Sentenced for a “Crime” the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather Than Elements of the Offense

Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court\u27s missed opportunity in Jones v. United States to adopt the test proposed by Justice Scalia

Sentenced for a “Crime” the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather Than Elements of the Offense

Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court\u27s missed opportunity in Jones v. United States to adopt the test proposed by Justice Scalia

The Independent Counsel Statute: A Legal History

Priester et al provide a comprehensive legal history of the independent counsel statute from its inception in 1978 until its apparent last hurrah in 1999. They also explore the role of the independent counsel in the history and practice of the government\u27s evidentiary privileges

Double bass intonation: a systematic approach to solo and ensemble playing

This study uses an interdisciplinary approach to analyze double bass intonation as it occurs in a solo (i.e., without playing with any additional instruments) and ensemble contexts, develops a systematic approach to double bass intonation (subsequently referred to as “the system”), and applies that system to double bass literature to theoretically test its applicability. While the examples used come mostly from the orchestral literature, the material presents passages often heard in an orchestral audition context in which the bass is played by itself. Intonation generally is examined according to acoustics, psychoacoustics, cognition, historical and modern performance practice, and pedagogy. The salient principle extracted is that acceptable intonation is generated from the satisfaction of several factors, including clear categorical assignment of an interval’s size in a tonal context, highly rated timbral characteristics of the sound produced, and tone placement conforming to emotional schematic expectations, and a general model of acceptable intonation is thereby proposed. With this background, the particular intonation difficulties of the double bass are analyzed, including acoustic roughness, psychoacoustic roughness, and part-specific intonation expectations. The resonance system of double bass intonation proposed is intended to minimize acoustic and psychoacoustic roughness while staying within the categorical bounds of intonation and maximizing conformity to schematic expectations. The system’s efficacy is theoretically tested against examples from the double bass literature from various time periods, keys, and modes. It is found to conform in most cases to intonation expectations, and where not, alternative readings and tone placements are suggested. A possible course of study to implement the system is then suggested, as are extensions and ideas for further related research

A Warrant Requirement Resurgence? The Fourth Amendment in the Roberts Court

(Excerpt) Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the “warrant requirement,” one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. The doctrinal framework created by the warrant requirement serves as a core foundational principle of the Court’s constitutional criminal procedure for police investigations. The conventional wisdom about the warrant requirement suggests that over the last half-century, the Court has moved from rigorously interpreting and enforcing the doctrine to reducing its importance and recognizing more exceptions for permissible warrantless searches. While this perspective has some descriptive accuracy in the aggregate, the past decade of the Roberts Court has produced a series of Fourth Amendment decisions, ranging across a variety of subsidiary doctrinal areas, where the warrant requirement has made a comeback—cases in which a criminal defendant has prevailed because the police lacked a search warrant when acquiring crucial evidence during the investigation. A common thread among these decisions is the Roberts Court’s confrontation of the Fourth Amendment implications of electronic surveillance, internet connectivity, data analytics, and other rapidly advancing technologies in the digital age. This resurgence of the warrant requirement cannot be readily dismissed as happenstance or coincidence, and consequently its development and its future ramifications are worthy of careful consideration

Apprendi Land Becomes Bizarro World: Policy Nullification and Other Surreal Doctrines in the New Constitutional Law of Sentencing

