PrawfsBlawg

Sentencing Guidelines and Retroactivity

Unless you’ve been in a drug-induced haze, you’ve probably heard that the United States Sentencing Commission recently amended the Sentencing Guidelines to correct the crack/cocaine disparity. One of their most interesting aspects of these amendments–which became effective today–is that they are retroactive.

I write about fed courts, not criminal law, so the Sentencing Guidelines are outside my bailiwick. But these amendments have been table talk at my house over the last several months because my husband is a federal prosecutor. And because I’m teaching Teague right now, the policy issues surrounding retroactivity in the post-conviction context are generally on my mind.

These amendments are apparently the first that the Sentencing Commission has ever made retroactive. (An explanation is here.) The Department of Justice estimates that over 20,000 inmates will file requests for a reduced sentence. There are a host of issues that arise with the retroactivity of these amendments. (And as you might surmise, the fact that my husband is a federal prosecutor very much concerned about the on-the-ground implications of retroactivity affects the issues that I see.)

Practically, are the courts, prosecutors, probation departments, and marshals equipped to deal with a 25% increase in the number of sentencings performed? Is the defendant entitled to an in-person hearing, obligating the United States marshals to transport the defendant from prison to the court where the sentence was originally imposed and obligating the courts to appoint counsel if the defendant cannot afford one? Legally, what issues can be relitigated? Although the amended Guideline seeks to limit reconsideration only to the impact of the change in the crack-cocaine offense level, courts are not bound to follow that guidance. In light of the recent Supreme Court decisions in Gall and Kimbrough, can a district judge properly refuse to consider the other sentencing factors identified by the Court at the resentencing? If a prosecutor did not seek an otherwise applicable sentencing enhancement in reliance on the hefty Guidelines score resulting from the fact that the offense involved crack cocaine, is the prosecutor entitled to now seek application of that enhancement? Would a prosecutor still be bound by a provision in a plea agreement in which he agreed to seek a sentence at the low end of the applicable sentencing range, where the Guidelines setting that range have changed? If a defendant waived his appellate rights in a plea agreement, does that waiver still apply after the resentencing? Regardless of the impact of such a waiver, what appellate rights exist?

This retroactive change also underscores what seems to me an irony in the current federal sentencing regime. The courts must consider requests for new sentences based on amendments to the Guidelines, but because the Guidelines are not mandatory, the courts need not modify the sentences unless they so choose.

Does someone who knows more about this than I do have ideas about how the retroactive aspect of these amendments will be implemented?  Was retroactivity a wise call?

Reagan's Shadow

Many thanks to Dan and company for inviting me back to Prawfs.  I am delighted to have the opportunity to participate in the Prawfs conversation. 

The first thing I have to contribute this time around is a lingering question from Barack Obama’s invocation of Ronald Reagan in an interview.  Obama stated:  “I think Ronald Reagan changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not. He put us on a fundamentally different path . . .”  When I heard this, I thought this was a relatively uncontroversial, true statement.  And then, of course, the controversy erupted.  The reason for the controversy, and the source, has left me with a lingering question.  Reagan, unlike his successor, did the “vision thing,” and I can articulate central aspects of that vision:  smaller federal regulatory interference in the economy and in people’s lives, decreased use of public welfare, lower taxes, “trickle down” economic theory, expansion of “free trade,” promotion of federalism (particularly in limiting federal review of state criminal proceedings).  In short, Reagan forwarded a vision that involved suspicion of federal government, and deference to states and private actors.  This vision may not have given rise to a “constitutional moment” that changed the trajectory of American in the way that Reconstruction or the New Deal did, but it did effect something of a “New Constitutional Order,” to use Mark Tushnet’s phrasing. 

