You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).
I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)
You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?
I support radical reform of our nation’s drug laws not despite my conservative political views, but because of them. Decriminalization efforts support at least three values that mean much to me as a conservative. Decriminalization falls in line with the conservative (or at least libertarian-leaning conservative) emphasis on personal liberty and the rights of individuals to make choices about how they govern themselves, so long as their actions don’t directly harm others. Decriminalization makes good moral sense too, by not vilifying addicts and by not needlessly breaking up families through incarcerating non-violent offenders. Perhaps most significantly, radically reforming current drug laws avoids the economic irresponsibility of America’s failed war on drugs.
This week, of course, Attorney General Eric Holder announced new Justice Department policies for drug prosecutions, while addressing the ABA Annual Meeting in San Francisco. In his speech, Holder proposed tinkering with the application of mandatory minimum sentences for drug-related crimes; modifying the Justice Department’s charging policies “so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences”; and “taking steps to identify and share best practices for enhancing the use of diversion programs – such as drug treatment and community service initiatives – that can serve as effective alternatives to incarceration.”
I commend Holder’s effort. But as a conservative considering the economics of the drug war, I’m concerned that this new policy neglects one of the most significant reasons why we need much more radical reform than this . . . .
I didn’t go to Eric Holder’s big speech at the ABA annual meeting on Monday. I kind of halfheartedly tried to go, but there were a lot of people who wanted to see Holder say something they could’ve read about online hours earlier.
If the ABA had invited Secretary of Education Arne Duncan over to speak about the horrendous abuse of federal funds by purveyors of higher education, I’d have smashed my way in. But in the crush of people trying to get a look at the Attorney General trying to dismantle a big part of the United States “War On Drugs,” I was reminded that regulating legal education is a small part of what the ABA does — and a part that isn’t of great institutional importance to the organization. The ABA wants a seat at the policy table when it comes to big sexy issues of justice and legal services. Preventing member institutions from price-gouging young people doesn’t get its logo splashed across all the major news networks.
So, Eric Holder delivered a big policy address. And later, by which point I was on a plane, Hillary Clinton spoke about how she’ll be speaking about other things as she doesn’t run for president just yet. Holder! Hillary! Marvel at the ABA’s relevance in national policy debates!
Except, they’re not relevant. Holder did make an important speech on Monday, and he couldn’t have found a more supportive group for his take-down of mandatory minimums had he been speaking to potheads in Golden Gate Park. But really, the ABA isn’t going to be any more helpful when it comes to actually convincing Congress than a meeting of the 4:20 club…
I took Crim Law my first semester in law school. My professor, now the school’s dean, was an imposing fellow to 1L eyes. He looked approximately seven feet tall, with a deep, booming voice, a propensity for cold-calling, and a demanding, often impenetrable teaching style. I loved the class, even though I went into fight-or-flight mode in the minutes before he would stroll down the aisle of the auditorium.
We read the Apprendi line of cases, where the Supreme Court ruled that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt. I thought I grasped the gist, with my nervous 1L brain. Then we got to Harris v. United States. In Harris, the majority held that Apprendi did not apply to facts that would increase a defendant’s mandatory minimum sentence. Judges could apply mandatory minimums on the basis of facts not proved to a jury, without violating the Sixth Amendment. These fact were sentencing factors, the majority held, not offense elements.
Terrified that I had misunderstood something crucial, I visited my crim prof’s office before the class when we would discuss Harris. I recited the cases up to that point, if for no other reason than to show that I had, in fact, been reading and that my ultimate confusion was not because I was totally mentally challenged. (Even if just a little.) I summarized my understanding of the Court’s holding in Harris, why it just didn’t square, how I knew that I must be missing something, because I just didn’t see how Harris properly followed. After way too long, I finally sputtered, “Sir, I’m . . . I’m just . . . confused.”
My prof leaned back in his chair, paused dramatically, sighed, then replied, “Ms. Tabo, of course you are confused. The Supreme Court is confused.”
As of this week, the Court is no longer so confused….
Left to right: Eric Cuellar, Hazhir Kargaran, and Justin Teixeira (click to enlarge).
Lawyers and Las Vegas are a dangerous combination. Just ask the lawyer who allegedly inflicted almost $100,000 in damage on a suite at the Encore Hotel.
Sin City seduces law students too. We’ve extensively covered the sadstory of how three Berkeley law students, while visiting Vegas on spring break, killed a helmeted guinea fowl named “Turk” at the wildlife habitat of the Flamingo Hotel.
It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.
And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.
To do otherwise would violate the Ex Post Facto clause.
