The Wall Street Journal recently published an op‐ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐confected doctrine that provides rights‐violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.
Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s — on March 1, 2018. Cato’s kick‐off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”
The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. Since launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐ideological alliance of public interest groups opposed to qualified immunity — what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.
A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples:
- Judge Don Willett, a Trump appointee to the Fifth Circuit, has explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly,” and sharply notes that “this entrenched, judge‐created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”
- Judge James Browning, a George W. Bush appointee to the District of New Mexico, has now issued several opinions that include a blistering criticism of the Supreme Court’s “clearly established law” standard, and citing Cato’s amicus briefs for the argument that “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.”
- Judge Dale Drozd, an Obama appointee to the Eastern District of California, cited Cato’s March 2018 forum in his discussion of the campaign to challenge qualified immunity, and announced that “this judge joins with those who have endorsed a complete re‐examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”
Now, almost two years into Cato’s campaign, the Supreme Court finally appears to be preparing to confront the question of whether qualified immunity should be reconsidered. There are currently six major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together — which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered. We first discussed this possibility back in October of last year, and we now have even more evidence suggesting the Court may be preparing to take up this issue. Here are the key details about each of the six cases:
- Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether “the judge‐made doctrine of qualified immunity” should “be narrowed or abolished.” Cato filed a brief in support of the petition, and we also helped to coordinate the filing of an updated cross‐ideological brief. Jay Schweikert and Emma Andersson (one of the ACLU attorneys on the case) wrote a joint op‐ed discussing the case back in July, and Law360 ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?”
- Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐law roots of qualified immunity.”
- Zadeh v. Robinson and Corbitt v. Vickers. We’ve discussed these cases in more detail previously, but Zadeh is the case where the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. And Corbitt is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐year‐old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both cases are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
- Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8 – 4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The cert petition in this case was filed on November 26, 2019, and while it doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
- West v. Winfield. As related in the IJ op‐ed mentioned above, police officers told Shaniz West that they were looking for her ex‐boyfriend and thought he might be inside her house, so she gave them permission to go in and look. But instead of entering, they instead called a SWAT team, who bombarded it from the outside with tear‐gas grenades, effectively destroying her home and all her possessions (the ex‐boyfriend wasn’t even inside). The Ninth Circuit granted immunity to the officers, on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that Ms. West gave to allow officers to enter her home. Yesterday, the IJ filed a cert petition on behalf of Ms. West asking the Court to clarify and limit the scope of qualified immunity. As noted, this case marks the launch of IJ’s “Project on Immunity and Accountability,” which is focused on challenging doctrines like qualified immunity that erroneously permit public officials to operate above the law. IJ has previously joined various iterations of the Cato‐conceived cross‐ideological brief described above, but we’re looking forward to filing our own amicus brief in support of IJ’s cert petition in West.
The Court has yet to make a final decision about any of these cert petitions, but there’s good reason to think the Justices are preparing to consider at least some of them jointly. First, in every single one of these cases (except West, as it was just filed yesterday), the Court has “called for a response” to the cert petition. Although a CFR alone is no guarantee of a cert grant, it’s an encouraging sign that at least some of the Justices are looking closely at the case, and want to hear more from the respondents about the issue.
Second, the Court’s repeated rescheduling decisions strongly suggest that they’re planning to consider them together, meaning they’re likely to address the fundamental, underlying question of whether qualified immunity itself should be reconsidered. Specifically, Baxter and Brennan were both fully briefed and originally set to be considered in October 2019. But since then, the Baxter petition has been rescheduled five times, and Brennan has been rescheduled three times, most recently on January 8th in both cases. January 8th also happens to be the same day in which the Court called for a response in both Zadeh and Corbitt (with the Kelsay CFR following five days later, on January 13th). It’s hard to imagine why else the Court would postpone these fully briefed petitions for over three months, unless they were holding them to consider along with these more recent petitions raising the same ultimate question.
