text:
Mandatory Minimum Sentencing Provisions Under Federal Law
Judge Sessions and fellow Members of the United States Sentencing Commission, thank you for giving me the opportunity to speak today on the subject of mandatory minimum sentencing provisions under federal law. My name is Erik Luna, and I am a law professor at Washington and Lee University School of Law and an adjunct scholar with the Cato Institute.1 In my allotted time, I will briefly discuss some concerns about the rise and persistence of mandatory minimums in the federal criminal justice system.
The basic critique of mandatory minimum sentencing schemes is well known and becoming more widely accepted. To begin with, mandatory minimums do not serve the traditionally accepted goals of punishment. All theories of retribution (and some conceptions of rule utilitarianism) require that punishment be proportionate to the gravity of the offense, and any decent retributive theory demands an upper sentencing limit.2 The notion of proportionality between crime and punishment expresses a common principle of justice, a limitation on government power that has been recognized throughout history and across cultures,3 and a precept "deeply rooted and frequently repeated in common‐law jurisprudence."4 Mandatory minimums eliminate judicial discretion to impose a prison term lower than the statutory floor, making case‐specific information about the offense and offender irrelevant, at least to the extent that these facts might call for a below‐minimum sentence. For this reason, mandatory minimums are indifferent to proportionality concerns and can pierce retributive boundaries through obligatory punishment.
Mandatory minimums may not fulfill consequentialist goals either, by failing to provide effective, efficient deterrence or meaningful incapacitation. Clarity and certainty of punishment are not synonymous with deterrence, which requires that a defendant not only know the rule, but also believe that the costs outweigh the benefits from violating the law and then apply this understanding to decision‐making at the time of the crime. Most offenders neither perceive this balance of costs and benefits nor follow the rational actor model.5 In turn, incapacitation is only effective if: (1) the person imprisoned would otherwise commit crime, and (2) he is not replaced by others. Mandatory minimums prove problematic on both criteria. Offenders typically age out of the criminal lifestyle, with long obligatory sentences requiring the continued incarceration of individuals who would not be engaged in crime. Moreover, certain offenses subject to mandatory minimums can draw upon a large supply of potential participants; with drug organizations, for instance, an arrested dealer or courier is quickly replaced by another. It is not surprising, then, that most researchers reject crime‐control arguments for mandatory sentencing laws.6
Mandatory minimums generate arbitrary outcomes as well.7 They can have a "cliff effect" by drawing seemingly trivial lines that carry huge consequences. One of the more notorious examples is provided by the compulsory 5‐year sentence for the possession of 5.0 grams of cocaine base. Crack cocaine offenders face a steep cliff under this law, where someone caught with 4.9 grams receives a relatively short sentence — but add a fraction of a gram and a half‐decade in federal prison necessarily follows, with the defendant falling off the "cliff." Mandatory minimums can also have a "tariff effect," where some basic fact triggers the same minimum sentence regardless of whether the defendant was, for instance, a low‐level drug courier or instead a narcotics kingpin. Perversely, the tariff may be levied on the least culpable members in a criminal episode, given that those in leadership positions often have valuable information that is unavailable to low‐level offenders (i.e., the type of material that can be used as a bargaining chip with prosecutors).8
This raises the more general question as to the propriety of extracting information and guilty pleas through the threat of mandatory minimums. Such practices impose a "trial tax" on defendants who exercise their constitutional rights to trial by jury, proof beyond a reasonable doubt, and other trial‐related guarantees — the tax being the mandatory minimum sentence that otherwise would not have been imposed.9 Sometimes maximum leverage is obtained through a process known as "charge stacking" (or "count stacking"), whereby the government divides up a single criminal episode into multiple crimes, each carrying its own mandatory sentence that can then be stacked, one on top of the other, to produce heavier punishment.10 This may be particularly troubling when law enforcement procures further crimes through its own actions, such as arranging a number of controlled drug buys in order to achieve a lengthy sentence.11 In multi‐defendant cases, there is also an issue of fairness when disparate punishment is the result of a "race to the prosecutor's office," with the defendant who pleads first — sometimes the one who has the savviest or most experienced defense counsel — avoiding a long mandatory sentence.
Moreover, the mechanical nature of mandatory minimums can entangle all criminal justice actors in an oxymoronic process where facts are bargainable, from the amount of drugs to the existence of a gun. The participants will figuratively "swallow the gun" to avoid a factual record that would require a mandatory sentence.12 To be sure, these machinations appear reasonable in difficult cases by evading excessive sentences demanded under the federal regime. But the end result is a legal subterfuge that can only undercut the legitimacy of the criminal justice system and its actors. The moral authority of law depends not merely on just outcomes but also justifiable procedures in reaching such results. "Our government is the potent, the omnipresent teacher," Justice Louis Brandeis once warned, and "if the government becomes a lawbreaker, it breeds contempt for law."13 It almost goes without saying that a legitimate, properly functioning criminal justice system would not tolerate such deception and instead would demand that the case facts be true, not from some kind of God's eye perspective, but as best as humans can discern. This is not something that results from an outcome‐based bargaining process and simply maintains a sufficient degree of truthiness, to use Stephen Colbert's phrase. "Facts are like flint," one federal judge noted several years ago, and "whether a defendant pleads or goes to trial, the facts should theoretically remain the same."14
All of the above problems tend to generate different punishments among similarly situated offenders — a sadly ironic consequence, given that determinate sentencing in general and mandatory minimums in particular were intended to eliminate the perceived disparities under the previous federal sentencing system.15 The concept of equality — that all people are equal before the law and that any legal distinction requires justification — is embedded in liberal thought and considered fundamental to a just society.16 Equality in the Aristotelian sense requires decision‐makers to treat like cases alike, and just as importantly, to treat dissimilar cases differently.17 It would thus be a violation of equality for disparate sentences to be given to relevantly similar offenders and for comparable sentences to be doled out to relevantly dissimilar offenders.18 Inconsistent application of mandatory minimums has exacerbated disparities in both ways — expanding the sentencing differentials between analogous cases and requiring the same base sentences in patently dissimilar cases.19 Particularly disturbing is the appearance, if not reality, of disparities along racial or ethnic lines.20
The source of this problem is clear: Mandatory minimums effectively transfer sentencing authority from trial judges to federal prosecutors, who may pre‐set punishment through creative investigative and charging practices, producing troubling punishment differentials among offenders with similar culpability. Undoubtedly, federal law enforcement is well‐intentioned in many cases. But it would be naïve to assume that good faith will prevent the misuse of mandatory minimums. Serious and violent offenders may have served as the inspiration for mandatory minimums, but the statutes themselves are not tailored to these criminals alone and instead act as grants of power to federal prosecutors to apply the laws as they see fit,21 even to minor participants in non‐violent offenses. Expressing a view held by many jurists, Justice Anthony Kennedy described as "misguided" the "transfer of sentencing discretion from a judge to an Assistant U. S. Attorney, often not much older than the defendant."
Often these attorneys try in good faith to be fair in the exercise of discretion. The policy, nonetheless, gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from the trial judge. The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way. Most of the sentencing discretion should be with the judge, not the prosecutors.22
Prosecutors and judges occupy distinct but overlapping roles in the criminal justice system. The prosecutor is empowered with the discretion to instigate charges against a defendant, amass evidence of crime, and seek convictions as an adversary in the trial process. The U.S. Attorney is more than an ordinary party, however, given the power he wields and the principal he represents.23 Moreover, prosecutors are influenced by ordinary human motivations that may at times cause a loss of perspective — career advancement, path dependence, immodesty, occasional vindictiveness, and so on24 — leading to the misapplication of mandatory minimums. Under the current sentencing regime, no external check prevents the imposition of an unjust mandatory term.
In turn, the judiciary functions as an impartial decision‐maker in individual cases. A sentencing judge is the one neutral actor in the courtroom who benefits from neither harsh punishment nor lenient treatment; he has no vested interest in the outcome of a case other than that justice be done. Trial court judges are also in the best position to make the highly contextual, fact‐laden decisions about the proper punishments in particular cases. They are familiar with the environment in which offenses occur; they have been involved in every part of the court process; they have seen the evidence firsthand; and they have been in a position to evaluate the credibility of each witness and each argument. Moreover, as Justice Kennedy mentioned, trial judges have the benefit of experience in reasoned, transparent discretion, making them the precise entity that should decide the complicated, fact‐specific issues of federal sentencing.25 Judges are denied this power when mandatory sentences inevitably follow from prosecutorial choices in charging.
But the shift in authority is more than misguided — it implicates the separation of powers doctrine. Liberal society has long been concerned with arbitrary, oppressive action stemming from the accumulation of too much power in too few hands. The Framers' solution was to create a system of checks and balances, distributing power across government institutions in a manner that precludes any entity from exercising excessive authority and sets each body as a restraint on the others.26 Along these lines, the U.S. Constitution employs a pair of structural devices, the first being the separation of powers among co‐equal branches — the legislative, executive, and judicial27 — each having "mutual relations" in a series of checks and balances.28
As a matter of history and experience, an autonomous court system under the guidance of impartial jurists is considered the most indispensable aspect of American constitutional democracy.29 An independent judiciary was meant to protect individuals from the prejudices and heedlessness of political actors and the public.30 The courts were historically entrusted with certain fundamental legal decisions, including dispositive criminal justice issues that demanded evenhanded judgment, such as the imposition of punishment on another human being.31 "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."32 There is "wisdom, even the necessity, of sentencing procedures that take into account individual circumstances,"33 drawing upon the judge's familiarity with each case and "face‐to‐face contact with the defendants, their families, and their victims."34 By taking away this authority and giving it to the executive branch, mandatory minimums have undermined a fundamental check on law enforcement.