Imagine a final exam essay answer in constitutional law premised upon the following doctrinal principles: (i) identical findings of fact that produce identical effects on the outcome of a decision should sometimes be constitutional and should sometimes be unconstitutional based on formalistic doctrinal lines unrelated to the substantive merits of the issue being decided; (ii) decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings; (iii) appellate review of trial court decision-making is unconstitutional; and (iv) courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law. In fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature\u27s non-constitutional policy preferences. Naturally, we might expect such an exam answer to receive an F. But if the exam question involved the United States Supreme Court\u27s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land-which has now become Bizarro World. How did we get to this point? Little more than a decade ago, if you had asked any criminal procedure professor, criminal law practitioner, or judge to describe the doctrines of constitutional law that specifically govern the sentencing of a convicted criminal defendant, the answer would have been simple and reflexive: leaving aside the myriad of special rules for capital cases, there were not any. Of course, the basic, general principles of constitutional law applied to sentencing and ensured, for example, that the sentencing judge was neutral and unbiased as a matter of procedural due process, or that the sentence imposed was not motivated by an impermissible classification of race or sex as a matter of equal protection. But there was no constitutional law of sentencing as such, no set of doctrines specifically directed at either the procedure or the substance of determining each particular defendant\u27s sentence. Beginning with its landmark Apprendi decision in 2000, the United States Supreme Court has dramatically repudiated this traditional answer. In just ten years, the Court has used a series of significant decisions to develop an extensive new constitutional law of sentencing. Most prominently, the decisions in Blakely and Booker declared that mandatory sentencing guidelines which had bound state and federal judges in the determination of sentences were unconstitutional. By invalidating these provisions, the Court has used its new constitutional law of sentencing to restore the power of sentencing judges to exercise their discretion in imposing sentences; in doing so, the Court has privileged the objective of an individualized punishment for each particular offender over the objective of systemic uniformity in maintaining consistent treatment of similar facts in similar cases. In the abstract, there is nothing objectionable about the concept of having a constitutional law of sentencing. Especially with contemporary sentencing reform measures becoming more frequent and more pervasive since the mid 1980s, the imposition of some constitutional constraints on sentencing-related laws likely was inevitable. After all, even the justices who dissented from the Court\u27s early Apprendi doctrine decisions conceded the need for at least some minimal constitutional limits on legislative power. In reality, however, the constitutional law of sentencing the Court actually developed is subject to several serious objections. For one, the Court has grounded its analysis in the defendant\u27s Sixth Amendment right to a jury trial, yet the doctrines promulgated in its decisions have nothing to do with protecting jury power. For another, the Court\u27s doctrine produces bizarre outcomes when applied, having the effect of treating functionally identical sentencing findings differently based on formalistic criteria unrelated to the substantive merits of the sentence. And the Court has unjustifiably constitutionalized the primacy of individualized punishment over systemic uniformity in sentencing particular defendants, when in fact the balance between those competing values at sentencing should have remained a nonconstitutional policy choice entrusted to state and federal legislatures, not to the preferences of judges. The Court could have been forgiven for initial missteps in its incipient doctrine if it had corrected course in later decisions. But the Court has not done so. Instead, its most recent decisions have only made the analytical flaws worse, and have only compounded the problems its doctrines create. Today, the Court\u27s new constitutional law of sentencing is all but unrecognizable when compared to its origin in Apprendi. The absurd formalisms embedded in the doctrine have been exacerbated. The doctrine now provides an incentive for sentencing judges to reason more arbitrarily and less transparently when determining punishment. And the doctrine has completely lost touch with any basis in jury trial rights, instead focusing entirely on protecting judicial power In fact, the Court has become almost brazen in its emphasis on judicial power, claiming for sentencing judges the authority to engage in policy nullification by declining to follow legislatively-adopted sentencing policies in favor of the judges\u27 own policy preferences. Worse, this authority is not constrained to discarding the implicit spirit of the law so long as the judge follows its literal letter, but seemingly extends to a constitutionally mandated authority to ignore express declarations of sentencing policy enacted in statutes. The time has come for the Court to recognize these serious problems with the new constitutional law of sentencing, and to correct course by bringing the doctrine back to its foundational principles. To do so the Court will have to overturn several of its own recent precedents and roll back the scope of constitutional law in this area. It may be true that legislatures have enacted a wide range of unwise, if not downright stupid, sentencing policies over the last quarter century. But not every poor policy choice is unconstitutional, and the solution to bad legislative judgment should not be bad constitutional law

Terrorist Detention: Directions for Reform

Counterterrorism efforts by the U.S. government since 2001 have produced numerous legal controversies. One of the most controversial subjects has been the detention of individuals allegedly involved with terrorist organizations or activities. Unlike traditional criminal detainees, such persons are not held pursuant to indictment on charges pending trial or to a verdict of conviction. Unlike traditional military detainees, they are not battlefield captives from combat in a war zone against the military forces of another nation. Rather, terrorist detainees are held based on the individual\u27s alleged connections to terrorist organizations and activities, without more. Terrorist detention, so defined, is an extraordinary measure departing from traditional criminal and military detention models. Consequently, terrorist detention must be justified by the extraordinary circumstances caused by the threat of terrorism which confound the application of traditional legal models. To date, however, the law governing terrorist detentions has been insufficiently bound to such justifications, and many important legal issues remain unaddressed. Accordingly, terrorist detention is ripe for significant legal reform

Packing Fractions and Maximum Angles of Stability of Granular Materials

In two-dimensional rotating drum experiments, we find two separate influences of the packing fraction of a granular heap on its stability. For a fixed grain shape, the stability increases with packing fraction. However, in determining the relative stability of different grain shapes, those with the lowest average packing fractions tend to form the most stable heaps. We also show that only the configuration close to the surface of the pile figures prominently.Comment: 4 pages, 4 figure