Like other schools in Washington state, Summit Christian Academy would like to hire college students under the state’s Work-Study Program to serve as tutors for its students. But simply because Summit Christian is a religious school, it is barred by the government from doing so, even if those tutors would only be assisting in secular subjects, such as math and reading. That is a clear-cut form of discrimination that, in light of recent U.S. Supreme Court decisions, is a clear-cut violation of the First Amendment.
Washington’s Work-Study Program is a financial aid program that provides funding for low- and middle-income students who want to earn money during college, often by working in jobs that relate to their field of study. The program is one of true private choice: An eligible student chooses whether to participate and, if so, the employer for which she will work. The student can choose to work for the government, a nonprofit organization or even a for-profit corporation. But there is one choice she cannot select: a so-called “sectarian” employer. Employers that the state deems “sectarian” are barred from the program.
Simply put: Washington’s exclusion of “sectarian” options from the Work-Study Program is unconstitutional. The U.S. Constitution requires government to be neutral toward religion, neither favoring nor disfavoring it. That is why IJ is teaming up with a “sectarian” employer—a private Christian school—and a university student group to challenge Washington state’s “sectarian” exclusion.
The program is administered by the Washington Student Achievement Council (WSAC). Each year, WSAC establishes the amount of that year’s funds for the student body at each participating university. These funds, in turn, are used to reimburse participating employers, who pay students out-of-pocket, then submit student timesheets to obtain reimbursement.Reimbursement is set at a rate between 40 and 70 percent, with 70 percent available when a student works for a public school district, a nonprofit community service provider or a business whose primary activity is in science, technology, engineering or mathematics.
Participating employers have included public agencies (e.g., City of Seattle, Spokane Public School District); nonprofit organizations (e.g., Boys & Girls Club of Pierce County, Fred Hutchison Cancer Research Center); small businesses (e.g., Basillio’s Italian Restaurant, Bonney Lake Dental); and large, international corporations (e.g., Costco, Weyerhaeuser, American Express Financial, Amazon.com).
To assess a prospective employer’s eligibility for the program, WSAC requires completion of an “Employer Business Profile,” which asks, “Does your organization . . . have a religious affiliation?” If the prospective employer answers “Yes,” it must complete another form, a “Religious Affiliation Questionnaire,” which asks questions such as, “Is the work performed free from sectarian interest? If not, explain,” and, “Where is the business/organization housed? If housed in a church, what amount of rent is paid each month?”The prospective employer may also be required to include its articles of incorporation and bylaws with the completed questionnaire. The materials then go to WSAC and, in some situations, the Attorney General’s office for a determination as to whether the employer is “sectarian” and, thus, ineligible to participate.
In short, a student may work for the government, a nonsectarian nonprofit organization or an enormous international corporation (including in one of its international offices), but she may not feed the homeless at a church’s soup kitchen or tutor a child at a church-run school.
Such government-mandated exclusions are not merely hypothetical; as described below, they are happening right now.
The Washington Work-Study Program’s exclusion of “sectarian” options is unconstitutional. The First and Fourteenth Amendments to the U.S. Constitution require government’s neutrality—not hostility—toward religion. Accordingly, government may neither favor, nor disfavor, religion over non-religion. As the U.S. Supreme Court held in 2017 in Trinity Lutheran Church of Columbia, Inc. v. Comer, the First Amendment’s Free Exercise Clause requires that laws be “neutral and generally applicable without regard to religion.”They may not “single out the religious for disfavored treatment.”The Court reiterated that principle a year later, stressing that “[t]he Free Exercise Clause bars even subtle departures from neutrality on matters of religion.”By discriminating against “sectarian” employers and the students who desire to work for them, Washington’s Work-Study Program expressly singles out and disfavors religion and religious convictions. That is not the neutrality required by the Constitution.
The reason for the prohibition on “sectarian” options, according to WSAC, is Washington’s Constitution, which contains two provisions commonly referred to as “Blaine Amendments.” These provisions state that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment,” and that “all schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”Similar provisions are found in the constitutions of 36 other states. Blaine Amendments have a sordid history dating back to the early 19th century.
Public schools of the 19th century were overtly religious—and non-denominationally Protestant. Bible reading, hymn singing and prayer were common in the public schools, and invariably it was the King James—or Protestant—version of the Bible that was read, Protestant prayers that were recited and Protestant hymns that were sung. As immigration increased in the middle of the 19th century, the newly arrived, largely Catholic parents objected to their children being compelled to attend the Protestant public schools. In some areas, Catholic students were beaten or expelled for refusing to participate in Protestant exercises.
After Catholics’ efforts to secure better treatment in the public schools failed, they began demanding a share of the public funds to support their own schools. This sparked a Protestant backlash, and a number of states passed laws or amended their constitutions to prohibit public funding of so-called “sectarian,” or Catholic, schools.
Enter James G. Blaine, a powerful congressman and a political opportunist. In 1875, Blaine seized on this anti-Catholic sentiment and proposed a similar amendment to the U.S. Constitution. It had the twin goals of preserving the Protestant nature of the nation’s public schools and prohibiting public funding of Catholic schools.
Blaine’s proposed amendment passed overwhelmingly in the House but fell just shy of the super-majority it needed in the Senate to go on to the states for ratification. Nevertheless, Blaine’s allies achieved through the back door what Blaine himself could not achieve through the front: As new states entered the Union, they included Blaine-type language in their own constitutions. Washington was one of those states.
Washington’s Blaine-based exclusion of “sectarian” options from the Work-Study Program is at loggerheads with the federal Constitution’s command of neutrality toward religion. But the problem is not confined to a single post-secondary financial aid program in the state of Washington: Blaine Amendments like Washington’s stand in the way of K-12 educational choice nationwide.
Opponents of educational choice programs—that is, vouchers, educational savings accounts and other programs that empower parents, rather than government, to choose the schools that are best for their children—routinely employ Blaine Amendments to attack such programs and thereby deprive students and their families of true educational choice. As the leading courtroom defender of educational choice, the Institute for Justice (IJ) is committed to fighting this modern incarnation of Blaine’s legacy, and this case is part of that effort.
Students and families ought not be deprived, by archaic and bigoted state constitutional provisions, of the freedom to choose an education that will suit them best. With this case, IJ aims to end the use of Blaine Amendments to deny educational opportunity to those who believe that religious options—whether at the elementary, secondary or post-secondary level—are right for them.
The plaintiffs in this case are Summit Christian Academy and the Whitworth University Young Americans for Freedom Chapter. Both have been harmed by Washington’s exclusion of “sectarian” options from the Work-Study Program.
