Senators Durbin and Grassley introduce bill to prohibit judges from using acquitted conduct at sentencing.

The bill is here. And it has bi-partisan support:

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include 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.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

As the senators say, it's un-American.

Let's hope the bill passes.

Ariana Fajardo Orshan resigns, effective March 27, 2021

 Here's her letter:

Debate with Rumpole about using archaic legalese in motions

COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows. 

Oy vey.  Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.

We no longer write motions on a typewriter with carbon paper.  We don’t rent videos from Blockbuster.  We don’t take film to a camera store to be developed.  We don’t use curled up paper in a fax machine.  Or even a fax machine at all.  

Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese.  Plain and easy to understand English is the way to go.  Phrases like COMES NOW do not add anything to a motion.  They are not persuasive.  They are meaningless. 

Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court.  And it has taken root with the best legal writers across the courts.  From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.  

Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned.  Lawyers also used to wear wigs to court.  Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly.  It sounds like you’re a wanna-be lawyer.

Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.  

Okay, don’t use that one either!

BREAKING -- Federal JNC is formed (UPDATED with a correction from Sen. Rubio's office)

The South Florida Federal JNC is:

Vivian de las Cuevas-Diaz

Larry Handfield

Retired Judge Ilona Holmes

Eduardo Lacasa

Victoria Mesa-Estrada

Burnadette Norris-Weeks

Retired Justice Barbara Pariente

I've been told that 5 Dem picks, two Rubio picks (update, this is incorrect; see below), and that Scott refused to participate.  These 7 people will make recommendations for federal judges and U.S. Attorney.  More to follow.

Updated with this statement from a spokesperson for Sen. Rubio to the blog:

“Senator Rubio is not a participant in this JNC.  Due to his longtime working relationship with Congresswoman Wasserman Schultz, at her request he provided the names of Republicans who have served on his JNC in the past. However they are not his appointees. As he has done his entire time in the Senate, he will continue to rely on his own bipartisan commission to assist in fulfilling his role in the Senate’s constitutional duty to provide advice and consent on judicial nominees. And as he has done in the previous two Congresses, he will make decisions on U.S. Attorneys and U.S. Marshals directly.” 

Horrific conditions exist in our prisons.

Read the thread below. How do we allow this?

In Texas prisons, food is so bad the staff are finding mold on it. This photo came w/a leaked email a shocked official sent to every unit.

“If there is mold on the bread don’t make a sandwich w/it,” he wrote.

Here’s a THREAD on more internal emails abt the food situation. pic.twitter.com/JyMmUUb7BF

— Keri Blakinger (@keribla) March 3, 2021