Of course, this is all still speculative to some degree, and even if the Court does grant cert in one or more of these cases, there’s a wide range of potential outcomes. But the confluence of so many powerful petitions pending at the same time, combined with the Court’s obvious focus on this issue, makes undeniable what Cato has been saying for years — one way or another, the Supreme Court is going to have to confront the glaring legal inadequacies of qualified immunity, together with the massive injustices the doctrine has perpetrated on countless individuals whose rights have been violated with impunity by unaccountable police and other government officials.
Last night, the House Judiciary Committee began debate on the two articles of impeachment unveiled earlier this week by HJC chairman Rep. Jerrold Nadler (D‑NY). Despite recent talk about cluttering the articles with Emoluments Clause and Mueller probe accusations, in the end the Democratic leadership decided none of those charges sparked joy. The articles set for markup today focus exclusively on the Ukraine affair and President Trump’s response to the impeachment inquiry it launched.
The decision to Keep Impeachment Simple, Stupid was a smart call. The two articles confine the case against Trump to a digestible set of facts. Equally important, they avoid framing the president’s conduct in criminal‐law, focusing instead on misuse of official power and violations of public trust.
The first article, on “Abuse of Power,” accuses Trump of conditioning a state visit and delivery of military aid on the Ukrainians announcing an investigation of his 2020 rival Joe Biden. In so doing, Article I charges, Trump misused the powers of his office “for corrupt purposes in pursuit of personal political benefit.”
I could have done without the far‐fetched and irrelevant claim that Trump “compromised the national security of the United States” by holding up aid. But Article I does better at avoiding what I’ve called the “Overcriminalization of Impeachment.” Trying to shoehorn Trump’s conduct into one or more federal statutes invites a hypertechnical debate over federal bribery, extortion, and campaign‐finance statutes that’s quite beside the point. The president doesn’t have to violate the law to commit an impeachable abuse of power. Historically, according to a comprehensive report by the Nixon‐era House Judiciary Committee, “allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions” have been far more common than allegations of federal crimes.
In this case, there’s a fairly close parallel between Article I and one of the articles of impeachment that drove Richard Nixon from office (he quit before the full House could vote). The second article of impeachment against Nixon, passed by the House Judiciary Committee in July 1974, focused on abuse of power, and the first item it listed was the administration’s attempts to order up IRS audits on political opponents, including people who worked for or supported his opponent in the ’72 election, Sen. George McGovern. In that case, the notion that the president simply had a high‐minded interest in rooting out corruption didn’t sell.
The second article against Trump tracks the case against Nixon even more closely. Article II charges President Trump with “Obstruction of Congress” based on his “indiscriminate defiance” of lawfully issued congressional subpoenas in the impeachment inquiry. It draws heavily on the third article of impeachment the House Judiciary Committee passed in July 1974, adopting some of its language verbatim. Like Nixon, Trump “interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”
Nixon Article III was the most controversial of the articles lodged against the 37th president, passing HJC by the narrowest margin of the three. But the Judiciary Committee’s Report on the Nixon impeachment made a strong case that Nixon’s defiance was unprecedented and dangerous: of dozens of federal officers who’d been the subject of impeachment investigations up till that time “not one of them challenged the power of the committee conducting the investigation to compel the evidence it deemed necessary.” And Nixon’s obstruction wasn’t nearly as flagrant as the policy of categorical stonewalling Trump announced.
In this case, then, the articles rest on pretty firm constitutional ground. Of course, impeachment is “a mixed operation of law and politics,” and constitutional analysis can only take you so far. In this case, even more than past partisan impeachments, “the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.
The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non‐threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non‐threatening suspects who surrendered by sitting on the ground with their hands up.
The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge‐made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross‐ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op‐ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…
But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. (“Rescheduling” means the petition will be considered at a later date, and that the Justices have yet to formally consider it — as opposed to “relisting,” which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again — no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.
Why is the Court repeatedly rescheduling Baxter? It’s impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered — specifically, those in Zadeh v. Robinson and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real‐world functioning of modern immunity practice.” And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐year‐old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.
Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes — co‐chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery — who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of “whether the doctrine of qualified immunity should be narrowed or revisited entirely,” which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th — just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid‐November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.
Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I’ve sketched out above, that’s no guarantee that they’ll grant the petition. But this is, in my view, a promising development, especially in light of the Court’s disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehicle for taking up this question. Or perhaps they’ve realized that this issue is simply not going away. But by the end of this term, I suspect that we’ll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.
On Wednesday, October 2, US District Judge Gerald McHugh ruled that the plans of a non‐profit, privately‐funded, harm reduction organization to establish a Safe Injection Site in Philadelphia do not violate federal law. A group that includes former Philadelphia Mayor and Pennsylvania Governor Ed Rendell was warned last year by then‐Deputy Attorney General Rod Rosenstein that their plans to establish “Safehouse” would be a violation of federal law and would face a “swift federal response.” In February of this year, US Attorney for the eastern district of Pennsylvania Bill McSwain sought a declaratory judgment in federal court regarding the legality of the enterprise, arguing that Safe Injection Facilities (also called “Overdose Prevention Sites”) violate the federal “Crack House Statute.”
Governor Rendell spoke about Safehouse and the court battle at the Cato Institute’s conference on harm reduction in March of this year. Also on the panel discussing the matter were Clark Neily, Cato’s Vice President for Criminal Justice, and Darwin Fisher, Program Director of “Insite,” in Vancouver, BC, North America’s oldest Safe Injection Facility. You can view that panel discussion here. In their argument before the court, the Department of Justice called Safehouse an “in‐your‐face illegal activity.”
While the Justice Department intends to appeal the ruling, this is still a very encouraging development. Several other cities have been wanting to allow for the establishment of Safe Injection Facilities, including Seattle, San Francisco, Boston, and New York City. They are watching what happens in Philadelphia very closely.
As I have written here and in my Policy Analysis on harm reduction, Safe Injection Facilities have a more than 30‐year track record of reducing overdose deaths, cases of HIV and hepatitis, and IV drug use in over 120 cities in Europe, Canada, and Australia.
Unfortunately, efforts to establish Safe Injection Sites in the US still have a battle in front of them. US Attorney Bill McSwain reacted to the judge’s decision by saying, “The Department of Justice remains committed to preventing illegal drug injection sites from opening. Today’s opinion is merely the first step in a much longer legal process that will play out. This case is obviously far from over.”
Recently, Pew published a wide-ranging survey entitled “Why Americans Don’t Fully Trust Many Who Hold Positions of Power and Responsibility.” Police officers were among the groups polled among respondents. The results on cops align with what is shown in the annual Confidence in Institutions survey published by Gallup—briefly, that cops are among the most liked and trusted groups in America, despite the enduring “war on cops” narrative—but the general affinity for police breaks down across demographics. The results also mesh well onto what my colleague Emily Ekins found in her 2016 polling on American attitudes toward police.
From the Pew release:
“[O]pinions about police officers differ widely by racial and ethnic group, with white people holding more positive opinions about police officers than black people and Hispanics do. This racial and ethnic divide is most apparent when it comes to police officers treating all racial and ethnic groups equally. Roughly seven-in-ten white Americans (72%) say police officers treat racial and ethnic groups equally at least some of the time. By way of comparison, half of Hispanics and just 33% of black adults say the same. The racial divide extends beyond opinions about police officers treating racial and ethnic groups equally. Across all six questions asked about police officers, whites are more likely than both Hispanic and black Americans to express positive views of police officers.” (emphasis added)
Fully two thirds of black respondents and half of Hispanic respondents do not believe that police officers treat racial and ethnic minorities equally. While it is theoretically possible that so many ethnic and racial minorities have been hoodwinked into believing something that is not true—or are perhaps oversensitive to just and fair police procedures—the far more likely (and statistically supported) explanation is that blacks and Hispanics are treated differently than whites, and many are quite cognizant of that difference. Social networks and personal experience in these racial and ethnic communities inform these beliefs, lending credence to their position.
