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The Supreme Court: Nipples, Crack, Blacks, and $18 Million Fines

In a previous entry, I discussed the Court’s ruling in Knox v. SEIU regarding assessment fees by the union with respect to political advocacy and whether a non-member’s First Amendment rights were violated as a result of these assessments. The Court ruled that their rights were violated.

However, most of the coverage of the Supreme Court yesterday by the lamestream media centered around the long running battle over television indecency standards by the FCC. In the case of FCC v. Fox, the Court essentially left the issue open-ended. In a unanimous decision, the Court ruled that with respect to Fox Television and ABC, the respondents in this case, the FCC standards were vague because neither broadcaster was warned ahead of time that they may be in violation of the standards. This is the so-called “fleeting expletive” controversy and usually centers around live broadcasts of events. For example, on one award’s ceremony show, U2 front man, Bono, used the “F” word. Another example is the infamous Super Bowl half-time show “wardrobe malfunction” by Janet Jackson. I guess we can call that one the “fleeting nipple.”

Left undecided is whether those FCC standards were constitutional in the first place. In a short 5-page opinion, the Court found no need to reach that question. Of course, a subsequent case may make its way to the Court where they will have to reach that question, however because of technology, that would have to involve an “intentional” violation of the FCC standards. The incidents in question in these cases involved live broadcasts where the broadcasters did not know Bono would use the “F” word or that Janet Jackson’s nipple would be visible to millions of Americans for a millisecond. Today, practically every live broadcast of most events have a delay on them so that these expletives can be bleeped out. But, what about a case where they broadcast a movie or show where there is some nudity involved? For example, the crime drama “NYPD Blue” had scenes of fleeting nudity and had warned viewers ahead of time. Also, some shows on regular cable television now and in the past like “Nip/Tuck” and “Rescue Me” skirted the edges of profanity, nudity, and sex on television. Do they run afoul of the FCC indecency standards? What if they warn viewers ahead of time? Indeed, this may come down to the question of what is indecent in the first place.

In a way, this type of ruling is typical for the Roberts Court. Although given the opportunity to solve the broader question, they often will refrain from that practice and stick to the particulars of the case. They leave unresolved the broader Constitutional questions. But, isn’t that the definition of a non-activist Court- stick to the facts and don’t read more into a case and create something where something does not exist? Granted, to many it is frustrating at times on both sides- liberals and conservatives. One example is a case they will likely take next term involving the Mt. Soledad veteran’s memorial that happens to have a large Latin cross. This sounds eerily similar to a case a couple of years back involving a cross on federal land as part of a memorial in the middle of the desert. There, they largely decided the case not on whether the presence of the cross violated the Establishment Clause, but on the land transfer of the plot to the Federal government. Hence, they left open cases like Mt. Soledad today. Here, I can see no way they can avoid the Establishment Clause issue and there is an almost certain chance they will take this case for the 2012 term and we should know this upcoming Monday.

Another decision was Southern Union Company vs. United States. The company had violated an environmental law and was indicted by the government. After a trial, the company was found guilty of the offense. The proscribed penalty was $50,000 per day of the violation. In this case, the indictment specified that the company was in violation for 762 days and the judge fined the company $18 million. This sounds all well and good, but for one thing: a previous Court decision- Apprendi v. New Jersey- determined that any fact that increases a penalty to the maximum authorized for a crime must be proven to a jury beyond a reasonable doubt. In Apprendi, the case involved jail time, although at the time, several Justices, most notably Scalia, thought that it should likewise extend to the imposition of fines which, he noted, could be more onerous than jail sentences. Additionally, corporations cannot be “put in jail,” but they could be fined. Therefore, to Scalia it made no sense to limit the principle to jail sentences. The opposition argued that the Sixth Amendment’s right to a jury trial extended to crimes where a prison sentence of 6 or more months occurs. Again, corporations cannot go to jail. The primary argument against extending the protections of Apprendi to fines, according to Justice Breyer, is the ease in the administration of justice. Simply, when it comes to fines, judges, not juries, should decide the facts of the case. The Court yesterday said, “NO!” Simply because the indictment specified 762 days does not suffice. The Court ruled that it is up to a jury to decide that issue. Although it may add another layer of fact-finding during a sentencing phase of a trial, that was a small price to pay in the interest of justice.

The final case was Dorsey v. United States and Hill v. United States, two cases that were consolidated by the Court. The question was whether the more lenient minimum provisions of the Fair Sentencing Act applies to defendants who committed a crack cocaine offense before the Act went into effect, but who were sentenced after the effective date of the Act. But first, some background is in order.

In response to the growing epidemic of crack cocaine use, the government made the sentences more harsh for crack cocaine possession and distribution than for the powdered form. In fact, the sentences were on the order of 100 to 1. This means, that it took 100 times the amount of powdered cocaine to produce the same sentence for a single unit of crack cocaine. For example, if the sentence for 1 gram of crack cocaine was 10 years, it would take possession of 100 grams of powdered cocaine to create a 10-year sentence. Primarily in response to a growing body of scientific evidence that crack cocaine was not as dangerous as originally thought, yet still worse than powdered cocaine, the ratio was dropped from 100-1 to 18-1.