In August 2015, after a work-study-eligible student from Spokane Community College expressed a desire to work as a tutor at Summit Christian, the school applied to participate in the Work-Study Program as an employer. Representatives of Summit Christian and Spokane Community College—which, as a public college, can enter into contracts with Work-Study employers—agreed to an Employer Contract. After being forwarded a copy of the contract, however, WSAC requested that Summit Christian complete a Religious Affiliation Questionnaire and provide copies of its articles of incorporation and bylaws. Two WSAC staff members evaluated Summit’s responses and concluded that Summit Christian was not eligible to participate in the program because it is “sectarian.” Simply because of its religious affiliation, the school was denied the opportunity to provide mentorship and training that “nonsectarian” employers are permitted to provide.
Young Americans for Freedom Chapter (YAFC) is a chartered club at Whitworth University in Spokane, Washington, and a chapter of Young Americans for Freedom, a national, nonprofit youth activism organization. YAFC advocates for limited government and individual freedom, including religious freedom. It has members who are eligible for the State Work-Study Program and who desire the opportunity to work for employers considered ineligible because they are “sectarian.” In fact, YAFC members and other Whitworth students cannot undertake Washington Work-Study employment for Whitworth University itself, because the university is an evangelical, Presbyterian institution. Students attending nonsectarian private colleges and universities, by contrast, are free to work for their own colleges and universities under the program. The “sectarian” exclusion in Washington’s Work-Study Program is particularly harmful to YAFC members and other Whitworth students majoring in fields that are traditionally occupied by religious employers, such as education, social services and medicine, and who wish to perform the types of work that such employers perform. The program also specifically discriminates against those students who want to work for employers whose religious affiliations mirror their own convictions.
IJ Senior Attorney Michael Bindasand IJ Attorney Joshua Houserepresent Summit Christian Academy and YAFC.
The Institute for Justice is the national law firm for liberty and the nation’s leading legal defender of educational choice. Since its founding in 1991, IJ has successfully defended educational choice programs in numerous state supreme courts, intermediate courts of appeal and trial courts, as well as twice before the U.S. Supreme Court. It currently has three other educational choice cases pending in Montana,Floridaand Puerto Rico.
Wash. Rev. Code § 28B.12.020.
Unlike public colleges and universities, which administer reimbursements themselves, reimbursements for students at private institutions are handled by WSAC.
Wash. Admin. Code § 250-40-030(6).
WSAC, State Work Study Program Manual2018-1913, https://wsac.wa.gov/sites/default/files/2018-19_SWS_ProgramManual.pdf.
137 S. Ct. 2012, 2020 (June 26, 2017).
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (June 4, 2018) (quotation marks omitted).
Wash. Const. art. I, § 11; id.art. IX, § 4.
Mitchell v. Helms, 530 U.S. 793, 829 (2000) (plurality).
268 U.S. 510, 526 (1925).
Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011).


The Federal Energy Regulatory Commission - SOTSP.
During the next twenty years, each of the PUD dams on the mid-Columbia, except Rock Island, and the Idaho Power Company projects on the Snake will be subject to relicensing.104 In light of the mid-Columbia proceedings and the 1985 amendments to the Federal Power Act, non-federal dam licensing has clearly evolved into an authoritative process with dispute resolution and clearly defined responsibilities for the protection of anadromous fish. It remains to be seen whether the FERC processes will be integrated with the other major institutional structures to facilitate recovery.
With regard to Snake River chinook and sockeye, it would seem that the purposes of the ESA and the tribes’ treaties could be read consistently with one another and with the laws of nature. But application of the ESA to treaty fisheries demonstrates otherwise.
The purpose of the Endangered Species Act is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation105 of such species, and to take such steps as may be appropriate to achieve the purposes of various international treaties and conventions.
The ESA is a process for listing, protection, and recovery of certain species, subspecies, and distinct populations. In 1991, NMFS listed Snake River sockeye and chinook under the ESA. Unfortunately, administration of the ESA by the federal government has impeded the protection and rebuilding of treaty fish resources by shifting regional priorities away from basin-wide rebuilding and restoration, by limiting necessary recovery actions and by failing to proscribe certain harmful activities. Federal implementation under the leadership of NMFS has been inconsistent with the major structures that were developed by the region during the last twenty years to guide Columbia Basin anadromous fish management.
In a healthy metapopulation, like upriver chinook or sockeye in 1855, straying and introgression occur frequently. In a damaged/declining population, isolated from other populations, the beneficial effect of straying is diminished because the population gene flow is limited by the respective sizes of the populations and the fragmentation of their habitat. By limiting straying to arbitrary limits by either limiting populations that may stray or destroying adult fish that may stray into the spawning areas of a listed population, NMFS is limiting normal biological activities that may strengthen listed populations.
The ESA proscribes activities that could kill or harm listed species or destroy those species’ habitat.112 Harm is very broadly defined. However, the ESA provides an exception to this prohibition against “takings” if such takings occur incidentally to otherwise lawful activities.113 Section 7 provides a means for federal parties to obtain an incidental taking authorization. Section 10 provides a means for non-federal parties to obtain an incidental take permit.
In the Columbia Basin, section 7 consultations have taken place for harvest, hatchery activities, hydroelectric dam operation, and land management, among other activities. In each case, NMFS has preserved the status quo rather than heeding scientific information indicating jeopardy to the listed species and the need for operational changes to protect salmon.
With regard to hatchery activities, the NMFS BOs have generally permitted existing hatchery operations practices and releases for Mitchell Act facilities, a program administered by NMFS through contracts with the states and the USFWS. With regard to the LSRCP, NMFS has generally supported this USFWS program and its facilities, a program that was originally developed by NMFS as principle writer.
However, NMFS, based on its ESU policy, has vigorously opposed tribal propagation activities intended to rebuild of naturally-spawning runs. In response, the tribes brought certain production issues to CRFMP dispute resolution including the use of Rapid River spring chinook stock for rebuilding in the adjoining Grande Ronde basin; the use of Imnaha stock for rebuilding the listed Imnaha spring chinook population, and the use of Lyons Ferry Hatchery Snake River fall chinook stock for rebuilding naturally spawning Snake River fall chinook populations. Though each issue was resolved in favor of tribal positions, the time and expense involved in dispute resolution as well as the potential for future disputes argue for policy modifications to support rebuilding and restoration.
With regard to hydroelectric projects, the NMFS hydrosystem BO was challenged by the Idaho Department of Fish and Game, the initial plaintiff, followed by the State of Oregon as a plaintiff-intervenor and the tribes as amicus curiae.117 The defendants are NMFS, the U.S. Army Corps of Engineers, and the Bureau of Reclamation. On March 28, 1994, Judge Malcolm Marsh held that the NMFS BO violated ESA and he ordered NMFS to remedy deficiencies in the 1994-1998 hydrosystem BO.118 After a year of negotiations, NMFS issued its 1995 BO119 and submitted a “Report of Compliance” with Judge Marsh’s 1994 order.120 The tribes objected to the BO and the “Report” based upon the failure of NMFS to articulate a clear jeopardy standard and its failure to give due weight to the recommendations or survival modelling of the states and tribes.
