The Roundtable
Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
 By Anna Schwartz
Anna Schwartz is a sophomore at the University of Pennsylvania studying Political Science, French, and Economic Policy. Countries surrounding the South China Sea have been competing for ownership of the ocean area for decades. Yet as of late, the tensions are beginning to peak. China, Taiwan, Vietnam, the Philippines, Malaysia and Brunei have all recently staked claims. The disagreements have far-reaching political implications, including increasing naval hostility from China in order to establish dominance in the region. As states place increasingly greater economic and military value on the region, deciding proprietary rights becomes more pressing. Disputes center around rights to the Paracel and Spratly islands, along with nearby rock and reef formations. Many states hope to take advantage of the region’s abundant natural resources. The body of water contains valuable fisheries and over 30% of the world’s coral reefs [1]. In 2013, for example, the South China Sea hosted around 11 billion barrels of untapped oil and 190 trillion cubic feet of natural gas [2]. Finally, newer data adds that approximately 40% of global natural gas trade and 30% of maritime oil trade passes through the South China Sea due to routes between Africa, the Persian Gulf, and Asia [3, 4]. Motivated by the potential benefits from resource deposits and sea lanes, neighboring countries are presenting their custody cases to the United Nations.
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 By Connor Gallagher Senator Orrin Hatch, the longest-serving member of the Senate Judiciary Committee, wrote an op-ed for SCOTUSBlog in late August to convince readers that then-Judge Brett Kavanaugh should be confirmed to the Supreme Court. [1] In particular, Senator Hatch cited now-Justice Kavanaugh’s repeated commitment to reforming the acquitted conduct doctrine, which permits trial judges, during the sentencing of a criminal defendant, to consider conduct for which the defendant was acquitted by the jury. [2] It should not come as a surprise to the reader that this practice is widely panned by lawyers and laypersons alike. That being said, the acquitted conduct doctrine is nothing new. It originates in the 1984 creation of the United States Sentencing Commission, which subsequently established mandatory sentencing guidelines for federal courts. [3] (These guidelines are still in use today, though they have been amended innumerable times and are nowadays advisory, rather than mandatory. [4]) These guidelines permit judges to consider all “relevant conduct” in sentencing decisions, explicitly advising its users that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable [sentencing]…” [5] Therefore, so long as conduct is more likely than not to have occured––that is, it has been proven by a preponderance of the evidence––judges may consider it during sentencing. By happenstance, Kavanaugh found the issue before him surprisingly often in his role as Circuit Judge for the D.C. Circuit, and did not hesitate to voice his concerns while writing opinions. In 2008, he wrote that he “understand[s] why defendants find [the practice] unfair” and even went so far as to directly sympathize with the testimony of the defendant, Tarik Settles, who questioned why “I should get punished for something that the jury and my peers, they found me not guilty.” [6] In 2015, Kavanaugh went even further:
Despite his unbridled criticism for acquitted conduct consideration, Kavanaugh has always sided with the sentencing judge on the matter, citing Supreme Court precedent. For example, in the 2008 case, Kavanaugh explained that sentencing decisions are only reviewed under the abuse of discretion standard of review, and that the Supreme Court “has never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” [6, 8]. Indeed, the Supreme Court continues to refrain from reversing its long-standing position that acquitted conduct proven by a preponderance of the evidence is fair game. A high-profile case, Jones v. United States (for which Kavanaugh was yet again a presiding judge!), was denied certiorari in 2014, much to the exasperation of criminal justice reform advocates. The three defendants in the case were convicted of “distributing very small amounts of crack cocaine” but acquitted of conspiracy to distribute. [9] However, the sentencing judge found by a preponderance of the evidence that they had in fact engaged in the conspiracy and subsequently prolonged their sentences. Ostensibly, the case was only one vote short from being reviewed, as Justices Scalia, Thomas, and Ginsburg dissented from the denial of certiorari. Kavanaugh’s reluctance to let his personal distaste for the practice affect his adherence to this entrenched Supreme Court precedent earned him gushing praise from