Monday, December 10, 2007

A Bad Day for Drug Warriors at the Supreme Court

In three cases decided today, the Supreme Court sided with criminal defendants convicted for drug-related crimes. But warning to readers: Drugs are still illegal, so don't start taking your bong hits (4 Jesus or anyone else) just yet. Here's my summary:

1) In Watson v. United States, the Court held that someone who receives a gun in exchange for drugs (here OxyContin) does not thereby illegally "use" a firearm during and in relation to a drug trafficking offense. Justice Souter so wrote for the Court despite the fact that in an earlier case, Smith v. United States (1993), the Court had held what in Watson it termed the converse: that someone who trades a gun for drugs does thereby use the gun. This distinction reminds me of nothing so much as the argument that when Monica Lewinsky performed oral sex on Bill Clinton, she had sex but he didn't.

2) In Kimbrough v. United States, the Court held that a district judge is entitled to depart downward from the (now just advisory) Federal Sentencing Guidelines' sentencing range for crack cocaine on the ground that the 100/1 ratio of severity/weight assigned by the Guidelines for crack and powder cocaine respectively is disproportionate. For years, the disparity has been criticized and the Sentencing Comm'n itself has tried to do away with it, only to be stymied by Congress. In Kimbrough, that very fact was used by Justice Ginsburg as a reason to justify denying the Guidelines the deference to which they might otherwise be entitled.

3) In Gall v. United States, the Court, per Justice Stevens, reversed an Eighth Circuit ruling that had invalidated a sentence outside the Guidelines range---probation rather than 3 years in prison for a college student convicted of conspiring to distribute ecstasy but withdrew from the conspiracy before selling any---on the ground that the departure wasn't justified by extraordinary circumstances.

Notably, in Kimbrough and Gall, the only party poopers to vote for the harsher sentences were Justices Thomas and Alito.

Posted by Mike Dorf

21 comments:

Benjam said...

This distinction reminds me of nothing so much as the argument that when Monica Lewinsky performed oral sex on Bill Clinton, she had sex but he didn't.

It reminds me of the argument also, and they are both correct. Pretend the gun is simple currency. Do I use a dollar to buy an apple? Yes. Do I use a dollar to sell an apple? No. In the Court's view, policy-based desires for symmetry of outcomes are really not relevant to this type of statutory interpretation. I couldn't agree more, especially since the result is not absurd. (And if there is absurdity, it is the result of (1) the Smith holding and (2) lack of precision in the wording of the statute.)

Now I really cant help but to address the Bill-Monica analogy. My recollection was that a specific instruction/definition was crafted in the Jones v. Clinton case which defined sexual relations as touching someone with the intent to provide pleasure or gratification to that person. Even the male mind cannot (often) sustain the illusion that the act of giving oral sex to a man is physically gratifying to a woman. So under the relevant definitions, Monica was and Bill wasn't. Perhaps this is truly an absurd result but again the culprit is the instruction, not the interpretation.

Sobek said...

Sorry for the off-topic, but all your DC gun cert posts are pretty far down the page. It looks like the lady who stopped a shooting rampage in Colorado last night was just a private citizen using her 2d Amendment right to defend herself and others:

http://www.cnsnews.com/ThisHour.asp#Security%20Guard%20'Probably%20Saved%20Over%20100%20Lives'

Two dead, instead of a much, much higher number if everyone in that church had been unarmed.

So my question is this: if big headlines right before a major decision arguably affected the results in previous Gitmo detainee cases, what effect, if any, will this news have on the DC gun case?

Bonus: pro-guns-on-campus article by a law professor:

http://www.nydailynews.com/opinions/2007/04/18/2007-04-18_people_dont_stop_killers_people_with_gun.html

Benjam said...

sobek:

this kind of news always gets spun both ways. first, gun-control advocates will point out to the tactical weaponry in the shooter's possession. second, they will point out that it was a security guard, not a gun-toting regular citizen who took down the shooter. so i dont think it will have an impact on the court, or public opinion generally.

i really am fascinated by the dc gun case. i always wish we knew cert votes, but especially in this case. i just have no clue as to how this case will come down. i dont know how many viable ways there are to avoid the individual/collective rights issue, but i would guess that most of the justices would like to avoid it.

Michael C. Dorf said...

In response to benjam's first point, the problem is that under the definition provided in the Jones case (http://tiny.cc/GFBO9), a woman performing oral sex on a man has sex but the man on whom the oral sex is performed does not, so this is exactly backwards. I agree that it is MORE sensible to say that one uses a gun when one trades it for drugs but does not use a gun when one trades it for a gun---although by this logic one uses drugs when one trades them for a gun, which is silly. So Smith seems pretty clearly wrong.

