The Mouse That Didn’t Roar

A lot has been written in the past few days (and will be written in the foreseeable future) about the legacy of the late Ruth Bader Ginsburg, both as an advocate before the Supreme Court and as a long-serving Justice. I wanted to highlight something that might get overlooked in all that (although at least one other commentator mentioned it), an instance where she made a huge impact on an important part of federal law without any explanation of why she made the decision she did.

Sentencing in federal criminal cases changed dramatically in the 1980s. Up until then, judges had great leeway to impose a sentence within a broad statutory range, with release on parole at the back end further mitigating potentially harsh sentences. Confronted with great disparities in sentencing, a bipartisan law, the Sentencing Reform Act (passed in 1984) gave birth the US Sentencing Guidelines (which went into effect in 1987).

The Guidelines are a mechanistic system that converts not just the defendant’s offense of conviction but related conduct into an “offense level” that goes from 0 to 43. Many of the facts related to that calculation comes from judges, not juries, and can even include conduct for which the defendant was acquitted at trial. The Guidelines do a similar thing with a defendant’s criminal history, placing them in a Criminal History Category from I to VI. Where those two values meet is the Guideline range, where the sentence is supposed to be imposed.

Starting in 1987 judges, for the most part, were required to impose sentences within that range (exceptions were largely controlled by the Guidelines, too).

From the get go, defense attorneys argued that the Guidelines (and various state equivalents) violated the Sixth Amendment because they increased punishment for a defendant based on facts beyond those found by a jury (or admitted during a guilty plea). Judges finding facts, the argument went, shouldn’t be the basis for ratcheting up punishment. Courts weren’t interested, however, and the Guidelines helped to drive the country’s overincarceration problem for the next two decades.

Things started to change in 2000, when the Supreme Court held that a New Jersey statute that allowed a judge to increase the statutory punishment for a defendant based on a judicially-found fact violated the Sixth Amendment. Ginsburg was in the majority in that case, but the cause of the revitalized Sixth Amendment was really championed by her opera buddy, Justice Scalia. With that case in hand, defense attorneys once again began to argue that the Guidelines were unconstitutional. Now the issue was whether an increase in those Guideline ranges were an increase in the statutory maximum for a particular offense.

Nothing came of those arguments until 2004, when the Supreme Court decided Blakely v. Washington. Blakely involved a sentencing guideline scheme in Washington state that was very similar to the federal Guidelines. In a 5-4 decision, the Court held that those guidelines violated the Sixth Amendment. Notably, the Court didn’t prescribe any kind of remedy, instead remanding the case and letting Washington deal with it. Ginsburg was, again, in the majority.

After Blakely it was only a matter of time before the Court had to consider what this all meant for the federal Guidelines. In 2005 the Court finally dealt with the matter in United States v. Booker. The facts of the case lay out the starkness of the issue – Booker was convicted of a drug offense that carried a statutory range of 10 years to life in prison. His Guideline range, on the other hand, bulked up by judicially found facts about the amount of drugs involved, was 30 years to life in prison. Two decades in a cage is a hell of a thing to require based on facts found by a single person (and not even beyond a reasonable doubt).

Booker, as it turned out, was actually two decisions for the price of one. In the first, the 5-4 majority followed Blakely and held that the US Sentencing Guidelines violated the Sixth Amendment. In the second, a different 5-4 majority held that rather than leave it at that and let lower courts and Congress sort it out, the appropriate remedy to resolve the issue was to strike down the statutory language that made the Guidelines mandatory in the first place. Thus were the advisory Guidelines born, which we’ve had ever since.

What made for these two conflicting opinions? After all, most of the majority for the remedial opinion were dissenters from the other opinion (led by Justice Breyer, who helped draft the initial Guidelines). It was Ginsburg – she was the fifth vote in both majorities. But in a rare instance of opaqueness, she didn’t write an opinion explaining her decision. Sure, she joined the ones written by Stevens and Breyer that were the majority opinions, but she didn’t write separately to explain why she had a foot in both camps.