Federal mandatory minimums also affect the Constitution's second structural device intended to prevent the problems associated with concentrated authority — the division of power between national and state governments. Grounded in the text and context of the Constitution,35 federalism limits the powers of national government and prevents federal interference with the core internal affairs of the individual states.36 Among the areas that the Framers sought to reserve to the states was "the ordinary administration of criminal and civil justice."37 The Constitution mentioned only a handful of crimes in its text, all of which were consistent with the design and limits of federalism.38 In fact, it was unthinkable to the Framers that the federal government would adopt a full‐scale penal code, let alone displace or substantially interfere with the state criminal justice systems.39 As Chief Justice John Marshall would later opine, Congress "has no general right to punish murder committed within any of the States," and "it is clear that Congress cannot punish felonies generally."40 In more recent times, the Supreme Court has reiterated these limitations on federal involvement in local criminal justice matters, given that the "[s]tates possess primary authority for defining and enforcing the criminal law."41 Constitutional concerns are thus raised whenever Congress effects "a significant change in the sensitive relation between federal and state criminal jurisdiction."42
Unfortunately, Congress has assumed such power over criminal matters, occasionally with a nod to an enumerated power, usually the regulation of interstate commerce. This does not mean, however, that politicians, courts, and commentators have been or should be oblivious to considerations of federalism.43 In the present context, mandatory minimums represent a federal encroachment on state prerogatives and the implementation of policies that may conflict with local choice. For instance, most drug and weapons crimes amenable to federal mandatory minimums are actually prosecuted in state courts pursuant to state laws carrying far lower sentences.44 Yet it is hardly disputed that the possibility of severe punishment influences the choice of whether to bring a case in federal or state court. This raises the specter of abusive forum shopping where a federal prosecution is pursued not because the case raises a special national interest, but because it jacks up the potential punishment.
Federal mandatory minimums also impinge on another core benefit of federalism, namely, pluralistic decision‐making and local choice.45 In a diverse society like ours, citizens in different jurisdictions are likely to have distinct views on the substance and process of criminal justice. State and local decision‐makers tend to be more attuned to such preferences, given their closeness to constituents and the greater opportunity of citizens to be involved in state and local government. Unencumbered by national dictates, states may even become laboratories of experimentation in criminal justice. In the oft‐repeated words of Justice Brandeis, "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."46 Should individuals find unbearable the local or state approach to crime and punishment, federalism allows them to vote with their feet, so to speak, by moving to another county or state. Federal mandatory minimums can overwhelm such decision‐making on issues of criminal justice, effectively and powerfully nullifying state and local judgments. For example, the federal government may effectively override a state's decision that certain drug‐related conduct should not be a crime in the first place or should be subject to far more lenient punishment.47
As a conceptual matter, federal mandatory minimums can be viewed as a particularly troubling iteration of larger trends: over‐criminalization and, more specifically, over‐federalization. Over‐criminalization refers to the constant expansion of criminal justice systems, through the creation of novel crimes, harsher punishments, broader culpability principles, and heightened enforcement, often in the absence of moral or empirical justification and without regard for statutory redundancy or jurisdictional limitations.48 The phenomenon is hardly new. In a 1967 critique of extending the criminal sanction, Sanford Kadish warned that "until these problems of over‐criminalization are systematically examined and effectively dealt with, some of the most besetting problems of criminal‐law administration are bound to continue."49 He was right. In the ensuing decades, lawmakers have relentlessly added to American penal codes, despite equally relentless criticisms by scholars and public interest groups.50
Although much of this expansion has occurred at the state level,51 the most virulent form of over‐criminalization — and certainly the most criticized52 — has occurred in the federal system. Congress has slowly but surely obtained a general police power to enact virtually any offense, adopting repetitive and overlapping statutes, criminalizing behavior that is already well‐covered by state law,53 creating a vast web of regulatory offenses,54 and extending federal jurisdiction to all sorts of deception55 or wrongdoing56 virtually anywhere in the world.57 At last count, there were about 4,500 federal crimes on the books,58 with the largest portion instituted over the past four decades.59
Like the growing opposition to mandatory minimums, over‐federalization has been criticized by a broad band of organizations and by politicians on both the left and the right.60 Indeed, mandatory minimums constitute a species of over‐criminalization and over‐federalization.61 They are part of a punishment spree of unprecedented proportions that has helped make America the single most punitive Western nation and the world's imprisonment leader.62 Since 1980, the federal prison population has increased tenfold, for instance, while the average federal sentence has doubled and the average federal drug sentence has tripled, due in no small part to mandatory minimums.63 So what is the cause of over‐criminalization, over‐federalization, and overly broad and harsh mandatory minimums' Some thirty years after his original critique, Professor Kadish suggested a commonsensical explanation for the "creeping and foolish federal overcriminalization."
Some dramatic crimes or series of crimes are given conspicuous media coverage, producing what is perceived, and often is, widespread public anxiety. Seeking to make political hay, some legislator proposes a new law to make this or that a major felony or to raise the penalty or otherwise tighten the screws. Since other legislators know well that no one can lose voter popularity for seeming to be tough on crime, the legislation sails through in a breeze. That the chances of the legislation working to reduce crime are exceedingly low, and in some cases the chances of it doing harm are very high, scarcely seems to be a relevant issue.64
This account is supported by other scholars, as well as the reports of legal groups and former federal officials.65 Sensationalistic news coverage tends to increase the public salience of crime, generating fear and attendant calls for action.66 Even in areas where concern may be unfounded, populist pressures create incentives for lawmakers to enact new crimes and harsher punishments. Such legislation is readily grasped by constituents, produces few opponents, permits the public to vent its moral outrage, and most importantly, gives politicians the "tough on crime" credentials that can fill campaign coffers and garner votes at election time.67 As Professor Kadish mentioned, the process can be set off by a string of crimes or even a single traumatic episode that grabs news headlines and the public imagination. These events may trigger what social scientists have termed a "moral panic," where intense outbursts of emotion impede rational deliberation, lead people to overestimate a perceived threat and to demonize a particular group, and generate a public demand for swift and stern government action.68 Although any resulting legislation will almost certainly be touted for its instrumental benefits, the law will serve as a symbolic gesture for politicians and their constituents, expressing condemnation of the relevant act and actors.69
Law enforcement also has an interest in the expansion of criminal justice. Although aspirational language may describe the prosecutorial function as an impartial "minister of justice,"70 there should be little doubt that American prosecutors see themselves as advocates in a sometimes brutally adversarial process.71 This role conception is exacerbated by prosecutorial incentive structures, where the success and career prospects of both lead and line prosecutors are typically measured by the rate of convictions and the aggregate amount of punishment.72 Naturally, over‐criminalization serves this incentive structure. The more crimes on the books and the harsher the punishments, the more power law enforcement can exercise throughout the criminal process.73 By raising the potential punishment through harsh sentencing schemes, for instance, or by charging multiple counts for a single course of conduct, defendants are given every reason to cooperate with the prosecution by providing information, entering into plea agreements, and waiving their constitutional rights. All of this enhances the power of prosecutors, who can obtain more and cheaper convictions via plea bargaining or, if that fails, deploy potent criminal provisions against their opponents at trial. As one former Justice Department official recently said, "[I]t is not surprising that the federal agency charged with preventing, solving, and punishing federal crimes is not aggressively attempting to shrink the federal code."74
This understanding helps explain the rise and persistence of mandatory minimums. Chief Justice William Rehnquist noted that their enactment often does not involve "any careful consideration" of the ultimate effect. Instead, "[m]andatory minimums … are frequently the result of floor amendments to demonstrate emphatically that legislators want to … get tough on crime.' "75 In fact, federal lawmakers have explicitly used the phrase "tough on crime" in their support of mandatory minimums,76 with some of the most notorious mandatory minimum laws originating from symbolic politics. Consider, for instance, the enactment of 18 U.S.C. § 924(c) as part of the Gun Control Act of 1968 (which itself was part of the Omnibus Crime Control and Safe Streets Act of 1968). The legislation was a response to public fear over street crime, civil unrest, and the shooting of Martin Luther King, Jr. The day after the assassination of Robert F. Kennedy, § 924(c) was proposed as a floor amendment and passed that same day with no congressional hearings or committee reports, only a speech by the amendment's sponsor about its catchphrase goal "to persuade the man who is tempted to commit a federal felony to leave his gun at home."77 Since then, Congress has amended § 924(c) several times and converted it from a one‐year mandatory minimum to one of the nation's most draconian punishment laws.78
Another example comes from the passage of the Anti‐Drug Abuse Act of 1986, the law that instituted the crack‐powder cocaine sentencing differential and created the basic structure of federal mandatory minimums for drug trafficking.79 The driving force behind these provisions was the cocaine overdose of basketball star Len Bias, which triggered a remarkable level of media attention and a moral panic about crack cocaine. Tellingly, the bill was enacted without hearings or input from the judiciary. "Much of the [standard] procedure was circumvented," a House staff member recounted. "In essence, the careful, deliberate procedures of Congress were set aside in order to expedite passage of the bill."80 The legislation was a blatant attempt to appease an electorate that was distraught over the death of a gifted athlete and hysterical about an alleged epidemic of crack.81 A Washington Post editorial suggested that in the prevailing can‐you‐top‐this atmosphere, "if someone offered an amendment to execute pushers only after flogging and hacking them, it probably would have passed."82 Ironically, it was later determined that Bias died from ingesting powder cocaine, not crack.83 But by then, it didn't matter.
