Hard Cases Make Good Law: The Intellectual History of Prior Acquittal Sentencing

(Excerpt) This Article attempts to answer those questions both historically and theoretically. On a historical level, it traces the heretofore unexamined course of the congressional, judicial, and administrative actions leading from a pre-1970s sentencing regime that viewed any use of extra-trial evidence in sentencing as constitutionally suspect to the 1997 case that embraced prior acquittal sentencing as a foregone conclusion. On a more theoretical level, the Article traces the justification for prior acquittal sentencing to two doctrinal tensions: the differing goals of trials and sentencing and the semiotic gap between acquittal and innocence. As outside forces exerted pressure on those two tensions, the case for prior acquittal sentencing grew more compelling. In response, Congress twice chose to modify the statutory regime governing prior acquittal sentencing, codifying it in more categorical terms. Each codification encouraged judges to mechanize their use of prior acquitted conduct at sentencing, at times leading to instances of prior acquittal sentencing blatantly at odds with the regime’s underlying logic. The Sentencing Guidelines continued that mechanization, effectively rendering the use of prior acquitted conduct at sentencing automatic. In the wake of Booker and Watts, however, judges have a new opportunity to reassert discretion in the area of prior acquittal sentencing. This Article concludes by exhorting sentencing judges to do so actively by: (1) scrutinizing evidence of prior acquitted conduct for indicia of reliability and (2) balancing the good of accuracy in sentencing with the compelling public policy reasons weighing against any introduction of prior acquitted conduct at sentencing

Hard Cases Make Good Law: The Intellectual History of Prior Acquittal Sentencing

(Excerpt) This Article attempts to answer those questions both historically and theoretically. On a historical level, it traces the heretofore unexamined course of the congressional, judicial, and administrative actions leading from a pre-1970s sentencing regime that viewed any use of extra-trial evidence in sentencing as constitutionally suspect to the 1997 case that embraced prior acquittal sentencing as a foregone conclusion. On a more theoretical level, the Article traces the justification for prior acquittal sentencing to two doctrinal tensions: the differing goals of trials and sentencing and the semiotic gap between acquittal and innocence. As outside forces exerted pressure on those two tensions, the case for prior acquittal sentencing grew more compelling. In response, Congress twice chose to modify the statutory regime governing prior acquittal sentencing, codifying it in more categorical terms. Each codification encouraged judges to mechanize their use of prior acquitted conduct at sentencing, at times leading to instances of prior acquittal sentencing blatantly at odds with the regime’s underlying logic. The Sentencing Guidelines continued that mechanization, effectively rendering the use of prior acquitted conduct at sentencing automatic. In the wake of Booker and Watts, however, judges have a new opportunity to reassert discretion in the area of prior acquittal sentencing. This Article concludes by exhorting sentencing judges to do so actively by: (1) scrutinizing evidence of prior acquitted conduct for indicia of reliability and (2) balancing the good of accuracy in sentencing with the compelling public policy reasons weighing against any introduction of prior acquitted conduct at sentencing

Effect of general anaesthesia on functional outcome in patients with anterior circulation ischaemic stroke having endovascular thrombectomy versus standard care: a meta-analysis of individual patient data

Background: General anaesthesia (GA) during endovascular thrombectomy has been associated with worse patient outcomes in observational studies compared with patients treated without GA. We assessed functional outcome in ischaemic stroke patients with large vessel anterior circulation occlusion undergoing endovascular thrombectomy under GA, versus thrombectomy not under GA (with or without sedation) versus standard care (ie, no thrombectomy), stratified by the use of GA versus standard care. Methods: For this meta-analysis, patient-level data were pooled from all patients included in randomised trials in PuMed published between Jan 1, 2010, and May 31, 2017, that compared endovascular thrombectomy predominantly done with stent retrievers with standard care in anterior circulation ischaemic stroke patients (HERMES Collaboration). The primary outcome was functional outcome assessed by ordinal analysis of the modified Rankin scale (mRS) at 90 days in the GA and non-GA subgroups of patients treated with endovascular therapy versus those patients treated with standard care, adjusted for baseline prognostic variables. To account for between-trial variance we used mixed-effects modelling with a random effect for trials incorporated in all models. Bias was assessed using the Cochrane method. The meta-analysis was prospectively designed, but not registered. Findings: Seven trials were identified by our search; of 1764 patients included in these trials, 871 were allocated to endovascular thrombectomy and 893 were assigned standard care. After exclusion of 74 patients (72 did not undergo the procedure and two had missing data on anaesthetic strategy), 236 (30%) of 797 patients who had endovascular procedures were treated under GA. At baseline, patients receiving GA were younger and had a shorter delay between stroke onset and randomisation but they had similar pre-treatment clinical severity compared with patients who did not have GA. Endovascular thrombectomy improved functional outcome at 3 months both in patients who had GA (adjusted common odds ratio (cOR) 1·52, 95% CI 1·09–2·11, p=0·014) and in those who did not have GA (adjusted cOR 2·33, 95% CI 1·75–3·10, p<0·0001) versus standard care. However, outcomes were significantly better for patients who did not receive GA versus those who received GA (covariate-adjusted cOR 1·53, 95% CI 1·14–2·04, p=0·0044). The risk of bias and variability between studies was assessed to be low. Interpretation: Worse outcomes after endovascular thrombectomy were associated with GA, after adjustment for baseline prognostic variables. These data support avoidance of GA whenever possible. The procedure did, however, remain effective versus standard care in patients treated under GA, indicating that treatment should not be withheld in those who require anaesthesia for medical reasons