In a career that made a lot of impact on peoples’ lives, Ginsburg’s decision in Booker may be her most important. Since the Guidelines became advisory in 2005 hundreds of thousands of people have been sentenced as part of a system she basically created (for some idea of the numbers, in its last report to Congress on the impact of Booker, the Sentencing Commission noted that more than 85,000 defendants had been sentenced in the past year). Yet there was no sweeping opinion, no reading from the bench to spur Congress into action. Just a decision, made thoughtfully I’m certain, but without any transparency.

Are we – or, should I say, are federal criminal defendants – better off with the advisory Guideline scheme rather than whatever else Congress might have created? Hard to say, given how little experience the system has with juries finding sentencing facts. I will say that judges have seized their authority under Booker (and its progeny) to vary from and, in some cases, completely ignore the “advice” provided by the Guidelines. Still, they exert a kind of gravitational pull at sentencing and are pretty central to most proceedings. It’s the irony that gets me, I suppose. Ginsburg was arguably the Court’s most public face over the past few years. That she has had such a major impact without doing much more than casting a vote seems out of whack, but such is life. And the law.

My First Web Page!

I was trying to go all Marie Kondo on my bookmarks the other night when I came across an Internet Archive link to a fun bit of my past – my very first web page!

Now, this wasn’t the original version (for one thing, it was originally 100% image free!), but this gives you a fair idea of what things were like in the days before easy-to-use blog software like our platform here at WordPress. In fact, this was current to just before I started my current job. Each of those links went to a separate page, coded in HTML (very basically) by yours truly. What was I talking about back then?

Mostly music, if I’m honest. Probably the busiest part of the site, and the one that got me some connection with actual readers, was the album reviews page. Starting when I was in law school (when the page originally went up) I reviewed pretty near every album I got. As you can see from the list of reviews, I was digging into the expanding world of progressive rock, which I’d thought died in the 1970s. I stopped doing those (around 2000, it looks like) because I wound up only being interested in writing about the stuff that was really great or really awful and ignoring the stuff in the middle (which was most of it, after all). It’s the same reason these days that my “Weekly” posts aren’t anywhere near weekly – I really don’t write a review unless I have something to say about a piece of art these days.

Aside from reviews, I had the unmitigated Millennium-fueled gall to put together a list of the “Top 100 Musicals Works of the Twentieth Century.” Holy shit, the audacity! Even though I limited it to stuff I’d actually heard, I still must have been feeling pretty full of myself. These days if I did something similar I’d put “favorites” in the title prominently, just to make clear it was all one guy’s opinion. Digging around the Archive I found the list itself, which I’ll reproduce here for the sake of posterity:

First Suite in E-flat for Band, by Gustav Holst (1911)
Lu Sacre di Pritemps, by Igor Stravinsky (1913)
The Planets, by Gustav Holst (1918)
Firebird Suite, by Igor Stravinsky (1919)
The Pines of Rome, by Ottorino Respighi (1924)
Rhapsody in Blue, by George Gershwin (1924)
Concerto de Aranjeuz, by Joaquin Rodrigo (1939)
Commando March, by Samuel Barber (1943)
Testament of Freedom, by Randall Thompson (1943)
Appalachian Spring Suite, by Aaron Copland (1945)
Symphony # 3, by Aaron Copland (1945)
Concerto for Clarinet and String Orchestra, by Aaron Copland (1946)
La Fiesta Mexicana, by Owen Reed (1949)
Symphonic Songs for Band, by Robert Russell Bennett (1957)
Time Out, by The Dave Brubeck Quartet (1959)
Kenton’s Christmas, by Stan Kenton (1961)
Symphony #13 (Babi Yar), by Dimitri Shastakovitch (1962)
Elegy for a Young American, by Robert LoPresti (1965)
Variations on a Korean Folk Song, by John Barnes Chance (1965)
Music for Prague 1968, by Karel Husa (1968)
Abbey Road, by The Beatles (1969)
Hot Rats, by Frank Zappa (1969)
In the Court of the Crimson King, an observation by King Crimson (1969)
Tommy, by The Who (1969)
Nursery Cryme, by Genesis (1971)
Pawn Hearts, by Van der Graff Generator (1971)
Storia di un Minuto, by Premiata Forneria Marconi (1971)
Fragile, by Yes (1972)
Close to the Edge, by Yes (1972)
Thick as a Brick, by Jethro Tull (1972)
Brain Salad Surgery, by Emerson, Lake and Palmer (1973)
Dark Side of the Moon, by Pink Floyd (1973)
Octopus, by Gentle Giant (1973)
Quadrophenia, by The Who (1973)
Selling England by the Pound, by Genesis (1973)
Red, by King Crimson (1973)
Relayer, by Yes (1974)
Electromagnets, by The Electromagnets (1975)
Katy Lied, by Steely Dan (1975)
The Rotters Club, by Hatfield and the North (1975)
Wish You Were Here, by Pink Floyd (1975)
Romantic Warrior, by Return to Forever (1976)
Seconds Out, by Genesis (1977)
Briefcase Full of Blues, by The Blues Brothers (1978)
Hemispheres, by Rush (1978)
Just A Game, by Triumph (1978)
Of Queues and Cures, by National Health (1978)
Please Don’t Touch, by Steve Hackett (1978)
UK, by UK (1978)
At Budokan, by Cheap Trick (1979)
Joe’s Garage, by Frank Zappa (1979)
Sweeney Todd: The Demon Barber of Fleet Street, by Stephen Sondheim (1979)
Discipline, by King Crimson (1981)
Moving Pictures, by Rush (1981)
You Are What You Is, by Frank Zappa (1981)
All The Best Cowboys Have Chinese Eyes, by Pete Townshend (1981)
The Nightfly, by Donald Fagan (1982)
Under A Blood Red Sky, by U2 (1983)
Grace Under Pressure, by Rush (1984)
Misplaced Childhood, by Marillion (1985)
The Wake, by IQ (1985)
Bring on the Night, by Sting (1986)
Cold Snap, by Albert Collins (1986)
Graceland, by Paul Simon (1986)
Tones, by Eric Johnson (1986)
Symphony #1 (Lord of the Rings), by Johann de Meij (1988)
Vivid, by Living Color (1988)
High Tension Wires, by Steve Morse (1989)
Ah Via Musicom, by Eric Johnson (1990)
Toy Matinee, by Toy Matinee (1990)
Doo Dad, by Webb Wilder (1991)
II, by Animal Logic (1991)
Live At The Apollo, by B.B. King (1991)
The Sky Is Crying, by Stevie Ray Vaughn (1991)
The Best Band You Never Heard In Your Life, by Frank Zappa (1991)
After Hours, by Gary Moore (1992)
Bring ’em Back Alive, by The Dixie Dregs (1992)
Images and Words, by Dream Theater (1992)
Suffocating the Bloom . . ., by echolyn (1992)
UFO Tofu, by Bela Fleck and the Flecktones (1992)
Blues Summit, by B.B. King (1993)
Deus ex Machina, by Deus ex Machina (1993)
Harbor Lights, by Bruce Hornsby (1993)
Mystic Mile, by Robben Ford and the Blue Line (1993)
Awake, by Dream Theater (1994)
Brave, by Marillion (1995)
Epilog, by Anglagard (1994)
Under the Table and Dreaming, by The Dave Mathews Band (1994)
Afraid of Sunlight, by Marillion (1995)
Alive In America, by Steely Dan (1995)
As The World, by echolyn (1995)
Hot House, by Bruce Hornsby (1995)
The Light, by Spock’s Beard (1995)
Live!, by The Police (1995)
Live Art, by Bela Fleck and the Flecktones (1996)
Blood of the Berry, by Timothy Pure (1997)
more once more, by finneus gauge (1997)
OK Computer, by Radiohead (1997)
Sluggo!, by Mike Keneally and Beer For Dolphins (1997)
Vertu, by Vertu (1999)

You’ll also notice a link to what I called “Random Thoughts,” which was the closest thing I had to a regular blog back then (as you can see, “Random Thoughts Redux” was a blog proper, although it didn’t last long). This wasn’t a regular thing, more of a situation where if something struck me in a certain way I’d get riled up enough to write about it – sports, politics, a little bit of law. What’s completely missing, of course, is any writing about writing itself. I was several years away from starting to write fiction, much less releasing entire books of the stuff.