So here’s my question.  To what extent did President Clinton offer a comprehensive vision that differed from Reagan’s?  It seems non-controversial to note that Clinton did complete a number of Reagan initiatives, but in so doing, did Clinton place them within a different comprehensive vision involving, for example, how individuals should relate to the state, the role of the state in producing social welfare, etc.?  To be sure, Clinton had a very different view of the importance of civil rights, for example.  He signed Family and Medical Leave and increased minimum wages, but he also expanded the death penalty and signed the Defense of Marriage Act.  In short, I do not think he offered a competing comprehensive vision.  Perhaps I was too busy reading Wittgenstein in graduate school to notice or remember what the Clinton vision was.  Here’s what I do remember:

With regard to welfare, Clinton ended welfare as we know it, thereby completing a Reagan project to curtail social welfare programs.  With regard to “free trade,” he completed NAFTA, another project in keeping with Reagan’s emphasis on expanding business across national borders.  With regard to taxes, he left them where he found them, attempting no comprehensive redistributive changes to reverse any inequities arising from Reagan and Bush tax cuts.  With regard to federalism, he signed AEDPA, limiting the availability of federal review of state criminal convictions, another Reagan goal.  These and other examples seem to suggest that Obama was entirely correct to say that Regan changed the trajectory of America in a way that Clinton did not.  Moreover, he could have added that Clinton did not offer an alternative vision of America, opting either to complete Reagan’s vision or to live comfortably within Reagan’s shadow.   

To the extent that Hillary Rodham Clinton is running on the accomplishments of her prior quasi-co-Presidency, is she not running in the shadow of Ronald Reagan’s vision?  Perhaps living in Reagan’s shadow (and the Republican “revolution” of 1994) is inevitable for all of us given the politics and institutional situation in which we find ourselves.  The Republican primary candidates, for example, were falling all over themselves to invoke Reagan (especially Mitt Romney), even debating at his library.  And with the controversy over Obama’s statement, it seems that Reagan casts a shadow that other former presidents do not.  We are asked to be for or against Reaganism, but if we are are "against Reagan," (as I am, though that fact is entirely irrelevant to my point) what are we for?  This seems to require us to articulate a competing vision.

To use William James from his Pragmatism lectures here, I would argue that politics is “to a great extent that of a certain clash of human temperaments.”  Those temperaments can be manifest through guiding ways of seeing how the American people should be organizing and implementing their future.  (The role of what I’m calling vision is something I’ve written about here).  There is no requirement that a President articulate a vision for an entirely new trajectory, and often that may be neither possible nor desirable.  If one seeks more comprehensive change in the trajectory of our political lives, however, it would seem one needs to articulate a more comprehensive vision of where we should be going as a nation.  An amalgam of specific policy proposals is not a vision.  This is, more than anything, the defining difference between the two democratic candidates.  Clinton has the temperament of one who seeks incremental changes within a comprehensive way of seeing the world she neither creates nor defines, whereas Obama has the temperament of one who seeks to change how we look at the world.  Changing how we see the world, which is to change the trajectory of America, is a far more difficult task than performing ordinary politics in the shadow of someone else’s defining vision. 

James Bryant Conant is a Big Stupid Head

Novelist and foul-rag-and-bone-collector Nicholson Baker has a lovely article in the NYRB on The Charms of Wikipedia.  It is especially fascinating on the debate between "deletionists" and "inclusionists" on Wikipedia -- those who favor trimming "stubs" and "non-notable" entries and those who take the view that, "if people want an article about every Pokemon character, then hey, let it happen."  He also writes amusingly about the collective editing process and the role of "vandals" in that process:

Some articles are so out of the way that they get very little vandalism. (Although I once fixed a tiny page about a plant fungus, Colletotrichum trichellum, that infects English ivy; somebody before me had claimed that 40 percent of the humans who got it died.) Some articles are vandalized a lot. On January 11, 2008, the entire fascinating entry on the aardvark was replaced with "one ugly animal"; in February the aardvark was briefly described as a "medium-sized inflatable banana." . . . . .

The Pop-Tarts page is often aflutter. Pop-Tarts, it says as of today (February 8, 2008), were discontinued in Australia in 2005. Maybe that's true. Before that it said that Pop-Tarts were discontinued in Korea. Before that Australia. Several days ago it said: "Pop-Tarts is german for Little Iced Pastry O' Germany." Other things I learned from earlier versions: More than two trillion Pop-Tarts are sold each year. George Washington invented them. They were developed in the early 1960s in China. Popular flavors are "frosted strawberry, frosted brown sugar cinnamon, and semen." Pop-Tarts are a "flat Cookie." No: "Pop-Tarts are a flat Pastry, KEVIN MCCORMICK is a FRIGGIN LOSER notto mention a queer inch." No: "A Pop-Tart is a flat condom." Once last fall the whole page was replaced with "NIPPLES AND BROCCOLI!!!!!"

