Ciceronian Review

Outside and Beyond

Under Rule 22(e) of the Rules of Criminal Procedure, an illegal sentence may be appealed.  An illegal sentence is one which the sentencing court has no jurisdiction or the sentence is “beyond the authorized statutory range.”  What do you think that phrase means?  If something is beyond the range, does that mean it is too long?  Or does “beyond the range” also include sentences that are too short?

The Utah courts are strongly committed to interpreting rules and statutes in the same way, start with the plain text meaning and, if possible, go no further.  Here, that means that we need to decide whether something is “beyond the range” if it is too small or too short.

I think beyond the range does not mean the same thing as ‘outside the range’; it means something longer or greater than the range.  A sentence of 10 years when 5 is the maximum authorized is beyond the range.  I think a sentence of no jail time where the statute mandates some time is not beyond the range, but is outside the range.  I think that is how English works here, and that the plain meaning of the text does not encompass outside.  

In State v. Dana, the trial court handed a sentence that did not include jail time where the statute required 90 day minimum. The state appealed the sentence under Rule 22.  The trial court clearly had jurisdiction, so the question was whether the sentence was “beyond the range.”  The Court of Appeals thought so, reversed and remanded for sentencing.   The opinion just assumes that “beyond the range” is the same as “outside the range” – I don’t doubt they can so define the terms, but they ought to say that that is what they are doing.  Or maybe I have an idiosyncratic understanding of English.  I looked at the cases cited in the opinion and the drafting notes for the Rule – none of them say that beyond=outside. 

Kiddie Slam

In State v. Angilau, the Utah Supreme Court rejected the argument that juveniles have a right to trial in a juvenile court.  Angilau was charged with murder and held for trial in the ordinary criminal court because the defendant was 16 or older at the time of the crime.  By statute, such a crime by a 16 year-old is automatically prosecuted in the regular courts.  The court held that such an automatic waiver of juvenile jurisdiction was not in conflict with the Utah Constitution (the relevant provisions of which are stricter than the U.S. Constitution).  The Court held for another day challenges to sentencing of minors to adult facilities.  It is possible that while automatic waiver is permissible, minors tried as adults may not be sent directly to adult prisons and may have an enforceable right to complete high school education.   See paragraph 37.  (Although the tone of the language in which that set of issues is reserved hints that the Supreme Court will find that it is impermissible to send a juvenile to adult prison, I am not sure how they get to that conclusion without inconsistency with the decision in this case.)

In Angilau, the Court decided that a 16 year-old defendant does not have a significant interest in trial by the juvenile system, in large part because the juvenile system is a creature of statute and there is no mandate requiring the state to create such a system.  Paragraph 11, for example, or 19, 23-24, and 39.  In short, a juvenile has no right to a juvenile system of justice, and can always be tried in the adult system if the Legislature so directs (or abolishes the juvenile system).  So, the state is not required to treat juvenile prosecutions differently from adult prosecutions – everyone goes to the same court because juveniles have no right to a separate criminal prosecution process (they are entitled to due process in the court system, whatever it is).  If that is so, why would they have a right to separate conditions of incarceration?  Adults don’t have a right to conditions of incarceration tailored to the conditions, so where would juveniles get such a right?  Education is in the Utah Constitution, so there would be a right to education while the juvenile is in prison, but that won’t get one any distance.  The state could locate the school within a general population prison and meet that standard.  Will they build it on an argument about safety?  Does the Court want to give inmates enforceable standards of safety?  Constitutional standards of safety?  Is population segregation mandatory, i.e. must the authorities move weak or infirm, etc., inmates to safer locations and out of the general population?  I don’t know, but it is surely implicated by this point.  Where will the Court get a fundamental right that 12 year-old criminal not be housed with 30 year-old criminals?  Obviously sensible, but that sensible is not part of the Constitution.  I think the Court will do something of the sort, but I am not clear how.  Then, I am not up on criminal law, so there may well be an obvious solution I don’t know about.

Go Nino

In an interview released this week, Justice Scalia, talking about the 14th Amendment said: "It's not about nine superannuated judges who have been there too long, imposing these demands on society."  Quite right, and as you recognize the problem, please follow through -- step down.

Duck

The last couple of weeks of December saw a lot of negative commentary about hte lame duck session of Congress.  Most of the comments took the general line that there is something undemocratic about Congressional action ina lame duck session.  The idea seems to be that when Congress acts in the lame duck it is the conduct of people no longer entitled to act, having lost elections (or, that the Congress as a whole no longer properly reflects the election outcomes).  And with the criticism came suggestions for shortening the time between election and swearing in Congress.  Is lame duck action anti-democratic?  Within the structure of the US system, there is no argument to that conclusion.  The Congress was, after all, elected for a particular term.  Two-year terms defined before the swearing-in.  So the lame duck Congress is not usurping anyone else's role or power.  It cannot be seriously argued that the looking change in proportions of Democrats and Republicans renders all action illegitimate -- that happens every two years.  It can't be a looking end of office as that would mean no second term president should do anything at all.  The complaint then is about what the Congress did, not that it did something.  I suppose there might be an argument if the immediately preceding election had been a referendum of some kind, but it wasn't.  As usual with off-year elections, hardly anyone showed up to vote.  Something less than a quarter of the electorate case ballots, and with that sort of turnout there is no mandate to do or stop anything.  What passed is not properly described as counter-majoritarian.  Polling results show that the bills were all quite popular.  Which leaves little in the way of legitimate objection. (There are compelling complaints about the timing of a different sort -- why wasn't this work done before the election?)

In addition, the complaints did seem to me to be grounded in a somewhat odd view about how the nature of the US political system, which is not a direct democracy.  Representatives and Senators are not part of a system that is a direct democracy.  Would not have a Senate at all if democracy was really the point.  It is a very anti-democratic institution.  Over time I have become increasingly sympathetic to the view that the Senate should be abolished, and the House increased a bit in size.  Levinson is the one who got me thinking about this possibility.  I don't see that states need direct representation, or that it is appropriate for states like Alaska or Delaware or Maine should have the same weight as Texas or California or WIsconsin. 

Breaking Bread

Greg Mankiw's column in the NYT Sunday purports to offer advice to Obama on getting along with Congressional Republicans.  Here is a translation of what Mankiw says:  Abandon all the work you have done to date and given up defending everything you think important.  Be sure to be deferential to Republicans at every opportunity.  Not helpful.  The column starts with a joke about liberal economic views -- it is all short term thinking.  Those programs that prevented another depression -- that is short term thinking and best to forget that the Republicans preferred economic disaster to bipartisan solutions.  Then, spend more time thinking about how to make those who wrecked the economy even better off and do not forget to see if you can continue driving down taxes on the wealthy.  Because marginal tax rates are essential to the motivations of millionaires. Not that those folks are spending money in ways which help the economy, either short-run or long-run.  It is a nice story that rewards go to more competent and more talented in the US economy.  Truth is, it is not so and it is obviously not so.  Market economies don't work tha way.  And less so every year because there are more people ready and able to replace those above them.  Fire some teachers because the defundiing of the education system is the fault of teachers, and the declining standards is the fault of teachers who ahve taken over textbook selection and so on.  Final bit of advice is to have a beer every week with a Republican.  The party that still harbors "birthers" and refuses to vote for any policy advanced by Obama, even when the ideas are taken directly from Republican proposals. 

Really, what is the point of such a column?  Does Mankiw think that telling Obama that he is dumb and should abandon his principals is useful?