Also with regard to hydroelectric impacts on salmon, NMFS, in its BO, has chosen to devote substantial resources to research at its laboratories in Seattle, Washington. In FY 1996, NMFS estimates a need for $23 million for research that is not subject to consultation, peer-review, or co-management.
In light of the consideration given to salmon in the LRMP’s, the Forest Service did not consult with NMFS concerning the effect that the plans would have upon listed salmon populations. Environmental groups filed suit in the federal district court for Oregon against the Forest Service to require consultation on Oregon’s Snake River national forests and won.122 Both the Forest Service and the environmental organizations appealed to the Ninth Circuit Court of Appeals which affirmed the decision and, in August, 1994, the Forest Service initiated consultation with NMFS on the Snake River plans.
In general, the draft Recovery Plan overemphasizes minor sources of salmon mortality–treaty and non-treaty harvest–while failing to require significant reductions in major sources of mortality including the mainstem hydrosystem of dams and reservoirs and poor land and water management practices (logging, grazing, mining, and overappropriation) within essential tributary habitat.
The administration of the Endangered Species Act by the National Marine Fisheries Service has diverted resources from basin recovery envisioned by the CRFMP, the FWP, the Pacific Salmon Treaty and FERC orders. The draft ESA Recovery Plan institutional structure is inconsistent with the processes embodied by those plans and will divert future resources to another layer of committees and procedures.
86. Federal Power Act, 16 U.S.C. §§ 791a-828c (1985) & Supp. 1995).
88. Pub. L. No. 99-495 §3(c); 100 Stat. 1252 (1986).
90. 16 U.S.C. §803(a) (1985 & Supp. 1995).
91. Id. at para. (2)(B).
93. 6 U.S.C. §803(j) (1985 & Supp. 1995); Pub. L. No. 99-495 §3(c); 100 Stat. 1252 (1986). Though tribes are not entities named in the Fish and Wildlife Coordination Act, report language for the 1986 amendments, the Electric Conusmers Protection Act of 1986 indicates that the section was not intended to change FERC’s existing obligations to consider tribal fish and wildlife recommendations and accord them due weight. H.Rep. No. 99-934, 99th Cong., 2d Sess. 23-24.
94. 1) Wells Dam, Project No. 2149, operated by Douglas PUD and licensed by FERC in 1962; 2) Rocky Reach Dam, project No. 2145, operated by Chelan PUD and licensed by FERC in 1957; 3) Rocky Island Dam, Project No. 943, operated by Chelan PUD and licensed by FERC originally in 1930 but amended in 1974 and relicensed in 1987; and 4) Wanapum and Priest Rapids dams, Project No. 2114 operated by Grant County PUD and licensed by FERC in 1955.
95. FERC Project No. 1971.
96. Public Utility District No. 2 of Grant County, Washington, 15 FPC 1005, at 1006 (1956).
97. Washington Department of Fish and Game, Complaint and Protest Re: Minimum Flows, Mid-Columbia Proceeding (FERC 1976). The original cause for concern for the fishery parties was a fish kill resting from a test at Priest Rapids that held flows at a minimum level for approximately 30 hours killing approximately one million juvenile fall chinook that were leaving the spawning gravel.
98. Id. 6 FERC ¶ 61,210 at 61,537 (1979).
99. Public Utility District No. 2 of Grant County, Washington, Docket No. E-09569-003 (Grant County Phase) at 4-5. See also FERC’s Mid-Columbia Proceeding: Ten Years and Still Counting, 16 Envtl. L. 555-577 (1986) for an account of the Mid-Columbia proceedings.
100. Settlement Agreement, Public Utility District No. 1 of Douglas County, Washington, Docket No. E-9569 (FERC Oct. 1, 1990). The measures of the Wells Agreement, when carried out according to its terms, are considered as fulfilling the PUD’s obligation to protect, mitigate and compensate for anadromous fish resources “at least until March 1, 2004” and “are expected to contribute to the Northwest Power Planning Council’s goals of rebuilding…and providing harvest opportunities. Id. at 2. Though the agreement is intended to apply to the current license and annual licenses issued after the current license expires in 2012, the agreement includes a “reopened” effective after March 1, 2004, Id. and a dispute resolution mechanism permitting review by a decision maker (the presiding judge in the proceedings or certain other FERC officials) if the parties cannot reach a consensus agreement concerning compliance with the agreement Id. at 6.
104. In addition to license modification, the standards for relicensing also were addressed during the mid-Columbia proceedings. When Chelan PUD sought relicensing of the Rock Island Dam in 1977, FERC found that the existing discussions in the consolidated proceedings satisfied Chelan’s fishery obligations and issued a new license in 1981 without an EIS and with deferral of fishery conditions to the consolidated proceedings. FERC Order Issuing New License, Public Utility District No. 1 of Chelan County, Washington, Docket No. E-9569 (FERC May 13, 1981). The Yakama Indian Nation as well as the National Marine Fisheries Service, the Washington Department of Fisheries and Wildlife and the National Wildlife Federation filed suit in the Ninth Circuit Court of Appeals, Yakima, 746 F.2d 466 (9th Cir. 1984), cert. den., 105 S. Ct. 2858 (1985). The court’s holding emphasized that the Federal Power Act requires that FERC inquire into fishery issues in a relicensing to the same extent as if it were assessing the initial licensing of a new project and before the issuance of a license. Id. at 470. Further, the court found that FERC had improperly failed to provide a NEPA statement given the similarity of relicensing to the issuance of a new license. Id. at 476-477.
106. Id. at § 1532 (16).
107. 56 Fed. Reg. at 58,619 (1991).
108. 58 Fed. Reg. at 15,574 (1993).
109. Robert Vrijenhoek, Population Genetics and Conservation, in Conservation for the Twenty-First Century 89-98 (D. Western & M. Pearl eds., 1989).
110. See Daniel J. Rohlf, There’s Something Going On Here: A Critique of the National Marine Fisheries Service’s Definition of Species under the Endangered Species Act. 24 Envtl. L. 618 (1994).
111. However, the courts have limited authority to review agency policies interpreting the statutes that an agency is authorized to enforce. When an agency is making policy “at the frontiers of science, a reviewing court must generally be at is most deferential.” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Thus, the interim policy, though arguably inappropriate to accomplish the recovery purposes of ESA, is cloaked in science and utilized by NMFS as an authoritative interpretation of the Endangered Species Act.
