ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
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HISTORICAL NUNC PRO TUNC: THROW DOWN A BUST OF ARISTOTLE TO FIGHT RACISM

6/27/2020

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After stepping down as a lobbyist for the cable industry, Robert L. Johnson decided to launch his own cable television network. Johnson would soon acquire a loan for $15,000 and a $500,000 investment to start Black Entertainment Television (BET), launched on January 25, 1980.  Black Entertainment Television (BET) is an American pay television channel targeting African American audiences.  As of Feburary 2015, approximately 88,255,000 American households (75.8% of households with television) receive the channel.  It is interesting to note, therefore, that Robert Johnson, has said those who are toppling Confederate and other statues across the nation as "borderline anarchists" -- while challenging the notion that black Americans support pulling down statues.  Johnson believes tearing down a statue means "absolutely means nothing."

I have no way of knowing whether Johnson’s belief is a representative belief of the black community.  But I do know Johnson’s belief serves to highlight my own ambivalence on the topic.

On one hand, pointing a finger at a person from history because they do not hold the enlightened beliefs we have today seems unfair to me.  To blame specific historical individuals for not supporting progressive causes that no one else at the time that we know of was even proposing is basically unfair.  This concerns the doctrine of “presentism” which is explored in the book, Presentism: Reexamining Historical Figures Through Today's Lens which is described as a book about how removing statues has brought the reassessment of historical figures to the fore. “It has raised questions about whom we choose to venerate; how historical narratives form; and whether it is best to erase problematic figures from the historical record, present a new interpretation on them, or attempt to be as unbiased as possible by contemporary attitudes when regarding them. Readers will learn more about this timely and complicated issue through a wide range of perspectives.” 

Presentism is the anachronistic introduction of present-day ideas and perspectives into depictions or interpretations of the past. Some modern historians seek to avoid presentism in their work because they consider it a form of cultural bias, and believe it creates a distorted understanding of their subject matter.  The practice of presentism is regarded by some as a common fallacy when writing about the past.  The historian David Hackett Fischer in his book Historian’s Fallacies, Toward a Logic of Historic Thought, identifies presentism as a fallacy also known as the “fallacy of “nunc pro tunc.” It is the mistaken idea that the proper way to do history is to prune away the dead branches of the past, and to preserve the green buds and twigs which have grown into the dark forest of our contemporary world.

For instance, many believe that our democratic ideas have origins with the ancient Greeks.  But the ancient Greeks supported slavery.  Interesting enough, outside an isolated reference to slavery as being “contrary to nature” and “unjust” in Aristotle’s Politics 1.1253b, translated by H. Rackham, there is no mention of slavery as being wrong and certainly nowhere is there a working plan to abolishing slavery (say by a civil war) in Greek texts.
It  seems to me to be unfair, therefore, to blame Aristotle for not supporting progressive causes that no one else at the time that we know of was even proposing.  Even great thinkers of a time live in that time, not our time.

So it is clear, however, I am not saying “Well, slavery was ok in ancient Greece because, you know, morals were different back then and slavery was acceptable.” That is an endorsement of a form of moral relativism that can take us to some seriously dark, disturbing places.  If morality is dictated solely by society and whatever society says is just must therefore be just, this would mean that, if most people suddenly decided—for no apparent reason—that raping and murdering people was morally good and that not raping and murdering people was evil, then it would actually become morally good to rape and murder people and anyone who did not rape and murder anyone would be not only considered wicked, but actually wicked. Clearly, this is an absurd conclusion.  Clearly, social conformity does not necessarily equate to morality.

So does this excuse people like Thomas Jefferson who boldly proclaimed that “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” but had slaves?  No.  Like many Founding Fathers, it has to be admitted Jefferson was a liar on the question of slavery.