Other things on the old page were links to a project I did in law school called “Practical Moral Philosophy for Lawyers,” an attempt to grapple with some practical ethical questions in a different way. In typical lawyerly fashion, it doesn’t provide any hard answers. There were also links to my play-by-email fictional indoor soccer team, Morgantown Mountaineers FC (I think we won a couple of trophies over the years, but I can’t find any evidence of that) and my autocross exploits as Legal Eagle Racing (haltingly making a comeback in the Year of the Plague).

I’m not normally one to wallow in nostalgia. Still, it’s fun to look back at this and think I’ve been on the Internet, feeding the silence on and off for more than two decades. It’s hard to remember what it was like in the days before we all had instant platforms for sharing what we think. Whether that’s a development that’s good or bad, time will still tell.

Serious Fantasy Revisited

A few weeks ago I put up a post wondering whether people are inclined to treat science fiction more seriously than fantasy – that is, more likely to capably deal with “big” issues – to the point that it shades peoples’ perceptions of what is and isn’t fantasy. The very same day I posted that I came across another head-scratching example that I wanted to share.

Over at Tor, James Davis Nicoll posted an article about six books that “defy easy categorization” and straddle the sci-fi fantasy divide. I’ll admit that I wasn’t familiar with most of these (several went on my “to read” list). The one I was familiar with, however, left me shaking my head. That was Octavia Butler’s Kindred.

As Nicoll explains, Kindred is about a black woman from modern American (it was written in ??) who, inexplicably, is ripped back in time to before the Civil War where she is exposed, brutally and graphically, to the horrors of slavery. It’s a tough read, to be sure, but it’s brilliant. As for its classification, Nicoll writes:

But is it science fiction or fantasy? While I will grant that the physical mechanism is never explained, Dana is caught up in a stable time loop whose logic dictates much of what happens to her. . . .. Butler thought Kindred was fantasy, but it also seems perfectly reasonable to call it science fiction.

It really doesn’t, any more that it seems perfectly reasonable to give Donald Trump the benefit of the doubt on any factual dispute at this point. As Nicoll says, there’s no explanation or mechanism given for the main character’s time travel. It just happens. It’s certainly not the result of some kind of deep tech or scientific advancement. It’s more one of those Twilight Zone setups you just accept as existing, without wondering why. That, to me, is the defining feature of fantasy – here’s a world that’s different than ours, accept it (or don’t) and move on.

So why try and turn Kindred into science fiction? Could it be that it deals with deeply serious and traumatic topics that most people don’t associate with fantasy? I don’t buy the “it’s magic, but it’s magic that follow rules, therefore it’s sci-fi” logic. Brandon Sanderson’s Mistborn series (to pick an example) has a very regimented, logical, magic system (it sometimes feel like video game controls), but nobody would call it sci-fi, would they? Fun as those are, they don’t deal with the kind of issues that Kindred does, however.

I shared my original post with a group of sci-fi and fantasy writers on Facebook and got some interesting answers (and some amusing ones – to the question of “is sci-fi more ‘serious’ than fantasy,” one person just answered “yes”). The one that really caught me was this one:

Now, being a prog fan, I should have come up with this one myself. Nonetheless, I think bringing musical genres into this might help shed some light on the question. I think this is something that happens to new fans of all musical genres, but I’ve seen it repeatedly with prog fans (I may have even gone through it a bit myself): Fan of a particular bands discovers they’re generally classified as “progressive rock,” finds out that there’s more groups out there with similar characteristics, falls madly in love with “prog” as a thing and . . . starts to expand its boundaries exponentially. In other words, they go from “prog = good” to “good = prog” and try to define every band they like into their new favorite genre. No matter how great XTC are (and they are great!), they aren’t a progressive rock band – nor do they need to be categorized as such!

Is the same thing going on here? Are people who are normally drawn to sci-fi reading fantasy novels and feeling the need to reclassify them accordingly? I know sometimes there’s a rift between fans who only dig one or the other (I still remember the howls when the then-Sci-Fi Channel dares to show something that might actually be fantasy!), so maybe there’s some desire to cleave off the stuff at the margins and claim it one way or the other.