Given that many Americans live in racially homogenous areas and that some cities remain de facto segregated, many white Americans may not be aware of how police operate in spaces and neighborhoods that are not white-dominated. Likewise, white Americans may not understand how being not white in white-dominant spaces may incur unwanted (and unwarranted) contact with police officers. Such interactions are not always hostile, and the vast majority are not violent, but the experience may nevertheless be a negative one because the person who is stopped recognizes, or at least has legitimate reason to believe, that their perceived race or ethnicity played a considerable role in an involuntary police contact.Read the rest of this post »
Under our Constitution, the jury trial is supposed to be the cornerstone of criminal adjudication. The independence of citizen jurors has always been understood to be an indispensable structural check on executive, legislative, and even judicial power. And that independence has always entailed a special solicitude for jury acquittals, which are intended to have unassailable finality. Yet prosecutors and judges routinely do end‐runs around this intended finality — and thus, around the jury trial itself — through the pernicious practice of “acquitted conduct sentencing.”
“Acquitted conduct sentencing” refers to the scenario in which a judge sentences a defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they were acquitted. For example, in Jones v. United States, the defendants were charged with both (1) distributing small amounts of crack cocaine, and (2) a conspiracy to distribute large amounts of crack cocaine. The jury convicted on the distribution charge, but acquitted on the conspiracy charge. Common sense and basic constitutional principles would seem to dictate that the defendants be sentenced only on the basis of their distribution.
But bizarrely, the judge in that case effectively disagreed with the jury’s verdict, concluded that the defendants did engage in the charged conspiracy, and sentenced them far more harshly than would otherwise have been warranted. While the Guidelines sentencing range for the distribution charge would have “only” been 27 – 71 months (still a wildly excessive punishment, but beside the point here), the three defendants in Jones were ultimately sentenced to 180, 194, and 225 months — in essence, punishing them about four times more harshly solely because of alleged conduct for which they were acquitted.
Acquitted conduct sentencing is not only unjust, but flagrantly unconstitutional. Although the Supreme Court has held that this practice does not specifically violate the Double Jeopardy Clause (a conclusion which itself is questionable), it has never addressed whether the practice violates either the Due Process Clauses of the Fifth and the Fourteenth Amendment, or the Sixth Amendment right to a jury trial. And as Cato has argued in several amicus briefs on the subject, acquitted conduct sentencing is inherently at odds with the understanding of the jury trial in the Anglo‐American legal tradition, and especially contrary to the special sanctity and unassailable finality of jury acquittals. Permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a jury trial, but also denies the community their proper role in overseeing the administration of criminal justice.
Moreover, it’s especially important to address acquitted conduct sentencing now, given how it reinforces and exacerbates the larger problem of coercive plea bargaining. Today, jury trials have been all but replaced by guilty pleas as the baseline for criminal adjudication, and there is ample reason to doubt whether the bulk of these pleas are truly voluntary. And as Judge Patricia Millett of the D.C. Circuit recently explained, “factoring acquitted conduct into sentencing decisions imposes almost insurmountable pressure on defendants to forgo their constitutional right to a trial by jury. Defendants will face all the risks of conviction, with no practical upside to acquittal unless they run the board and are absolved of all charges.” Precluding sentences based on acquitted conduct would therefore be a small but vital safeguard against the wholesale erosion of the jury trial itself.
Fortunately, both the Supreme Court and Congress will soon have opportunities to clarify that acquitted conduct sentencing is unjust and unconstitutional. First, on the judicial side, the cert petition currently pending before the Court in Asaro v. United States explicitly raises the question of “[w]hether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury.” The Cato Institute, Due Process Institute, National Association of Federal Defenders, and FAMM all filed briefs in support of this petition, and there is good reason to think that many of the Justices will be interested. Both Justice Thomas and Justice Ginsburg joined the dissent from denial of certiorari in the Jones case from 2014, in which Justice Scalia explicitly called upon the Court to clarify that acquitted conduct sentencing violates the Sixth Amendment, and that the Court’s history of evading that question “has gone on long enough.” Justice Kavanaugh, back when he was a judge on the D.C. Circuit, also repeatedly criticized the practice.