113. 16 U.S.C. 1536 & 1539.
114. If, in its BO, NMFS finds “no jeopardy,” then the BO will include an incidental take statement if an incidental taking is proposed and it may include alternatives to minimize impacts identified by NMFS. If NMFS finds “jeopardy,” then it must identify reasonable and prudent alternatives or state that there are none. If the action agency wishes to proceed without modifying its proposal, then it must seek an exemption from the Endangered Species Committee (“the God Squad”).
115. 16 U.S.C. 1539(a)(1)(B). The HCP must specify the impacts to the species or its critical habitat, detail steps to minimize and mitigate impacts and their funding sources, enumerate alternatives to the proposed action and the reason they were not chosen, and include measures deemed necessary by the Secretary. If, after public comment, the Secretary can make findings supporting the conclusions of the HCP, an incidental take petit will issue. NMFS has approved an HCP submitted by the Idaho Department of Fish and Game for the Idaho sports fishing program. Idaho Department of Fish and Game, Application for Individual Incidental Take Permit Pursuant to the ESA for the IDFG Sport Fishing Program (March 1993).
116. U.S. v. Oregon, Civ. 68-513 (Sept 9, 1994 and Aug. 10, 1995).
117. Idaho Department of Fish and Game v. National Marine Fisheries Service, Civ. No. 93-1603-MA (D. Or.) [hereinafter IDFG v. NMFS].
118. IDFG v. NMFS. 850 F. Supp. 886 (D. Or. 1994).
119. NMFS, Endangered Species Act Section 7 Biological Opinion on the Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program (March 22, 1995).
120. NMFS, Report of Compliance with Order of March 28, 1994 and Judgement (March 22, 1995).
121. See generally, CRITFC’s Administrative Appeals of the Plans and Final EISs for the Salmon, Sawtooth, Challis, Boise, Payette, Clearwater, Nez Perce, wallows-Whiteman, and Umatilla national forests.
122. Pacific Rivers Council v. Thomas (Oct. 6, 1993).
123. Joan Laatz, Documents fault salmon decision, The Oregonian, April 21, 1995, at 1. On February 3, 1995, the United States petitioned the Supreme Court to review the ninth circuit decision arguing that a consultation on the LRMP’s was not necessary to protect the listed species because the plans themselves do not affect salmon; site specific activities affect salmon. The Supreme Court denied review. Pacific Rivers Council v. Thomas, 30 F. 3d. 1050 (9th Cir. 1994) (cert. den.)_U.S._(1995).
125. NMFS Proposed Recovery Plan for Snake River Salmon (March 1995).
135. The TMT is established to advise operating agencies on dam and reservoir operations, the distribution of flow augmentation, and transportation and spill. The Committee will consist of representatives from COE, BPA, BOR, FWA, and NMFS.
The PAC, consisting of experts appointed by NMFS, will provide technical recommendations and findings regarding passage improvements to the TMT.
The HC, consisting of experts appointed by NMFS, will be responsible for developing and coordinating assessment and inventory methods and for coordinating, implementing and motoring research activities.
The FPC, consisting of experts appointed by NMFS, “will prove an operational link between the Snake River recovery program, the U.S. v. Oregon PAC and the NPPC FWP.” The Natural Production Subcommittee will have particular concern for ensuring that broodstock and supplementation program contribute “positively” to the recovery of self-sustaining natural stocks. The Hatchery Management Subcommittee is intended to recommend development of a “Columbia Basin-side integrated hatchery plan, consistent with the overall management objectives of the Recovery Plan,” and is to consist of experts appointed by NMFS with management experience from federal, state and tribal agencies and academia.
136. Given the proposed role of NMFS in recovery, it is appropriate to ask whether the agency and its predecessor, the Bureau of Commercial Fisheries, has played a constructive role, historically, in the recovery of naturally spawning upriver stocks. In reviewing its role as regulator of ocean salmon fisheries, its authorship of the Lower Snake River Compensation Play, and its administration of the Mitchell Act, NMFS has frequently exacerbated stock status. In addition, the work of the NMFS Seattle-based research program, with its focus on captive brood stock technology and its massive research contracts with the Corps of Engineers has compromised itself as an honest broker on production and hydro operations issues.


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Judge Thomas Hardiman was almost nominated to the Supreme Court last year to replace Justice Scalia. Hardiman, who sits on the U.S. Court of Appeals for the Third Circuit, was feted for his “blue-collar credentials” but was ultimately overlooked for the more privileged Judge Neil Gorsuch. This time around, Hardiman is once again a shortlister for a Supreme Court appointment.
Prior Experience: Private Practice in Washington D.C. & Pittsburgh 1989-2003; Judge on U.S. District Court for the Western District of Pennsylvania 2003-2007.
Kelly v. Borough of Carlisle – In a civil rights action, the plaintiff argued that he was unlawfully arrested for filming a police officer during a traffic stop. Writing for the panel, Hardiman found that, if a First Amendment right to film a police officer existed, it was not clearly established, and that the arresting officer was protected by qualified immunity in the case.
Lodge No. 5 of Fraternal Order of Police v. Philadelphia – In a First Amendment challenge, Hardiman held that the City of Philadelphia could not bar police officers from making campaign contributions to the PAC of the police union.
Drake v. Filko – Under New Jersey law, individuals seeking to carry handguns in public must demonstrate a “justifiable need to carry a handgun.” A 2-1 vote of the Third Circuit upheld this requirement against a Second Amendment challenge. In dissent, Hardiman argued that the law violated the Second Amendment, arguing that the Supreme Court’s decisions in DC v. Heller and McDonald v. Chicago extend the right to bear firearms beyond the home.
Florence v. Bd. of Chosen Freeholders – This case involved the challenge to the policy of strip searching all arrestees, regardless of how minor the offenses were. Hardiman wrote for the panel in upholding the policy, holding that officials may strip-search all arrestees even without suspicion of carrying any contraband. This ruling was upheld by the U.S. Supreme Court on a 5-4 vote.
Hardiman was almost the Supreme Court nominee last year because, in many ways, he was (and remains) a politically sound nominee. He is from Pittsburgh in the Rust Belt, has a (relatively) less-connected background, and has the support of Judge Maryanne Trump Barry, the President’s sister. Furthermore, Hardiman has a fairly conservative record on the federal bench, while also having two unanimous confirmations under his belt. Additionally, choosing Hardiman as the nominee may put pressure on Democratic Senator Bob Casey, who may choose to back his home-state nominee.
In his current nominee, Trump is looking for ivy league pedigrees and academic writings. Hardiman doesn’t bring either to the table. Furthermore, Hardiman’s opinion in Prowel may alienate social conservatives.