Maybe that’s what I’m doing. As I said in the original post, my beef is less about erecting boundaries around genres erasing grey areas and more the desire to see people treat fantasy (or crime fiction or romance or . . .) as just as able to raise serious issues as other genres. But maybe, in the end, it’s a lot of sound a fury and all that.

A Mountaineer In the Duke of York’s Shire

Back in the spring, when the first blush of the pandemic shut things down around the world, one of the “holy shit, this is serious” moments was when the sports world ground to a halt. In the United States the big deal was when the NCAA men’s basketball tournament, March Madness, was cancelled outright. In Europe, soccer leagues shut down one by one across the continent.

At the time, there were serious discussions about what that meant for the 2019-2020 season that was in the home stretch. Would it be completed later, keeping in mind that the 2020-2021 season kicks off in August? Would the standings be set and stone at the time things were halted, even though the season wasn’t complete? That’s the path the French leagues took, setting final tables based on points earned per game. Would the powers that be simply declare things over, void, and disappear the entire season? That’s what the Dutch leagues did.

In England, the debate about how, and whether, to finish the season centered around Liverpool FC, which were well on their way to their first Premier League title and first top-flight championship in three decades. I was more interested in what was going to happen in the Championship, England’s second tier, where Leeds United topped the table at the time things shut down. It had been 16 years since Leeds had been in the Premier League and I’d been rooting for them to get back all that time.

Why? How does a person born and raised in West Virginia come to root for a team in Yorkshire?*

While I played soccer growing up, it wasn’t really until I was in college that I became a fan of the game. Part of that was due to the 1994 World Cup, which was hosted in the United States and all over TV. Major League Soccer was an outgrowth of that, too. But what really captured my attention was the one-game weekly broadcasts of UEFA Champions League games on a regional sports station. In the Champions League the top teams from all over Europe (each nation has its own league – even each of the UK nations have their own!) from the previous season play to crown a continental champion.

That’s where I first met Leeds United.

LUFC Logo

At the time I didn’t know anything about Leeds or the county, Yorkshire, when the city is located. What I saw was a team that appeared to be overachieving. It appeared to be doing it with young talent that was largely British or Commonwealth based (it was a little odd for a newbie to see English teams primarily made up of players from around the world – I hadn’t learned about the Bosman ruling yet). In other words, they looked like underdogs and I’ve always had a soft spot for underdogs. So they won my support.

In the years since I’ve developed a little bit of an affinity for Leeds and Yorkshire. Two of my favorite bands are from Leeds, The Tangent (or at least its main man, Andy Tillison) and Kaiser Chiefs. The latter is even named after the prior club of former Leeds captain Lucas Radebe! And Yorkshire has a history as one of England’s major producers of coal, so it resonates with my West Virginia roots.

Now, at the time, I didn’t know that Leeds United had a glorious history, particularly in the mid-1960s and early 1970s  when they were one of England’s elite (around the same time progressive rock ruled the land – coincidence?). From the time I was in law school until just about the time I started my current gig in 2002, things were like that again, with the team finishing in the top five for five consecutive seasons.

Then the wheels came off. The team had made some bad financial decisions, gotten overstretched on credit, and had to sell some of its best young players. The bottom fell out and the team was relegated to the Championship and then, three seasons later, to League One (which, confusingly is England’s third tier – the equivalent to AA baseball). They bounced back to the Championship at the start of this decade, but were frustratingly underachieving, until crashing out in the promotion playoffs last year.

Which is what made the pandemic pause so nerve wracking. This season it looked like promotion was theirs to take. Would the interruption mess with the team’s chemistry? Would a compressed schedule put too much stress on Marcelo Bielsa’s thin squad? Would there even be any more games? Thankfully, the rest of the season played out and the right result ensued:

BBCLeedsHeadlineNYTLeeds

Had the pandemic not swept along, my wife and I had planned to visit England and Scotland in the spring and see Leeds play at Elland Road. We might have wound up at the game where they clinched promotion. Alas, it was not to be. At least the promotion part happened! “Marching On Together” as they say.

* I should note that I do my soccer loyalties like some people do publishing rights – for the United States and then for the rest of the world. I root for DC United in Major League Soccer. Who suck so bad right now they’re giving me all the soccer pain I can handle.