Senator Hatch, who lauded Kavanaugh’s decision to “prudently decline[] to step outside of his constitutional role.” [10] I am in a less complimentary mood. Countless examples in which loyalty to precedent leads to perverse outcomes plague the history of the American judiciary. We must ask ourselves whether a highly-educated, experienced, Senate-approved federal circuit judge should possess the authority to rectify what he repeatedly admits is a manifestly unjust and constitutionally dubious standard, even when the Supreme Court has said otherwise. It is not as if Supreme Court justices have a monopoly on constitutional comprehension. By issuing a judgment contrary to precedent, Kavanaugh could have forced the Supreme Court’s hand by compelling it to either double-down on its doctrine or revise its previous rulings. In his defense, a number of institutional obstacles stood in his way. Persuading at least one of his panel colleagues to similarly ignore higher-court precedent would be difficult in and of itself, without even mentioning the Jones denial. Quite frankly, it is shocking that justices with such disparate worldviews as Scalia and Ginsburg could agree on a case and not convince at least one other justice to hear it. This would dissuade even the bravest of judges from rebelling against precedent. In any event, the acquitted conduct doctrine must go. Fortunately, there are indications that the Supreme Court may be ready to take action; with Kavanaugh confirmed, Justices Thomas and Ginsburg continuing their terms, and Trump-appointee Neil Gorsuch on record questioning the practice, there appears to be the needed four votes to take up a potential case. [11] Legislative options do also remain. Senator Hatch claims in his op-ed that he “plan[s] to soon introduce the Acquitted Conduct Sentencing Reform Act,” but as Hatch heads for the exits this January, a Google search for the proposed law’s name yields only copies of his SCOTUSBlog piece. [12] As always, criminal justice reform remains glacial in pace. References:
1. Orrin Hatch, “Judge Kavanaugh’s Fight for Stronger Jury Rights.” SCOTUSBlog, Aug. 31, 2018. http://www.scotusblog.com/2018/08/judge-kavanaughs-fight-for-stronger-jury-rights/. 2. Ibid. 3. “About and Mission.” United States Sentencing Commission. https://www.ussc.gov/about-page. 4. Michael Foster, “Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change.” Congressional Research Service, Aug. 24, 2018. https://fas.org/sgp/crs/misc/LSB10191.pdf. 5. United States Sentencing Commission Guidelines Manual 2016, Chapter 1. https://www.ussc.gov/guidelines/2016-guidelines-manual/2016-chapter-1#NaN. 6. United States v. Settles, 530 F. 3d 920 (2008). https://www.courtlistener.com/opinion/187171/united-states-v-settles/. 7. United States v. Bell (2015), Kavanaugh concurrence in the denial of rehearing en banc. https://www.cadc.uscourts.gov/internet/opinions.nsf/E8D5121C5DAA4A6085257F23006EDF3B/%24file/08-3037-1590097.pdf. 8. United States v. Booker, 543 U.S. 220, Stevens majority opinion, at 8. https://www.law.cornell.edu/supct/pdf/04-104P.ZO. 9. Jones v. United States, Scalia dissent from denial of certiorari. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Jones_denial.pdf. 10. Ibid., at 1. 11. Ibid., at 4. 12. Ibid., at 1. Photo Credit: Wikimedia Commons: Office of Senator Orrin Hatch https://commons.wikimedia.org/wiki/File:Orrin_Hatch_and_Brett_Kavanaugh.jpg The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.  By Alana Mattei
Alana Mattei is a junior at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE). To many Americans, the notion of a secret court, closed to the public, giving a government permission to surveil its own citizens seems like something straight out of a spy novel. In reality, a court exactly like this exists in Washington D.C.  By Cole Borlee “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did,” – John Ehrlichman, Assistant to President Nixon for Domestic Affairs, is one of the only people directly involved with the war on drugs to give such a bare and harsh statement on its purpose. [1] In the fifty years after Nixon’s presidency, drug use and overdose rates grew steadily, with the last decade seeing exponential growth from the widespread use of synthetic drugs, a phenomenon commonly known as the opioid crisis. This has frustrated the American government since the sixties, with drug use rates rising faster than lawmakers can respond with new regulation. [2] The answer that Americans have been looking for does not lie in strict penalization and regulation, but in rehabilitation and the relaxing of laws. There is mounting evidence that the decriminalization of personal use possession for marijuana, cocaine, heroin and other drugs is much more effective at reducing overdose rates than strict regulation, and this paper seeks to explore this concept as well as advocate