Category: reason

From a Justice Department press release yesterday:

A former leader of the Atomwaffen Division in Texas, a racially motivated violent extremist group, was sentenced today to 41 months in prison for his role in a conspiracy that conducted multiple swatting events targeting journalists, a Virginia university, a former U.S. Cabinet member, a historic African American church, an Islamic Center in Arlington, Texas, and members of various minority groups and communities across the United States.

“The reprehensible conduct in this case terrorized communities across our Nation, as innocent Americans simply tried to attend school, practice their faith, and exercise their First Amendment rights,” said Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia. “The defendants caused irreversible trauma to the victims of these hate-based crimes. This case sends an unmistakable message that those who target individuals because of their race, religion, or any other form of bias, will be identified, apprehended, and brought to justice.”

According to court documents, John Cameron Denton, 27, of Montgomery, Texas, participated in a conspiracy that conducted swatting attacks on at least 134 different locations across the United States between October 2018 and February 2019. Swatting is a harassment tactic that involves deceiving emergency dispatchers into believing that a person or persons are in imminent danger of death or bodily harm and causing the dispatchers to send police and emergency services to an unwitting third party’s address. Many of the conspirators, including Denton, chose targets because they were motivated by racial animus.

“Denton’s swatting activities were not harmless pranks; he carefully chose his targets to antagonize and harass religious and racial communities, journalists, and others against whom he held a bias or grievance,” said Timothy Thibault, acting Special Agent in Charge of the FBI’s Washington Field Office Criminal Division. “Today’s sentence demonstrates the FBI’s commitment to holding accountable anyone who terrorizes communities and threatens public safety by diverting emergency resources, which puts innocent people and first responders at risk.”

Conspirators targeted multiple locations in the Eastern District of Virginia, including a then-sitting U.S. Cabinet official living in northern Virginia on January 27, 2019; Old Dominion University on November 29 and December 4, 2018; and the Alfred Street Baptist Church in Old Town Alexandria on November 3, 2018. In each instance, conspirators selected the targets and called emergency dispatchers with false claims of pipe bombs, hostage takings, or other violent activity occurring at the targeted locations. As a result of these swatting calls, police were dispatched to Old Dominion University and the Alfred Street Baptist Church, and individuals in each location were required to shelter in place while the bomb threats were investigated. According to court documents, a conspirator admitted to choosing the Alfred Street Baptist Church as a target because its congregation is predominantly African American.

Additionally, Denton personally chose at least two targets to “swat”: the New York City office of ProPublica, a non-profit newsroom that produces investigative journalism; and an investigative journalist who produced materials for ProPublica. Denton chose these two targets because he was angry with ProPublica and the investigative journalist for publishing Denton’s identity and discussing his role in the Atomwaffen Division, a U.S.-based violent extremist group with cells in multiple states. The group’s targets have included racial minorities, the Jewish community, the LGBTQ community, the U.S. government, journalists, and critical infrastructure.

During the investigation, Denton unknowingly met with an undercover law enforcement officer and told the undercover officer about his role in the swatting conspiracy. Denton stated that he used a voice changer when he made swatting calls and admitted that he swatted the offices of ProPublica and the investigative journalist. Denton also stated that it would be good if he was “raided” for the swatting because it would be viewed as a top-tier crime, and he felt that his arrest could benefit the Atomwaffen Division….

Assistant U.S. Attorney Carina A. Cuellar prosecuted the case.

I haven’t followed the case, but, based on the press release, the result seems quite right to me. Knowingly false statements to law enforcement are generally unprotected by the First Amendment, especially when they are designed to lead to needless and potentially dangerous confrontations between the police and innocent third parties. And punishing people who target journalists, religious groups, and universities for such behavior itself helpfully protects free speech and religious freedom (though of course such swatting should be punished even when its targets aren’t chosen based on their First-Amendment-protected activities).

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From today’s opinion in Vazquez Diaz v. Commonwealth, written by Chief Justice Kimberly Budd:

This case concerns whether the use of an Internet-based video conferencing platform, Zoom .., for an evidentiary hearing during the COVID-19 pandemic violates certain of the defendant’s constitutional rights. The defendant, John W. Vazquez Diaz, has waived his right to a speedy trial and seeks to continue his suppression hearing until it may be held in person. We conclude that a virtual hearing is not a per se violation of the defendant’s constitutional rights in the midst of the COVID-19 pandemic.