As stated by Spencer Alexander McDaniel, B.A. Classical Studies & History, Indiana University Bloomington, Jefferson hypocritically owned slaves but Jefferson authored numerous treatises in which he unambiguously condemned slavery as immoral. He deplored slavery as a “moral depravity,” an “abominable crime,” and a “hideous blot.” He even claimed that it was the greatest threat to fledgling American democracy.  Jefferson supported the gradual abolition of slavery, believing that slavery could not simply be abolished all at once. Like many of the other Founding Fathers, Thomas Jefferson believed that slavery would eventually die out on its own without any form of government intervention.  Jefferson himself only ever set a few slaves free over the course of his entire lifetime. Unlike Washington, Jefferson did not even set his slaves free in his will.  Nor can it be said that in his own lifetime Jefferson was unaware of his hypocrisy.  Black abolitionist writer Benjamin Banneker wrote an eloquent letter to Thomas Jefferson pointing out to him his own blatant hypocrisy over slavery by quoting the words of the Declaration of Independence back to Jefferson.  So the determination of Jefferson as a hypocrite on the issue of slavery is not made from the point of view of today, but from the point of view of yesterday.  Does that mean Jefferson was an evil man?  No.  It means he was a flawed person like any other person.

A person from history lived in history not today.  And even flawed persons have a place in history.  If for no other reason than for us to learn from their mistake.  
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COVID-influenced federal sentence reductions

6/17/2020

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​COVID-influenced federal sentence reductions

We can now confidently state that there have been over 500 federal sentence reductions grants in the just the last three months.  Some of those grants are detailed in some of the posts below, and I am hopeful the US Sentencing Commission or someone else "official" might have a truly comprehensive report on these matters before too long.
In United States v. Rodriguez, No. 2:03-cr-00271-AB-1 (ED Pa. Apr. 1, 2020) (available for download below). The start of this new opinion highlights why it is a must-read for anyone working on 3582(c)(1)(A) motions these days:
We are in the midst of an unprecedented pandemic. COVID-19 has paralyzed the entire world. The disease has spread exponentially, shutting down schools, jobs, professional sports seasons, and life as we know it. It may kill 200,000 Americans and infect millions more. At this point, there is no approved cure, treatment, or vaccine to prevent it. People with pre- existing medical conditions — like petitioner Jeremy Rodriguez — face a particularly high risk of dying or suffering severe health effects should they contract the disease.
Mr. Rodriguez is an inmate at the federal detention center in Elkton, Ohio.  He is in year seventeen of a twenty-year, mandatory-minimum sentence for drug distribution and unlawful firearm possession, and is one year away from becoming eligible for home confinement. Mr. Rodriguez has diabetes, high blood pressure, and liver abnormalities. He has shown significant rehabilitation in prison, earning his GED and bettering himself with numerous classes. He moves for a reduction of his prison sentence and immediate release under the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A).  He argues that “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).
For Mr. Rodriguez, nothing could be more extraordinary and compelling than this pandemic. Early research shows that diabetes patients, like Mr. Rodriguez, have mortality rates that are more than twice as high as overall mortality rates.  One recent report revealed: “Among 784 patients with diabetes, half were hospitalized, including 148 (18.8%) in intensive care.  That compares with 2.2% of those with no underlying conditions needing ICU treatment.”
These statistics — which focus on the non-prison population — become even more concerning when considered in the prison context. Prisons are tinderboxes for infectious disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities. Two inmates have already tested positive for COVID-19 in the federal detention center in Elkton — the place of Rodriguez’s incarceration.  After examining the law, holding oral argument, and evaluating all the evidence that has been presented, I reach the inescapable conclusion that Mr. Rodriguez must be granted “compassionate release.”
Download Rodriguez Memorandum
 
