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January 21, 2008

My statutory interpretation attack on acquitted conduct sentencing enhancements

As I mentioned briefly in class on Friday, I have been working on an amicus brief for the Sixth Circuit that questions federal sentencing enhancements on the basis of so-called "acquitted conduct."  Together with a terrific group of lawyers from a big New York firm working pro bono, last week we finished a short brief making a number of refined statutory arguments about reliance on acquitted conduct in the federal sentencing process.  The brief can be accessed at this link, and here is the heart of the statutory argument as explained in the brief's introduction:

[T]he directions that Congress set forth in the Sentencing Reform Act (SRA), and particularly the text of 18 U.S.C. § 3553(a), provide the ultimate instructions for sentencing decision-making by district and appellate courts.  Acquitted conduct enhancements in some cases — especially when they significantly affect the applicable Guideline range and the ultimate sentence imposed — may disserve the statutory purposes of sentencing that Congress enumerated in 18 U.S.C. § 3553(a) and sought to vindicate in the SRA.

Though one needs to know a lot about federal sentencing law and practice to understand the specifics and goals of this amicus brief, I hope interested students might read the brief to gain an appreciation of how practicing lawyers can construct statutory-based arguments.  Indeed, students who suggest lessons to be learned from the brief in the comments will earn Berman bonus points (and a free pass the first time I call on them and they are unprepared).

January 21, 2008 in Interesting statutes and cases | Permalink


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The first lesson that came to mind was the importance of names and labels. This is always relevant to politics but especially to legislation. When an idea might not go over well with the public, give it a funny name and viola - it flies right under the radar.

The brief highlights the improper use of "sentencing range enhancements" (how sanitary!) and the first thought that popped into my head was how similar that sounds to "enhanced interrogation techniques". That word enhanced is ever-so-useful when trying to obscure the meaning of something while simultaneously trying to make it more palatable. This clip from one of the earlier debates explains my point: http://www.crooksandliars.com/Media/Play/17339/1/GOPII-Romney-Guantanamo.wmv/

Why not call it sentencing range extension? Definition of enhancement: to make greater as in value, desirability, or attractiveness (Webster's Collegiate Dictionary). Is there something about the quality of the sentencing range that is being improved? Not really - so implicit premise: more sentences and longer sentences are better sentences, even if they might be unConstitutional or violate the plain text of the statute.

Ok, there was also just a commercial about "instant male enhancement", not sure if that has any relation to this discussion, but that word enhancement sure is great.

Posted by: Scott Rowley | Jan 21, 2008 10:36:23 AM

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