Nonetheless, where the defendant has waived his right to a speedy trial and there are no civilian victims or witnesses, we conclude that the judge, who had to make a decision in unchartered territory, abused her discretion in denying the defendant’s motion to continue his suppression hearing until it may be held in person. Accordingly, we reverse the judge’s order denying the defendant’s motion to continue….

The court held that Zoom hearings don’t categorically violate the defendant’s right to be present (recognized under the Massachusetts Constitution), right to confront witnesses, right to a public trial, or right to effective assistance of counsel; but it concluded:

Here, where there are no civilian witnesses or victims, the harm to the government’s case caused by any further delay is minimal. The evidence and the testimony of police officers can be preserved adequately. The Commonwealth has presented no evidence that the officers or the evidence that is in their custody will be unavailable if the hearing is continued.

While reducing the backlog of cases is a legitimate interest, there are many other cases that may be ripe for a virtual hearing at this time. The defendant must be aware, however, that when in-person proceedings resume, there will be a significant backlog and he may not be able to obtain a hearing as soon as he might wish.

We emphasize, however, that a defendant does not have an absolute right to continue his or her Zoom hearing until it may be held in person, even where a defendant waives his or her right to a speedy trial. While a defendant’s decision to waive his or her speedy trial right to wait for an in-person hearing does minimize the public health risk presented by the COVID-19 pandemic, delaying the defendant’s motion to suppress for what may be an indefinite period of time does not come without a cost. In other circumstances, it may well be within the judge’s discretion to deny a defendant’s motion to continue.

Justice Scott Kafker concurred, in an opinion that began thus:

I agree with the court’s conclusion that the judge’s denial of the defendant’s motion to continue constituted an abuse of discretion, but I write separately to emphasize that as we zoom into the future of this brave new digital world, judges must be acutely attentive to the subtle and not so subtle distorting effects on perception and other potential problems presented by virtual evidentiary hearings. Although the scholarship of these effects and problems is still developing and requires rigorous testing in court, it raises concerns that require a cautious approach, particularly after the pandemic ends and our court rooms can return to some semblance of normal….

Most notably, it is impossible to make true eye contact via the video conferencing technology available in this case, because the camera and display are not in the same place. Lack of eye contact creates a risk that viewers will perceive the speaker as uncertain or dishonest, and results in an over-all reduction in the ability to use emotional intelligence to assess the communication.

Because they are unable to maintain eye contact, virtual participants using Zoom or like technology “may lose access to the sorts of feedback they would ordinarily receive in the physical courtroom. This ongoing sense of uncertainty about whether they are truly being paid attention to and understood may be reflected in witnesses’ demeanor while testifying, which decision-makers may then construe as a lack of confidence or lack of interactivity ….” …

Both opinions are much more detailed than the short excerpts I’ve given, and much worth reading.

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In May of 2013, Art Tobias was sentenced to 25 years’ imprisonment after confessing at age 13 to a shooting that he did not commit. Eight years later, the U.S. Court of Appeals for the 9th Circuit has ruled that Tobias can sue the officers who interrogated him for violating his Miranda rights when they ignored his request for an attorney. Yet the court gave the officers qualified immunity for allegedly violating Tobias’s 14th Amendment due process rights when they coerced him into signing a confession by fabricating evidence and insisting he’d receive better treatment in court if he gave in.

The court conceded those interrogation tactics were indeed abusive. But the officers received qualified immunity because the exact factual circumstances surrounding Tobias’s experience were not etched in a previous court precedent with razor-like precision. As such, Tobias will not be permitted to sue on that claim.

After the summer 2012 killing of Castaneda, police zeroed in on Tobias, despite being told that he bore little resemblance to the man caught on video committing murder. The boy, who was then an eighth-grader, was pulled out of school for questioning. He was not read his Miranda rights until 20 minutes into the interview; shortly after, he asked for a lawyer.

“Could I have an attorney?” he asks. “Because that’s not me,” referring to the video of the shooting.

“But—okay. No, don’t worry,” responded Los Angeles Police Department (LAPD) Detective Julian Pere. “You’ll have the opportunity.”