When the sentences were changed in 2010, several people had been convicted of crack cocaine offenses, but were awaiting sentencing. They argued that the new guidelines should apply to their sentence, not the ones in effect at the time of their conviction. During oral arguments, however, proponents of that view were hard pressed to cite any precedent that would lead the Court to that conclusion. Justice Alito was the most sympathetic to this line or argument and pointed to the Sentencing Reform Act of 1984 which took into account the fact that a court should apply sentencing guidelines at the time of sentencing as controlling. Conversely, Scalia argued that Congress, when they changed the guidelines, could have explicitly made the new sentences retroactive, but chose not to do so.

Lost in this whole issue, but one not lost on the liberal wing of the Court, is the racial dimension to this case. Simply, it is a fact that crack cocaine is more prevalent in the black community and that powdered cocaine is more popular in the white community, especially affluent whites. Hence, the sentencing disparity has a racial component built into it in a stealth manner. Led by Sotomayor during oral argument, it was conceded that when the guidelines were changed, some legislators noted this racial disparity as a reason for Congress to change the law, although not the primary reason. However, when originally enacted, Congress did not realize that they would be casting a more stringent net for blacks than for whites. That lack of racial animus, the conservative wing argued, made the law “race neutral.”

The Court decided that the sentences should be retroactive and they would apply the new guidelines that are in effect at the time of sentencing, not the guidelines that were in effect at the time of conviction. Hence, both Mr. Dorsey and Mr. Hill will be sentenced according to the more lenient sentencing guidelines, not the 100:1 standard.

This is a tough one, but try to look at it from the opposite way. Namely, what if you are convicted of a crime and awaiting sentencing. In the interim, the sentences are changed from a minimum 2 years in jail to a new minimum of 5 years. Most people would cry foul and say, “That’s not fair; they changed the rules in the middle of the game.” They may even successfully argue that it violates the Ex Post Facto Clause of the Constitution. Conversely, look at the extreme. What if Congress tomorrow decided to legalize small amounts of possession or distribution of marijuana- just wipe it from the books. Are those previously convicted under the old guidelines to be freed from jail terms? Do we expunge their criminal records?

The decision was 5-4 along traditional ideological lines with Kennedy being the swing vote siding with the liberal wing. Ironically, Alito, the conservative member with the most sympathy for the Hill/Dorsey view during oral argument was in the dissent. Scalia relied on an 1871 law that stated that sentences should be determined based on those in existence when the crime occurred unless Congress specified otherwise. Here, they did not. The majority adopted the line of argument of Alito during oral arguments and the more recently enacted laws regarding sentences for drug offenses. From a personal standpoint, the Court’s liberal wing (I hate to say this) probably got it right. Hill and Dorsey are still going to jail,, but just for not as long a time as originally anticipated. That is, punishment will still be meted out. It is undetermined how many Hills and Dorseys there out there who will benefit from this ruling, but one has to imagine that the number is limited. At the very least, the Court offered trial courts clear guidance in sentencing now. It is also instructive of the ambiguity of Congressional acts and the need to write laws correctly. These representatives are mainly lawyers to start with for crying out loud. The whole “controversy” could have been avoided if they specifically made the new provisions retroactive since they had that authority under the 1871 law as Justice Scalia pointed out. Many may view this case as much ado about nothing or very little. However, this writer views it as another example of the sometimes ineptitude of Congress in first enacting knee-jerk laws and, when confronted with the problems, screws up the corrective action.

SPECIAL NOTE: The Court will likely have its last session next Thursday, although Monday is currently the last scheduled day (that will likely change). Most of their business concerning argued cases is completed, but they have at least five more decisions to announce. In First American, they must determine whether the private purchaser of real estate settlements have standing sue under Article III while the Alvarez case tests the constitutionality of the Stolen Valor Act which criminalizes misrepresentations of military honors. Think John Kerrey. The consolidated cases of Miller and Hobbs must decide whether life without parole for juveniles violates the Eighth Amendment and is “cruel and unusual punishment,” the key word being “unusual” based on changing views, research on child development and societal standards regarding juveniles. In the Arizona case, their immigration law is at issue and whether federal immigration law and policy preempts the state law. This has serious ramifications regarding federalism as well as similar and tougher laws in other states currently on hold. Should the Court rule in favor of Arizona, it will be interesting to see Obama’s reaction. And of course, there is the granddaddy of them all, the Obamacare cases- four in all. That case will likely be announced on the currently unscheduled last day of the term- either Wednesday or Thursday next week. Incidentally, requests by Senators Leahy and Grassley that the decisions be announced live, at least the audio, are probably dead on arrival.

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