This sounds chaotic, but even the Pop-Tarts page is under control most of the time. The "unhelpful" or "inappropriate"—sometimes stoned, racist, violent, metalheaded—changes are quickly fixed by human stompers and algorithmicized helper bots. It's a game. Wikipedians see vandalism as a problem, and it certainly can be, but a Diogenes-minded observer would submit that Wikipedia would never have been the prodigious success it has been without its demons.

This is a reference book that can suddenly go nasty on you. Who knows whether, when you look up Harvard's one-time warrior-president, James Bryant Conant, you're going to get a bland, evenhanded article about him, or whether the whole page will read (as it did for seventeen minutes on April 26, 2006): "HES A BIG STUPID HEAD."

A very enjoyable article.   In reading it, I'm reminded of Brian Leiter's strongly stated view that legal scholars who cite Wikipedia "should presumably be blacklisted from scholarly careers."  (But see Mike Dorf.)  Do these anecdotes support his point?  I think not.  Although it would be useful to know more about the aardvark, and the unadulterated entry was probably better on this score, most people would still agree that it is indeed one ugly animal.  And many people -- fewer, perhaps, than would take the "ugly animal" position, but many nonetheless (and I am one of them) -- would also agree that the aardvark is a medium-sized inflatable banana.  So, as I see it, no harm done.

Dan Solove might want to add actual legal wisdom on the issue over at Co-Op.  He's welcome to, although really, what more can one add than this: "Bedbugs are generally active only at dawn, with a peak attack period about an hour before dawn, though given the opportunity, they may attempt to feed at your brain at other times."       

Religiously Affiliated Law Schools conference

Detailed information on this year's Religiously Affiliated Law Schools conference (at Boston College, on April 6-7), can be found here.  Here's the overview:

Faith can spark professional formation and intellectual growth as well as spiritual and moral development. The Conference presentations and panels will center on the relationship between religion and a lawyer’s professional formation, that is, how faith can influence the growth of our students as lawyers and the development of our faculty members as scholars, teachers, and mentors. This two-day event should be of great interest both to faculty and to student service professionals.

Law Profs as Political Pundits: Should Schools Do Media Training?

Thanks to Dan & The Gang for having me back.  Like Doug B., I live in Ohio and am struck with how much attention the state is getting from the media and candidates. Obama, Hillary, and McCain have all been through Toledo already, and Hillary is speaking today at my University.  Usually, Toledo is the center of the political universe during general elections:   it’s on the Ohio-Michigan border, so it’s a good place to reach voters from two big swing states.  In the fall of 2004, Toledo was the biggest market for political TV ads, and you couldn’t swing a cat around without hitting Kerry, Edwards, Bush or Cheney on one of their multiple visits. It’s unusual that Ohio’s primary is important, but hey, it’s fun.

One interesting aspect to this, at least in the "how does this affect me, Joe Slater, and other law profs?" sense, is that the media will contact lots of academic types for interviews.  In the past couple of weeks, I’ve spoken to both Al Jazeera and Le Monde about Ohio, labor, and politics.  I got a special kick out of the Le Monde piece, because they translated my answers into French (website only; I can’t give a link because it’s subscriber only, but if you want to see it, send me an e-mail).  I’m not sure I actually said, "There is a structural crises in Ohio," but seeing my interview begin, "Il y a une crises structurelle dans l’Ohio" seems so . . . Continental intellectual.

More seriously, I wonder if schools do any preparation or media training for law profs who do interviews with the press semi-regularly.  I’m not talking about the media-savvy profs who do national press interviews on a regular basis.   I’m talking about folks like me, more typical for law profs generally:  in a mid-sized media market; called up by the local media several times a year and by the national media maybe once or twice a year; subjects range from questions directly within my expertise ("this new case held what, exactly?"); to at least within my general field, albeit not law related ("how long do you think this strike at GM is going to last?"); to broader questions on which, although I have something to say, my knowledge isn’t any better than that of lot of other folks (Le Monde’s first question was, "will any of the Presidential candidates be able to bring back jobs to Ohio?").