He was not given the opportunity. Instead, the 13-year-old was given a lot of lies, including that “somebody gave [him] up” as the murderer—they didn’t—and that if he refused to confess he’d look like a “cold-blooded killer.”

Most notably, Detective Michael Arteaga said that his mother identified him as the shooter. (She didn’t.) It’s “fucked up” and “fucking pitiful,” Arteaga continued, that Tobias’s mom would be forced to testify against her own son.

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Earlier today, the Judge Dabney Friedrich of the US District Court for the District of Columbia ruled that the nationwide eviction moratorium order issued by the Centers for Disease Control is illegal. The ruling in Alabama Association of Realtors v. Department of Health and Human Services is yet another setback for the CDC eviction moratorium, which was first issued by the Trump administration last September and then twice revived and extended under Biden (most recently until June 30). Today’s ruling is the fifth court decision holding that the eviction moratorium is illegal, including an appellate court decision by the Sixth Circuit, and three previous district court rulings (see here and here). Two trial court decisions have upheld the order.

Today’s ruling is similar to most of the previous decisions that went against the CDC order, in so far as they all conclude that the government’s position would give the CDC sweeping power to that goes far beyond anything authorized by Congress. But it differs from the earlier cases because it addresses the issue within the context of the Supreme Court’s famous ruling in Chevron v. Natural Resources Defense Council (1984), which  requires federal courts to defer to “reasonable” executive agency interpretations of statutes in cases where the agency is tasked with enforcing the law in question, and Congress has not specifically addressed the question at issue. The Biden administration argues that the CDC deserves Chevron deference in this case. The court wasn’t persuaded.

The statute the CDC relies on, 42 U.S.C. Section 264(a), gives the CDC director the authority “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” That includes “such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

Following Supreme Court precedent, Judge Friedrich notes that, before extending deference to a “reasonable” agency interpretation under “step 2” of Chevron, a federal court must first consider whether the issue in question can be resolved through “ordinary tools” of statutory construction. Like previous rulings against the moratorium, she concludes that the kind of broad delegation of power claimed by the CDC would raise serious constitutional problems, and therefore the statute must be interpreted to avoid such problems, if possible:

[T]he canon of constitutional avoidance instructs that a court shall construe a
statute to avoid serious constitutional problems unless such a construction is contrary to the clear intent of Congress…. An overly expansive reading of the statute that extends a nearly unlimited grant of legislative power to the Secretary would raise serious constitutional concerns, as other courts have found. See, e.g., Skyworks, 2021 WL 911720, at *9 (noting that such a reading would raise doubts as to “whether Congress violated the Constitution by granting such a broad delegation of power unbounded by clear limitations or principles.”); Tiger Lily, 992 F.3d at 523 (same); id. (“[W]e cannot read the Public Health Service Act to grant the CDC power to insert itself into the landlord-tenant relationship without some clear, unequivocal textual evidence of Congress’s intent to do so”)…. Congress did not express a clear intent to grant the Secretary such sweeping authority.

Judge Friedrich also concludes that the same issue prevents Chevron deference under the so-called “major questions” doctrine, which creates a presumption against the conclusion that Congress delegates major policy issues to executive agencies:

[T]he major questions doctrine is based on the same principle: courts “expect
Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.'” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (emphasis added));…. There is no question that the decision to impose a nationwide moratorium on evictions is one “of vast economic and political significance.” Util. Air Regul. Grp., 573 U.S. at 324….

Not only does the moratorium have substantial economic effects,… eviction moratoria have been the subject of “earnest and profound debate across the country,” Gonzales v. Oregon, 546 U.S. 243, 267 (2006)…. At least forty-three states and the District of
Columbia have imposed state-based eviction moratoria at some point during the COVID-19 pandemic, see 86 Fed. Reg. 16,731, 16,734, though, as the CDC noted in its most recent extension of the CDC Order, these protections either “have expired or are set to expire in manyjurisdictions,” id. at 16,737 n.35. Congress itself has twice addressed the moratorium on a nationwide-level—once through the CARES Act, see Pub. L. No. 116-136, § 4024, 134 Stat. 281 (2020), and again through the Consolidated Appropriations Act….