As for sobek's question, it seems to me that only a fool would deny that sometimes the presence of armed innocent civilians either prevents or lessens the harm from an attack by an armed criminal. The POLICY question is whether that positive effect of legal firearms offsets the negative effects of legal firearms. My own view is that this is a highly complex question about which I don't know enough but it is the sort of question that the political process can sort out well enough without the need for the courts to intervene. The view of the individual right folks is that regardless of how the balance of costs and benefits comes out, the courts should take the issue away from the political process (because they think that the 2nd Am mandates that result).

Benjam said...

mike:

thanks for the link. fortunately, i had forgotten about the cigar business. thanks for refreshing all that. in any event, the linked essay concludes with the following:

The bottom line is that the definition crafted by the Jones’ team was deeply flawed, and allowed Clinton to make legally accurate answers in spite of what actually happened.

this conclusion is the same as mine. the definition was flawed but clinton's ARGUMENT (at least with respect to receiving oral sex) was at the very least colorable. i think the same is true for the majority in smith. one does, in common parlance, "use" drugs when one trades them for a gun and one does "use" guns when one trades them for drugs. flawed language gives rise to good arguments that yield questionable results. i dont know why you find fault with the LOGIC of the smith majority when congress could have been more precise (and wasnt) and then had every chance to override, but didn't. perhaps your argument is more about legislative intent, which IMHO is a more cogent argument.

finally, your second amendment analysis strikes me as a bit absolutist:

The view of the individual right folks is that regardless of how the balance of costs and benefits comes out, the courts should take the issue away from the political process (because they think that the 2nd Am mandates that result).

finding an individual right to the free exercise of religion doesnt prevent neutral laws of general applicability. finding an individual right to free speech does not preempt time place and manner restrictions, or laws against defamation. finding an individual right does not remove the subject matter from the political process. it simply constrains some types of congressional/legislative activity.

you seem pretty all or nothing on this point, suggesting that if the SCOTUS finds an individual 2nd Am right, it will proscribe all gun control laws while finding only a collective right will allow all guns to be banned. perhaps that's a caricature of your position, but it seems to me that with respect to the 2nd Am, there are lots of ways to balance the right and the common good.

Paul said...

I am glad to see that Mike and Nino see eye to eye on something. ;)

With that said I think Mike is giving a somewhat unfair treatment of the gun issue, most likely on the grounds that anything a court would do would harm his substantive position on gun control.

By stating that the issues "is a highly complex question about which I don't know enough but it is the sort of question that the political process can sort out well enough without the need for the courts to intervene" it seems to me that you are merely expressing preference (on substantive grounds) for how legislatures will handle/have handled the issue. It seems likely that other "highly complex" questions will be perfectly suited for judicial intervention.

Abortion, for example, seems to be just as "highly complex" (I think it is greatly more complex) than gun control. Perhaps with gun control you suggest the balance is purely utilitarian and with abortion it is a balance of interests, not a balance of outcomes.

What then about anti-trust regulation? This seems like a highly complex, mostly utilitarian driven balance. Should courts not be involved with that?

From my perspective, there is no area of legislation that should not be subject to review by the courts. And if such an area does exist it should certainly not be defined by it's complexity nor its purported suitability to be resolved by the other two branches.

Paul said...

Benjam,
The fault in Smith does not lie with Congress. There was nothing wrong with its use of the word "use." That the Smith court decided to take a meaning of the word without giving any weight to its context was the problem. Word-smithing on the level that would be required by a Congress trying to defeat the possibility of a court ruling as they did in Smith is an impossible task. To do so, a legislature would itself have to ignore context and draft every word of every law as if it were in a vacuum.

Benjam said...

paul:

sobek had implied that proliferation of guns saves lives. for example, most of us wish that one of the teachers at columbine high had a gun. mike was simply saying that such a cost-benefit is awfully complex. lots of guns everywhere will indeed save some lives but it will also cost lives as well. i didn't get the impression that he was making a jurisprudential argument.

i will admit that the smith interpretation seems strained. however, i haven't looked at the background info, legislative materials and so forth, so i don't have a strong position either way. the more salient point is that if congress did such an injustice to the legislative will, then why didn't congress simply fix it?

Paul said...

Benjam,
"i didn't get the impression that he was making a jurisprudential argument."

I can't see that. Here is the quote again - this time removing the "highly complex" half of the quote:

"it is the sort of question that the political process can sort out well enough without the need for the courts to intervene."