My guess it that most law profs have sufficient intellectual and performance skills to avoid looking really stupid in interviews. In part, that’s because there is some overlap between media skills and being good in classroom and other public presentations. But it is different -- you don’t control which part of what you say is used being the most obvious -- and there are specific skills involved TV, radio, and press interviews.

So, my question is, do law schools do media training for their profs? If not, should they? If so, what do they do and/or what should they do?

Merit Pay for Prison Wardens?

Tying the salaries of public officials to performance tends to be a policy touted by Republicans as a market-based solution to poor bureaucratic incentives. The most obvious example is merit pay for public school teachers, a prescription urged by Republicans but generally resisted by the National Education Association and the American Federation of Teachers, major constituencies of the Democratic Party. But I suggest a version of the reform that might be more palatable to the Left: Why not have merit pay for prison wardens and tie the bonuses to the employment and recidivism of prisoners following incarceration?

One of the perversities of incarceration is that prison officials have no political or financial incentive to care about what happens to prisoners after release. Few politicians, let alone voters, trace where ex-cons did their time. Whether or not a released prisoner avoids recidivism after release, the warden who supervised the felon gets neither praise nor blame. Small surprise, then, that wardens pay little attention to rehab. As an example, consider the Michigan Department of Corrections’ sanctions for substance abuse, affirmed by the U.S. Supreme Court in Overton v Bazzetta, 539 U.S. 126 (2003). MDOC suspended prisoners’ rights to non-contact visits for two years, as part of a get-tough-on-drugs-and-alcohol policy. Preventing prisoners from speaking to their spouses and children for two years insures that the prisoner will fall back on the only other “family” available – the prison gangs – and, according to every expert who testified in the case, will almost certainly make prevent the re-integration of the prisoner back into any semblance of a normal family life. To avoid a trivial chance that visitors might somehow smuggle contraband past a plexiglass barrier, the MDOC risked imposing a huge costs on the rest of society.

Enter merit pay. The state already has data on ex-cons’ post-incarceration behavior -- parole violations, employment rate, recidivism rate, etc. Why not tie wardens’ compensation to reductions in post-incarceration anti-social behavior of the prisoners released from their prisons? Of course, one would have to control for the usual variables beyond the wardens’ control – SES and offense level of the prisoners, for instance. But these statistical challenges are no greater than those posed by merit pay for public school teachers. Indeed, unlike test scores as a measurement of education, the performance standards for ex-cons – no recidivism, for instance -- is relatively uncontroversial.

So what do you think? Will merit pay for prison wardens become a plank in a new bi-partisan Obama or McCain policy platform? Or are prisons the one sort of Big Government that neither party wants to reinvent?

Duke Lacrosse IV: Universities and Student-Athletes

Eric Muller, of Is that Legal?and the University of North Carolina Law School, complains about the way in which academic operations at the law school are hindered and frustrated by the school's seemingly greater commitment to even non-revenue athletics and the role that athletics plays in the university power structure relative to academic departments. Good timing on that post, because part of the question Eric describes is at the heart of the Duke lacrosse controversy and the recent player lawsuit: Given the important (over-important?) role that sports plays in Division I school, what duties and commitments does a university owe its scholarship student athletes? How should schools deal with (potentially serious) misconduct by student-athletes? Do different rules apply?

Much of the player's claims against the university boil down to the following: The university, its president, and its administration threw us under the bus.

According to the narrative in the complaint, the school initially professed to support the players, constantly assuring them the school could make the problem go away. The school even provided a "legal adviser" to work on behalf of the team as a whole (while not formally representing anyone), setting up meetings with law enforcement for the players to tell their stories and provide DNA samples. In exchange, players were advised not to retain counsel and, in fact, not to tell anyone, including their parents, what was going on. Then, when the noise began (from the media, from law-enforcement, and from various members of the Duke faculty and community, many pushing a political agenda), the school stopped supporting the players. The school canceled the season and fired the coach (who had not done anything wrong). President Brodhead made statements criticizing the players and suggesting some or all of them had engaged in some wrongdoing (at worst a gang-rape, at least underage-drinking and hiring a stripper, and somewhere in the middle, obstructing justice). The school disclosed private information about the players, including information obtained in meetings between players and administrators that the latter promised to keep secret (my favorite allegation in the complaint is that one lower-level administrator told players that anything they revealed was protected by "administrator-student privilege"). Ultimately, the university sacrificed the team for the school's reputational greater-good.