Accepting the Department’s expansive interpretation of the Act would mean that
Congress delegated to the Secretary the authority to resolve not only this important question, but endless others that are also subject to “earnest and profound debate across the country.” Gonzales, 546 U.S. at 267…. Under its reading, so long as the Secretary can make a determination that a given measure is “necessary” to combat the interstate or international spread of disease, there is no limit to the reach of his authority.”

The line between a “major question” as opposed to a minor one is far from clear. But, if anything qualifies as “major,” it is surely the power to suppress virtually any activity, so long as the CDC claims that doing so might reduce the spread of contagious disease. For reasons described in my very first post on this issue, that power would extent to almost any human interaction of any kind, especially since the statute’s reach is not limited by the severity of the disease (even the common cold will do!), or by the extent of reduction in spread caused by the CDC’s measure. Indeed, the CDC isn’t even required to prove that the reduction will actually happen.

As I have argued, and several court decisions have now ruled, the sweeping authority claimed by the CDC violates constitutional nondelegation principles. For much the same reasons, it also runs afoul of the “major question” constraint on Chevron.

Judge Friedrich’s analysis of the Chevron issue strikes me as compelling. At the very least, it seems to me unlikely that any judge otherwise inclined to rule against the CDC order will decide to uphold it based on Chevron. Whatever you think of the ongoing broader debate over Chevron, (which many legal scholars and judges would like to overrule or severely limit), that dog will not hunt here.

Previous rulings against the eviction moratorium have stopped short of issuing a nationwide injunction blocking enforcement. That, in turn, has allowed the CDC to continue enforcing the order against landlords who are not parties to the cases in question. Judge Friedrich, too, did not issue a nationwide injunction, or indeed any kind of injunction. She instead limits herself only to vacating the order. But she also emphasizes that this vacatur goes beyond the parties:

Both parties agree that if the Court concludes that the Secretary exceeded his authority by
issuing the CDC Order, vacatur is the appropriate remedy…  Nonetheless, the Department urges the Court to limit any vacatur order to the plaintiffs with standing before this Court. Defs….’

This position is “at odds with settled precedent.” O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019). This Circuit has instructed that when “regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioner is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal quotation marks omitted); see also O.A., 404 F. Supp. 3d at 109. Accordingly, consistent with the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and this Circuit’s precedent, see Nat’l Mining Ass’n, 145 F.3d at 1409, the CDC Order must be set aside.

In my view, it is possible to interpret this ruling as holding that the CDC order is now invalid throughout the country, not just with respect to the parties to the case. It is worth noting that the jurisdiction of the DC Circuit extends to federal administrative agency rulings throughout the country, and thus is not limited to a specific geographic area (unlike that of most other lower federal courts).

However, I admit I am not expert on these kinds of procedural issues. My understanding from those who know more is that the reach of this type of vacatur ruling is a matter of dispute among experts. Perhaps courts will have to address the issue if the CDC continues to try to enforce the moratorium, or if tenants raise the order as a defense to eviction proceedings in state court.

The legal battle over eviction order will surely continue, at least as long as the Biden administration keeps on extending the order and trying to defend it in court. This ruling, like others before it, is likely to be appealed.

Nonetheless, the rulings against the order are now piling up. After two initial wins, the federal government has compiled an impressively long losing streak, which now includes four trial court rulings and one in an appellate court.

As I have previously noted, the rulings on this issue have—so far—largely divided judges along ideological lines, with Republican appointees (with one exception), ruling against the order, even as the sole Democratic-appointed judge to consider it so far, has upheld it. Judge Friedrich continues that pattern, since she as a Trump appointee (albeit one ruling against a policy initially adopted by the Trump administration). Thus, the Biden administration might hope for better results when and if the issue is considered by more liberal appellate judges.

But such a left-right split is not inevitable. For reasons I summarize here, liberals have their own reasons to be wary of the kinds of sweeping claims of authority made by the Trump and Biden administrations in these cases:

[B]efore concluding that the CDC order is legitimate, I would urge liberals to consider whether they really want the next Republican administration to have the authority to suppress virtually any activity of any kind, so long as the CDC can assert that doing so would reduce the spread of disease even in a small way (and doesn’t have to prove that it will actually do so). Do you really want the likes of Trump, Ted Cruz, or Josh Hawley to have that kind of power?

