From: jim bell <jimbell@pacifier.com>
Date: Thu, 14 Mar 96 21:21:05 PST
To: Black Unicorn <cypherpunks@toad.com>
Subject: Re: RICO and remailers (brief treatment, if long)
Message-ID: <m0txRGg-00091GC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 07:30 PM 3/13/96 -0500, Black Unicorn wrote:
>0
>Several people expressed interest in a small treatment of seizure law 
>jurisprudence, and the Bennis case (seizure of an automobile used for 
>soliciting prostitution was upheld even where one of the owners knew 
>nothing about its use for a crime and which Mr. Bell has relied on 
>fairly heavily in pointing out that the Supreme Court has its "head 
>up its ass.")

"Relied on"?  Hell no!  Not when I get the following text, from an anonymous 
source.  

Begin quotation:


So he wants a cite of Supreme Court decisions from you bearing on  
legislative history & congressional intent, does he?

I've attatched the relevant syllabus <summary> which is from the  
Supreme Court reporter & carries no legal weight, along with the  
UNANIMOUS decision in Neal written by Kennedy. It's an acid case, the  
Supreme court having ruled a long time ago in Chapmann that the ENTIRE  
weight of of LSD AND blotter paper, which usually contains 100mcg or  
0.1mg of actual LSD-25 per dose, vs. the enormous weight of the paper.  
This entire weight of basically all paper has been used to give 21 year  
old 1st offenders 10 YEARS, which under current Federal Rules works out  
to about 8.5 years FLAT time in the joint.  The original  
absurdity was challenged in Chapman but the SC blindly stuck to it's  
own reading of "mixture or substance", blindly ignoring reality &  
Congressional intent that "cuts" of drugs such as heroin or cocaine  
being an attempt to increase the amount sold & therefore profit, should  
be punished, while the LSD paper was merely a way to transport &  
distribute it. As far as congressional intent goes, Joseph Biden has  
said that as chairman of the senate judiciary committee, they gave  
little thought to LSD but they definitely did NOT mean weigh the whole  
blotter paper in handing out nickels & dimes. Now the US Sentencing  
Commission has changed the guidelines by changing the way the dosage is  
calculated to something reasonable, the SC refuses to make the change  
retroactive to help a lot of people. Note where Kennedy basically says  
that if Congress passees laws that are poorly worded & subject to  
create great unfairness in sentences, the SC, once they've made a  
stupid decision in interpretation will stick to it no matter how unfair  
it is in order to make congress write laws that are linguistically  
intelligible. This would be fine if those on the sharp end of them were  
congressmen. The more Supreme Cocksucker decisions I read like this,  
the better BOTH your big ideas sound.

This & all recent other decisions of the 9 in-Justices are available at  
the below address. 



http://spoke.law.cornell.edu:8001/supct/opinionlist.1995.html

Syllabus:
  
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NEAL v. UNITED STATES
certiorari to the united states court of appeals for the seventh circuit
No. 94-9088.   Argued December 4, 1995-Decided January 22, 1996

When the District Court first sentenced petitioner Neal on two plea-
 bargained convictions involving possession of LSD with intent to
 distribute, the amount of LSD sold by a drug trafficker was deter-
 mined, under both the federal statute directing minimum sentences
 and the United States Sentencing Commission's Guidelines Manual,
 by the whole weight of the blotter paper or other carrier medium
 containing the drug.  Because the combined weight of the blotter
 paper and LSD actually sold by Neal was 109.51 grams, the court
 ruled, among other things, that he was subject to 21 U. S. C.
 841(b)(1)(A)(v), which imposes a 10-year mandatory minimum sen-
 tence on anyone convicted of trafficking in more than 10 grams of
 ``a mixture or substance containing a detectable amount'' of LSD. 
 After the Commission revised the Guidelines' calculation method by
 instructing courts to give each dose of LSD on a carrier medium a
 constructive or presumed weight, Neal filed a motion to modify his
 sentence, contending that the weight of the LSD attributable to him
 under the amended Guidelines was only 4.58 grams, well short of
 841(b)(1)(A)(v)'s 10-gram requirement, and that the Guidelines'
 presumptive-weight method controlled the mandatory minimum
 calculation.  The District Court followed Chapman v. United States,
 500 U. S. 453, 468, in holding, inter alia, that the actual weight of
 the blotter paper, with its absorbed LSD, was determinative of
 whether Neal crossed the 10-gram threshold and that the 10-year
 mandatory minimum sentence still applied to him notwithstanding
 the Guidelines.  In affirming, the en banc Seventh Circuit agreed
 with the District Court that a dual system now prevails in calculat-
 ing LSD weights in cases like this.
Held:  Section 841(b)(1) directs a sentencing court to take into account
 the actual weight of the blotter paper with its absorbed LSD, even
 though the Sentencing Guidelines require a different method of
 calculating the weight of an LSD mixture or substance.  The Court
 rejects petitioner's contentions that the revised Guidelines are
 entitled to deference as a construction of 841(b)(1) and that those
 Guidelines require reconsideration of the method used to determine
 statutory minimum sentences.  While the Commission's expertise
 and the Guidelines' design may be of potential weight and relevance
 in other contexts, the Commission's choice of an alternative method-
 ology for weighing LSD does not alter Chapman's interpretation of
 the statute.  In any event, stare decisis requires that the Court
 adhere to Chapman in the absence of intervening statutory changes
 casting doubt on the case's interpretation.  It is doubtful that the
 Commission intended the Guidelines to displace Chapman's actual-
 weight method for statutory minimum sentences, since the Commis-
 sion's authoritative Guidelines commentary indicates that the new
 method is not an interpretation of the statute, but an independent
 calculation, and suggests that the statute controls if it conflicts with
 the Guidelines.  Moreover, the Commission's dose-based method
 cannot be squared with Chapman.  In these circumstances, this
 Court need not decide what, if any, deference is owed the Commis-
 sion in order to reject its contrary interpretation.  Once the Court
 has determined a statute's meaning, it adheres to its ruling under
 stare decisis and assesses an agency's later interpretation of the
 statute against that settled law.  It is the responsibility of Congress,
 not this Court, to change statutes that are thought to be unwise or
 unfair.  Pp. 4-12. 46 F. 3d 1405, affirmed.
 Kennedy, J., delivered the opinion for a unanimous Court.


end of anonymous quotation.  JB.

My commentary continues below: JB.

Note the sentence above,

"It is the responsibility of Congress, not this Court, to change statutes 
that are thought to be unwise or unfair."  

As far as I am aware, there is no _legal_ mechanism, short of impeachment 
(but how practical is that?), to remove a sitting SC justice, no matter how 
damaging his effect on the country by his decisions.  Thus, I propose 
re-writing the above sentence a bit:


"It is the responsibility of the citizenry, not Congress, to 'change' 
Supreme Court Justices that are thought to be unwise or unfair."

Since that change can be accomplished if that 'Justice' dies or becomes 
disabled, (or retires, perhaps because he's in fear for his life) I think 
the answer to boneheaded decisions like the Bennis one is obvious.

Jim Bell
jimbell@pacifier.com