This general political dynamic has stymied efforts to reform mandatory minimums in Congress in the past. Even during periods of low crime, the public has expressed fear of victimization and a belief that criminals are not receiving harsh enough punishment. Lawmakers have responded in kind with new crimes and stiffer penalties, including mandatory sentences. Conversely, any reform efforts have carried the danger of being labeled "soft on crime." As a result, no federal mandatory minimum has been repealed in the last forty years, with harsh sentencing provisions remaining politically popular well into the new millennium. As one U.S. Attorney noted in 2007, "[E]very Administration and each Congress on a bipartisan basis has … supported mandatory minimum sentencing statutes for the most serious of offenses."84
There are, however, some promising signs. The need for reform has been recognized by practitioners, researchers, public interest groups, and prominent legal organizations like the American Bar Association and the American Law Institute.85 Likewise, a litany of federal judges has voiced their dismay at the excessive punishment they are required to dole out,86 including Chief Justice Rehnquist, Justice Kennedy, and Justice Stephen Breyer.87 But the most interesting and potentially influential opposition to mandatory minimums has come from the political branches and conservative commentators. At various times in their careers, the past three Presidents have all doubted the wisdom of long mandatory sentences.88 Likewise, federal lawmakers and even a former federal "Drug Czar" have disputed the justice of mandatory minimums.89
In a much publicized case involving a long mandatory sentence, dozens of former federal prosecutors and high‐ranking Justice Department officials (including former U.S. Attorneys General and a former Director of the F.B.I.) filed amici curiae briefs in support of the defendant.90 After the punishment was upheld on appeal and certiorari was denied, a conservative federal lawmaker "question[ed] some severe mandatory minimum sentencing laws, especially in the context of drug enforcement," adding that "[i]n the long run, it may be just as important to provide rehabilitation and treatment programs, instead of imposing unreasonably harsh sentences."91 A few conservative commentators have spoken out against mandatory minimums as well.92 Most importantly, the support of the American public for mandatory minimums has waned in recent times.93
Given changes in the Presidency and Congress, it is now appears that considerable interest exists in moving beyond a verbal critique of these laws to actually enacting statutory reforms. In fact, we may be approaching a sort of "tipping point" on mandatory minimums. Early indications include the formation of a Justice Department‐led working group to examine federal sentencing and correction policy and to make recommendations for reform; the bipartisan support for Senator Jim Webb's "National Criminal Justice Commission," which would conduct a comprehensive review of the criminal justice system;94 and the Senate's passage of the Fair Sentencing Act of 2009, which would eliminate the mandatory minimum for simple crack possession and reduce the sentencing disparity between crack and powder cocaine.95 Needless to say, Congress's direction to this body to submit a comprehensive report on mandatory minimum sentencing seems to bode well for reform efforts.96
My preference would be for federal lawmakers to eliminate mandatory minimums in one‐fell swoop. But given the aforementioned reality that Congress has yet to repeal a contemporary mandatory minimum, I fully recognize that every journey must begin with a first step. In a forthcoming article co‐authored with Judge Paul Cassell, we propose some reforms that are more minimalist in nature.97 The first proposal contains two parts: (1) a legislative authorization for the U.S. Sentencing Commission to set guidelines ranges where it deems them to be appropriate, without automatically being required to peg guidelines to existing mandatory minimums; and (2) a broader and more detailed "safety valve" provision that would permit federal judges to depart downward whenever the guidelines provide for the possibility of a lower sentence than a mandatory minimum. We also offer several changes that could build upon initial reforms, such as the elimination of the stacking function of 18 U.S.C. § 924(c), converting it into a true recidivist statute, and a limited revival of the U.S. Parole Commission to review sentences for inmates serving extremely long prison terms. An updated draft of the article will be submitted to the U.S. Sentencing Commission in a few weeks, and, of course, we would be happy to discuss these proposals with the Commissioners at their convenience.
But whatever the vehicle, the federal scheme of mandatory minimums needs to be reformed. To sum up my views, let me borrow a line from former federal Judge John Martin.98 Mandatory minimums are over‐inclusive, they're unfair, and they can even be draconian. They transfer sentencing power from neutral judges to partisans in the criminal process. They make for poor criminal justice policy and raise all sorts of constitutional problems. Other than that, they're a great idea.
Again, thank you very much for the invitation to testify today.
1. All opinions expressed and any errors herein are my own.
2. See generally ANDREW VON HIRSCH & ANDREW ASHWORTH, PROPORTIONATE SENTENCING: EXPLORING THE PRINCIPLES (2005); see also JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 52–54 (5th ed. 2009); JOHN KAPLAN, ROBERT WEISBERG & GUYORA BINDER, CRIMINAL LAW: CASES AND MATERIALS 28 (6th ed. 2008).
3. See U.S. CONST. amend. VIII (banning "cruel and unusual punishments"); see also Universal Declaration of Human Rights, art. 1, G.A. Res. 217A, U.N. Doc. A/810, art. 5 (1948) ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment."); International Covenant on Civil and Political Rights, Dec. 19, 1966, arts. 7, 10, 999 U.N.T.S. 171; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/RES/39/708 (1984). Mosaic Law and the Code of Hammurabi formulated the principle as an "eye for an eye," commonly understood as requiring that punishment be commensurate to the offense. See Exodus 21:24, THE HOLY BIBLE 97 (C.I. Schofield ed., Oxford U. Press 1945); MARTHA T. ROTH, LAW COLLECTIONS FROM MESOPOTAMIA AND ASIA MINOR 121 (2d ed. 1997) (translating Hammurabi's Laws). In the Classical Age, Aristotle opined that it was the judge's duty to impose punishment equivalent to the crime, see THE NICOMACHEAN ETHICS 179–82 (J.A.K. Thomson trans., 1976); while the Roman statesman and author Cicero proclaimed the maxim that "the punishment should fit the offense." See CICERO, DE RE PUBLICA, DE LEGIBUS 513 (Clinton Walker Keyes trans., 1928). "[T]here are certain duties that we owe even to those who have wronged us," Cicero averred, "[f]or there is a limit to retribution and to punishment." CICERO, DE OFFICIIS 35 (Walter Miller trans., 1938). See generally Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted': The Original Meaning, 57 CAL. L. REV. 839, 844–47 (1969) (discussing historical limits on excessive punishment). Post‐Enlightenment scholars promoted the concept of proportionality as well. For instance, Montesquieu wrote that "[a]ll punishment which is not derived from necessity is tyrannical." MONTESQUIEU, THE SPIRIT OF THE LAWS 357 (Thomas Nugent trans., 1914) (1748). Liberty is protected "when criminal laws derive each punishment from the particular nature of the crime. There are then no arbitrary decisions [when] the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing." Id. at 222. Likewise, the first modern penologists argued for proportionality between crime and penalty. See, e.g., CESARE BECCARIA, ON CRIMES AND PUNISHMENTS ch. 6 (1764) ("Of the Proportion Between Crimes and Punishments"); JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION ch. 14 (1789) ("Of the Proportion Between Punishments and Offences"). Blackstone also argued for proportionality in punishment and decried excessive penalties as violating "the dictates of conscience and humanity," being ineffective at "preventing crimes and amending the manners of people," and evincing "a bad symptom of the distemper of any state, or at least of its weak constitution." 4 WILLIAM BLACKSTONE, COMMENTARIES, at *10 — 19. Proportionality was enshrined in the Magna Carta, the English Bill of Rights, and British jurisprudence. See Solem v. Helm, 463 U.S. 277, 284–85 (1983); Trop v. Dulles, 356 U.S. 86, 100 (1958); see also Hodges v. Humkin, 80 Eng. Rep. 1015, 1016 (K.B. 1615) ("[I]mprisonment ought always to be according to the quality of the offence."); RICHARD L. PERRY, SOURCES OF OUR LIBERTIES 236 (1959) (describing "the longstanding principle of English law that the punishment … should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged"). The proportionality principle was carried over to America and codified in both colonial law and post‐revolutionary state constitutions. See, e.g., RICHARD L. PERRY, SOURCES OF OUR LIBERTIES 107 (1959) (noting that the Maryland Charter of 1632 permitted punishment if "the Quality of the offense require[d] it"); PA. CONST. §38 (1776) (calling for punishments "proportionate to the crime"); S.C. CONST. §XL (1776) (similar).
4. Solem, 463 U.S. at 284–85. Admittedly, principles of proportionality and equality raise difficult issues in sentencing. In measuring the gravity of an offense for proportionality analysis, one might look to, inter alia, "the harm caused or threatened to the victim or society." Id. at 288–93; see also Rummel v. Estelle, 445 U.S. 263, 275 (1980). Although harm is a notoriously tricky idea, see, e.g., Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109 (1999); most agree that basic criminal harms involve acts or threats of physical violence and the non‐consensual or fraudulent deprivation of other's property. See, e.g., PAUL H. ROBINSON & JOHN M. DARLEY, INTUITIONS OF JUSTICE: IMPLICATIONS FOR CRIMINAL LAW AND JUSTICE POLICY (2007).
5. See, e.g., DAVID S. LEE & JUSTIN MCCRARY, CRIME, PUNISHMENT, AND MYOPIA (Nat'l Bureau of Econ. Research, Working Paper No. 11491, 2005); Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing its Best, 91 Geo. L.J. 949, 953 (2003); A. Mitchell Polinsky & Steven Shavell, On the Disutility and Discounting of Imprisonment and the Theory of Deterrence, 28 J. LEGAL STUD. 1, 4–7 (1999).
6. See, e.g., Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, 38 CRIME & JUST. 65, 90–100 (2009) [Tonry, Mostly Unintended Effects]; JONATHAN P. CAULKINS ET AL., MANDATORY MINIMUM DRUG SENTENCES: THROWING AWAY THE KEY OR THE TAXPAYER'S MONEY' (1997); BARBARA S. VINCENT & PAUL J. HOFER, THE CONSEQUENCES OF MANDATORY MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS 11–16 (1994); U.S. SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM (1991).
