Author Archives: afscme

Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change

Source: Michael A. Foster, Congressional Research Service, CRS Legal Sidebar, LSB10191, August 24, 2018

Central to the calculation of a federal criminal defendant’s sentence under the United States Sentencing Guidelines (Guidelines) is the defendant’s “relevant conduct.” That term, while encompassing conduct found by a jury or admitted by the defendant, can also include conduct that was not charged, as well as the conduct underlying charges of which the defendant was acquitted. The lower federal courts have almost uniformly approved of the use of acquitted or uncharged conduct at sentencing, so long as a judge finds by a preponderance of the evidence that the conduct occurred. The Supreme Court has also held that the use of acquitted conduct pursuant to the Guidelines presents no double jeopardy issue under the Constitution. Judicial fact-finding at sentencing has not been without its critics, however; legal commentators and multiple Justices have expressed misgivings about the continued judicial reliance on such conduct to increase sentencing ranges under the Guidelines, largely focusing on the constitutional right to a jury trial. In fact, both of President Trump’s nominees to the Supreme Court— Justice Gorsuch and, most recently, Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit— have suggested during their tenures as Circuit judges that they may view judicial fact-finding at sentencing to be constitutionally problematic. Two bills have also recently been introduced in the House of Representatives that would alter the practice legislatively. Given the possibility of judicial or legislative changes in this area of criminal sentencing law, this Sidebar provides an overview of the issue by briefly describing the use of relevant conduct under the Guidelines and tracing the Supreme Court case law that has informed the practice, before addressing judicial commentary and recently proposed legislation regarding the use of acquitted or uncharged conduct at sentencing….

Calling Balls and Strikes: Ethics and Supreme Court Justices

Source: Cynthia Brown, Congressional Research Service, CRS Legal Sidebar, LSB10189, August 20, 2018

At his confirmation hearing in 2005, Chief Justice Roberts famously described his view of judges as umpires, pledging that, if confirmed, he would “call balls and strikes” when applying the law. Chief Justice Roberts emphasized the constitutional structure that underpins the Supreme Court and the rest of the federal judiciary, which is based on independence from political influence. The Court’s independence and its insulation from political influence is a perennial issue, which has received heightened attention with Judge Brett Kavanaugh’s pending nomination. What mechanisms ensure the integrity of Justices as federal officials? Are Justices subject to any rules of ethical conduct? How might such ethics rules be enforced? This Sidebar examines these questions and Congress’s potential role in regulating the ethics of the Supreme Court Justices…..

Supreme Court Nomination: CRS Products

Source: Andrew Nolan, CRS Legal Sidebar, LSB10160, August 24, 2018

On June 27, 2018, Justice Anthony M. Kennedy announced his retirement from the Supreme Court, effective July 31, 2018, ending a thirty-year tenure on the Court. On July 9, 2017, President Trump nominated Judge Brett Kavanaugh of the federal Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court created by Justice Kennedy’s retirement.

Below are key CRS products on the judicial decisions of Justice Kennedy and Judge Kavanaugh, as well as information on Supreme Court vacancies and nominations…..

Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court

Source: Andrew Nolan, Caitlain Devereaux Lewis, Congressional Research Service, CRS Report, R45293, August 21, 2018

This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses his potential impact on the Court if he were to be confirmed to succeed Justice Kennedy. In particular, the report focuses upon those areas of law where Justice Kennedy can be seen to have influenced the High Court’s approach to certain issues or served as a fifth and deciding vote on the Court, with a view toward how Judge Kavanaugh might approach these same issues if he were to be elevated to the High Court. Of particular note, the report includes an Appendix with several tables that summarize the nominee’s rate of authoring concurring and dissenting opinions relative to his colleagues on the D.C. Circuit, and how Judge Kavanaugh’s opinions as an appellate judge have fared upon review by the Supreme Court.

Child Care Expenses Make Middle-Class Incomes Hard to Reach

Source: Robert Paul Hartley, Beth Mattingly, Christopher T. Wimer, Carsey School of Public Policy at the University of New Hampshire, August 2018

From the press release:
About nine percent of working families with children under the age of six are pushed out of the middle class as a result of their child care expenses, according to new research released by the Carsey School of Public Policy at the University of New Hampshire.