for its adoption in America. In 2017, the CDC reported that there were 72,000 drug overdose deaths, an increase of almost ten percent over the past year. Although such large numbers can be construed as an alarmist method of argumentation, considering that 72,000 equates to one death every 8 minutes, there is reasonable cause for concern. [3] Even though every nation is unique and there can be many reasons for differing overdose rates, comparison is still a very useful method for examining domestic policy. The European Union has a wide range of drug policies among its constituent nations, and is most alike to America in terms of economy and culture, making it ideal for such a comparison. The countries with some of the highest drug overdose rates are Estonia, Sweden, and the United Kingdom, with 102, 107, and 63 deaths per million citizens respectively. [4] These countries also have drug policies that are some of the most similar to the current US policy, with jail time possible and common for any minor drug possession, even for personal use. [5] Although the equivalent rates are lower than America’s 225 deaths per million, they are still high, especially when compared to other countries within the EU. [3; 6] Other parts of the EU stand as examples of how the rest of the world should model their drug policy. Spain, Portugal, and Italy have some of the lowest drug overdose rates in the world, at 14, 6, and 8 deaths per million citizens, respectively. [4] These nations also have some of the least strict drug policies in the world, with no jail time possible for minor drug possession charges. [5; 6] America’s drug policy can be contrasted with the laws that exist in countries with very low overdose death rates. For example, in Portugal, one may receive a small fine and be compelled to see a doctor about treatment and support services. A person who is caught with drugs for personal use does not have their life’s opportunities destroyed or get sent into a system that has been constructed to keep them in prison for years on end. [7] Instead, they are warned, and shown how to improve their health. [6] Because of this, those with a history of drug usage can still be as successful as any other person in the country, and are not dehumanized into minimum wage jobs, homelessness, and prison. Spain and Italy have very similar methods of dealing with those caught with drugs, and have similar rates of drug usage. [4] The common element among countries that have very low drug overdose rates is that the punishment is very light, and there is a push towards rehabilitation instead of penalization. Drug users in high-punishment countries overdose because there is no access to therapy and rehabilitation, and along with this, no way to better themselves. If drug users are collectively able to “unhook” themselves sooner than before, then the chance they will overdose goes down too. Therefore, the countries that focus on rehabilitation during prison time instead of punishment are more effective at preventing overdose, because they actually stop a person from abusing drugs. The state mandates therapy for those arrested, and this in turn decreases overdose rates. If one wishes to make the argument that there are too many differences between America and other countries in Europe, and that comparing the differing laws will not yield accurate or actionable information, then comparisons can be made within America itself-between states that are very strict on drug policy and those that are not. Tennessee, Kentucky, and Utah are all in the top ten for highest overdose death rates; they also have some of the strictest drug policy in the country. [8] All of these states still have marijuana fully criminalized, and Kentucky stands out even among these, having the harshest punishments for drug possession charges in the country. A first time possessor in Kentucky can end up with a $10,000 fine and 3 years in prison, as well as the label of “felon”. [9] When considering the aspect of mass incarceration that goes along with drug policy, it should come as no surprise that these states also boast some of the higher rates of incarceration. [11] On the other side of the spectrum lies the states of California, Minnesota, and Oregon. California and Oregon have fully legalized marijuana, and all three have relatively soft punishments for drug offences, with California having laws that will not charge someone with a felony for marijuana possession, regardless of amount possessed. [10; 9] Consequently, these states also have some of the lowest overdose rates in the country. [11] It should be readily apparent that the closer the laws are to decriminalized in a given location, the better that place does in terms of drug overdose rates, providing compelling evidence that the entirety of America should follow suit. If all the empirical data is to be ignored, there