7. Mandatory minimums have also been criticized for their distortive impact on the federal sentencing guidelines. Justice Breyer, a former U.S. Sentencing Commissioner, has argued that mandatory minimums thwart the Commission in its fundamental duty: "the development, in part through research, of a rational, coherent set of punishments." Hon. Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 FED. SENT'G REP. 180 (1999); see also Hon. Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 WAKE FOREST L. REV. 185, 194 (1993). Among other things, mandatory minimums may preclude the Commission from calibrating sentences based on normatively or empirically relevant factors, such as the defendant's role or culpability in a crime. All offenders thus receive the same minimum sentence once the basic statutory predicates are met, regardless of very real and morally significant differences. What is more, mandatory minimums can distort sentences for an entire class of crimes. Given that the Commission seeks continuity and consistency among similar offenses, a mandatory minimum for one crime may generate a type of sentencing inflation, skewing punishment upwards for all related crimes.
8. Most recipients of drug mandatory minimums are couriers, mules, and street‐level dealers, not kingpins or leaders in international drug cartels. See, e.g., U.S. SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 20–21, 85 (2007).
9. See, e.g., United States v. Green, 346 F. Supp. 2d 259 (D. Mass. 2004) (discussing use of mandatory guidelines to extract plea bargains); STEVE BOGIRA, COURTROOM 302: A YEAR BEHIND THE SCENES IN AN AMERICAN COURTHOUSE 37–48, 83 (2005) (describing trial tax in state context); see also Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005).
10. See, e.g., Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 723–24 (2005) [hereinafter Luna, Overcriminalization]; William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 519–20 (2001) [hereinafter Stuntz, Pathological Politics].
11. See, e.g., United States v. Fontes, 415 F.3d 174 (1st Cir. 2005); United States v. Williams, 372 F. Supp. 2d 1335, 1339 (M.D. Fla. 2005); United States v. Nellum, 2005 WL 300073 (N.D. Ind. 2005); United States v. Angelos, 345 F. Supp. 2d 1227, 1253 (D. Utah 2004).
12. See, e.g., United States v. Mercer, 472 F. Supp. 2d 1319, 1323 (D. Utah. 2007); David M. Zlotnick, Shouting into the Wind: District Court Judges and Federal Sentencing Policy, 9 ROGER WILLIAMS U. L. REV. 645, 674–75 (2004); Henry Scott Wallace, Mandatory Minimums and the Betrayal of Sentencing Reform, 40 FED. B. NEWS & J. 158, 161 (Mar./Apr. 1993).
13. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting); see also Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107, 1154–65 (2000).
14. Berthoff v. United States, 140 F. Supp. 2d 50, 63 n.24 (D. Mass. 2001).
15. Some works have challenged the assumption that the previous federal sentencing regime was rife with disparity. See, e.g., DOUGLAS MCDONALD & KENNETH CARLSON, U.S. DEP'T OF JUSTICE, BUREAU OF STATISTICS, SENTENCING IN THE FEDERAL COURTS: DOES RACE MATTER' THE TRANSITION TO SENTENCING GUIDELINES, 1986–90, at 24–26 (1993); KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 105–42 (1998). Moreover, there is a lively empirical debate as to whether the guidelines have reduced sentencing differentials. Compare U.S. SENTENCING COMMISSION, DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES: AN UPDATE OF THE BOOKER REPORT'S MULTIVARIATE ANALYSIS (Mar. 2010), available at http://www.ussc.gov/general/Multivariate_ Regression_Analysis_Report_1.pdf.; and Ryan W. Scott, The Effects of Booker on Inter‐Judge Sentencing Disparity, 22 FED. SENT'G REP. 104 (2009); with JEFFREY T. ULMER ET AL., DOES INCREASED JUDICIAL DISCRETION LEAD TO INCREASED DISPARITY': THE "LIBERATION" OF JUDICIAL SENTENCING DISCRETION IN THE WAKE OF THE BOOKER/FANFAN DECISION (Mar. 2010), available at http://papers.ssrn.com/sol3/papers.cfm'abstract_id=1577238.
16. See, e.g., THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("all men are created equal … endowed by their creator with certain unalienable rights"); JOHN LOCKE, TWO TREATISES OF GOVERNMENT ch. 2, § 6 (1689) (denominating people as "all equal and independent"); A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 198 (8th ed. 1915) (the rule of law means "equality before the law, or the equal subjection of all classes to the ordinary law of the land"); JOHN RAWLS, A THEORY OF JUSTICE 53, 220, 266 (rev. ed. 1999) (arguing that the predominant principle in a just society requires that "[e]ach person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all"); WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY 5 (1990) (suggesting that moral equality establishes an "egalitarian plateau" for all modern political theories); FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY 209–10 (1960).
17. Cf. NICOMACHEAN ETHICS, supra note 3. Of course, one can debate whether particular facts or circumstances should be relevant for purposes of equality in punishment. But as evinced by many modern sentencing schemes, there appears to be some concurrence on pertinent factors, such as the gravity of the offense, the defendant's criminal history, and his prospects for reform or recidivism. Compare, e.g., 18 U.S.C. § 3553(a) (listing purposes of criminal sentences); with, e.g., AK. STAT. § 12.55.005 (same).
18. Defendants are not the only ones concerned about proportionality and equality in sentencing. When victims of actual violence notice that their assailant received a shorter term than imposed on a non‐violent offender via mandatory minimums, the message received is that their pain and suffering is less important than abstract governmental objectives, like winning the "war on drugs." See Angelos, 345 F. Supp. 2d at 1251. Over the long haul, conscientious jurors might refuse to render guilty verdicts, not because they believe the defendant to be innocent or the allegations unproven, but out of fear that an unjust sentence will necessarily ensue. See id. at 1252.
19. See, e.g., U.S. GEN. ACCOUNTING OFFICE, FEDERAL DRUG OFFENSES, DEPARTURES FROM SENTENCING GUIDELINES AND MANDATORY MINIMUM SENTENCES, FISCAL YEARS 1999–2001 (2003); Stephen Schulhofer & Ilene Nagel, Plea Negotiations Under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post‐Mistretta Era, 91 NW. U. L. REV. 1284 (1997); U.S. GEN. ACCOUNTING OFFICE, MANDATORY MINIMUM SENTENCES: ARE THEY BEING IMPOSED AND WHO IS RECEIVING THEM' (Nov. 1993); Ilene H. Nagel & Stephen J. Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices under the Federal Sentencing Guidelines, 66 S. CAL. L. REV. 501 (1992); BARBARA S. MEIERHOEFER, THE GENERAL EFFECT OF MANDATORY MINIMUM PRISON TERMS: A LONGITUDINAL STUDY OF FEDERAL SENTENCES IMPOSED (1992); SPECIAL REPORT, supra note 6, at 47–52; VINCENT & HOFER, supra note 6.
20. See, e.g., U.S. SENTENCING COMMISSION, STATISTICAL OVERVIEW FOR "MANDATORY MINIMUMS AND UNINTENDED CONSEQUENCES," HEARING BEFORE THE U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY (2009), available at http://www.ussc.gov/MANMIN/man_min.pdf. Of course, there may be a correlation without causation — the disproportionate impact of mandatory minimums on minorities may be based on any number of factors other than race or ethnicity. Nonetheless, a relationship has emerged between mandatory punishments and people of color, which can have a profoundly harmful meaning and effect regardless of causation. See, e.g., Erik Luna, Race, Crime, and Institutional Design, 66 LAW & CONTEMP. PROBS. 183, 183–87 (2003).
21. See Stuntz, Pathological Politics, supra note 10, at 549.
22. Hon. Anthony M. Kennedy, "Speech at the American Bar Association Annual Meeting," Aug. 9, 2003, available at http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx'Filen….
Thus, the government, not only has the authority to prosecute crime and to decide the nature of the criminal charge to be preferred, but now has the power to determine the severity of the punishment. As a result, courts are required to react passively as automatons and to impose a sentence which the judge may personally deem unjust.
United States v. Sidhom, 144 F. Supp. 2d 41, 41 (D. Mass. 2001).
23. See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935); see also Robert H. Jackson, The Federal Prosecutor, 31 J. AM. INST. CRIM. L. & CRIMINOLOGY 3 (1940).
24. See, e.g., Richard T. Boylan & Cheryl X. Long, Salaries, Plea Rates, and the Career Objectives of Federal Prosecutors, 48 J.L. & ECON. 627 (2005); Richard T. Boylan, What Do Prosecutors Maximize': Evidence from the Careers of U.S. Attorneys, 7 AM. LAW & ECON. REV. 379 (2005); Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CAL. L. REV. 1585, 1599–1600 (2005); Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 902–03; MICHAEL TONRY, THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE 207 (2004) [hereinafter TONRY, THINKING ABOUT CRIME]; Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post‐Conviction Claims of Innocence, 84 B.U. L. REV. 125, 134–35 (2004); Todd Lochner, Strategic Behavior and Prosecutorial Agenda Setting in United States Attorneys' Offices: The Role of U.S. Attorneys and Their Assistants, 23 JUST. SYS. J. 271 (2002); ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 61–96 (2001); Edward L. Glaeser et al., What Do Prosecutors Maximize': An Analysis of the Federalization of Drug Crimes, 2 AM. L. & ECON. REV. 259 (2000); David T. Johnson, The Organization of Prosecution and the Possibility of Order, 32 LAW & SOC'Y REV. 247 (1998); DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL FIXES, AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE (1996); Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851 (1995); Stanley Z. Fisher, In Search of the Virtuous Prosecutor, 15 AM. J. CRIM. L. 197 (1988).