How can that be interpreted in any way other than a jurisprudential argument?

Paul said...

Benjam,
"the more salient point is that if congress did such an injustice to the legislative will, then why didn't congress simply fix it?"

Because politics does not work that way. As absurdly as the statue was interpreted, to fix it Congress would have had to had the balls, collectively and individually, to pass a bill that reduced the sentences of people who exchanged guns for drugs. Even though the original statue in no way was written to lengthen such sentences, once the Court made it so, reversing that decision would require being "soft on crime" and "soft on drugs."

That is just not going to happen in our system.

Benjam said...

i'll let mike speak for himself, but i do agree with you that abortion is WAY more complex than gun control. so i agree with you that the "complexity" argument (whether of not mike is making it) fails if not applied equally to issues like privacy, abortion, and the right to die.

Sobek said...

benjam said: "first, gun-control advocates will point out to the tactical weaponry in the shooter's possession."

And, as gun-rights advocates point out, obviously a ban on guns wasn't going to stop a cold-blooded murderer. Also, since reporters don't know anything about guns, we're not likely to figure out what kind of rifle the shooter was carrying for quite some time.

"second, they will point out that it was a security guard, not a gun-toting regular citizen who took down the shooter."

You're entitled to your own opinions, but not your own set of facts: http://instapundit.com/archives2/012740.php She was a regular parishoner who, by coincidence, was also a cop when not worshipping.

Sobek said...

Prof. Dorf said: "The POLICY question is whether that positive effect of legal firearms offsets the negative effects of legal firearms... The view of the individual right folks is that regardless of how the balance of costs and benefits comes out, the courts should take the issue away from the political process."

I'm not sure I agree with you on your policy argument. If something is unconstitutional, it is unconstitutional whether or not it is a good idea. It might be a good idea in a certain case to shut down a newspaper, but it is manifestly unconsitutional to do so no matter how many people you can get to vote for such a thing.

Same thing with guns. Either the federal government has the obligation to defend an individual right to bear arms, or it does not. Whether it is a good idea for the federal government to do so is quite irrelevant to that inquiry.

By contrast, hot-button issues like abortion get this precisely backwards: abortion rights are a good idea, says Harry Blackmun, and therefore the Constitution must protect them (regardless of what the Constitution actually says, or has meant for the past hundred years). The abortion rights people successfully took a policy question away from the political process for thirty plus years because they didn't like the results in state and local governments.

Compare the following from The Brethren: Brennan saw the case as an important test of Rehnquist's influence on the Court. If the Court was to begin diminishing federal power, it would be a blow to liberalism. State power was almost invariably conservative" (p. 408).

Accordingly, Brennan's views of the constitutional allocation of powers was determined by his preferred policy outcomes.

Of course, the constitutionalization of policy preferences is all well and good when your side is in the majority. From the same source: "It was only recent that activism on the Court had become 'liberal' activism. Rehnquist reminded them. Only forty years before, the Court's activists were conservatives. The balance was once again shifting back, Rehnquist said. Once it had, the liberals would be the ones calling for judicial restraint and chiding the conservatives for ignoring precedent" (p. 221).

A word of warning that, apparently, the Court didn't care to heed, and Rehnquist is proving right. All the liberal concern for protecting precedent is, quite naturally, focused on protecting liberal precedents. Ruth Ginsburg wasn't concerned about stare decisis in the VMI case, any more than Brennan was concerned about stare decisis in a gender discrimination case (see id. at 255).

So, there's your danger in constitutionalizing policy preferences: it tends to come back and bite you.

Benjam said...

sobek:

that's funny because i've been looking all over to find out the type of weapon used, and i cannot find it anywhere. from the eyewitness accounts it seems to have been a semi-automatic weapon with high capacity clips/cartridges. either way, you are right that the press coverage has been lousy. that's one of the reasons i got the impression that she was there as security. the article i read only referred to her as a security guard (not a worshipper) and also implied that the group had prepared for the threat as the result of the earlier shooting.

with respect to your position on activism, i completely agree. i wonder who gets credit for being the first to say that judicial activism is when the other guy does something you don't like.

Sobek said...

"with respect to your position on activism, i completely agree."

During the Roberts and Alito hearings, I predicted to my conservative friends that (a) Senate Dems would frequently use the word "activist" and its derivatives, and that (b) no one would ever bother defining that word.

That's obviously not a liberal phenomenon. I have a copy of Mark Levin's book "Men in Black," and I have the exact same problem. Who knew he and Ted Kennedy had so much in common?

I think Levin would have a heart attack if he read that last sentence.

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