is still very strong logical support for the decriminalization of drugs The fact that such a drug is illegal is no deterrent, which is analogous to how underage drinking is so common that it is accepted at colleges across the country. People who do not use drugs choose not to because they are aware of the health and lifestyle costs that come with the use. Similarly, those who do want to try drugs are not put off by the punishments, as supported by the high usage rates already in America. The strict punishments for the possession of drugs does not stop their use or do anything to help abusers. As explained before, the strict punishments actually work against the abusers, and it has been shown that rehabilitation is the most effective method of solving this issue. In fact, the current drug policy in America has created a cycle of recidivism that has resulted in mass incarceration; America has, by far, the largest prison population on earth. It was indeed a goal of the Nixon campaign to use the War on Drugs to imprison those that stood in opposition to his political goals, but the application of such a heavy criminalization of these drugs has expanded well past this original goal in current day. In the past 4 decades, the rate of incarceration in America has increased 500 percent, and drug related arrests have tripled. [12] Also the rate at which people are convicted for possession arrests has gone up dramatically since the start of the War on Drugs. While the original use of such heavy criminalization was to target specific groups, the state has taken a position of trying to crush all drug users into the dirt. And although many more people of all types are being convicted, minority communities are seeing even higher rates. Keeping true to its original goal, the criminalization of drugs has disrupted the black community, with the vast majority of those arrested for drug charges being black. Even though whites have a higher rate of drug abuse than blacks, sixty percent of those imprisoned for drug charges at the turn of the century were black. [13] For reference, blacks made up less than thirteen percent of the population. [14] The main reason that imprisonment doesn’t work for drug abusers is the lack of rehabilitation. Setting aside what happens to abusers after release, the process of going through prison only worsens things for them. Relative to other countries’ prison systems, America has almost no rehabilitation programs, especially for those with drug abuse problems. By putting an abuser in prison, they simply suffer the withdrawal or find a way to get drugs on the inside, and come out with no new skills on how to be healthy; rather, the extremely poor conditions of most American prisons can foster an even greater dependence on drugs. The prison system in America is one of a positive feedback loop; those who go to prison are almost guaranteed to return. Getting caught with a small amount of some drug for personal use results in that person going to prison. Once they are released, they forever have “felon” hovering above their head, making it all but impossible to find a job other than that of unskilled labor. They also have not received any help for the drug issue that put them in prison in the first place, meaning that upon release, they are very likely to continue abusing drugs. These two factors result in a person who is likely to be homeless or commit crimes to stay alive, and this, in combination with the drug abuse, is likely to get them arrested again. Since repeated offenses carry heavier sentences, a person who is convicted once is likely to go into a spiral of more and more severe punishments. [15] The purpose of sending someone to prison is to isolate them from society because they have been judged to be a danger to that society. This makes sense with murder, drug trafficking, and any other crime that infringes on others’ rights or harms them. But a person who possesses a small amount of drugs for personal use does not harm anyone else, does not infringe on anyone’s rights, and is no danger at all to society. To go into depth on why private prisons are profitable is beyond the scope of this paper, but it stands that there is no defendable reason to send someone to prison for minor possession charges. It can be argued that a person who is using drugs is indeed harming others, because they give money to groups that traffic and make the drugs, which are commonly violent and hurt many people in the process of getting the drugs to the users. These traffickers only exist because there is such high usage in places like America, and these high usage rates only exist because the current laws are ineffectual at lowering them. If laws similar to those of countries that have low usage rates are adopted, then the overall demand for drugs would go down, and these trafficking groups would shrink. There