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Federal power, and cleaning up

I've commented before on how there are several areas of Ohio law desperately in need of a clean-up by the Ohio Supreme Court:  sentencing, allied offenses, stare decisis, to name a few.  There are some areas of constitutional law which could use a fresh look by the US Supreme Court, too.   One of them is the use of the Commerce Clause in criminal cases.  That was highlighted last week by the 4th Circuit's decision in US v. Comstock.

Comstock was a rare win for the defense in sex offender laws.  One of the provisions of the Adam Walsh Act passed by Congress in 2006 was 18 USC §4248, which gives the US Attorney General the power to certify that any prisoner in Federal custody  "sexually dangerous."  The mere filing of the certificate automatically stays the person's release, and if after a hearing the judge agrees that "clear and convincing" evidence established the person's "dangerousness," the prisoner could be retained indefinitely in Federal prison.  While the statute defined "a sexual dangerous person" in terms of their likelihood of committing future acts of "sexually violent conduct" or "child molestation," neither of the latter terms was defined. 

This was too much for the 4th Circuit, which concluded that

The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law.

The basis for the decision was not the Orwellian nature of the powers granted the AG, but rather that the whole thing wasn't the business of the Federal government.  The only real justification the government advanced for the subject being a matter of Federal law was the Commerce Clause, but the 4th Circuit relied on a couple of Supreme Court decisions in the past decade or so in rejecting that argument.The first was US v. Lopez, which struck down the Gun Free School Zones Act, and the second was US v. Morrison, meting out the same fate to the Violence Against Women Act, which authorized a Federal civil remedy for non-economic violence against women.

Both Lopez and Morrison were 5-4 decisions, and one can make arguments pro and con on their merits, especially given the expansive reading of the Clause that the Supreme Court has followed for most of American history.  Still, there seems to be some legitimacy to the holding of those cases, and of Comstock, that there comes a point at which you must say:  if the Federal government can use the Commerce Clause to criminalize conduct in this area, then there is no practical limit to the areas which the Federal government can regulate.

That argument didn't do Rajah Baylor any good, though; last year the 6th Circuit upheld his conviction and 12-year sentence under the Hobbs Act, which makes it a Federal crime to "obstruct, delay, or affect commerce or the movement of any article or commodity in commerce, by robbery or extortion."  The Federal courts have long applied a de minimis standard to determining whether the act indeed affects interstate commerce, and found that standard was met by Baylor's robbing a Cleveland Little Caesars pizza shop of $538, primarily on the basis that Little Caesars is a national chain, dismissing Baylor's argument that the de minimis standard didn't survive Lopez and Morrison.  The Supreme Court doesn't seem to be of a mind to re-examine the issue; last June, it rejected cert in Baylor's case.

If the idea of making it a Federal crime to dash out of McDonald's without paying for your Bic Mac Combo is hard to swallow, even more difficult to accept is the idea of being given prison time for something that you haven't been charged with, or, even worse, something that you've been acquitted of doing.  That was the fate that befell Roger White:   after a jury found him not guilty of four of six counts of bank robbery, White watched the judge decide that the conduct for which he had been acquitted had been established by a preponderance of the evidence, and thus increased his offense-level enhancements by ten levels, jumping his sentence from 8 to 22 years.

Again, the 6th Circuit had little trouble affirming that in an en banc decision a couple weeks back.  Once more, this is not a novel position:  all of the circuits have affirmed enhancements or increased sentences based upon conduct for which the defendant was never indicted, or for which he's actually been acquitted.  (This situation is not confined to the Federal system, either; two years ago in State v. Lewis the 5th District upheld a sentence in which the trial judge gave defendant more time on a driving under suspension charge because of two drunk driving charges for which the jury had acquitted her.)

The idea that sentences can be enhanced for acquitted conduct stems from the Supreme Court's 1997 decision in US v. Watts, where the Court rejected the argument that this violates a defendant's 5th Amendment right against double jeopardy.  Of course, Watts preceded the Apprendi/Blakely/Booker line of cases, in which the Court held

the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.

What's more, Watts is a 5th Amendment case; Apprendi and its progeny are 6th Amendment cases dealing with the defendant's right to a jury trial.

As others have commented, the Supreme Court is the most pro-defendant sentencing court in the country right now, although that view may have taken a hit with yesterday's decision in Oregon v. Ice, which I'll discuss tomorrow.  Still, there's a manifest unfairness in basing a defendant's sentence on something a jury says he didn't do, and sooner or later, that unfairness should be addressed.

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