Hardiman’s judicial record can be mined for opposition. Opponents may attack Hardiman, for example, for permitting the strip searching of all arrestees, even those charged with minor violations. They may also raise his dissent in Easton and his opinion in Kelly to suggest that Hardiman would defer to government judgments on First Amendment restrictions.
Additionally, gun control advocates are likely to attack Hardiman as a Second Amendment absolutist, based on his dissent in Drake and his view that Heller and McDonald establish a right to bear firearms outside the home (a right not yet endorsed by the U.S. Supreme Court).
Despite the ringing endorsement of Judge Barry, Hardiman was not chosen for the Supreme Court last term. His chances are, if anything, slightly worse this time around. Supreme Court selections are ultimately about chemistry as much as they are about ideology. In 2009, President Obama chose then 2nd Circuit Judge Sonia Sotomayor based largely on Sotomayor’s strong performance in her personal interview. Given that Trump has already overlooked Hardiman once, his odds may not be as high as those of fresher faces.

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Donald Ray Hughes, pro se.
Ronald C. Forehand, Asst. Atty. Gen., Montgomery, Ala., for defendant-appellee.
Plaintiff, Donald Ray Hughes, applies for leave to file an in forma pauperis appeal from the district court's denial of his Sec. 1983 suit against a state probation officer, William Chesser.
The district court's dismissal of Spaulding's damage claims against the federal probation officers was proper. Judges who act within the scope of their authority enjoy absolute immunity from damage suits. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). This immunity has been extended to prosecutors for their decision to prosecute and their conduct of the government's case on the theory that these activities are 'intimately associated with the judicial phase of the criminal process ...' Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). We hold that a probation officer is entitled to the same protection when preparing and submitting a presentence report in a criminal case. The report is an integral part of the sentencing process, and in preparing the report the probation officer acts at the direction of the court. See Fed.R.Crim.P. 32. We think it apparent that this narrow function is 'intimately associated with the judicial phase of the criminal process' and thus, where, as here, the challenged activities of a federal probation officer are within this function, he or she is absolutely immune from a civil suit for damages. Burkes v. Callion, 433 F.2d 318 (9th Cir.1970); Friedman v. Younger, 282 F.Supp. 710 (C.D.Cal.1968). See also Cruz v. Skelton, 502 F.2d 1101 (5th Cir.1974). Defendants' activities were within this protected function, and the complaint seeking damages was properly dismissed.
599 F.2d at 729 (footnotes omitted).
The Fifth Circuit case decided before October 1, 1981 is binding precedent in this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981).

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(a) Except as otherwise provided in subsection (g) of this section and subject to subsection (f) of this section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under § 7-1531.04 or an amendment to an anatomical gift of the donor's body or part under § 7-1531.05.
(b) A donor's revocation of an anatomical gift of the donor's body or part under § 7-1531.05 is not a refusal and does not bar another person specified in § 7-1531.03 or § 7-1531.08 from making an anatomical gift of the donor's body or part under § 7-1531.04 or § 7-1531.09.
(c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under § 7-1531.04 or an amendment to an anatomical gift of the donor's body or part under § 7-1531.05, another person may not make, amend, or revoke the gift of the donor's body or part under § 7-1531.09.
(d) A revocation of an anatomical gift of a donor's body or part under § 7-1531.05 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under § 7-1531.04 or § 7-1531.09.
(e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 7-1531.03, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.
(f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 7-1531.03, an anatomical gift of a part for one or more of the purposes set forth in § 7-1531.03 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under § 7-1531.04 or § 7-1531.09.
D.C. Law 17-353 validated previously made technical corrections in subsecs. (b), (d), and (f).
This section is based upon § 8 of the Revised Uniform Anatomical Gift Act (2006). See Vol. 8A, Uniform Laws Annotated, Master Edition, or ULA Database on Westlaw.

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COMMONWEALTH vs. JAMES BALAKIN, JR. (and two companion cases [Note 1] ).
INDICTMENTS found and returned in the Superior Court on November 7, 1967.
Reuben Goodman for the defendants.
CUTTER, J. Balakin and Robert Dussault were found guilty on indictments charging them with being accessories before the fact to confining for purposes of stealing from a bank. Kebarian was found guilty of being a principal in the commission of the crime. A fourth defendant, Donald L. Stout, was also found guilty of being an accessory. His case has already been heard on appeal. Commonwealth v. Stout, ante, 237.
The cases are before us under G. L. c. 278, Sections 33A-33G. The evidence permitted the jury to find the facts described below.
On September 14, 1967, the Lowell police, because of information brought to their attention, kept the Lowell Institution for Savings (the Institution) under observation. They looked into the bank and saw Kebarian in the tellers' area. They entered the bank and arrested Kebarian and James Hunt, who was also in the bank. Paul Dussault, who was in an automobile outside, was taken into custody at the same time.
Kebarian and Hunt, each with a gun in his hand, had entered the bank about 9:15 A.M. and said, "This is a stickup." Kebarian approached the bank manager, Mrs. Constantine, with a gun in his hand. She was at her desk in a separate office across the lobby from the tellers' area.
He asked her whether she had pulled the alarm. She said that she had not done so. Kebarian, whose gun was pointed at her head, directed her to move from her desk into the bank lobby. She did so because she was in fear. When in the lobby, she did not move from a spot near the number one teller's cage because she "didn't want to get shot." Kebarian jumped over the counter and started to open one of the tellers' drawers. The police then entered.
Paul Dussault, brother of Robert, pleaded guilty to offences connected with the Institution holdup project. He gave testimony concerning meetings in Robert's apartment on September 5 and again on September 12 and in his own apartment, when two meetings were held. At the September 5 meeting, the robbery of three banks was discussed. At the later meeting on September 12 the two Dussaults, Hunt, Kebarian, and John Crow were present. Later that day Balakin drove the two Dussaults and Kebarian around Lowell to look over a branch of the Middlesex County National Bank as a prospective holdup victim. There was conversation about the possibility of robbing this bank and the Institution on the same day.
On September 13, the Dussaults, Kebarian, and Hunt discussed the Institution robbery project; Balakin was not present. That evening Balakin called Robert Dussault's apartment and was told by Paul Dussault, who was there, that Robert wanted to see him at the Sac Club "relative to a car." Later Paul observed two automobiles drive up in front of Robert's house. Balakin stepped out of one automobile, a Cadillac, and drove away in the other vehicle. Balakin again called Paul by telephone a few minutes later. Paul told him that the Cadillac could not be left where it was. Balakin returned in another automobile and, following Balakin's lead, Paul drove the Cadillac to a hiding place. Balakin gave Paul two pairs of brown cloth gloves to use in avoiding fingerprints and told Paul to tell his brother Robert, that the Cadillac "is $200 and $200 goes off the top," which meant the expected proceeds of the planned robbery.
