Legislation
Class Notes
Last
Friday, we noted that a number of states passed laws in the 19th century
saying that juries should be selected from a list of qualified voters.
What
do you do with the purpose analysis?
What did society want? Did they
want to know who they could tap as jurors?
Do we let the list expand?
What’s
the legislative purpose? What’s the best
answer? It came out both ways. How do the different models point in
different directions?
Four
drug dealers are sentenced to mandatory minimum prison terms of between 5-10
years for selling LSD based on the weight of what they sold. The appeal is only about their sentences, not
their culpability. Read the statute!
How
do we evaluate the quantities of controlled substances? How do we define “mixtures” and “substances”?
The
issue in this case is whether the statute requires the carrier medium to be
included in the weight required to get to the weight necessary to get to the
minimum sentence.
Easterbrook
starts by conceding that including the weight of the carrier creates the
possibility of some unusual results because the pure drug weighs almost nothing
(this is what Posner will say later). How
does Easterbrook deflect this concern in real world terms? He thinks that it might not be as bizarre as
Posner thinks it is because drugs other than LSD are diluted at similar
rates. Heroin is usually only 2-3% pure
when sold on the street. Easterbrook
wants us to know that he is sensitive to the potentially bizarre implications
of how this sentencing scheme will be carried out before he engages in a
bloodless textual analysis.
Easterbrook
says if the results of textual analysis look absurd, people start to think that
it’s time to get away from the text. So
before Easterbrook goes off on his textual analysis, he wants to argue that the
result is not actually absurd.
Just
what does the text say? Easterbrook says
that the words of § 841 can’t be made to apply only to the weight of the
drug. What’s the significance of the
phrase “detectable amount”? “Detectable”,
according to Easterbrook, must mean “detectable inside of something else”. What about the word “mixture”? Should you consult a dictionary when you look
at “ordinary meaning”?
What
does “ordinary usage” mean to Easterbrook?
It means the average understanding of the “average person” like you or
me. How is that different from a congressional
definition or a chemistry definition or a dictionary definition? The “ordinary meaning approach” is kind of
resonant. But just what is that
approach? A chemist would have a
different understanding of “mixture” than a regular person, and also maybe
different from a legislator.
Should
we expect that if we look at a dictionary that the terms will be roughly
comparable? There may be potential
confusion. You hope for convergence, but
there might not be.
Should
we look at how a chemist approaches detection?
Can we potentially make an argument about notice based on due process?
Would
a textualist want to look at a definition at the time
the statute is enacted?
This
is an area where the textualist approach and the best
answer approach are not too far apart.
What is the most sensible way to look at law? You want it to govern people, especially in
the criminal area, in a way that people can understand, especially when it
comes to giving notice.
Just
what dictionary do we use? Or do we want
to look at lots of dictionaries? (Muted
trumpet going: wha wha wha wha.)
Dictionaries
play a role here. These are questions
that judges almost never ask. When the Supreme
Court relies on dictionaries, you’ll find absolute chaos in terms of just what
they are relying on. Some scholarly
articles argue that the only thing that seems predictable is that you can
always find dictionary definitions to support the position that you want to
come to anyway.
We’re
using dictionaries as a proxy for “ordinary meaning”. If we really need to, maybe we just look at
as many dictionaries as possible. If
there are conflicts, then maybe we don’t rely on dictionaries as much.
The
same amount of LSD might get you 10 years if it’s in a mixture, but not 10
years if it’s in a substance. It seems
weird to think that Congress would have intended such disparate results.
Is
there another, stronger textualist dimension to this
opinion that goes beyond words alone?
What does Easterbrook do beyond looking at the meaning of individual
words? He looks at the statute as a
whole and the structure of the provision.
The
last bit from Easterbrook’s point of view is that there may be a constitutional
problem. We’ll spend more time later on
the canon of avoiding constitutional problems and the rule of lenity.
Tomorrow,
we’ll study the two dissents a little bit.