Nondelegation is far from being a principle that only helps conservatives. Aside from the CDC eviction order, the most recent important decision invoking it was a district court ruling striking down Trump’s suspension of immigrant work visas.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.

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In a case the Supreme Court heard yesterday, Tarahrick Terry, who received a sentence of more than 15 years after he was caught with less than four grams of crack cocaine, argues that a 2018 sentencing reform bill makes him eligible for a shorter term. The U.S. Court of Appeals for the 11th Circuit rejected that claim last September. The Justice Department, which initially said the 11th Circuit was right to do so, switched sides in March.

Because of that reversal, the Supreme Court appointed Chicago lawyer Adam Mortara to defend the 11th Circuit’s ruling. Deputy Solicitor General Eric Feigen, meanwhile, joined Terry’s lawyer, federal public defender Andrew Adler, in arguing that the 11th Circuit’s decision should be reversed.

Confusing, right? I’m just getting started. The background to Terry v. United States is even more bewildering. But it is par for the course in the war on drugs, which piles one cruel absurdity on top of another, producing a scheme of punishments so complex and illogical that it is difficult to say what the law requires or allows.

In 2008, Terry pleaded guilty to “possessing with the intent to distribute” 3.9 grams of crack cocaine, an amount that weighed about as much as four paper clips. Partly because of a prior drug conviction, he was sentenced to 188 months in federal prison. That’s about four years per gram or, according to an estimate by the Drug Enforcement Administration (DEA), somewhere between five months and two years per “dosage unit.”

At the time, federal law treated smokable cocaine as if it were 100 times worse than snorted (or injected) cocaine, even though these are simply different ways of consuming the same drug. Five grams of crack—10 to 50 “dosage units,” per the DEA—triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder—1,000 to 5,000 “dosage units.” Similarly, the 10-year mandatory minimum required five kilograms of powder but only 50 grams of crack.

Terry’s 3.9 grams of crack did not qualify him for either of those mandatory minimums. But the dubious congressional judgment about the supposedly unique hazards of crack likely played a role in his sentence, which was near the high end of the range recommended by federal guidelines.

The 100-to-1 crack/powder ratio, a product of the 1980s crack panic, was created by the Anti-Drug Abuse Act of 1986, one of many draconian laws that President Joe Biden championed as a senator. It soon became apparent that the distinction between crack and cocaine powder, which never made any pharmacological sense, had a disproportionate impact on African-American defendants. Blacks accounted for 85 percent of federal crack defendants in 2000, for example, but only 31 percent of cocaine powder defendants.

Largely because of that stark racial disparity, Biden eventually had a change of heart about the 100-to-1 ratio. Two decades after he wrote the law that established it, he introduced a bill that would have eliminated it.

Biden’s bill went nowhere. But three years later, after Biden became vice president, Congress approved and President Barack Obama signed the Fair Sentencing Act of 2010, which replaced the 100-to-1 powder/crack ratio with an 18-to-1 ratio. If you do the math, you will see that crack penalties are now 82 percent less insane than they used to be. The change did not apply retroactively, however, so it provided no relief for thousands of crack offenders who were already serving sentences that nearly everyone by then agreed were too long.

The FIRST STEP Act, which President Donald Trump signed into law in December 2018, remedied that omission by making crack offenders sentenced prior to the Fair Sentencing Act eligible for resentencing. Although many of those prisoners had already been released at that point, 2,387 qualified for shorter sentences under the FIRST STEP Act’s retroactivity provision the year after the law was enacted. The question that the Supreme Court confronted yesterday was whether Tarahrick Terry also qualifies for such relief.

During the Trump administration, the Justice Department took the position that prisoners like Terry were out of luck. The FIRST STEP Act allows resentencing in cases where the “statutory penalties” were “modified” by the Fair Sentencing Act. Since Terry’s sentencing range (0 to 20 years) would be the same today as it was in 2008, the Justice Department reasoned, he did not meet that criterion. Four federal appeals courts—including the 11th Circuit, which heard Terry’s case—concurred with that interpretation.