But key members of Congress are also moving to eliminate acquitted conduct sentencing. Just today, a bipartisan group of Senators, including Dick Durbin (D‑IL), Chuck Grassley (R‑IA), Patrick Leahy (D‑VT), Thom Tillis (R‑NC), Cory Booker (D‑NJ), and Mike Lee (R‑UT), introduced the “Prohibiting Punishment of Acquitted Conduct Act of 2019.” According to the Senate’s press release, the bill would “preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would define “acquitted conduct” as “acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.” The bill has also been endorsed by a diverse, cross‐ideological array of dozens of different public interest groups, including the ACLU, American Bar Association, American Conservative Union, Due Process Institute, Innocence Project, and Koch Industries (as a general matter, the Cato Institute does not endorse proposed legislation).
Whether through judicial or legislative action, or both, the unconstitutional scourge of acquitted conduct sentencing must be abolished — and it looks like that time may be coming soon.
Many critics of marijuana legalization raise concerns that marijuana dispensaries might serve as loci for increased local criminal activity. Now there is empirical evidence that just the opposite occurs.
A new study reported in the September issue of Regional Science and Urban Economics examined local crime rate data from 2013 through 2016 in Denver, Colorado, where legal cannabis sales to adults began in 2014. The researchers reported:
The results imply that an additional dispensary in a neighborhood leads to a reduction of 17 crimes per month per 10,000 residents, which corresponds to roughly a 19 percent decline relative to the average crime rate over the sample period. Reductions in crime are highly localized, with no evidence of spillover benefits to adjacent neighborhoods.
The study found that the majority of the crimes reduced were of a nonviolent nature.There were no changes in the number of cannabis‐related crimes near dispensaries, but there was a decrease in the number of crimes related to methamphetamine, cocaine, and heroin. The authors speculated that this may be in part due to the increased presence of law enforcement near dispensaries serving as a deterrent to criminal activity.
The authors stated they did “not find increases in marijuana crimes such as cultivation, possession, or sales nearby,” and no increase in crimes associated with marijuana intoxication, “since there is essentially no change in the number of crimes with marijuana as a ‘contributing factor’ near locations that gain dispensaries.”
A 2017 study in Preventive Medicine with a more limited time range looked at crime rates in South Los Angeles, examining local crime rates in neighborhoods surrounding medical marijuana dispensaries (MMDs), tobacco shops, and alcohol retailers, from January through December 2014. The researchers found no increase in crime rates related to the presence of medical marijuana dispensaries, but an increase in crime surrounding tobacco and alcohol outlets:
Results indicated that mean property and violent crime rates within 100‐foot buffers of tobacco shops and alcohol outlets — but not MMDs — substantially exceeded community‐wide mean crime rates and rates around grocery/convenience stores (i.e., comparison properties licensed to sell both alcohol and tobacco).
While these studies should help alleviate concerns raised by marijuana prohibitionists about the effect that legalization may have on local crime, similar arguments are used by those who oppose the creation of Safe Injection Facilities for IV drug users. As I have written here, SIFs have been working to reduce overdoses and the spread of disease since the 1980s in more than 120 cities in Europe, Canada and Australia, and there is an “underground” SIF functioning in the US illegally since 2014. Federal law prohibits Safe Injection Facilities in this country, and the Department of Justice is stifling efforts to establish them in Philadelphia, Seattle, San Francisco, Boston, and New York City.
Among concerns raised by opponents is that they will be a magnet for IV drug users, creating a visual disturbance to neighborhood residents. The counter‐argument is that SIFs will actually bring the drug users in off the streets, letting them use their drugs out of the view of young impressionable children and other nearby residents, and will reduce the presence of used needles on the streets and sidewalks.
Another concern is that SIFs may be loci for criminal activity. But, as in the case of marijuana dispensaries, those concerns, while understandable, are not borne out by the evidence. A 2017 systematic review by Canadian researchers reported in Current HIV/AIDS Reports found Supervised Injection Facilities were “associated with improvements in public order without increasing drug‐related crime.”
The takeaway from all of this is that bringing drug use out of the darkness of the underground reduces harms to those who don’t engage in drug use as well as those who do.