On the morning of September 14, 1967, Crow disappeared. Robert Dussault made checks in the area of the Institution and gave word by telephone to go ahead. On the night of the 13th, it had been definitely planned to rob the Middlesex County National Bank. The Institution project "was up in the air." On the 14th, Robert Dussault decided to make the Institution the "target for the day."
On the morning of the 14th, Balakin came to Paul Dussault's apartment and asked if the group had come back yet. He was told that they had not returned. He came to Robert's apartment that afternoon.
On November 7, at Balakin's request, Christopher Dussault, another brother of Robert, collected from Robert's wife a diamond ring and gave it to Balakin for use in obtaining bail for Robert Dussault. On that day Balakin and Stout warned Christopher to leave town because Paul Dussault was "talking." Other pertinent testimony is stated in connection with the discussion of specific assignments of error.
on their feet screaming at that time. Well, if we are really looking for the truth as to what motivated Paul to testify, aren't you entitled to know that?" Christopher was quoted as saying that the fear that the defendants "planned to kill Paul Dussault, my brother" led him to testify.
If interpreted as criticism of the making of objections and the saving of exceptions by counsel, the argument was improper. See Commonwealth v. Coughlin, 182 Mass. 558, 562-564. See also Commonwealth v. McLaughlin, 352 Mass. 218, 229. It also made somewhat inaccurate references to the circumstances. There was, however, no objection and exception when this argument was made. In the absence of an exception nothing is before us on review. Commonwealth v. Myers, ante, 343, 346. In any event, the judge later charged that arguments were not evidence and that objections and exceptions by counsel were not to form the basis of any jury inference. There was no such significant possibility of prejudice as was considered in Commonwealth v. Freeman, 352 Mass. 556, 563-564.
of specific prior impropriety wrongly admitted). Cf. also Commonwealth v. Crehan, 345 Mass. 609, 610-612 (news account of specific criminal records); Commonwealth v. Welcome, 348 Mass. 68, 70 (judge hearing a criminal case without a jury actually improperly received evidence of prior offences of the same type as that involved in the case then before the court); Commonwealth v. Nassar, 351 Mass. 37, 45 (evidence of admissions of prior offence of same type improperly received). The argument, while improper, did not go so far as to charge Kebarian or any other defendant with having any specific criminal record, although it might have been misunderstood as doing so.
As has been noted, the judge promptly cut short the line of argument and later charged that arguments were not evidence, that the jury must rely on their "collective memory . . . of the evidence," and that guilt is to be determined "only upon evidence." The judge was not asked to expand his instructions on the point. See Commonwealth v. Cabot, 241 Mass. 131, 146-151. See also Commonwealth v. Ladetto, 349 Mass. 237, 248; Commonwealth v. Belton, 352 Mass. 263, 269-270. We think that the judge adequately dealt with the situation in the circumstances.
prejudice, since the evidence clearly permitted the jury to conclude that Robert Dussault was willing to use guns.
4. The assistant district attorney, as has been indicated, exceeded proper limits in portions of his argument. [Note 4] Where, however, appropriate objection was made, the judge sufficiently and promptly corrected any significant improper statements. We see no basis for concluding that the argument as a whole was prejudicial.
5. There was no error in denying the defendants' motions for directed verdicts. They were caught in the midst of carrying out the attempted holdup. The evidence against them was sufficient and strong. Nevertheless, we consider respects in which it is now contended that verdicts should have been directed.
(a) There was ample evidence, already summarized, that Mrs. Constantine was confined for the purpose of stealing from a bank. The jury reasonably could have concluded that she, by threats and force, was removed at gunpoint from a burglar alarm in her own office and restricted (until the police arrived) to a fixed area in the lobby. This constitutes confinement which satisfies G. L. c. 265, Section 21.
Balakin knew about it and participated in it. His knowledge of the investigation of two possible target banks on the 12th, and of the suggestion that both banks be robbed on the same day an hour apart, permitted the inference that he was not merely a participant in a proposal to rob one particular bank, but was helping the other participants to effect a robbery of whichever bank appeared on the day selected to be the better target of opportunity.
6. A Lowell newspaper published an article on February 14, 1968, the first day of trial, stating that Hunt had been sentenced on charges "in connection with the attempted bank holdup in Lowell" and that Paul Dussault had pleaded guilty to "charges stemming from the attempted bank stickup." The jury were not locked up during the trial. When the article was brought to the attention of the trial judge, he gave careful instructions to the jury to disregard anything they had heard about the case and to consider only what they had heard in the court room. The jury were not individually asked whether any of them had read the article. Much related in the article, however, was the subject of actual testimony before the court, which was not the situation in Commonwealth v. Crehan, 345 Mass. 609, 614 (where the news article made specific reference to criminal convictions not in evidence). Although defence counsel saved exceptions to the denial of a mistrial, they did not ask amplification of the explicit additional instructions given by the trial judge concerning their obligation to rely only on evidence before them. The jury, of course, heard direct testimony concerning Hunt's participation. Paul Dussault himself had testified before them, without objection, that he had pleaded guilty. We think that the judge's instructions afforded ample direction concerning the jury's duties and avoided dangers of misunderstanding which might have arisen from more specific references to the news article. See Taylor v. Creeley, 257 Mass. 21, 26. Cf. Commonwealth v. Giacomazza, 311 Mass. 456, 466; Commonwealth v. Sousa, 350 Mass. 591, 595.
Dussault of threats to him made by his brother about two weeks before the trial. Taken with the other very strong evidence of guilt this testimony could be viewed by the jury as in some degree an admission of guilt. Commonwealth v. Smith, 162 Mass. 508, 509-510. See Minihan v. Boston Elev. Ry. 205 Mass. 402, 405; Wigmore, Evidence (3d ed.) Sections 277-278. Cf. Commonwealth v. Fancy, 349 Mass. 196, 201, where alleged implied admissions showing consciousness of guilt were equivocal and were unsupported by other evidence.
[Note 1] Commonwealth vs. Vincent J. Kebarian; Commonwealth vs. Robert Dussault.
[Note 2] There was evidence, which the jury, of course, did not have to believe, that these guns were not the ones used on September 14. There was also evidence that two other guns were delivered to Paul Dussault's apartment on September 12 by Robert Dussault, who was observed receiving them in front of the apartment from Stout. See Commonwealth v. Stout, ante, 237, 239.
[Note 3] There was some basis for charging past misconduct to Paul and Christopher. There had been admission by Paul Dussault that he had made pleas of guilty to the Institution charges and to other unrelated offences. There was also testimony that Kebarian had rented an apartment in a false name and that Robert, Paul, and Christopher had stolen an automobile in September.