The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.
Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.
So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?
On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.
In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.
(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)
A famed hacker, Andrew “weev” Auernheimer, was sentenced to 41 months in prison yesterday. A jury convicted Auernheimer of conspiracy and identity theft back in November stemming from his role in a scheme to snag the personal email addresses of over 114,000 iPad users, including Mayor Michael Bloomberg, Diane Sawyer, and Mayor Rahm Emmanuel.
Auernheimer argued that he acted as an uninvited “gray hat” hacker, grabbing the email addresses of customers for the sole purpose of exposing the flaws in AT&T’s security.
The sentence, at the upper end of the Guidelines range, is a far cry from the non-custodial slap on the wrist Auernheimer’s attorneys sought. There are two broad categories of response to the sentence. First, that Auernheimer is a completely terrible human being, but that his being a dick does not justify the harsh sentence. Second, that Auernheimer did not commit a real crime because he never intended to steal anyone’s identity and the Computer Fraud and Abuse Act is a bad law.
To these arguments, I reply “yes it does,” and “who cares?”
Full disclosure: Former Jack Abramoff associate Kevin Ring, whose criminal conviction was recently upheld by the D.C. Circuit, is a friend of mine. We grew up in the same town and have known one another for decades. In no way is what follows unbiased or objective in any sense. That said, I know that I’m right and the case against Kevin Ring was simply, unambiguously wrong. Not to say that there was no ambiguity as to whether he broke a law — there was a tiny bit of that. But under no sane system of justice would Kevin be going to federal prison. Though he almost certainly is, pending a request for en banc rehearing from the D.C. Circuit followed by a Hail Mary filing for a writ of certiorari.
We can all stipulate that Jack Abramoff is one of the sleaziest and most repellent characters to besmirch the legal profession in decades. (My favorite Abramoff moment: the time he tried convince his rabbi to bestow upon him a fake, back-dated “Scholar of Talmudic Studies” award, so he could get in the Cosmos Club.)
Anyway, Abramoff was Kevin’s boss for three and a half years, during the final period of which they were both partners at Greenberg Traurig. In the words of the judge at his sentencing hearing, Kevin was a “cog” in the Abramoff operation, a “second-tier level” administrator of the firm’s lobbying team. I won’t try to spin Kevin’s time as a lobbyist as some honorable endeavor. I couldn’t. Generally speaking, lobbyists are regarded by most of us as only slightly less distasteful than the politicians whose favor they are trying to curry. But that does not make them criminals….
The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: firstname.lastname@example.org.
We currently have a very exciting and rare type of in-house opening in China at one of the world’s leading internet and social media companies. Our client is looking for an IP Transactional / TMT / Licensing attorney with 2 to 6 years experience. The new hire will be based in Shenzhen or Shanghai. Mandarin is not required (deal documentation will be in English) but is preferred. A solid reason to be in China and a commitment to that market is required of course. This new hire will likely be US qualified (but could also be qualified in UK or other jurisdictions) and with experience and training at a top law firm’s IP transactional / TMT practice and could be currently at a law firm or in-house. Qualified candidates currently Asia based, Europe based or US based will be considered. The new hire’s supervisors in this technology transactions in-house team are very well regarded US trained IP transactional lawyers, with substantial experience at Silicon Valley firms. The culture and atmosphere in this in-house group and the company in general is entrepreneurial, team oriented, and the work is cutting edge, even for a cutting edge industry. The upside of being in an important strategic in-house position in this fast growing and world leading internet company is of the “sky is the limit” variety. Its a very exciting place to be in China for a rising IP transactional lawyer in our opinion, for many reasons beyond the basic info we can share here in this ad / post. This is a special A+ opportunity.
If your firm is in ‘go’ mode when it comes to recruiting lateral partners with loyal clients, then take this quiz to see how well you measure up. Keep track of your ‘yes’ and ‘no’ responses.
1. Does your firm have a clearly defined strategy of practice groups that are priorities of growth for your office? Nothing gets done by random chance, but with a clear vision for the future. Identify the top practice areas for which you wish to add lateral partners. Seek input from practice group leaders and get specifics on needs, outcomes, and ideal target profiles.
2. In addition to clarifying your firm’s growth strategy, are you still open to the hire of a partner outside of your plan? I’ve made several placements that fit this category. The partner’s practice was not within the strategic growth plan of my client, but once the two parties started talking with each other, we all saw how it could indeed be a seamless fit. Be open to “Opportunistic Hires.” You never know where your next producing partner might come from, so you have to be open to it. I will be the first to admit that there is a quirky element of randomness in recruiting.
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