Category Archives: Courts

Mandatory Minimum Sentencing

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Heather Mac Donald, in an opinion piece in a recent Wall Street Journal argued that Attorney General Jeff Sessions is getting a bad rap over his decision to reinstate emphasis on mandatory minimum sentencing and that those minimum sentencing requirements themselves get a bad rap.  She’s right on both counts.

Sessions is being smeared as being a racist over his decision because most of the criminals impacted are black—never minding that most of the crimes involved are committed by blacks, and against blacks to boot (another part that’s carefully elided by the smearers).  The sentencing guidelines (for that’s all that they are; they are not mandatory, for all that timid trial and appellate judges make them so out of their loathe to sentence based on the actual circumstances out of rank fear that they might get overruled by a higher court) also get a bad rap because Sessions’ decision is aimed at serious and violent crime commissions, not the small fry.  The ones aimed at with Sessions’ ruling are the drug dealers, murderers (acknowledging the considerable overlap between the two), assaulters, home invaders, and the like.  Not at risk from minimum sentencing “requirements” are the non-violent, the petty, the drug users, and so one.

As Mac Donald put it in defense of minimum sentence requirements,

Mandatory minimum sentences are a valuable tool for inducing drug dealers to cooperate with prosecutors in identifying fellow members of large drug-trafficking networks.

One small aside on that: mandatory minimum sentences also are valuable tools by prosecutors for intimidating an unconvicted defendant into plea-bargaining independently of his guilt or innocence.  Both sides of this question are supported only by extensive anecdotes, though, not demonstrated trends.

For all that, say Mac Donald is right on her main point.

But her point is irrelevant.  Mandatory minimum sentences are wrong on their face.  Sentences should be handed up by juries, not by judges or by sentencing checklists in a computer.  If I beat my wife and sell drugs to a friend a few blocks away, I’m committing crimes against our two neighborhoods—mine and my wife’s and that of my friend’s—not against New York City or Washington State, or even my home State of Texas.

My crimes are against the local communities in which my friend and my wife and I live, and I should be sentenced like I’m tried: by a jury of my peers drawn from my community and my friend’s, the communities against which my crimes were committed, i.e., the district wherein the crime shall have been committed.

Sentencing requirements, whether mandatory or guideline, destroy that capacity, they destroy the local community’s ability to decide for itself what is the appropriate punishment to be meted out for any crimes committed against it.

Briefly

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President Trump has promised to roll back the regulatory state, but he’ll need the help of a judiciary that has for decades deferred too eagerly to executive agencies.

Indeed.  As the WSJ op-ed at the link says, that’ll require the judiciary to recognize its role in the Federal government and, in particular, its position in the hierarchy.

The proximate matter here is a DC Circuit ruling in US Telecom Association v Federal Communications Commission which used the Chevron Deference doctrine (which holds that the Court should be spring-loaded to uphold an Executive Branch agency rule rather than considering its constitutionality—its legitimacy—de novo on its merits) to find for the FCC.  Judge Brett Kavanaugh dissented, and he based his dissent in large part on decrying that deference doctrine.  The WSJ asked

Perhaps the High Court will accept his invitation to revisit a doctrine [Chevron Deference] that has long been abused.

But the existence of the doctrine is the abuse, not that the doctrine gets abused. The Constitution made the judiciary a coequal branch of the Federal government, not a deferential one.

Full stop.

Law and Trump’s EO Regarding Travel Delays

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The 4th Circuit Appellate Court is hearing the Trump administration’s appeal of Hawaii and Maryland Federal trial judges’ preliminary injunctions blocking implementation of the President Donald Trump’s second Executive Order imposing a temporary travel delay of its own on persons from six Middle East nations from entering the United States (with provisions for case-by-case exceptions).  Even though Hawaii is in the 9th Circuit and not the 4th, I’m using the Hawaii ruling as my example here since the Maryland ruling is substantially the same, the Hawaii ruling is more readily available, and I’m lazy.

Judge Derrick Watson’s Hawaii ruling can be read here, and from that ruling…[emphasis added]

Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose….

No truly reasonable, objective observer would read any of that into the EO’s stated, religiously-neutral purpose because no truly reasonable, objective observer would go beyond the plain meaning of the words to seek clearer understanding of them unless those words, as present, were unclear.  The word here are plainly clear; outside words are less than irrelevant; their importation here is inappropriate.  Judges must apply the law (here, the EO) as it is written and not in accordance with their personal moral precepts.  To do the latter is a blatant violation of their oaths of office.

To determine whether the Executive Order runs afoul of that command [the Establishment Clause], the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v Kurtzman….

The applicability of the Lemon test is nonexistent because the Establishment Clause is irrelevant to this case.  Aside from the fact that the EO, by design and declaration, has no religion-related purpose, the EO applies solely and strictly to foreign nationals who are outside the US.  That means they also are outside the United States’ jurisdiction.  That means the Constitution and its tenets and requirements do not apply to those foreign nationals.

For the court to assert that our Constitution reaches beyond our borders, for this court to claim our government has jurisdiction over persons (and by extension, to nations?) outside our borders runs contrary to our nation’s policies, contrary to international law, contrary to the very principles of what it means to be a citizen of a nation—especially for those persons who are citizens of a nation other than our own.

The 4th Circuit should overrule.

A Thought on Filibusters and Supreme Court Nominees

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In a Wall Street Journal piece on the potential for Senate Democrat obstructionism (my term) provoking an end to the filibuster as it concerns Supreme Court nominees, Kristina Peterson had this remark:

If the Senate is able to confirm Supreme Court nominees with just a simple majority, centrists in both parties fear that future presidents whose party also controls the Senate will have no incentive to pick a nominee aimed to garner bipartisan support.

What Peterson has missed, though, is that the Progressive-Democrats in the Senate have denied any possibility of bipartisan support for some time. There has been no such possibility at least as far back as 2012, when Senate Democrats announced through their spokesman, Harry Reid, that they would never work with a President Mitt Romney.

Pre-judging

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Democrats want Supreme Court Justice nominee Judge Neil Gorsuch to prejudge case that might come before him as a litmus test of his fitness to sit on the Court—i.e., his willingness to subordinate himself and the Supreme Court—the pinnacle of a coequal branch of our Federal Government—to the Progressive-Democratic subset of Congress.

Democrats…want [Gorsuch] to declare how he would rule in specific areas of the law—questions that every Supreme Court nominee declines to answer.

Vermont Senator Pat Leahy said last week he would “insist on real answers from Judge Gorsuch.”

And

At Monday’s opening day of Senate hearings, Connecticut Democrat Richard Blumenthal told Judge Gorsuch that while the committee might ordinarily respect a nominee’s reticence on cases, ordinary rules don’t apply for President Trump’s nominee. “If you fail to be explicit and forthcoming,” he said, the committee would have to assume his views were in line with Mr. Trump’s.

Because the inconvenience of rules can’t be allowed to impede the High and Mighty.  Never mind the utter lack of logic in Blumenthal’s “have to assume” conclusion (or his arrogance in presuming to speak for the committee): petty logic and impertinent Republicans can’t be allowed to impede, either.

This is both disgusting and an illustration of why Americans have been steadily repudiating the Progressive-Democrat Party in all levels of government over the last four election cycles.