ACS Convention Report:
I had a terrific time at the American Constitution Society convention this weekend. A few thoughts and reactions to the convention:

  1) The ACS convention is very similar to the Federalist Society's annual Lawyer's Conference. It covers many of the same topics, and even shares a number of the same speakers. The biggest difference between the two is that the Federalist Society has separate conventions for lawyers and students, whereas the ACS convention has one combined convention. Other than that, it's very much the same: lots of judges, activists, professors, and former government officials walking around and chatting, and interesting and provocative panels with at least one person from the "other side." (The Federalist Society's lawyer's conference has somewhat more balanced panels, but the ACS deserves credit for having a right-of-center presenter on most of their panels this year).

  2) Anyone who is a law professor or a wannabe law professor should consider going to the ACS convention, regardless of where you fall on the ideological spectrum. While the ACS convention is progressive/liberal, its chosen strand of progressive/liberal is more or less the mainstream of legal academia. Indeed, given that the ACS presents at least one right-of-center presenter on each panel, it probably ends up with a more fair and serious presentation of conservative ideas that many other academic conferences on similar topics. The uniformly high quality of the presenters left me thinking that this is what the AALS annual meeting should be like (but generally isn't).

  3) It's hard to pick favorites from among such a strong group, but my two favorite presentations of the conference were probably those given by Judges Alex Kozinski and Michael McConnell. Judge Kozinski was both very funny and quite effective in arguing that we should be skeptical about interpreting the Constitution in light of our moral values; Judge McConnell gave a very powerful analytical critique of the Supreme Court's recent decision in United States v. Booker.

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Larry88 (mail) (www):
Shouldn't you be telling people that they are a bunch of danagerous liberals who want to interpret the constitution for 2020 ? I thought that was the line to tow.
8.2.2005 11:53am
Apu (mail):
Can anyone point to a summary of Judge McConnell's presentation? I don't see anything on the ACS blog.
8.2.2005 12:24pm
Mahan Atma (mail):
Eventually there should be a video of the panel on which Judge McConnell sat.

To sum up, McConnell's take on Booker was this: It changes almost nothing. Breyer simply exploited a logical inconsistency in the majority's argument. While the logic of Blakely was that any facts on which the sentence is based have to be charged and found by a jury, the majority also had to concede that it would be constitutional for judges to sentence in a completely discretionary fashion -- i.e., as long as sentencing doesn't involve formal fact-finding. So the rule that a jury has to find the facts is a meaningless rule if there's no facts to find in setting a sentence. This was a hole big enough for Breyer "to drive a truck through", in McConnell's words.

Now, since very few cases involve the sorts of exceptional circumstances that will cause judges to vary from the recommended guidelines range, the situation is essentially no different from when judges could grant downward departures for various reasons. (I think that's not exactly right, but a close approximation.)

Someone else on the panel pointed out that, in fact, the average sentence has actually increased slightly since Booker was handed down. Someone else opined that judges are afraid that, if they substantially decrease sentences, this will encourage Congress to enact a more drastic fix, e.g. more mandatory minimums. Thus judges are treading lightly at this point.

However, the best analysis by far came from Judge Gertner, who says she is essentially trying to create a common law of sentencing based around interpreting and applying the factors set out in 18 USC 3553(a).
8.2.2005 12:46pm
I might be impossibly naive (given I am a non-lawyer, I probably am) common law, the jury is supposed to be trier of law and of fact (as is the judge, though the judge has the additional job of ringmaster at the circus), isn't it?

In short: It's always been within the judge's right to impose whatever sentence they might desire (including fairly offbeat ones), same as it's always been the jury's right to say "screw what the statute says, this guy is going free", right?
8.2.2005 9:49pm
Mahan Atma (mail):
Not quite. The jury is only the trier of fact. There might have been a time in history when it was thought the jury had the right to decide the law (i.e. jury nullification), but these days juries are explicitly instructed in the law by the judge, and they are told that they must apply the law as instructed.

There is a kind "de facto" power of jury nullification in the sense that if the jury does decide to ignore the law and find the defendant not guilty, there's nothing the prosecutor/judge can do about it. But that's really the law of double jeopardy, not so much the "right" of a jury to ignore the law, because they aren't supposed to do that.

More importantly, it is generallly NOT within the judge's power to impose whatever sentence they want. In the federal system (and most state systems), the sentence is largely determined by statute. Typically, you have a range of possible terms of imprisonment, and the judge chooses from that range. Many crimes carry mandatory minimums, such that the judge MUST sentence the defendant to at least X months (unless the judge decides to overturn the jury's guilty verdict, but that's very rare).
8.2.2005 11:36pm
Cameron (mail):
Prof. Kerr--Glad you enjoyed the conference. I was disappointed to miss your panel discussion on criminal law and race issues. As a left-leaner, I was thrilled with the presentations from "the other side," as I felt they were interesting, informative, and civil; in addition, having varying viewpoints represented kept the event from feeling like a tent revival full of preachers and choir members (at least that was the effect during the panel discussions, if not the keynotes) and made people who share my viewpoints work harder to craft strong presentations of their arguments. I, too, found Judge Kozinski's comments thought-provoking, good-natured, and funny. I hope that you and others like you will continue to attend the annual convention!
8.3.2005 3:55pm