25. Moreover, the vast majority of Americans, both Democrats and Republicans, believe that courts are the proper bodies to make sentencing judgments. See Families Against Mandatory Minimums Omnibus Survey (Sept. 2008), available at http://www.famm.org/Repository/Files/FAMM%20poll%20no%20embargo.pdf [hereinafter Omnibus Survey]. The constitutional appointment process helps ensure the bona fides of federal judges. Nominees are vetted and selected by the President, and then put through a painstaking process in the Senate. See, e.g., United States v. Boshell, 728 F. Supp. 632, 637 (E.D. Wash. 1990):
Regardless of which political party holds sway, the process for selecting federal judges is much the same. Nominees are hung out like fresh meat to be poked, prodded and examined in minute detail as to every aspect of their personal and professional lives. The first step is to gain the confidence of a nominating senator who will conduct such investigation as he deems appropriate. Then the FBI, Department of Justice, the American Bar Association, and the Judiciary Committee get into the act. Only after surviving scrutiny that far will the Senate consider granting its stamp of approval.
Those who are confirmed are provided constitutional protection of salary and tenure to guarantee an independent and impartial federal court system. See U.S. CONST. art. III, §1. The level of scrutiny placed on these nominees not only verifies their qualifications and temperament, but helps make the federal judiciary the most credible and competent government body in the nation.
26. See, e.g., MONTESQUIEU, supra, at bk. 11, ch. 6; THE FEDERALIST NO. 47 (James Madison).
27. U.S. CONST. arts. I-III.
28. THE FEDERALIST NO. 51, at 267 (Madison).
29. See, e.g., LEARNED HAND, THE SPIRIT OF LIBERTY 155, 164 (3d ed. 1974); Robert M. Howard & Henry F. Carey, Is an Independent Judiciary Necessary for Democracy', 87 JUDICATURE 284 (2004).
30. See, e.g., THE FEDERALIST NO. 78, at 405–06 (Hamilton).
31. Sidhom, 144 F. Supp. 2d at 41 ("In the long tradition of the common law, it was the judge, the neutral arbiter, who possessed the authority to impose sentences which he deemed just within broad perimeters established by the legislature.").
32. See, e,g, Koon v. United States, 518 U.S. 81, 113 (1996). One district court even described individualized sentencing as "required by the Due Process Clause of the Fifth Amendment."
The concept of individualized sentencing is deeply rooted in our legal tradition and is a fundamental liberty interest. This due process right arises at sentencing because sentencing involves the most extreme deprivation of personal liberty and therefore calls for a highly individualized process where a person must be assessed and sentenced as an individual.
United States v. Dyck, 287 F. Supp. 2d 1016, 1020 (D. N.D. 2003).
33. Koon, 518 U.S. at 92.
34. Dyck, 287 F. Supp. 2d at 1019.
35. Specifically, federalism was enshrined in the U.S. Constitution by enumerating the powers of the federal government, see U.S. CONST. art. 1, §8; and by declaring that all other powers were "reserved to the States respectively, or to the people." U.S. CONST. amend X.
36. See, e.g., THE FEDERALIST NO. 45, at 292–93 (James Madison).
37. THE FEDERALIST NO. 17, at 120 (Alexander Hamilton).
38. See U.S. CONST. art. 1, §8, cl. 6 (counterfeiting); U.S. CONST. art. 1, §8, cl. 10 (piracy, felonies on the high seas, offenses against the law of nations); U.S. CONST. art. 3, §3 (treason).
39. See, e.g., RUSSELL CHAPIN, UNIFORM RULES OF CRIMINAL PROCEDURE FOR ALL COURTS 2 (1983).
40. Cohens v. Virginia, 19 U.S. 264, 426, 428 (1821).
41. United States v. Lopez, 514 U.S. 549, 561 n.3 (1995).
42. Id.
43. At times, both liberals and conservatives have expressed such concerns about particular government policies. See, e.g., Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public‐Choice Explanation of Federalism, 76 VA. L. REV. 265, 265 (1990); Sanford H. Kadish, The Folly of Overfederalization, 46 HASTINGS L.J. 1247, 1247 (1995) [hereinafter Kadish, Overfederalization].
44. See, e.g., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbls. 5.17.2004, 5.38.2008, 5.44.2004, available at http://www.albany.edu/sourcebook/; Wallace, supra note 12; United States v. Snyder, 954 F.Supp. 19 (D. Mass. 1997).
45. See, e.g., Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484 (1987).
46. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
47. Consider, for instance, federal efforts to nullify California's medical marijuana law and Oregon's assisted suicide law. See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006); Gonzalez v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001).
48. See generally Luna, Overcriminalization, supra note 10.
49. Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & SOC. SCI. 157 (1967); see also Sanford H. Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. CHI. L. REV. 423 (1963).
50. See, e.g., Luna, Overcriminalization, supra note 10, at 703 — 11, 712 nn.48–51.
51. See, e.g., Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 HASTINGS L.J. 633 (2005). But see Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223 (2007).
52. See, e.g., ABA CRIMINAL JUSTICE SECTION, THE FEDERALIZATION OF CRIMINAL LAW 59 — 78 (1999) (providing bibliography).
53. One example is Congress's enactment of a federal "carjacking" statute. See 18 U.S.C. § 2119 (2000) (imposing federal criminal liability on those who take motor vehicles by force, violence, or intimidation); Commonwealth v. Jones, 267 Va. 284, 286 (2004) (detailing Virginia's common law definition of robbery, which prohibits the taking of any property of another by violence or intimidation); Spencer v. Commonwealth, 42 Va. App. 443, 448 (2004) ("carjacking is a species of robbery").
54. See United States v. Park, 421 U.S. 658, 663 — 64, 670 — 73 (1975); see generally Paul Rosenzweig, The Over‐Criminalization of Social and Economic Conduct, 7 HERITAGE FOUND. LEGAL MEM. 1, 3 — 12 (2003).
55. See 18 U.S.C. § 1001(a)(2) (2000) (criminalizing false statements made pursuant to "any matter" within any branch of the federal government); 18 U.S.C. § 1341 (2000) (proscribing various fraudulent transactions utilizing the Postal Service or private interstate mail carriers); 18 U.S.C. § 1343 (2000) (prohibiting similar fraudulent transactions over interstate wire, radio, and television signals); 18 U.S.C. § 1346 (2000) (defining "scheme or artifice to defraud" under § 1341 and § 1343 as including a plan to "deprive another of the intangible right to honest services"); see also Jeffrey Standen, An Economic Perspective on Federal Criminal Law Reform, 2 BUFF. CRIM. L. REV. 249, 289 (1998) (citing over three hundred federal proscriptions against fraud and misrepresentation).
56. See, e.g., United States v. Welch, 327 F.3d 1081, 1090 — 1103 (10th Cir. 2003) (upholding a federal felony indictment for violation of Utah's commercial bribery statute, a misdemeanor under state law).
57. See, e.g., Pasquantino v. United States , 544 U.S. 349 (2005) (affirming a defendant's federal conviction for violating Canadian tax law through the use of interstate wires); United States v. McNab, 331 F.3d 1228 (11th Cir. 2003) (upholding federal conviction for violation of Honduran fishing regulations); Ellen Podgor & Paul Rosenzweig, Bum Lobster Rap, WASH. TIMES, Jan. 6, 2004, at A14 (criticizing the McNab prosecution and noting that the Honduran government believed that its laws had not been violated and had filed an amicus curiae brief in support of the McNab defendants).
58. See JOHN S. BAKER, JR., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES (2008), available at http://www.heritage.org/Research/LegalIssues/upload/Im_26.pdf.
59. See ABA CRIMINAL JUSTICE SECTION, supra note 52, at 7.
60. See, e.g., Adam Liptak, Right and Left Join Forces, N.Y. TIMES, Nov. 24, 2009.
61. See, e.g., Hearing on Over‐Criminalization of Conduct/Over‐Federalization of Criminal Law before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, 111 Cong., 1st Sess. 52–67 (2009) (testimony of Stephen A. Saltzburg on behalf of the American Bar Association).
62. See, e.g., Adam Liptak, More Than 1 in 100 Adults Are Now in Prison in U.S., N.Y. TIMES, Feb. 29, 2008 at A14; Michael Tonry & David P. Farrington, Punishment and Crime Across Space and Time, in 33 CRIME & JUST. 1, 6 (Michael Tonry and David P. Farrington eds., 2006); Alfred Blumstein et al., Cross‐National Measures of Punitiveness, in 33 CRIME & JUST. 347 (Michael Tonry & David P. Farrington eds., 2006); SENTENCING AND SANCTIONS IN WESTERN COUNTRIES (Michael Tonry & Richard S. Frase eds., 2001); see also JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003).
63. See, e.g., Heather C. West & William J. Sabol, Prisoners in 2007, BUREAU OF JUST. STAT. BULL., Dec. 2008, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p07.pdf; SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl. 6.57; U.S. SENTENCING COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING REFORM ch.2 (2004); Paul J. Hofer & Courtney Semisch, Examining Changes in Federal Sentence Severity: 1980–1998, 12 FED. SENT'G REP. 12 (1999).
64. Kadish, Overfederalization, supra note 43, at 1248–49.
65. See, e.g., THE 2009 CRIMINAL JUSTICE TRANSITION COALITION, SMART ON CRIME: RECOMMENDATIONS FOR THE NEXT ADMINISTRATION AND CONGRESS 1–12, 30–74 (2008); Rachel Brand, Making It a Federal Case: An Inside View of the Pressures to Federalize Crime, 30 HERITAGE FOUND. LEGAL MEM. 1 (2008); Edwin Meese III, The Dangerous Federalization of Crime, WALL ST. J., Feb. 22, 1999; ABA CRIMINAL JUSTICE SECTION, supra note 52, at 16–17. In the words of former U.S. Attorney General Ed Meese,
Because crime, particularly violent or street crime, concerns virtually every citizen, congressional candidates and officeholders find such legislation politically popular. Likewise, Congress frequently criminalizes crimes after notorious incidents that have received extensive media attention. This type of "feel‐good" legislation often causes the public to feel that "something is being done" and creates the illusion of greater crime control.
Meese, supra.
