"Kim Kardashian is the hero that criminal justice reform needs"

That's the title of my latest piece in The Hill, which you can read here.  The introduction:

A lot of people talk the talk about criminal justice reform, even though their records on reform are ... shall we say ... not sparkling. There are very few people who walk the criminal justice reform walk. Kim Kardashian is one of those actually working to make change. It shouldn’t be a big surprise that Kardashian has a deep-rooted passion for criminal defense as her dad, Robert, was also a well-known lawyer. 

She’s successfully working with President Trump on commutations and pardons. Kardashian saw a story on Twitter about Alice Marie Johnson and didn’t just retweet it. She did something and made it her mission to help the first-time nonviolent drug offender who was sentenced to life. She met with Johnson and then met with Trump. After 21 years in prison, Johnson was released. Kardashian literally saved her life and was quoted after hearing that Johnson was going to be released: "We cried, maybe, on the phone for, like, three minutes straight. Everyone was just crying." 

She’s funding lawyers who are working on freeing other inmates. There is so much work to be done with our over-incarceration problem because of the old War on Drugs policies, which resulted in thousands of people convicted of low-level drug offenses doing monster prison sentences, including life.  Kardashian is funding lawyers who are working on The Decarceration Collective and other initiatives (like #cut50 with Van Jones), including putting to work the First Step Act, the recent law meant to reform our criminal justice issues. In just the last 90 days, she has helped to free 17 prisoners. It’s truly remarkable work.

“Warning: Unavoidable Acronyms Ahead.”

Ha.  That’s Judge Newsom in this 11th Circuit opinion today:

Flat Creek is a commercial trucking company that transports non-hazardous materials—mainly refrigerated food products. Because it operates in interstate commerce, Flat Creek is subject to Department of Transportation regulations. And because its claim in this case arises against the backdrop of that regulatory framework, we begin with an overview. (Warning: Unavoidable Acronyms Ahead.)

BREAKING -- RAAG SINGHAL BEING VETTED FOR OPEN DISTRICT SLOT

Great news -- Judge Raag Singhal is being vetted for an open district court seat in Ft. Lauderdale.  He currently sits on the Broward state bench (he was appointed by Rick Scott back in 2011 and was re-elected in 2014) and has wide support on both sides of the aisle.  He's a former state prosecutor and private defense lawyer.  Plus, he's a really good guy.  Here's hoping that he gets nominated and confirmed quickly.  After that, there will still be one opening left.  It's unclear whether the JNC will be reconstituted or whether Senators Rubio and Scott will just select someone.

CONGRATULATIONS TO JUDGE SINGHAL!

Judge Ruiz sworn in

There was a really nice informal swearing-in of Judge Ruiz at lunchtime today in Judge Moore's courtroom.  Judge Moreno -- who Judge Ruiz clerked for -- did the honors for a packed courtroom.  Here are some shots:

CONGRATULATIONS TO RUDY RUIZ

Our newest judge for the Southern District of Florida, confirmed 90-8.

Awesome.

Rudy Ruiz will be confirmed shortly

The motion to invoke cloture on Rodolfo Armando Ruiz II was agreed on 89-10.  He will be confirmed by the end of the week.

Judges, get your new set of transfer orders ready.

"Immoral and barbaric"

That was Judge Bob Scola in his recusal order discussing United Health's decision not to cover proton radiation treatment. More:

In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical
experts throughout the country. All the experts opined that if I opted for
radiation treatment, proton radiation was by far the wiser course of action.
Although the Court opted for surgery, rather than radiation, those opinions
still resonant.
Further, a very close friend of the Court was diagnosed with cancer in
2015. He opted to have proton radiation treatment at M.D. Anderson in
Houston. His health care provider, United Healthcare, refused to pay for the
treatment. Fortunately, he had the resources to pay $150,000 for the treatment
and only upon threat of litigation did United Healthcare agree to reimburse
him.
It is undisputed among legitimate medical experts that proton radiation
therapy is not experimental and causes much less collateral damage than
traditional radiation. To deny a patient this treatment, if it is available, is
immoral and barbaric.
The Court’s opinions in this matter prevent it from deciding this case
fairly and impartially.

Thankfully Judge Scola is healthy again. And what an amazing order.

"Hmm."

That's a paragraph in Judge Rosenbaum's dissent from the denial of en banc review in another fight about Johnson. Judge William Pryor wrote a lengthy opinion respecting the denial. Judges Martin and Rosenbaum each wrote responses.

Here's the Hmm language:

Perhaps for this reason, the Pryor Statement takes a second tack to argue prisoners incorrectly sentenced as career offenders pre-Booker have no cognizable
§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these prisoners were actually sentenced under a mandatory regime. It reasons that since the Supreme Court in Booker found that themandatory Guidelines violated the Sixth Amendment, they “were never really mandatory,” even though courts applied them that way for two decades. Pryor Statement at 22 (emphasis in original).

Hmm.

I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a court sentenced them using a mandatory version of the Guidelines with an indisputably unconstitutionally vague career-offender clause would agree.

Pryor and Rosenbaum also get into it on a metaphysical level:

Here's Pryor:

The second part of Judge Rosenbaum’s statement identifies the heart of my argument, but it offers no meaningful response. I have said that statements like “Booker made the Guidelines advisory” are ubiquitous but not precisely accurate. Judge Rosenbaum’s statement responds only by confirming that they are ubiquitous but makes no effort to refute my point that they are imprecise. See id. at 58–60. I have said that courts used to treat the Guidelines as mandatory but that, as Booker held, they committed legal error by doing so. Judge Rosenbaum’s statement responds only by insisting that courts used to treat the Guidelines as mandatory. See id. at 60. Her statement’s flotilla of quotations from the United States Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense of those statements is false and, second, that courts routinely describe the terms and intended effects of statutes as if they were valid even as they hold the opposite. See, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional and Amateur Sports Protection Act “banned the authorization of sports gambling in casinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176 (“The authority . . . given to the supreme court . . . appears not to be warranted by the [C]onstitution . . . .” (emphasis added)). The second part’s only direct response to my argument—that “the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory”—is that it “is certainly interesting on a metaphysical level.” Statement of Rosenbaum, J., at 60. I appreciate the compliment.

And Rosenbaum's response:

Today, though, the Pryor Statement chalks these remarks up to a failure of linguistic precision and seeks to rewrite history. See Pryor Statement at 17. According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. Id. at 19. That is certainly interesting on a metaphysical level.
But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as § 3553(b) required, to scores of criminal defendants—including many who still sit in prison because of them.
It’s also a particularly mindboggling bit of judicial fiction to, in one breath, conclude that the Guidelines were always advisory, and in the next, withhold relief from individuals in Lester’s circumstances by noting the advisory Guidelines do not apply retroactively because Booker is a procedural rule, even though, according to the Pryor Statement, the Guidelines always were advisory. Under the Pryor Statement’s reasoning, the Guidelines were never mandatory, but to inmates like Lester, they will always be mandatory, since these prisoners remain subject to their punishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either the Guidelines were never mandatory, in which case, Lester and inmates like Lester would not have been sentenced under the mandatory regime or at least would not remain in prison because of the mandatory regime (a circumstance that is clearly not the case), or they were mandatory until Booker ruled they weren’t, and inmates like Lester can mount Johnson challenges.