The researchers also found that many middle-class families do not pay any out-of-pocket child care expenses, perhaps by relying on family and friends, or by turning to lower-cost, less-qualified care. If all middle-class working families with young children were to pay what typical upper-middle and middle-class families pay for child care, roughly $6,900 per year on average, an additional 21 percent would be pushed below the middle-class threshold….

Regional Price Parities by State and Metro Area

Source: Bureau of Economic Analysis, May 17, 2018

Across states, Hawaii had the highest all items RPP (118.4) and Mississippi had the lowest (86.4). Across large metropolitan areas – those with population greater than two million – San Francisco-Oakland-Hayward, CA had the highest all items RPP (124.7) and Cincinnati, OH-KY-IN (89.6) had the lowest.

What are Regional Price Parities (RPPs)?
Allows comparisons of buying power across the 50 states and the District of Columbia, or from one metro area to another, for a given year. Price levels are expressed as a percentage of the overall national level.

Nevada collects $69.8 million in tax revenue during first year of legal adult use sales—about 140 percent of what the state anticipated

Source: State of Nevada, Department of Taxation, June Marijuana Revenue Statistics News Release, August 28, 2018

$27.5 million in marijuana tax revenue transferred to the state Distributive School Account

With June’s marijuana revenue figures now on the books, Nevada closed out the first full year of adultuse sales with marijuana tax collections totaling $69.8 million for the fiscal year—about 140 percent of what the state expected to bring in. The last four months of the fiscal year proved to be the most robust months for marijuana tax revenue, with each month’s totals topping $6.5 million. At the end of June, there were 64 medical marijuana dispensaries open in Nevada, with 61 of those licensed to also sell adult-use marijuana. For the fiscal year, these state-licensed dispensaries and retail stores saw total taxable sales—which includes adult-use marijuana, medical marijuana, and marijuana-related tangible goods— of $529.9 million. Adult-use marijuana sales totaled $424.9 million for the year, generating $42.5 million in tax collections through the 10 percent Retail Marijuana Tax. The 15 percent Wholesale Marijuana Tax brought in close to $27.3 million for the fiscal year. Revenues from the wholesale tax, along with application and licensing fees, go primarily to education in Nevada, via the state Distributive School Account. With the closing of the fiscal year, the Department of Taxation transferred a total of $27.5 million to that education account. All revenues from the Retail Marijuana Tax have been distributed to the state’s Rainy Day Fund…..

Schools in Florida are spending thousands on active shooter insurance

Source: Sarika Ram, MuckRock, August 16, 2018

Recently released records show districts budgeting up to six figures on insurance policies, safety training, and police presence

High profile school shootings in recent years have offered enterprising insurance companies with a business opportunity – and burdened districts budgets with thousands of dollars in new expenses.

This school year, some Florida public school districts have invested in active shooter protection insurance policies and other security-related programming, such as active shooter response training.

According to the insurance policy obtained in a recent public records request, Palm Beach Public School District has paid a $100,000 premium to McGowan Program Administrators, a leader in the active shooter insurance industry, for active shooter protection this academic year.

Understanding Local Service Delivery Arrangements: Are the ICMA ASD Data Reliable?

Source: Meeyoung Lamothe, Scott Lamothe, Elizabeth Bell, Public Administration Review, Volume 78, Issue 4 July/August 2018
(subscription required)

From the abstract:
The authors utilize the two latest ICMA Profile of Local Government Service Delivery Choices surveys to investigate whether the service provision and delivery arrangement information reported in the surveys accurately represents reality and, if not, what factors contribute to generating incorrect or unreliable survey responses. Interviews with practitioners are used to better understand both the accuracy of the survey responses and improvements that could be made to the survey instrument. Results suggest that the ICMA ASD survey data are highly erratic, with more than 70 percent of the cases (N = 70) investigated containing some inaccuracies. A qualitative analysis shows that the majority of the errors appear to be caused by the lack of a clear definition of service provision or by the service titles being too vague or too broad, both of which likely lead to discretion in interpreting survey questions and thus inconsistent answers by individual respondents over time.