Here are a few more:
United States v. Campagna, No. 16 Cr. 78-01 (LGS), 2020 WL 1489829 (SDNY Mar. 27, 2020) ("Defendant’s compromised immune system, taken in concert with the COVID-19 public health crisis, constitutes an extraordinary and compelling reason to modify to Defendant’s sentence on the grounds that he is suffering from a serious medical condition that substantially diminishes his ability to provide self-care within the environment of the RCC.")
United States v. Powell, No. No. 1:94-cr-00316 (ESH) (DDC Mar. 28, 2020) (available here) ("Defendant is 55-years-old, suffers from several respiratory problems (including sleep apnea and asthma), and has only 3 months remaining on his 262-month sentence. The government does not oppose the relief sought. In addition, the Court finds that requiring defendant to first seek relief through the Bureau of Prisons’ administrative process would be futile because defendant has an open misdemeanor case in Superior Court which the Bureau of Prisons has advised defense counsel renders defendant ineligible for home confinement.")
United States v. Muniz, No. 4:09-CR-0199-1, 2020 WL 1540325 (SD Tex. Mar. 30, 2020) ("Because Defendant is at high-risk for severe illness from COVID-19 and because inmates in detention facilities are particularly vulnerable to infection, the Court finds that Defendant has demonstrated an extraordinary and compelling reason for compassionate release.")
United States v. Gonzales, No. 2:18-CR-0232-TOR-15, 2020 WL 1536155 (Ed Wash. Mar. 31, 2020) ("Defendant is the most susceptible to the devastating effects of COVID-19. She is in the most susceptible age category (over 60 years of age) and her COPD and emphysema make her particularly vulnerable.... The Court was aware of Defendant’s underlying medical condition and took that into consideration at the time of sentencing. In normal times, Defendant’s condition would be manageable. These are not normal times, however.")
 
United States v. Lynn, No. 89-0072-WS, 2020 WL 3229302 (SD Ala. June 15, 2020)
 
United States v. Liew, No. 11-cr-00573-JSW-1, 2020 WL 3246331 (ND Cal. June 15, 2020)

United States v. Miller, No. 3:15-cr-132-2 (VLB), 2020 WL 3187348 (D Conn. June 15, 2020)

United States v. Head, No. 2:08-cr-00093-KJM-2, 2020 WL 3180149 (ED Cal. June 15, 2020)
 
United States v. Rivera, No. 3:13-cr-71-1 (VLB), 2020 WL 3186539 (D Conn. June 15, 2020)
 
United States v. Acevedo, No. 18 CR. 365 (LGS), 2020 WL 3182770 (SDNY June 15, 2020)

United States v. Lavy, No. 17-20033-JAR, 2020 WL 3218110 (D Kan. June 15, 2020)
 
United States v. Patel, No. 3:17cr164 (JBA), 2020 WL 3187980 (D Conn. June 15, 2020)

Segars v. United States, No. 16-20222-3, 2020 WL 3172734 (ED Mich. June 15, 2020)
 
United States v. Madrigal, No. 5:18-cr-00356-EJD-3, 2020 WL 3188268 (ND Cal. June 15, 2020)
 
United States v. Knox, No. 2:16-cr-00116-MHH-JHE-3, 2020 WL 3207799 (ND Ala. June 15, 2020)

United States v. Reed, No. 12-CR-161 YGR, 2020 WL 3128904 (ND Cal. June 13, 2020)

United States v. Bikundi, No. 14-30-2 (BAH), 2020 WL 3129018 (D D.C. June 12, 2020)
 
United States v. White, No. 2:17-cr-00198-4, 2020 WL 3244122 (SD W. Va. June 12, 2020)

United States v. Heitman, No. 3:95-CR-0160(4)-G, 2020 WL 3163188 (ND Tex. June 12, 2020)
 
 
United States v. Fields, No. 2:05-CR-20014-02, 2020 WL 3129056 (WD La. June 11, 2020)
United States v. Halliburton, No. 17-cr-20028, 2020 WL 3100089 (CD Ill.  June 11, 2020)
United States v. DeBartolo, No. 14-016 WES, 2020 WL 3105032 (D R.I. June 11, 2020)
 
REPRINTED FROM: By  Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law
https://sentencing.typepad.com/sentencing_law_and_policy/
 
 
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The First Amendment protects acts designed to express disgusting opinions.

6/10/2020

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Letting disgruntled citizen vent is important to national security, experts say, but some messages emanating from angry Americans in recent weeks have pressed the boundaries of free speech.  Dr. Jerrold Post, a George Washington University political psychology professor who spent 21 years with the CIA, said that in nations where free speech is snuffed, such as Yemen and Pakistan, domestic terrorism is more prevalent.  Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, as Congress has repeatedly sought to do, but to express disapproval.