The 1st Circuit, the 4th Circuit, and the 7th Circuit disagreed. Since the Fair Sentencing Act raised the threshold for the five-year mandatory minimum from five grams to 28 grams, they noted, it necessarily raised the ceiling for the sentencing tier below that. Hence the “statutory penalties” that apply to crack offenders in Terry’s situation were indeed “modified.”

That is also the position the Justice Department is now taking. In a March 15 letter to the Supreme Court, Acting Solicitor General Elizabeth Prelogar said “the Department of Justice has concluded that petitioner’s conviction is a ‘covered offense’ under Section 404 [the retroactivity provision], that petitioner is entitled to request a reduced sentence, and that the court of appeals erred in concluding otherwise.”

Also on Terry’s side: the four main Senate sponsors of the FIRST STEP Act. In their Supreme Court brief, Sens. Richard Durbin (D–Ill.), Charles Grassley (R–Iowa), Cory Booker (D–N.J.), and Mike Lee (R–Utah) say Section 404 of the law “authorizes relief to everyone who had been sentenced for crack-cocaine offenses before the Fair Sentencing Act became effective, including individuals with low-level crack offenses” such as Terry—whose “low-level” offense, it bears repeating, earned him a decade and a half behind bars.

“Section 404’s unambiguous text compels this conclusion,” Durbin et al. say. “It ties eligibility to whether an individual was sentenced for ‘a violation of a Federal criminal statute, the penalties for which were modified by…the Fair Sentencing Act.’ As the First, Fourth, and Seventh Circuits have all recognized, the Fair Sentencing Act modified the penalties for all crack-cocaine offenses by altering each of the three penalty tiers…That includes the lowest tier…which changed from covering zero to five grams of crack cocaine (before the Fair Sentencing Act) to covering zero to 28 grams (after).”

As the “lead drafters of the Act’s sentencing reforms,” these guys should know, right? Maybe not. During oral argument yesterday, Mortara, the Court-appointed defender of the 11th Circuit’s decision, dismissed the senators as “four members of one of our two houses of Congress,” saying their position is not “necessarily the universal view of those who voted for the FIRST STEP Act.”

Even justices who think the crack sentences imposed prior to 2010 were clearly excessive seemed inclined toward Mortara’s reading of the statute. “The ratio between crack and ordinary cocaine was ridiculous,” Justice Stephen Breyer said. “So Congress finally got around to modifying that. Fine. And anybody who had been sentenced under the old range, go back and get resentenced. Fine.” But he added that the provision under which Terry was sentenced “seems to have nothing whatsoever to do with that ratio.”

Breyer practically begged Adler, Terry’s lawyer, for a rationale to vote in his favor. “You get me out of this,” Breyer said. “I’d love to get out of it. I mean, I think [the penalties] were much too high. I understand that. But I can’t get away from this statute.”

Justice Sonia Sotomayor, who is generally more sympathetic than most of her colleagues to claims by criminal defendants, likewise was skeptical that Adler’s position could be reconciled with the text of the statute. Before the Fair Sentencing Act, she said, “if I sold anything less than five grams, my sentencing range was zero to 20 years. And after the Fair Sentencing Act, if I sold less than five grams, I was still in a sentencing range of zero to 20 years….If you sold five grams or less, your penalty remains the same before and after.”

Adler responded to these objections by arguing that “the 100-to-1 ratio affected everyone who was sentenced under that regime.” Whether or not “it affected their statutory range or guideline range,” he said, “it still affected the discretionary sentencing determination…because it provided the frame of reference through which judges assessed the severity of the offense.”

Adler noted that Terry “was four-fifths of the way to the five-year mandatory minimum.” Under the new threshold, by contrast, 3.9 grams would be just 14 percent of the amount that triggers the mandatory minimum. Justice Brett Kavanaugh agreed that the change would affect discretionary sentencing “in many cases,” but he still wondered how “you link that up to the statutory text.”

Adler replied that in the context of Section 404, “statutory penalties” refers to “the shifting of the [weight] ranges,” rather than “modification of any term of years,” which the Fair Sentencing Act did not address. He also noted that changing the crack/powder ratio had required changes in federal sentencing guidelines as well as statutory minimums.

If the Court upholds the 11th Circuit’s decision, Adler warned, high-level crack dealers could seek shorter sentences, but “those with the smallest quantities” would be ineligible. “Had Congress intended such a perverse result,” he said, “it would have said so loudly and clearly.”