66. Sara Beale's scholarship has been particularly enlightening on the influence of media (and other non‐legal factors) on criminal justice policy. See Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market‐Driven News Promotes Punitiveness, 48 WM. & MARY L. REV. 397 (2006); Sara Sun Beale, Still Tough on Crime': Prospects for Restorative Justice in the United States, 2003 UTAH L. REV. 413; Sara Sun Beale, What's Law Got to Do with It': The Political, Social, Psychological and Other Non‐Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23 (1997); see also Erik Luna, Criminal Justice and the Public Imagination, 7 OHIO ST. J. CRIM. L. 71 (2009) [hereinafter Luna, Public Imagination]; Robert Reiner, Media‐Made Criminality: The Representation of Crime in the Mass Media, in THE OXFORD HANDBOOK OF CRIMINOLOGY 302 (Mike Maguire et al. eds., 4th ed. 2007).
67. See, e.g., Luna, Overcriminalization, supra note 10, at 719–24.
68. See, e.g., Luna, Public Imagination, supra note 66, at 81–85; see generally STANLEY COHEN, FOLK DEVILS AND MORAL PANICS: THE CREATION OF THE MODS AND ROCKERS (1972) (articulating a theory of moral panics).
69. See, e.g., Erik Luna, The .22 Caliber Rorschach Test, 39 HOUS. L. REV. 53, 61–72 (2002); Erik Luna, Principled Enforcement of Penal Codes, 4 BUFF. CRIM. L. REV. 515, 537–40 (2000); see generally JOSEPH R. GUSFIELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (2d ed. 1986) (discussing the symbolic politics underlying alcohol prohibition); KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD (1984) (analyzing symbolic politics in the abortion debate).
70. See, e.g., MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (2007).
71. See, e.g., KAGAN, supra note 24, at 61–96; see also Michael Asimow, Popular Culture and the Adversary System, 40 LOY. L.A. L. REV. 653 (2007); Elizabeth G. Thornburg, Metaphors Matter: How Images of Battle, Sports, and Sex Shape the Adversary System, 10 WIS. WOMEN'S L.J. 225 (1995); William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform, 54 OHIO ST. L.J. 1325 (1993).
72. See, e.g., supra note 24. Moreover, many young attorneys stay in a prosecutorial office only for a few years, seeking to build their resumes and credentials as a means to achieve a high‐paying job in the private sector. See, e.g., TONRY, THINKING ABOUT CRIME, supra note 24, at 208.
73. William Stuntz's work has been especially insightful on these issues. See, e.g., Stuntz, Pathological Politics, supra note 10; William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548 (2004); William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780 (2006).
74. Brand, supra note 65, at 1–2.
75. Hon. William H. Rehnquist, Luncheon Address, in U.S. SENTENCING COMMISSION, DRUGS AND VIOLENCE IN AMERICA 283, 287 (1993).
76. See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 873 n.14 (2009) (quoting federal lawmakers).
77. See 114 CONG. REC. 22,231 (1968) (statement of Rep. Poff).
78. See Gun Control Act of 1968, Pub. L. No. 90–618, tit. I, § 102, 82 Stat. 1213, 1223–24; Comprehensive Crime Control Act of 1984, Pub. L. No. 98–473, tit. II, § 1005, 98 Stat. 2028, 2138; Firearms Owners' Protection Act, Pub. L. No. 99–308, § 104(a), 100 Stat. 449, 459 (1986); Act to Throttle Criminal Use of Guns, Pub. L. No. 105–386, &sec
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text:
Jones lifts O's, Norris in San Diego homecoming
Center fielder goes 4-for-4; righty wins second straight start since trade
SAN DIEGO -- Orioles center fielder Adam Jones, a San Diego native who still lives in the area in the offseason, made it a homecoming to remember Tuesday night.
Jones turned in his first four-hit night of the season in a two-RBI game, including a solo homer, to lead Baltimore (62-51) to a much-needed 4-1 series-opening victory to begin a critical three-city West Coast road trip. Playing at Petco Park for the first time since 2010, the Orioles -- swept at home earlier this season -- picked up their first win in three tries over the Padres and remained in the thick of the American League playoff picture.
The victory, in front of an Oriole-heavy crowd of 28,055, put the third-place O's a game back in the AL Wild Card race -- along with Cleveland -- and six behind the AL East-leading Red Sox.
"We have to control what we can control and if we rack up the W's, we are going to give ourselves the best chance," Jones said of what the Orioles have to do to punch their second consecutive playoff ticket. "The cool part about it is we are going to run into Tampa [Bay] and Boston in September, so we just want to give ourselves [a chance] when September 1 [comes] -- everybody is close -- and run the gauntlet."
Coming off a disappointing 4-5 homestand, which included series losses to Boston and Seattle, the Orioles used Jones' fabulous night at the plate and another solid outing from starter Bud Norris to get back on track with fewer than 50 games remaining in the regular season.
"It's been great to come over with a ballclub that's in a pennant race and focused on winning," said Norris, acquired from the last-place Astros in last Wednesday's Trade Deadline deal. "This is such a great organization, top to bottom, so I'm going to do what I've been doing, which is throw strikes and let the guys play defense. I feel really comfortable with [catcher Matt] Wieters behind the plate. He's definitely making the transition a lot easier and these guys can swing the bats. Our focus is winning and that's where my focus is, too."
Jones put the Orioles up immediately off Padres starter Edinson Volquez with a single to center after Nate McLouth delivered a game-opening double and extended his career high in stolen bases to 26 with a swipe of third. Jones pushed the lead to two in the fourth with his 23rd homer of the year, jumping on Volquez's first-pitch changeup and sending it an estimated 368 feet into the left-field stands.
"Adam put together a big night," said manager Buck Showalter of Jones, who has an extra-base hit in four consecutive games. "His two-out RBIs are always a momentum change."
Norris made sure the pendulum didn't swing back to San Diego, picking up his second win in as many tries in a Baltimore uniform with a quality six-inning outing. He stranded a runner on third with no outs in each of the first two innings and settled in after that, limiting San Diego to 1-for-12 with runners in scoring position.
"He goes after people," Jones said of Norris. "And this team, you see it in our eyes, we are all competitors. We don't like to give anything away. And he's fit right into the mold of this team. No nonsense, get the job done and no excuses, and he's given us a big lift these two starts."
Chris Denorfia opened the bottom of the sixth with a single off Norris, the first of three consecutive San Diego hits that resulted in the Padres' lone run. Pitching coach Rick Adair came out to talk to Norris after Yonder Alonso's RBI and he navigated out of further damage, striking out Jedd Gyorko and stranding runners on second and third after a deep fly ball and a popup.
"For the most part, [he was] doing a good job locating his fastball, he was working quite quick," said Alonso of Norris, who has won three consecutive outings against the Padres. "His secondary stuff was pretty good, too. Today was one of those days where he had all his pitches going and it was a battle."
Norris, who struck out five, allowed just the sixth-inning run before handing the ball over to the Orioles' bullpen, improving to 3-1 with a 2.79 ERA in five career starts against San Diego.
"He made a lot of good pitches," Showalter said. "Sometimes, you wiggle out of those situations and you're just fortunate. He made a lot of good pitches in those first two innings. To hold it at 2-1, that was more impressive. He was starting to elevate the ball a little bit. He found a way to get through that one."
Right-hander Tommy Hunter pitched around a two-out walk in the seventh while lefty Brian Matusz struck out Chase Headley and exited after Alonso's single in the eighth, with Darren O'Day getting a double-play ball from Gyorko to end the frame.
Jones, who also singled in the sixth, picked up his fourth hit of the night off reliever Luke Gregerson two outs into the eighth. After picking up his 10th steal of the season in a swipe of second base, Chris Davis doubled him in to put the Orioles back up by two. Manny Machado's ninth-inning single with two outs added an insurance tally.
Closer Jim Johnson picked up his 39th save of the season to put the finishing touches on the win.

subset: commoncrawl


text:
Woman speaks out about the painful reality of being born with two vaginas
She has suffered so much.
She has suffered so much.
Nurse Nicci Triefenbach was born with a very unusual condition that affects less than 1% of all women worldwide.
The 32-year-old from Missouri first realised that something was seriously wrong when she was just 13-years-old.
Nicci explains, 'I first noticed something was wrong when I was bleeding more than I thought I should. The pain was intolerable. When I was on my period I could not function.'
Shockingly, after a trip to the doctors, Nicci discovered that the cause of her pain was down to having been born with two vaginas, two uteruses and two cervixes.
The rare condition, called uterus didelphys, sadly not only caused Nicci extreme physical pain throughout her teenage years but emotional pain too, as she struggled to come to terms with her diagnosis.
She says, 'the hardest thing about the whole process is not feeling like a woman. With the whole two vagina thing you just feel, 'wow, I'm a circus freak.''
'And then there's the other aspect of trying to explain that to your partners before you have sex. Like, 'hey, I'm a little different down there!''
Thankfully, Nicci went on to find the love and acceptance that she always craved after meeting her now husband Andy Triefenbach. And he clearly couldn't be prouder of his courageous wife.
Andy says, 'I can't even begin to imagine what she's been through because I'm not a woman but I can get a glimpse of it because I can see the after effects of it. I love her and she's the one.'
'Nicci is really strong. I commend her for being as strong as she was getting through all this. I can only imagine how hard it was for her.'
Nicci sweetly adds, 'he's my rock. He takes care of me. He's never made me feel like a disappointment.'
If having two vaginas wasn't enough to contend with, Nicci was also been diagnosed with endometriosis and has heartbreakingly suffered miscarriages in her quest to start a family with Andy.
She says, 'I've had three miscarriages. You get very desperate when you want to have children and you just wonder, 'what am I doing wrong? Why am I going through this?''
'My hardest and darkest moment was after my last miscarriage. I had been bleeding for 6 months straight. You're drained, you just want to be done and you have moments where you don't want to live but you know you have to.'