would be no need to put drug abusers in prison in the first place. Even in America’s current situation, throwing abusers in prison does not help the abusers nor society. As explained before, the mass incarceration of these abusers is actively making the problem worse, and the only way to solve it is to stop putting them in prison. The most destructive and violent aspect of drugs are the groups that create and move the drugs; the traffickers, the cartels, the gangs that murder and steal in order to supply drugs and make money. The traditional way that American law enforcement has tried to fight these groups was with force; a quite literal war on drugs has been taking place in the American continents for many decades. But as long as demand has existed in America, and the demand has only been going up, these groups have only grown in size and power. The only way to reliably fight back against these groups, and therefore stop the violence that they bring, is to cut the demand through decreasing drug usage rates by decriminalizing for personal possession. Although it seems counterintuitive, decriminalization can indeed decrease drug usage rates. It is difficult to draw parallels between this aspect and Prohibition, as the effects of alcohol and certain drugs are fundamentally different. As mentioned before, most people who choose not to consume drugs do so for the health effects, not for its illegality. And as such, the decriminalization would not result in everyone trying any drug they can find, as the health effects are still there. And finally, after the rehabilitation of current drug users, with less new drug users, the overall rate of usage will go down. There should be no relaxation of the laws for those who possess with intent to distribute, as they actually are causing harm to others. This situation is analogous to the prohibition of alcohol in America. When the 21st amendment was put into place, various groups such as the mafia saw the opportunity to illegally sell alcohol, and grew to be very powerful. The only reason the mafia became powerful was because they took advantage of something that was illegal, which is the same situation that the gangs and cartels find themselves in. [16] When something is made illegal, it is still used and sold, but the money instead goes to groups that are willing to get increasingly violent in order to stay competitive. Governments that are trying to stop the poaching of endangered animals in the East are not hunting down all the poachers, but enacting laws that prevent people from using the products that come out from the poaching. The effectiveness of this method has been much higher than older methods of persecuting the poachers. [17] There is no reason for why poaching and the prohibition of alcohol have different results from drugs, and why the solution isn’t the same. The last part of this new system would be to redirect the funding of the prison rehabilitation to outside, voluntary rehabilitation centers as the drug use rate goes down and less people go to prison for drug use. This is necessary because it both helps those who are currently in prison get out, but keeps the systems still there for the uncommon case of someone completely failing rehabilitation repeatedly. The outside centers serve as means of helping drug users without having to send them to prison in order to get this help, so that mass incarceration does not turn into mass (unnecessary) rehabilitation. As important as the law is in determining how drug users are dealt with, how the society of the country views drug abusers is also very important. In most case, the decriminalization of drugs in all of the example countries has followed after a dramatic shift in the society itself. Instead of being viewed as “Degenerates” or “Junkies”, drug abusers have come to viewed as those with a sickness or a disorder. This sympathetic view lets the abuser keep their dignity while they seek help, and be supported by their society and those close to them. In America, abusers are viewed as problem people rather than people with a problem. This has come to mean that an abuser in America is an embarrassment to those close to them, and they will be shamed by society as a whole. They are not encouraged to seek help because most Americans simply don’t view substance abuse as something separate from the abuser as a person. A change in society is just as important as a change in the law. Taking into account that other countries and the few states with very relaxed drug laws have lower overdose rates than America as a whole, that imprisoning drug abusers is making the situation worse, and that it has been proven that rehabilitation is more effective than punishment with drug abuse, it seems like American lawmakers are doing everything they can to make the situation worse. It can be very hard to change an entire society’s mind on something as emotional and problematic as drug abuse, but America needs to adopt both a societal mindset and a set of laws that are more sympathetic and focused on rehabilitation rather than punishment, so that all of the problems that the opioid crisis presents can be tackled. It may seem counterintuitive, but the decriminalization of all drugs is the solution to the opioid crisis. If the inertia that American drug policy has can be overcome, and American laws start going in the opposite direction, then America can join the growing group of nations that are seeing their drug issues be defeated. References:
[1] Baum, Dan. “Legalize It All.” Harper's Magazine, Harper’s Magazine Foundation., Apr. 2016, harpers.org/archive/2016/04/legalize-it-all/. [2] “National Center for Health Statistics.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 12 Sept. 2018, www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm. [3] Ingraham, Christopher. “Fentanyl Use Drove Drug Overdose Deaths to a Record High in 2017, CDC Estimates.” The Washington Post, WP Company, 15 Aug. 2018, www.washingtonpost.com/business/2018/08/15/fentanyl-use-drove-drug-overdose-deaths-record-high-cdc-estimates/?utm_term=.5521cc7c95ed. [4] “Drug-Related Deaths and Mortality in Europe .” EMCDDA, European Monitoring Centre for Drugs and Drug Addiction, 1 Oct. 2017, www.emcdda.europa.eu/publications/poster/drug-related-deaths-and-mortality-europe-poster_en. [5] Decriminalization of Narcotics. Washington, Law Library of Congress, Global Legal Research Center. Print. HeinOnline, https://heinonline.org/HOL/P?h=hein.intyb/decnrcts0001&i=2. [6] “Drug Report 2017.” EMCDDA, European Monitoring Centre for Drugs and Drug Addiction, www.emcdda.europa.eu/countries. [7] Ferreira, Susana. “Portugal's Radical Drugs Policy Is Working. Why Hasn't the World Copied It?” The Guardian, Guardian News and Media, 5 Dec. 2017, www.theguardian.com/news/2017/dec/05/portugals-radical-drugs-policy-is-working-why-hasnt-the-world-copied-it. [8] “Drug Overdose Mortality by State.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 10 Jan. 2018, www.cdc.gov/nchs/pressroom/sosmap/drug_poisoning_mortality/drug_poisoning.htm. [9] “Controlled Substances: Scheduling Authorities, Acts, and Schedules.” THE NATIONAL ALLIANCE FOR MODEL STATE DRUG LAWS, Office of National Drug Control Policy, 2 Nov. 2015, www.namsdl.org/library/7FD99F95-F6F2-5D27-5B6BBFA598F35DF4/. [10] “California.” Drug Policy Alliance, www.drugpolicy.org/california. [11] Wagner, Peter. “States of Incarceration: The Global Context 2018.” States of Incarceration: The Global Context 2016 | Prison Policy Initiative, Prison Policy Initiative , June 2018, www.prisonpolicy.org/global/2018.html. [12] Dorsey, Tina, United States, Congress, and The Office of Justice Programs. “Drugs and Crime Facts.” Drugs and Crime Facts, Bureau of Justice Statistics. [13] Roberts, Dorothy E., "The Social and Moral Cost of Mass Incarceration in African American Communities" (2004). Faculty Scholarship. Paper 583. [14] “Black (African-American) History Month: February 2015.” Census Bureau QuickFacts, US Census Bureau, 21 Jan. 2015, www.census.gov/newsroom/facts-for-features/2015/cb15-ff01.html. [15] Trends in U.S. Corrections. Trends in U.S. Corrections, The Sentencing Project, 0AD. [16] Sandbrook, Dominic. “How Prohibition Backfired and Gave America an Era of Gangsters and Speakeasies.” The Guardian, Guardian News and Media, 25 Aug. 2012, www.theguardian.com/film/2012/aug/26/lawless-prohibition-gangsters-speakeasies. [17] Nagle, Gabrielle. “Whistleblowers: Our Secret Weapon in the Fight Against Wildlife Trafficking.” Whistleblower Protection Blog, The National Whistleblower Center Legal Defense and Education Fund , 30 June 2017, www.whistleblowersblog.org/2017/06/articles/environmental-whistleblowers/whistleblowers-our-secret-weapon-in-the-fight-against-wildlife-trafficking/. Photo Credit: Unsplash: Alex Person https://unsplash.com/photos/4qQK8JBLWSU The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.  By Ketaki Gujar
Ketaki Gujar is a junior at the University of Pennsylvania studying Political Science in the College of Arts and Sciences. This October, the highly-publicized Students for Fair Admissions v. Harvard case went to trial, with Harvard University accused of discriminating against Asian-American applicants. During the trial, the plaintiff held that Asian-Americans unfairly receive lower scores on character assessments, curtailing their admission rates despite impressive academic and extracurricular accomplishments. [1] For its part, Harvard denied these accusations, claiming the way it evaluates applicants is nuanced and formulated to bring a range of diverse perspectives to campus. [2] The judge is expected to declare a verdict in the spring, though according to experts, the case may make its way to the Supreme Court. [3] |