Whichever way the Court rules, it probably won’t have much effect on Terry. “According to the Federal Bureau of Prisons,” Acting Solicitor General Prelogar noted in her letter to the Court, “petitioner is scheduled to complete the remainder of his term of imprisonment, which he will serve almost entirely on home confinement, on September 22, 2021. At that time, he will begin serving a six-year term of supervised release, which is the minimum term of supervised release permitted…for his offense.”

But other federal prisoners serving time for crack offenses could benefit substantially from a ruling in Terry’s favor. In its brief supporting Terry, the American Civil Liberties Union cites several examples, including Trentavius Arline, who pleaded guilty to selling less than a gram of crack for $40 and was sentenced to nearly 16 years in prison, of which he has served 11. Martin Richardson got almost 17 years for selling less than two grams of crack and is still in prison more than 11 years later.

To opponents of the war on drugs, those sentences were 16 and 17 years too long, respectively. But it should be clear even to supporters of drug prohibition that penalties like these are outrageously disproportionate. It does not seem like a stretch to argue that the legislators who voted for the Fair Sentencing Act and the FIRST STEP Act—laws specifically aimed at reducing the crack penalties that drug warriors like Biden came to regret—were trying to address such blatant injustices.

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Despite years of advocacy and legal activism from libertarian-leaning academics, the federal government continues to bar Americans from selling their kidneys. Now a service dog trainer and a personal injury attorney are teaming up to take this prohibition down.

Last month, New Jersey man John Bellocchio filed a lawsuit in U.S. District Court for the  Southern District of New York against U.S. Attorney General Merrick Garland, challenging the constitutionality of a decades-old federal ban on compensating organ donors.

“Risks are associated with the donation of an organ, yet individuals are wrongfully excluded from being provided with any incentive or compensation for the potential risks that may occur in giving their organ to another,” reads his complaint. “There is no valid constitutional or public policy rationale why one should not be able to receive a profit from such a transaction.”

For Bellocchio—the owner of Fetch and More, which places service dogs with veterans and other low-income clients—the issue of organ sales is personal. His company works primarily in Appalachia, he says, where he’s encountered many clients who are desperate for a new kidney or some extra cash.

“My colleagues and I saw that there was an enormous need both for kidneys and for money,” he tells Reason. “I think what was sort of an esoteric or ephemeral constitutional question became very real for me.”

According to his lawsuit, Bellocchio also recently experienced financial distress that led him to look into options for selling his kidney. Through that research, he learned that  doing so would put him on the wrong side of the 1984 National Organ Transplant Act (NOTA), which makes it a crime for anyone to “acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.”

Violators of this ban face a maximum fine of $50,000 and up to five years in prison.

That prohibition has left the 90,000 patients in need of a kidney on the national transplant list dependent on either finding a donor who is both a physical match and altruistic enough to part with an organ for free or waiting for the exact right stranger to die unexpectedly while they are still young and healthy. Due largely to those constraints, it’s estimated that between 5,000 and 10,000 people die for want of a kidney transplant each year. Many more are left to undergo expensive, draining dialysis treatment.

Medicare, which covers kidney patients of all ages, spent $81 billion on patients with chronic kidney disease in 2018. Medicare-related spending on patients with end-stage renal disease totaled $49.2 billion that same year.

These preventable deaths, high treatment costs, and perceived injustice of prohibiting people from voluntarily using their own body as they see fit has led a small but enthusiastic cadre of legal scholars and policy wonks to try to amend or overturn the ban on organ sales.

That includes Lloyd Cohen, a professor at George Mason University’s Antonin Scalia Law School, who has been making the case for a market in organs in journal articles and media appearances since the early 1990s.

Because of his long history of public advocacy on this issue, Cohen is usually the first stop for people looking to get more involved in the fight to end the organ war.

“My name is out there in this literature [as] one of the promoters of a market in transplant organs,” he says. “What happens is every once in a while, every three months, six months, somebody gets it in his head that this is a good idea. And they start doing research and they find my name and then they get in touch with me.”

That includes Bellocchio, who reached out to Cohen a few months ago hoping the law professor might represent him in a lawsuit challenging the federal ban on organ sales.