This is especially important when the expression is disgusting and goes against a majority viewpoint.  That is when First Amendment protections are most needed.  We don't need the First Amendment to protect popular or majority viewpoints, we need First Amendment protections to protect the disgusting or even offensive speech.  In 2013, Secretary of State John Kerry offered a defense of freedom of speech, religion and thought in the United States by stating to German students that in America "you have a right to be stupid if you want to be."  He continued, "And we tolerate it. We somehow make it through that. Now, I think that's a virtue. I think that's something worth fighting for," he added. "The important thing is to have the tolerance to say, you know, you can have a different point of view."  This is because an important function of symbolic speech is to invite dispute. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).  Moreover, symbolic speech best serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Symbolic speech should be provocative and challenging.  Terminiello, 337 U.S. at 4.  Such freedom will not cause the disintegration of society but will strengthen it. Johnson, 109 S. Ct. at 2547; Barnette, 319 U.S. at 641-42.  To censor symbolic speech, the State must show more than a desire to avoid the discomfort and unpleasantness that accompanies unpopular viewpoints.  The State must bear the heavy burden of showing the forbidden speech would materially and substantially interfere with the rights of others.  Tinker, 393 U.S. at 511.

Speech communicates an idea.  The Supreme Court has repeatedly observed that there are derivative and corollary rights that are essential to effectuate the expression of ideas which are inherent in the rights expressly enumerated in the Amendment.  See, Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965).

As has often been said, “actions speal louder than words.”  When actions communicate an idea it is called symbolic speech.  Symbolic speech consists of nonverbal, nonwritten forms of communication, such as flag burning, stripping, wearing arm bands, and burning the flag. It is generally protected by the First Amendment.  Texas v. Johnson, 109 S.Ct. 2533, 2546 (1989); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).  The United States Supreme Court has generally afforded such “speech” the same constitutional protections afforded normal or usual speech.  See, e.g., Brown v. Louisiana, 383 U.S. 131, 142 (1966) (Fortas,J); West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Stromberg v. California, 283 U.S.359, 369 (1931).  ). A number of commentators have argued that symbolic speech is more fundamental to a free society then ordinary speech.  See, e.g., F. Haiman, Speech and Law in a Free Society 6 (U.Chi. Press 1981); Rotunda, The “liberal” Label: Roosevelt’s Capture of a Symbol, 17 Public Policies 377 (Harv. U. Press 1968).

This includes the right to protest has been recognized by the United States Supreme Court in perhaps the most famous right-to-protest case of them all, Texas v. Johnson, 491 U.S. 397 (1989).  See also, Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (pledge of allegiance), Spence v. Washington, 418 U.S. 405 (1974) (attaching a peace sign to the flag), Stromberg v. California, 283 U.S. 359 (1931) (displaying a red flag), and Smith v. Goguen, 415 U.S. 566 (1974)
Here are some particularly disgusting conduct which is nevertheless protected speech.  In Snyder v. Phelps 131 S. Ct. 1207 (2011).   The Westboro Baptist Church believe that God punishes the United States for its tolerance of homosexuality, particularly within the military.  Mr.  Phelps therefore picketed at military funerals of veterans like Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq in 2006. Westboro picketed Matthew Snyder's funeral displaying signs that stated, for instance, "God Hates the USA/Thank God for 9/11," "Thank God for Dead Soldiers," and "Don't Pray for the USA."   Phelps was arrested and  argued that his speech (the picketing and the signs) was protected under the Free Speech Clause of the First Amendment to the Constitution.  The Supreme Court  held that the Phelps and his followers were "speaking" on matters of public concern on public property and thus, were entitled to protection under the First Amendment.  Likewise, with Rapkin she was clearly responding to an issue of public concern on public property so that her action to communicate her disagreement with the protestors entitled to protection under the First Amendment.

But what about racist expressions?  Racist speech, like hate speech, can be protected speech.  In Matal v. Tam, 137 S. Ct. 1744 (2017) Justice Samuel Alito (for four justices) explained
 [The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That is why even racists, like the Nazis, must be allowed free speech.  National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977). is a United States Supreme Court case dealing with freedom of speech and freedom of assembly of the Nazi Party parading through predominantly Jewish Skoie. ILL. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). and Smith v. Collin. 439 U.S. 916 (1978) (denying certiorari).

These cases clearly demonstrate the answer to racist speech is not censorship but voices of reason raised against racism.


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    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

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