[Note 4] For this impropriety he was admonished in Commonwealth v. Stout, ante, 237, 244. Even in a case where the evidence against the defendants is as strong as in that before us, conduct of this type is seriously reprehensible and unnecessarily adds to the difficulties of proper law enforcement.

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Companies and attorneys should be wary when turning documents over to a governmental entity while in an adversarial relationship, even when a signed confidentiality agreement is in place. The risks associated with doing so took center stage last summer in a civil defamation case, Gruss v. Zwirn, when United States District Judge Paul Gardephe ruled that Zwirn Entities waived the attorney-client privilege when it disclosed portions of witness statements to the SEC as part of an internal investigation.
Former top officials of the prominent global law firm, Dewey & LeBoeuf, were indicted last week for deceiving banks and hiding the firm’s true financial condition from creditors, investors, auditors, and even its own partners. The lengthy indictment paints an elaborate accounting fraud where executives and financial professionals desperately tried to avert financial disaster. In short, the criminal charges brought by the Manhattan District Attorney allege a massive scheme to “cook the books” where the defendants falsified financial records submitted to banks and investors to demonstrate that the firm had complied with existing loans and therefore was worthy of further investor loans. The charges also allege the defendants made fraudulent accounting entries to support these phony representations.
ATTACK THE CAREER OFFENDER LABEL !!!
https://www.mdattorney.com/lawyer-attorney-1300820.htmlAs a Maryland Federal Criminal Attorney I know that nothing in the federal sentencing guidelines strikes more fear into the hearts of defendants and defense attorneys than the Career Offender provisions, found at section 4B1.1. This section is the most overused and perhaps least understood of all components of the guidelines.
In a nutshell, a criminal defendant is considered a Career Offender if he is currently charged with a violent crime or controlled substance offense and has previously been convicted twice of “a felony that is either a crime of violence or a controlled substance offense.” It is basically the federal version of a “third strike” rule. The consequences of being labeled as a career offender are disastrous. First, a defendant’s criminal history category is automatically raised to Category VI-the most serious category in federal law. Second, the offense level for the current charge is also automatically inflated to some of the highest in the guidelines system. In most cases, the level is raised to 37. To give some perspective, level 43 is the highest designation in the sentencing guidelines, and applies to crimes such as 1st degree murder!
Moreover, federal courts have adopted a very wide “strike zone” in determining what constitutes a “controlled substance felony.” While most logical thinkers understand that a controlled substance felony means drug distribution or dealing, federal courts have ruled that a state drug possession conviction can qualify as long as the offense carries a maximum possible punishment of greater than one year. In Maryland, possession of cocaine carries a maximum possible punishment of four years, making it a “felony” for federal purposes, even though the crime is classified as a misdemeanor under state law. So an individual in Maryland who has been twice convicted of cocaine possession will be treated as a career offender if he thereafter is charged in federal court with drug dealing or conspiracy to deal drugs. The results are significant.
A defendant classified as a career offender in a federal drug case will typically face a sentencing range of 30 years – life! Facing such a monstrous guideline range forces many defendants to accept guilty pleas in defensible cases as well as cases where the defendant is actually innocent!
DOJ Eliminates Crack Cocaine Disparity!!!
I recently wrote a blog about the recent and dramatic change in the federal DOJ policy regarding the disparity between federal sentencing guidelines for crack and powder cocaine. https://www.marylandcriminalattorneyblog.com/2009/06/the_disparity_between_federal.html On May 1, 2009, the United States Department of Justice (DOJ) released a Memorandum to all U.S. Attorney’s Offices instructing all federal prosecutors to inform sentencing courts “that the Administration believes Congress and the Commission should eliminate the crack/powder disparity . . .” and that prosecutors should not object to variances in sentencing to achieve that result.
The new DOJ memorandum gives federal criminal defense lawyers a powerful new tool to fight the draconian sentences that clients have faced for federal crack cocaine offenses.
Most recently, I convinced a federal judge in Maryland that the new DOJ Memo not only reduced the sentencing “regular” 2D1.1 guidelines for crack cocaine offenses, but it also reduced the Career Offender Guidelines under section 4B1.1. I argued that the DOJ Memo applied across the board to all disparity between crack and powder cocaine. Because my client was charged with conspiracy to distribute more than 50 grams of crack, the maximum possible punishment for the offense was life under 18 U.S.C. §841(b)(1)(A). The maximum possible penalty, however, for a similar offense involving powder cocaine was only 20 years under §841(b)(1)(C). This difference caused the career offender guidelines to drop from level 37, to level 32 because the career offender guidelines are keyed directly to maximum possible sentence for the charged offense.
Federal Crack & Powder Cocaine Guidelines Disparity is Gone!!
The tremendous and unfair disparity between crack and powder cocaine in the Federal Sentencing Guidelines is no more! For many years, the Federal Sentencing Guidelines for offenses involving the possession or sale of crack cocaine were exponentially more severe than the guidelines for offenses involving only powder cocaine. For example, a defendant with no prior criminal record who possessed a kilo of crack cocaine would face a guidelines sentence of between 15 – 20 years without parole. That same defendant would face a sentencing range of between 5 – 6 years if he possessed a kilo of cocaine powder.
For years, criminal defense attorneys, interest groups, and even many federal judges objected to the disparity, noting that there was no rational basis to treat crack cocaine differently from powder cocaine. Statistics revealed that the disparity adversely affected African Americans, who were most often charged with offenses involving the crack cocaine guidelines.
On December 12, 2007, the United States Sentencing Commission announced that it was retroactively reducing the sentencing guidelines for crack cocaine offenses. While there was still a substantial disparity between crack and powder cocaine, the Sentencing Commission’s actions were promising and were the first official recognition that the disparity between crack and powder cocaine was a problem that needed to be resolved.
On May 1, 2009, the Department of Justice (DOJ) did just that. In a memorandum to all United States Attorney’s offices across the country, the DOJ instructed all federal prosecutors to “inform courts that the Administration believes Congress and the U.S. Sentencing Commission should eliminate the crack powder disparity . . .” That is, federal prosecutors are now instructed to inform sentencing courts that they agree that the disparity between crack and powder cocaine should be eliminated. The impact of this new policy is going to be dramatic.
Aggressive Maryland criminal defense attorneys know that the best way to attack a search warrant is by attacking the affidavit in support of the warrant. This is commonly referred to as a Franks Hearing.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant”, and thus created a rule of “limited scope”.
The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof.