Discover every woman's hidden power
That explains the double periods...
'Staying strong is all I could do. Put on a fake smile and do what you've got to do to get by.'
Exhausted and drained by the daily agony and challenges that her conditions caused, Nicci recently made the difficult decision to have a hysterectomy.
She explains, 'It wouldn't be safe for me to try and have a child, nor would it be a good idea with the bleeding issues I was having. So I was 31 and had my mind set on having a hysterectomy because the quality of life wasn't good.'
'First I was OK with it but the feeling I felt knowing I could not have my own children – I kind of felt empty and like I wasn't really a woman.'
'My quality of life since the surgery has been fantastic. I'm happy and I can get healthy now. I have the energy to do so.'
Despite the tough times she has endured, Nicci wants to inspire other women with her positive outlook and hopes to one day to finally have a family of her very own.
She says, 'I want to adopt one day – hopefully soon!'
'There are so many women out there who have anomalies and don't feel like they have anybody.'
'You're not alone and you just got to be strong.'
You're not a circus freak if you're born with two vaginas. You're just different, and you've got to learn to work with it.'


text:
A city businessman who "orchestrated, masterminded and co-ordinated" a series of mortgage frauds over a two-year period is going to prison.
Ali El-Sayed, 34, was handed Wednesday a sentence of nine years and three months on 19 charges in a fraud that netted more than $9 million in loans from banks, who lost nearly $5 million of it.
Court of Queen's Bench Justice Paul Jeffrey said that "clearly this type of fraud on mortgage lenders undermines the mortgage financing scheme in this country."
Jeffrey said the reach of this scheme went far beyond the actual victims, those who were duped or enticed by greed to play a part.
"El-Sayed perpetrated the frauds in such away to distance himself from the front-line risk while reaping, through corporate structures and approaches, the ensuing benefits," said the judge.
"This was a complex operation, occurring over a number of years across multiple third parties, multiple victims, and requiring significant complexity. It required a significant amount of planning, co-ordination, ongoing management after the commission of the initial frauds to conceal them and sustain the various fictions. El-Sayed's fraudulent scheme was motivated solely by greed."
Jeffrey, who had found the facts of the jury's decision to be that El-Sayed may not have used the exact same method each time of working with other accused persons and "straw buyers" to obtain the money from the banks, but that he was always very involved in the transactions between January 2007 and January 2009.
Court heard El-Sayed paid people $3,000 to $10,000 in fees for letting their names stand and sign off as a straw buyer. Many of them were victimized as a result of the frauds.
"El-Sayed used (co-accused) Russell Kilba to recruit straw buyers and made it clear that Kilba should not be concerned if they did not qualify, explaining to him that job letters could be made up for them.
"El-Sayed was the decision-maker, Kilba was one of his implementers."
Earlier, Crown prosecutors Brian Kiers and Shelley Smith argued for 10 to 12 years, telling court that the magnitude of El-Sayed's fraud was significant: the financial institutions advanced $9,297,234 and lost $4,596,6767, the latter for which the judge ordered restitution.
"This fraud was sophisticated and involved many acts of deception," Smith said in her sentencing argument.
"It is an aggravating factor that these offences were motivated solely by greed. Mr. El-Sayed used the fraudulently obtained mortgage advances to live a lavish lifestyle."
Defence lawyer Andre Ouellette sought a sentence of four to seven years on the 19 convictions, saying that range is what is supported in proportionality to similar offences. He also noted his client was very co-operative and admitted to many facts, not forcing the Crown to prove every element of each count.
As well, Ouellette said his client's co-accused Russell Kilba received 30 months on nine counts of fraud.
Kilba, who pleaded guilty, was sentenced based on a total fraud of $4.2 million and causing $1.7 million in losses to the victims.
Another co-accused, Christos Fotopoulos, cut a deal with the Crown in exchange for his testimony and received a suspended sentence with 18 months probation. Both Kilba and Fotopoulos testified against El-Sayed at his trial.
El-Sayed showed little remorse for his actions when he addressed the court before sentencing.
He said he didn't mind being punished for what he did, but not for the counts to which he claimed he was not responsible.
"I admitted being responsible for taking mortgages when I was on the witness stand," he said. "I have committed myself to restitution to the straw buyers . . . I won't pay for anything for which I'm not responsible."
However, he said he has lost everything – his house, his vehicles and all of his other belongings.
The judge also ordered El-Sayed to provide a DNA sample.


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\n1. Nibbling on Your Cuticles
Why it's a no-no: Torn cuticles lead to hangnails and infections, says Jessica Vartoughian, owner of Jessica Nail Clinic in Los Angeles.
Rehab: Keep the skin around your nails moisturized, says Vartoughian. "If it's hydrated, you'll have fewer snags and be less tempted to pick at it." Rub a thick cream or oil into your cuticles daily and massage them with an exfoliator every few days. Try OPI Skin Renewal Scrub, $8.95. Also, push overgrown skin back with a cuticle stone after showering, when they're soft. We like Revlon Expert Effect Cuticle Stone, $2.99. You can also try a bitter-tasting nail polish designed to discourage the habit.
2. Swapping Your Strand Shade Frequently
Why it's a no-no: Trading your tress tint occasionally is okay, but dyeing your hair too often can make it weak and lead to an identity crisis. Sure, celebs like Rachel McAdams and Ashlee Simpson constantly switch up their hair hue, but they do it for a movie or to capture attention on the red carpet. And they put in major moolah and extra TLC to undo or hide the damage.
Rehab: First, try diverting your desire for novelty from hair color to makeup, since it's easier to experiment with lipstick and shadow on a weekly basis. And when you get to the point that you just have to color your coif, take this advice from Pantene celebrity colorist Rita Hazan:
- Be a smart blond. Bleach is the most damaging and drying ingredient. It's okay to hit the bottle once every six weeks if you're only brightening up a shade or two. If you want to be lighter than that, use a bleaching kit once a month, going one level blonder each time until you reach your desired hue.
- Going darker is less damaging. Adding color to your hair isn't as stressful to your strands since you aren't stripping away any natural pigment. You can use a permanent dye every four weeks and an ammonia-free semipermanent formula every three weeks.
- Crib a conditioning regimen. Postcolor, apply the kit's deep conditioner. Also, use a hair mask twice a week. Try Pantene Pro-V Pure Brilliance Deep Hydrating Treatment, $3.99.
Why it's a no-no: Sleeping with mascara and eye makeup on can cause you to wake up with puffy bags and maybe even an infection, says New York City celeb derm Patricia Wexler. And layers of foundation, concealer, and blush will stop your skin from breathing and clog up your pores, making your complexion acne-prone and dull-looking. Even if you didn't wear makeup during the day, your skin accumulates oil and dirt, both of which can also lead to pimples if not washed away in the p.m.
Rehab: Keep a pack of premoistened face wipes next to your bed. This way, no matter how tired you are (or how many cocktails you've had), you can swipe away your makeup in seconds, sans rinsing. We like Olay Daily Facials Express, $4.99.
4. Fake-Baking in a Tanning Bed
Why it's a no-no: Ultraviolet-A rays (the kind emitted primarily from tanning-bed bulbs) are called aging rays for a reason — they penetrate your connective tissue, causing premature aging and the proliferation of free radicals. Plus, UVA rays have been linked to skin cancer and can suppress your immune system, says Dr. Wexler.
Rehab: It's so easy to crib a safe and believable tan from a bottle, thanks to the latest body lotions that are spiked with just a hint of self-tanner. But unlike regular moisturizers, apply this variety to totally dry skin, since excess water can cause the color to develop unevenly, says Cindy Barshop, owner of Completely Bare in NYC. After 24 hours, assess your glow. If you're craving a more golden look, rub on another coat and repeat daily until you reach your desired level of bronze. Try Dove Energy Glow Daily Moisturizer, $6.99.
5. Torturing Your Tresses with Heat
Why it's a no-no: Wielding a hair dryer, curling iron, or flatiron daily (or a combo of any of the above) will dry out your locks, leaving them dull, frizzy, and weak, says Joico artist Anthony Morrison, owner of the Londoner Salon in Los Angeles.
Rehab: While blow-drying, stick to a medium heat and speed setting and keep the nozzle a few inches away from your hair, says Morrison. When using a flatiron, quickly slide the iron down a section of hair in one smooth motion. Any pauses along the way will create dents that will require another run-through with the iron to fix. If you're curling your locks, release the coiled section after no more than five seconds. It's also a good idea to keep your heat-styling sessions to a minimum, only blasting your locks with a dryer a couple of times a week instead of daily. When you suds up, use a moisturizing shampoo to keep strands supple. Try Joico K-Pak Shampoo, $11.95.
6. Overbleaching Your Teeth
Why it's a no-no: Your pearly whites can only get so bright, no matter how many times you bleach them, so any treatments you do after reaching your maximum level of whiteness (they shouldn't be bluish or whiter than the whites of your eyes) are more hurtful than helpful, says Cyrus Tahmasebi, a dentist with BriteSmile. "Constantly applying hydrogen peroxide to your teeth can leave them ultrasensitive and prone to chipping."
Rehab: If you're going to a pro, you can expect your teeth to whiten up about eight to nine shades (think the subtle difference between colors of paint). On the other hand, if you're using an at-home kit, you'll probably see about a four-shade improvement. Be sure to follow the instructions on the box carefully, and don't rebleach until at least six months later, says Dr. Tahmasebi. A superfast smile kit: Crest Whitestrips Renewal, $39.99.7. Using Makeup Testers
Why it's a no-no: Your chances of contracting herpes or pinkeye from the bacteria and germs found in the testers at a makeup counter are slim, but theoretically it could happen, according to Dr. Wexler. And let's face it, it's a little (okay, a lot) icky to share lipstick or eye shadow with tons of total strangers.
