America's Dreamers, America's Doers

Many people know Camden's unfortunate reputation as the most dangerous city in the country. But even more people do not know about momentum by some of Camden's residents to change the city's face. Today's front page of the Philadelphia Inquirer features a report entitled Hispanic shoppers revitalize Camden's Federal Street (available online). Having blogged recently about the American Dream here, this article about Camden's Hispanic community is especially worthy of mention.

The growth epicenter's location is six blocks of Federal Street between Marlton Avenue and 27th Street. Long identified with abandoned buildings, Mexican and Dominican immigrants have resuscitated the "heart of East Camden." The lonely sound of the whistling wind has been replaced by upbeat music pouring out of restaurants and bustling businesses.

Where the Hispanic cross-section accounts for 42% of the city, Mexican immigrants make up the majority of the business owners in this area. Most of them come from Puebla, inspired by America's promise of opportunity. These industrious individuals have clearly taken responsibility for their own lives, and along the way they are improving Camden for everyone. This true story illustrates rugged individualism. Straight out of Camden, these men and women should inspire others to assess their strengths, capitalize on them, and move to improve every day. The opportunity to do this is one of the many things that makes America great.

Facing the Music

State of New Jersey v. Cory Bieniek.
This opinion illustrates justification for punishment, a concept I blogged about here. Generally speaking two schools of thought occupy with this topic. One is utilitarian and the other is retributivist.

Utilitarians calculate for the net benefit of society. This involves using the law as a means to achieve what may be a politically expedient end. Utilitarians always calculate irrespective of public interest and media coverage of a case.

Retributivists, by contrast, focus on each individual offender. Here, a judge may focus on the defendant as a "whole person." Even though "whole person" evidence may be inadmissible at trial, the sentencing judge may rely on it without reservation thus focusing on the individual offender.

In my earlier post, I explained the broader distinctions between these two schools.

The above opinion, State v. Cory Bieniek illustrates these policy concerns under New Jersey law because it covers the sentencing judge's discretion. Legislature expressed society's interest in consistent sentencing through the New Jersey Code of Criminal Justice, N.J.S.A. 2C. Thus, it authorizes judges to exercise "structured discretion." A sentence will not be disturbed so long as the sentencing judge has adhered to these guidelines.

Accordingly, sentencing must be based on aggravating and mitigating factors set forth under N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b). To do this, the parties and the court must develop the record with evidence, and the judge must apply that evidence to the factors in explaining his findings.

In State v. Cory Bieniek, the trial judge rejected a mitigating factor which requires finding the defendant did not contemplate his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2). The trial court referred to society's continuous campaign against drunk driving. This may be a utilitarian justification generally to deter others from driving under the influence. The court also emphasized this defendant did not get the message. This may be a utilitarian justification both generally to deter society by making an example of this defendant, and specifically to deter this defendant from driving under the influence again.

To illustrate retributivism, the defendant did not qualify for the mitigating factor under N.J.S.A. 2C:44-1(b)(7), which requires finding the defendant has no significant criminal history. Reflecting retributivist thought, the trial judge reviewed the defendant's juvenile record going back to the age of sixteen. In this way the trial court refused to apply the mitigating factor by focusing on the offender himself.

In conclusion, this case and the relevant statutes demonstrate sentencing policy under New Jersey law blends both utilitarian and retributivist rationales.

Freedom Of Speech and the First Amendment

John McCain has said campaign finance reform is dead in response to Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010). Meanwhile opponents of this ruling have only just begun to lay bare the "parade of horribles." Although the political response may be riveting, this post will focus on the Court's opinion.

Citizens United v. Federal Election Comm'n involves Hillary: The Movie, a corporate-sponsored film produced by Citizens United. The McCain-Feingold Act, however, prohibits corporations and unions from sponsoring candidates with its funds.

The trial court denied Citizens United declaratory relief because the McCain-Feingold Act was consistent with established First Amendment precedent. Indeed, this reasoning was correct. Nevertheless, a majority of the Supreme Court decided this particular line of precedent diverged from earlier First Amendment jurisprudence. Thus, the Court returned to traditional legal roots. As a result, corporations may now use general funds for political speech.