Cohen, who teaches but doesn’t practice law, declined to take up Bellocchio’s case. But he was able to connect him with someone who was more than eager to do so.

At the time Bellocchio reached out to him, Cohen had been corresponding with Matthew Haicken, a personal injury attorney in New York City. Like Bellocchio, Haicken became interested in the issue of kidney sales after knowing a few clients who were undergoing dialysis treatment.

“I Googled what it was and I saw videos and it just seemed awful. The more I learned about it and just how inefficient the system was. It’s always seemed ridiculous to me,” he says. Soon enough, he was reading Cohen’s writings and watching his interviews (including one video he did with John Stossel for Reason.)

His growing interest in the issue also dovetailed with his desire to do some public interest pro bono work. “I was brainstorming and I thought, hey, why not the organs issue?” he says. “As a personal injury lawyer, I’m always thinking about what is life worth, what is suffering worth, what are body parts worth?”

Once Cohen introduced Haicken to Bellocchio, the former agreed to represent him on a pro bono basis, and the two were off to the races.

Bellocchio’s lawsuit makes two constitutional claims: The first is that a ban on kidney sales violates his freedom of contract as protected by the Fifth and 14th Amendments of the U.S. Constitution. The second is his right to privacy under the 14th Amendment.

His lawsuit cites Supreme Court precedent on birth control and abortion, arguing that “the decision to have a portion of one’s own body extracted and sold to one in need is an extremely personal one and must be afforded the same privacy rights that have frequently been extended to matters of personal, bodily autonomy as mentioned above.”

This most recent challenge likely faces an uphill battle according to Ilya Somin, another law professor at George Mason University.

“Much as I wish it were otherwise, I fear the lawsuit has little, if any chance of succeeding. Under current Supreme Court precedent, laws restricting economic transactions are subject only to very minimal ‘rational basis’ scrutiny,” writes Somin at The Volokh Conspiracy (which is hosted by Reason). “I believe that precedent should be reversed, or at least significantly revised. But that is unlikely to happen any time soon.”

Past efforts to challenge the ban on organ sales have also come to naught.

Cohen says about a decade ago he worked briefly with Sally Satel, a physician and scholar at the American Enterprise Institute to try and assemble a legal challenge to the ban on compensating kidney donors.

Satel tells Reason that she and Jeff Rowes, an attorney with the Institute for Justice, had collaborated briefly on the idea, but it eventually morphed into a narrower (successful) challenge to the NOTA’s ban on compensating people who give renewable bone marrow.

On the legislative front, Rep. Matt Cartwright (D–Penn.) has proposed a bill that would clarify which types of payments to kidney and other organ donors count as legal reimbursement of expenses under NOTA, and not illegal compensation. Cartwright last introduced this bill in July 2020, but it stalled in committee.

Former President Donald Trump also issued an executive order that expands the definition of kidney donors’ legally reimbursable expenses to include the costs of travel, child care, and lost wages.

Libertarian ideas about bodily autonomy have proven surprisingly successful in recent years at liberalizing drug laws. They’re starting to move the conversation on things like sex work as well. The prohibition on kidney sales remains stubbornly stalled, however.

Satel—who once received a donated kidney from former Reason Editor in chief Virginia Postrel—chalks up the lack of progress to people’s own instinctual distaste at the idea of a market for organs, and the narrow appeal of kidney disease as an issue.

“Unfortunately, because it’s so niche, there’s only one major interest group and that’s the National Kidney Foundation,” which she says remains opposed to compensating kidney donors.

Cohen says much the same thing: “It doesn’t have an interest group that can coalesce. It’s not like a race or religion. People who themselves have had some bad luck or people in their family who’ve had bad luck and have kidney disease.”

Both Haicken and Bellocchio hope that their lawsuit can be that catalyst for change.

“I’ve been contacted by people all over the country. People are very positive about it,” says Haicken. “I have gotten some hate mail, but that’s mostly been from my friends and family.”

Only time will tell if they’ll be successful. It would be a great thing if they were, says Cohen.

“There are organs that can be restoring people to life and health instead of being fed to worms,” Cohen tells Reason. “Not because people have a fundamental objection to giving up their organs, but because it is illegal for them to get any compensation.”

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