The Fourth Circuit has prescribed the steps the District Court must follow in imposing a sentence. First, the Court should calculate the proper guideline range after making appropriate findings of fact. United States v. Pauley, 511 F.3d 468 (4th Cir. 2007)(citing Gall, 128 S. Ct. at 596); see also Hughes, 401 F.3d at 546. “After calculating the Guidelines range, the sentencing court must give both the government and the defendant an opportunity to argue for whatever sentence they deem appropriate.” Id. The Court should then consider all of the § 3553(a) factors to determine whether they support the requested sentence. Id. If the guideline range does not serve the factors set forth in § 3553(a), then the Court may impose a non-guideline or “variance” sentence. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006); United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The Court must articulate reasons for the sentence it imposes, particularly a variance sentence, by reference to the § 3553(a) factors and its factual findings. Id.
The federal criminal sentencing has changed dramatically since the landmark case of United States v. Booker in 2005. Federal criminal defense attorneys have significantly more room for creativity and advocacy. Federal Judges are no longer handcuffed by the Federal Sentencing Guidelines. For decades decades the power in sentencing, and most federal prosecutions, rested with the prosecutor. Booker has shifted the stables-somewhat, in favor of the criminal defense lawyer and given Federal Judges a more “human” role at sentencing.
18 U.S.C. § 3553(a) in light of United States v. Booker, 543 U.S. 220 (2005) requires the Court to fashion a sentence “sufficient but not greater than necessary” to achieve the statutory purposes of punishment. In Booker, the Supreme Court restored this Court’s ability to fashion a sentence tailored to the unique circumstances of each case and each criminal defendant by requiring courts to consider factors other than the sentencing range prescribed by the United States Sentencing Guidelines. Thus, although the Federal Judge still must take the Sentencing Guidelines into account, Booker rendered the Sentencing Guidelines advisory. See Gall v. United States, 128 S. Ct. 586, 594 (2007); United States v. Pauley, 511 F.3d 468 (4th Cir. 2007). The sentencing guideline range is not binding on the Court, but is only one of several factors in §3553 (a) to be considered in determining the sentence. Booker, 543 U.S. at 258-60.
In fact, the sentencing guidelines do not even enjoy a presumption of reasonableness. Nelson v. United States, 129 S.Ct. 890, 892 (2009)(“The guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.”)(emphasis in original). See also Rita v. United States, 127 S. Ct. 2456 (2007). The “overarching” command of § 3553(a) is the Parsimony Clause, which “instruct[s] district courts to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing.” Kimbrough, 128 S.Ct. 558, 563 (2007)(quoting Gall, 128 S.Ct. at 600).
Do NOT be Afraid of the Federal Sentencing Guidelines!!!
The United States Federal Sentencing Guidelines are not mandatory on sentencing courts. The Guidelines are also not presumed to be reasonable. That was the very clear and very recent message sent by the United States Supreme Court in Nelson v. United States, 129 S.Ct. 890 (2009). In so ruling , the Supreme Court made it very clear that the federal sentencing guidelines are NOT what they used to be!
The federal sentencing guidelines used to strike fear into the hearts of criminal defendants accused of federal offenses. Not only were the guidelines mandatory, but they were VERY harsh. Under the old sentencing guidelines scheme, even first time offenders with compelling personal circumstances were forced to serve large non-paroleable prison terms. Federal prison populations swelled with non-violent drug offenders incarcerated for long terms of incarceration. Judges who wished to vary from the guidelines were routinely reversed by federal circuit courts. Federal prosecutors, emboldened by the harsh mandatory guidelines, had no incentive to be reasonable. Under the mandatory guidelines system, prosecutors – not Judges –were the most powerful players in determining the fate of criminal defendants. By deciding which crimes to charge, the prosecutors could effectively dictate the result faced upon conviction. Even the most skilled defense attorneys were often powerless to stop unfairly harsh sentences. Judges were equally powerless.
The sentencing landscape has now changed dramatically. The guidelines are now just that – GUIDELINES – to be considered but not necessarily followed by federal district judges. The sea change began in United States v. Booker, 543 U.S. 220 (2005). Booker held that the then-mandatory U.S. Sentencing guidelines were unconstitutional. The only way to salvage the guidelines as a system was to make them advisory only. Even after the Court’s decision in Booker, federal appellate courts continued to treat the guidelines with reverence. For example, at least one federal appeals court had ruled that a district court judge was not free to disregard the guidelines except for “extraordinary circumstances.” Other courts held that judges could not disagree with the disparate treatment of offenses involving crack versus powder cocaine under the guidelines.
This thinking came crashing to a halt in Nelson v. United States, 129 S.Ct. 890 (2009), and Spears v. United States, 128 S.Ct. 840 (2009). In the Nelson case, the Court overruled the Fourth Circuit Court of Appeals and held that a federal district judge cannot presume that a sentence within the federal sentencing guidelines is reasonable. That is, the advisory federal sentencing guidelines are only one factor in a multi-part system of determining a sentence for a person convicted of a federal offense. http://www4.law.cornell.edu/uscode/18/3553.html A sentencing judge is free to sentence a defendant to whatever is reasonable, regardless of the sentenced called for under the sentencing guidelines.
In the Spears decision, the Court made clear that federal judges are also free to disregard Sentencing Commission policies in arriving at a fair and reasonable sentence. In that case, the Court upheld the decision of a federal judge to impose a sentence below the sentencing guidelines because the judge disagreed with the U.S. Sentencing Commission’s policy to treat crack cocaine offenses more harshly than those involving powder.
Not only can a district judge choose to not follow the guidelines, but a court can also impose a sentence that disregards U.S. Sentencing Commission policies.
Be Aggressive in Booker Re-sentencings!!!
I recently won a significant victory for a federal criminal client in United States District Court for the District of Maryland in a re-sentencing under Booker. https://www.mdattorney.com/lawyer-attorney-1301200.html In the Booker case, the Supreme Court of the United States ruled that the federal sentencing guidelines that apply to all criminal cases prosecuted in federal courts were no longer mandatory. The Court in Booker held that federal judges should consider the sentencing guidelines in fashioning a sentence, but that the guidelines were just one of many factors to be weighed in sentencing. These factors are laid out in federal law at 18 U.S.C.§3553(a) & (b). They include the nature and circumstances of the person, the need to protect the public from further crimes by the defendant, as well as the nature and circumstances of the offense.
While the Court’s decision in Booker was not retroactive, the case does apply to cases that were on appeal at the time of the decision. In my recent case, the client had been convicted prior to Booker and sentenced to 174 months incarceration for being part of a multi-state drug conspiracy. The client’s trial defense attorney did not ask the federal appeals court to remand the case for a new sentencing in light of the Booker decision. I represented the client in a federal habeus suit in Maryland seeking that the client be re-sentenced.
In that case, the Chief Judge Legg agreed with our argument that the prior counsel’s failure to raise the Booker issue on appeal constituted ineffective assistance of counsel. He set the case in for a new sentencing hearing.