On a simple level this makes a lot of sense. The First Amendment prevents Congress from, among other things, trampling on freedom of speech. Armed with this liberty, individuals with similar views naturally associate together, also protected by by the First Amendment. Their protected communications with one another undoubtedly brought them together. These like-minded individuals, now associated, may elect to formalize their relationship by forming an entity. A corporation is one possible form for this entity, and it allows individual members both to pool resources and uniformly to spread their views.

To permit the individuals freedom of expression but to prohibit their group makes war with common sense. Freedom of expression presumably brought the group together. Likewise, to grant individuals freedom to speak and to associate, but then to turn around and deny a resulting association such as a corporation freedom of speech is equally confounding. Notably, Justice Scalia's concurring opinion, which explains the textual and originalist understandings of the First Amendment, supports this line of thought.

For another perspective please listen to this podcast.

Devil in the Details

Energy efficiency can mean lower taxes

This headline illustrates the important concepts of primacy and recency. The leading words announce energy efficiency and the final words shout out lower taxes. These two catch-phrases pack a powerful punch.

Green policies have taken center stage in both the public and private sectors. I will even go out on a limb and suggest the prospect of reducing one's tax bill has never been unstlyish.

It cannot be seriously doubted, therefore, that the author intentionally placed these four words to encourage readers to read on. For these reasons it is no accident a tiny, three-letter word, the most crucial word of the message, is buried in the middle - "can." The author intentionally chose the word "can," like the other words in the headline. The title does not say "may," nor does it say "might." Time will tell whether the most accurate word choice would have been "might not."

Winning the battle, losing the war

This news article is another installment in the saga of The Association of New Jersey Rifle & Pistol Clubs ("Association"). On January 2, 2007 the Association prevailed at trial in its challenge to a Jersey City ordinance. The ordinance limited the purchase of handguns to one per month. Ruling for the Association, the trial court ordered the ordinance as void on grounds of preemption, equal protection, and arbitrariness.

Jersey City appealed, and on September 29, 2008 the Association again prevailed. Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Jersey City, 402 N.J. Super. 650 (App. Div. 2008). The thrill of victory, however, did not last long. After the Supreme Court of New Jersey granted the parties certification, Gov. Corzine signed into law a state-wide limitation of one handgun purchase per month on August 6, 2009. The purpose of the limitation, according to the State, is to prevent illegal gun sales. The theory is that a person who qualifies for a permit to purchase a gun buys weapons for unqualified people.

Having won in court, the Association lost on the political battlefield. At this time the Second Amendment does not apply to the States. Interestingly, New Jersey does not have a provision in its state constitution securing the right to bear arms. Instead, it derives entirely from statute. As a result, it will be interesting to see how the Association does in federal court.

Group sues to overturn NJ's one-gun-a-month law.

“Nothing so completely baffles one who is full of trick and duplicity himself, than straightforward and simple integrity in another.” Charles Colton

"Duplicity" is improper. Arising from joining distinct offenses in one count, duplicity analysis involves two steps. The first step involves statutory interpretation, and the second considers duplicity doctrine policies.

To elaborate, the first step ascertains whether an indictment properly charges a violation of the pertinent statute. To do this, courts look for legislative intent in a statute's plain text, legislative history, and judicial precedent. The second step examines concerns about charging in one count what could be several independent charges. A finding of duplicity is avoided only when these concerns are not implicated.

There are several purposes for prohibiting duplicity. First, based on a concern for accurate verdicts, duplicity can produce uncertain general verdicts of guilt which may conceal a finding of guilt as to one crime and not guilty as to another. The Second, concerned again with accuracy, to avoid the risk that the jurors may not have been unanimous about any one of the crimes charged. Third, to protect the defendant's right to notice of the charges, and to ensure notice is adequate. Fourth, to provide for appropriate sentencing. Finally, to protect against double jeopardy. These policy considerations overlap with concerns for fundamental fairness and due process. These areas of law may actually prohibit combining what could be several independent charges into a single count, even if a statute appears to allow it.

United States v. Thomas L. Root (3d Cir. 2009).