What about safety in the jail? The government isn't the guarantor of her safety, and so what moral right does the government have to force her (illegally) to accept that risk?

You can push a parade of horribles all you want, but you still cannot answer why Rosa Parks was morally obligated to meekly submit.

Posted by: federalist | May 15, 2023 8:36:43 AM

And do you really think that the arrest of Rosa Parks was "the rule of law"?

Posted by: federalist | May 15, 2023 9:05:50 AM

The LA guards seeking to enforce standard prison rules are "completely innocent people," and yet you seemingly would permit certain prisoners to have a right to attack them for doing so. And you ask about "safety in the jail" for the Facebook poster without considering what that means for all the folks in many jails and prisons who claim innocence and/or unconstitutional treatment are are subject to unconstitutional conditions that lead to their deaths.

federalist, you keep wanting to talk about Rosa Parks and on Facebook poster, and I keep wanting to understand what broader and administrable principles drives your claims that these folks have a right to attack those "innocent people" seeking to just enforce the applicable law at that time. Does everyone who sincerely considers existing laws (or particular their application) unjust and/or unconstitutional have an absolute right to forcefully resist the law and to meet law enforcement efforts to enforce that law with force? How can the folks who today sincerely believe they are continuing to battle for equal justice in the tradition of Rosa Parks --- eg, the BLM crowd and many others --- know when the have a right to resist what they view as unjust and/or unconstitutional laws and know when they can meet law enforcement efforts to enforce those laws with force?

Can you provide a general principle --- or any example of any legal jurisprudence or case decisions that supports your Rosa Parks claims --- that can guide the behavior of activists today who protest and battle existing laws in service to advancing equal or personal justice? I call this the "rule of federalist" rather than the "rule of law" because I am still stuggling to identify what "rule" you are asserting for general application, and I cannot think of any jurisprudence or rulings that provide any clear support what you are claiming.

Posted by: Doug B | May 15, 2023 9:29:34 AM

Well, Doug, isn't that the rub? Are they truly "rights" if we are going to consider the cop who arrested Rosa Parks "innocent"? When do people have the right to resist? It's not an easy question to answer. Your argument seems to be "We cannot have anarchy." But we also cannot have people overstaying their prison terms, and we certainly cannot have moms arrested (and put in real danger--jails ain't safe) for criticizing their ex-husband cop. And I would absolutely not say that the BLM crowd, writ large, is in the tradition of Rosa Parks. Ms. Parks, last I checked, didn't advocate for the widespread destruction of property.

Ultimately, it comes down to a question of power--the Facebook poster--she was subjected to lawless violence--that is the realm of power, not law. And when we are in the realm of power, you rate what you skate.

Posted by: federalist | May 15, 2023 10:05:09 AM

Yes, federalist, that is the rub, and your answer is the "rule of federalist" because YOU would say the BLM crowd is not in the tradition of Rosa Parks, but most of THEM claim that they are and sincerely believe that. And pro-life true-believers view bombing abortion clinics as in the tradition of self-help by slavery abolitionists. And the abolish the police movement quite robustly embraces the same tradition. And I sincerely view federal marijuana prohibtion of intra-state marijuana activity as unconstitutional. (They understod at the start of the 20th Century that a constitutional amendment was need for alcohol Prohibition). And so on and so on....

It is fine, federalist, that you have your own quirky visions of how to divide law and power (eg, you like to complain about certain prosecutorial decisions to bring charges and then complain about other decisions not to bring charges -- not sure which is law, which is power, and which you think can/should prompt self-help responses for the aggreived). But unless/until you can explain how other are supposed to sort out their own law/power divides and conduct themselves accordingly, we have just the "rule of federalist" rather than the "rule of law."

Of course, we all should be able to make the our own rules in our own lives. But I do not get to attack federal law enforcement agents who may be investigating someone else's home-grown weed farm for personal use just because I sincerely think it is unconstitutional to federally criminalize someone for growing a weed in their own yard for personal consumption.

Posted by: Doug B | May 15, 2023 10:31:11 AM

The celebration of power . . . . god I love statists.

eg, you like to complain about certain prosecutorial decisions to bring charges and then complain about other decisions not to bring charges -- not sure which is law, which is power, and which you think can/should prompt self-help responses for the aggreived)

That's so weak. There was no PC in the Rittenhouse case, so yes, I am going to complain. A foolish consistency is the hobgoblin of little minds . . . .

Posted by: federalist | May 15, 2023 12:49:43 PM

It is the lack of any clear principle, not the lack of consistency, that this the basis of my pushback, federalist. Can you provide any principled account of how you divide law and power?

Were laws preventing mixed race couples from getting married prior to Loving an example of law or power? How about laws preventing same sex couples from getting married prior to Obergefell; law or power? Is the arrest of a person for possessing a plant for personal consumption on their property law or power? Was stop-and-frisk on NYC streets in the 1990s law or power? Is the state prosecution of Trump in NYC law or power? Is the federal prosecution of a drug user for possessing a gun law or power?

How do I figure this all out --- and advise others subject to suspect laws (or suspect application of sound laws) --- to know whether and when persons must abide by the law or have a right to resist the exercise of state power? I suppose I could say "go talk to federalist," since he seems to be making the rules, but I have nothing else to go on.

You seem unable to answer any questions about general principle and do not really seem to be trying to do so in any meaningful way. That is what leads me to think you do not have any principled answers other than to keep restating the "rule of federalist" as it applies to a few cases that bother you.

Posted by: Doug B | May 15, 2023 1:17:00 PM

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