Enforcing Statutory Maximums: How Federal Supervised Release Violates the Sixth Amendment Rights Defined in Apprendi v. New Jersey

Danny Zemel*

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the voice of the people.” In recent decades, the Supreme Court has held the Sixth Amendment commands that the jury find, by proof beyond a reasonable doubt, the facts necessary to raise the minimum or maximum sentences for the criminal conduct the defendant committed. However, the increasing prevalence of supervised release revocations and reimprisonments has created a work-around to this rule, eroding the importance of the jury in the federal criminal system.

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Acknowledgments

The University of Richmond Law Review is proud to present its 2017 Symposium Issue: Defining the Constitution’s President Through Legal and Political Conflict. The Law Review hosts this annual discussion in an effort to assemble the nation’s leading voices to discuss current, critical issues in the law with fellow students and the greater Richmond community. This year’s symposium focused on how the American presidency has been shaped under the Obama and Trump Administrations through clashes with other branches of the federal government, as well as state attorneys general.

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“Special Solicitude”: The Growing Power of State Attorneys General

Mark L. Earley

The most powerful elected position in the United States today, with respect to checking any perceived overreach of presidential or federal power, is not in Congress, the House of Representatives or the Senate, but is among the fifty state attorneys general.

When Attorney General Shapiro of the Commonwealth of Pennsylvania was asked to run for the United States Senate, he declined saying, “I’m going to run for attorney general because that is the most impactful elected position in America today.” I think he is right.

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Characterizing Power for Separation-of-Powers Purposes

Tuan N. Samahon

Every separation-of-powers case quickly encounters a fundamental threshold inquiry that remains surprisingly difficult, even after almost 230 years of practice under the United States Constitution: what is the nature—legislative, executive, or judicial—of the contested power exercised? The three cognate vesting clauses in Articles I, II, and III use these undefined terms as if they are intended to have substantive, separate content. This tripartite division, which is inefficient by design, is built into our constitutional system to safeguard individual liberty by assuring that powers to legislate, execute, and adjudicate the laws do not all fall into a single set of (potentially) oppressive hands. In many separation-of-powers cases, whether the challenged institutional arrangement has honored that principle turns on the categorization or characterization of the powers at stake.

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A Non-Originalist Separation of Powers

Eric J. Segall

Since the end of World War II, some of the United States Supreme Court’s most important constitutional law cases have focused on the appropriate relationships between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus, some might say obsession, with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation-of-powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

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The President, Prosecutorial Discretion, Obstruction of Justice, and Congress

Henry L. Chambers, Jr.

The executive power of the United States is vested in the President of the United States. That power includes prosecutorial discretion—the power to prosecute or decline to prosecute. Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons. Those who argue in favor of the possibility of obstruction of justice suggest that a President can so misuse a power that has been given to the office that the exercise of the power is an act of malfeasance, criminality, or both. Those who argue against the possibility of obstruction tend to rely on the President’s executive power. The debate is too large to fully resolve in this brief essay. Instead, this essay sketches the contours of the debate and briefly considers which questions surrounding the debate are particularly difficult to resolve and which are not.

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States Suing the Federal Government: Protecting Liberty or Playing Politics?

Elbert Lin

It has become increasingly common in recent years to scan the news and find that a state or group of states has sued the federal government. During the eight years of the Obama Administration, states led mostly by Republican attorneys general challenged federal action on matters ranging from health care to immigration to the environment to overtime pay. And during just the first year of the Trump Administration, states led by Democratic attorneys general have brought suits in many of those same areas and others, including federal student loan relief and regulation of the internet.

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Delegation Enforcement by State Attorneys General

Jonathan David Shaub

State attorneys general have taken on an increasingly active role in challenging the actions of the federal government, and, in particular, the actions of the President. During the Obama Administration, state attorneys general began suing the federal government at an increasing rate, and these actions resulted in some of the most consequential judicial decisions of the time period—as both a matter of judicial precedent and a matter of policy impact. State-initiated action against the Obama Administration resulted in a new doctrine preventing state coercion, the implications of which are only starting to be recognized. It also resulted in court-ordered cessation of significant policy initiatives of the Administration, including, among others, nullifying the Deferred Action for Parents of Childhood Arrivals (“DAPA”) program, halting in part the Waters of the United States Rule, and the Clean Power Plant initiative.

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Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole

Emily Powell

Reynolds Wintersmith was just twenty years old when he learned he may spend the rest of his life in prison. In 1994, he was sentenced to life without the possibility of parole for a nonviolent drug crime. It was his first conviction.

When United States District Judge Philip Reinhard was sentencing Reynolds, he struggled with the mandatory minimum requirements:

“Under the federal law I have no discretion in my sentencing. Usually a life sentence is imposed in state courts when somebody has been killed or severely hurt, or you got a recidivist . . . . [T]his is your first conviction, and here you face life imprisonment . . . . [I]t gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life.”

This comment contends that Reynolds Wintersmith belonged to a class of offenders who should be categorically exempt from sentences of life imprisonment without the possibility of parole. Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

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The Invisible Minority: Discrimination Against Bisexuals in the Workplace

Elizabeth Childress Burneson

The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities. This is true despite the fact that bisexuals outnumber both lesbian women and gay men.

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