Of course, it turns out Duke got the situation tragically wrong--the allegations were entirely false, the players truly did nothing wrong, and the university looks even worse because of it. But understanding the school's obligations should not turn on the ultimate result of a given case, unknowable in advance. So what is a school's duty in the face of allegations of player misconduct? Must the school wait until the entire criminal-justice process works itself out? Or can a school act to protect its reputation early on? Are student-athletes entitled to continue playing their sports or is it enough that they are able to remain in school? Can the school act against a team as a whole, when the legal focus is on only a few players (recall that none of the plaintiffs in this complaint ever was indicted or even a serious suspect in the underlying sexual-assault accusation)? How much greater leeway does the school have with respect to student-athletes (who, as team members, "represent" the university before the public) as opposed to ordinary non-athletes?

Finally, there are sports teams and there are sports team at any university. In Until Proven Innocent, their expose of the lacrosse scandal, Stuart Taylor and K.C. Johnson tell the following story: After the prosecution fell apart and it became clear the university had made serious mistakes, President Brodhead met with lacrosse-team members. One player asked whether the university response would have been the same had it been the national-powerhouse men's basketball team (the crown jewel of the Duke athletic department) as the target of the accusations. Brodhead said yes--but neither the players nor the authors seem to believe him.

Facebook and Due Process

Over at Co-op, Dan Solove mentions that our mutual friend, Dave Lat, from Above the Law, has been booted off, somewhat inexplicably, Facebook.  I noticed this a few days ago also and was sad to hear about Dave's plight (relatively speaking!), since he was a very active user.  Dan seems to think there's been a Kafkaesque turn of events here. But it might be the explanation is more apparent. Here's what Facebook's FAQ includes:

Your account was disabled because you violated Facebook’s Terms of Use, to which you agreed when you first registered for an account on the site. Accounts can either be disabled for repeat offenses or for one, particularly egregious violation. Facebook does not allow users to register with fake names, to impersonate any person or entity, or to falsely state or otherwise misrepresent themselves or their affiliations. We do not allow users to send unsolicited or harassing messages to people they don’t know, and we remove posts that advertise a product, service, website, or opportunity.

Maybe Lat's profile was taken down because it was a vehicle for, among other things, spreading awareness of his various websites, including AbovetheLaw.com. Of course, if that's the case, countless other profiles (including my own and the new Prawfsblawg group) should be removed too, so it's more a matter of arbitrary enforcement than lack of fair notice.  But even that isn't exactly right. As Solove notes, Facebook reserves the right to take down anyone's profile for any reason, so perhaps there is some fair notice too: they're telling you not to develop any reliance interests in your profile on Facebook.  A pretty asinine way to build trust with the public. I wonder if anyone on Barack Obama's team is having the same problem for promoting Obama's website on Facebook? Probably not...

UPDATE: Lat's been reinstated. Woohoo.

Shouldn't we have universal voting?

I have never completely understood why, in a country committed to democracy, we make every citizen pay taxes and get a social security number, but we do not make every citizen vote.  And, if I understand the most robust universal health care plans, apparently there are now serious proposals for forcing every citizen to acquire some form of health insurance.   I can understand the argument that health care is more important than voting, but these mandates need not be mutually exclusive. 

In other words, I wish there was as much commitment to universal voting as there now seems to be for universal health care.  In this context, consider this fact: despite record turn-out for the 2004 election, George Bush received just over 60 million votes, which represents only roughly 20% of the total US population. 

As a real-politik matter, I have a suspicion why there  is no discussion in the major parties about universal voting: lots of new and different people voting might mean lots of new and different people getting elected.  As much as this year is about change, I suspect that kind of change gets few of those in power inside-the-Beltway really excited.