Rehab: Make sure the store where you're shopping practices safe makeup sampling. Look for disposable applicators, sponges, cotton swabs, tissues, disposable mascara wands, and rubbing alcohol for disinfecting makeup brushes, says Lyn Lynch, lead color specialist at Sephora. It's also crucial that you don't double-dip into the master container — ever. If you're not sure how to handle the testers, ask for help. Any reputable store should have well-trained sales associates. Also, wash your hands postshopping.
8. Popping Your Pimples
Why it's a no-no: You should maintain a strict hands-off policy when it comes to your zits. Can't resist? How's this for motivation: Messing with a pimple can extend its staying power to seven to 10 days instead of the normal two to three, since the dirt from your fingers can force bacteria into your pores and cause an infection, says Dr. Wexler.
Rehab: Practice patience and apply either a benzoyl peroxide or salicylic acid potion twice daily — in three days, it should be clear. Try Patricia Wexler, MD, Acnostat Acne Spot Treatment, $18.50, and Mario Badescu Drying Lotion, $17. In the meantime, squirt a cotton swab with redness-reducing eyedrops, then place it on your pimple. Follow with a dab of concealer.


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Envirogen Launches EnviroHPA™ Service Program as High-Performance, Cost-Effective Alternative to Activated Carbon Systems in Hydrocarbon & Chemical Processing Industries
Advanced Adsorbent Media and Custom Designed Systems Deliver Guaranteed Performance with Low- to No-Capital Investment and 20-50% Savings versus Carbon Systems
Nov 14, 2012, 08:35 ET
KINGWOOD, Texas, Nov. 14, 2012 /PRNewswire/ -- Envirogen Technologies, Inc. (Envirogen) announced that it has launched a service program that represents a 21st Century alternative to environmental treatment applications that might otherwise feature activated carbon as an adsorption medium. Called EnviroHPA™ Systems, the offering features a range of ultra-high performing adsorbent media in systems designed, guaranteed and operated by Envirogen under multi-year agreements. Improved performance is seen in smaller footprint systems that can handle a wide variety of organic contaminants with excellent control and a minimum of system upsets. Envirogen offers EnviroHPA Systems as a service in which system design and installation, media costs, regeneration and disposal are charged as an operating fee over the life of the system. They can be offered with low- to no-capital investment, guaranteed performance and predictable costs over the service life of the installation. Savings with EnviroHPA Systems can approach 50% when compared with traditional activated carbon systems in high volume applications. An additional benefit of an EnviroHPA System is the substantially smaller carbon footprint of this approach compared to activated carbon systems. The initial applications for EnviroHPA Systems will be in the hydrocarbon processing and chemical processing industries for removal and recovery of select organics from wastewater, groundwater and vapor phase streams. Envirogen expects to have similar offerings for potable groundwater treatment, municipal wastewater treatment and other applications in the near future.
According to Robert Stark, Vice President, Southern Region for Envirogen, the synergistic combination of process expertise, high-tech media and service program is key to the dramatic cost-reductions available with EnviroHPA Systems. "Activated carbon has been an excellent tool in environmental treatment for decades for its low cost and adaptability into different applications. However, advances in material science have given us a whole new range of adsorbing media, which when expertly applied, have incredible performance characteristics and offer significant improvements in both treatment efficiency and cost performance. With EnviroHPA Systems, we can achieve both," he said. "In the past, the high initial costs and the complexities of working with these high performance media have been considered, by some, to present risk that would not justify moving away from dated activated carbon systems. Because of our thirty-plus years of experience with adsorptive media and our system design capabilities, Envirogen has been able to eliminate the risk to customers and to guarantee performance and costs over the life of an installation. This sets the stage for the dramatic cost and carbon footprint reductions we can now offer," he added.
Advanced media technology key to performance and costs
For industrial aqueous and vapor phase treatment applications, Envirogen employs synthetic adsorbents manufactured by The Dow Chemical Company (DOW). These adsorbents offer a very high surface area and optimized pore size distribution – characteristics that offer substantially increased absorption capacity, rapid adsorption kinetics, a range of desorption options and excellent physical and chemical stability. Faster kinetics and higher contaminant loading can translate into higher hydraulic rates with a smaller system footprint - decreasing operations and maintenance costs for the treatment process and lowering initial capital expenditures for overall site improvements and utilities that accompany an adsorbent installation.
Enhanced desorption characteristics allow media to be regenerated in place with heat, steam, aqueous acids or bases – leading to an extended media bed life in use. The extended bed life of EnviroHPA System media is critical to a number of advantages over activated carbon. These include substantially lower lifecycle media costs when activated carbon must be reactivated or disposed off-site when it is spent, because of the energy that is required to conduct the reactivate or transportation and disposal costs. In-place reactivation eliminates the transportation associated with supply and removal of activated carbon from the site, and can offer significant reduction in the scale of site improvements and truck traffic. Regeneration of the EnviroHPA System media provides a more predictable, lower cost for operation and maintenance over the life of the project – especially when fluctuating prices for activated carbon are factored in. It is also a more sustainable solution with lower energy consumption and CO2 emissions.
According to Dr. Bob Goltz, a 30-year Separation Scientist and DOW veteran, with proper system design, operations and management, DOW synthetic media has the potential to substantially reduce lifecycle costs and treat difficult waste streams. "DOW is pleased to be working with Envirogen and stands ready to assist with decades of product and application development expertise for use of our products in aqueous and vapor phase applications," he said.
Bob Stark agrees that the performance and economics of the EnviroHPA Systems merit a long look by environmental facility managers and consulting engineers who are considering or using activated carbon as a treatment technology. "We're very excited about the opportunity EnviroHPA Systems represent as a high-performing, cost-effective alternative to activated carbon installations – and to working with DOW to optimize this technology for the market. In many instances, we are able to offer predictable, lower operating costs, and guaranteed performance for the life of these installations. And, we're doing it in a way that is better for the environment – by lowering the overall carbon footprint," he said. "While certain applications and contaminant types are a better fit for EnviroHPA Systems, today, we feel that anyone who is looking at activated carbon should consider the EnviroHPA Systems approach," he added. For more information, visit www.envirogen.com.
For further information contact:
Mark Falconer
Voice: 407.412.9705
Email: [email protected]
This press release was issued through eReleases® Press Release Distribution. For more information, visit http://www.ereleases.com.
SOURCE Envirogen


text:
- Home
- Wrist Length Satin With Bowknot Fingertips Bridal/Wedding Gloves (105083)
Product Details
|Anniversary, Engagement, Special Occasion, Wedding
Delivery & Returns
DIYdress partners with major international shipping companies to offer some shipping methods. You are assured to enjoy a fast and professional service .You can choose your preferred shipping method on the Order Information page during the checkout process. Your order will be delivered within the time period based on your specified shipping method.
While we hope, you will be very satisfied with your order. More information on returns can be found here.
Write a review
How do you rate this
- Value:
Wedding Dress Showroom
Prom Dress Showroom
The best dressmakers and experienced designers are hired, which use the best production techniques to tailor your dress.The gowns and dresses are made of high-quality materials with exquisite craftsmanship. Fully lined with hand sewn beadings and embellishments.
Fine Materials
Elegant beading
Hand ruching
Lining and boning
Serving We have a strong customer service team serving for our every customer with our sincere desire , our intendment,our patience!
Shipping We ship to over 200 countries worldwide through fast and reliable delivery partners.
Packaging A lining bag, sturdy cardboard box and measuring tape accompany every wedding dress.
- Q: I need my order urgently! Do you have this Dress in stock? A:
- Q: I like a dress, do you have any more pictures of it? Perhaps in different colors? A:
- Q: Shipping Cost A:
- Q: Some Dresses are at a very low price, can you guarantee the quality? A:
- Q: I like a Dress, but not its color. Can I choose a different color, not available on the product page? A:
- Q: Size Chart A:
Unfortunately we tailor dresses from order to order therefore we do not have any Dresses in stock, you can place a rush order and express delivery with the exact date you need your Dress.
Unfortunately we only have the pictures displayed on our website. If you contact us directly, we can look for it, but cannot guarantee that we have more pictures.
Generally the shipping price is 20 pounds, however if your order exceeds the total order amount of 150 pounds we offer free shipping.
We have our own workshop, where our tailors process your order. There are no middle man's afterwards, you buy it from us, we make if for you, we ship it to you. The strict control of the production process ensures that our dresses are made with high quality.
You can choose on color from the color chart, or you tell us the color you want when you place the order, write the color and other requests into the Special Requirements field.
Our Site Chart is the UK standard size. Before placing your order, please compare your size with the chart on the page, to be sure that you place your order with the right measurements.


text:
Dear Slice: Try Star Tavern in Orange, New Jersey!
Slice mail answered.
Reaching in to the Slice mailbag, we've got ...
I saw your post on Colony Grill in Stamford. Looks pretty good, and I definitely share your enthusiasm for the old-school. But I think sometime soon you really should consider making a trip to Star Tavern in Orange, New Jersey.
From the photos alone, I think we have Colony beat. Very similar style, but the upskirt from Colony does not seem to compare!
"Star," as we call it, is an institution in Essex County. I consider myself pretty experienced in the world of pizza—been done there and done that with all the Neapolitans in NYC—but still, after all this, Star pizza is still my last pizza on earth. For sure.
I know it's probably a trip for you, but well worth it. And I would certainly join you if you ever decide to do it!
Longtime reader, Justin
------------------------------------------------------------ Dear Justin,
Bwahahahah. Be careful what you wish for. I just may take you up on the offer of tour-guiding me through "Star."
I was actually thinking of Star Tavern today while writing the Colony piece. Star has been on my list for longer than I'd like to admit — ever since Jason Perlow of Off the Broiler started emailing me about how I needed to get my sorry self there. Jason did a very nice post about Star in July 2006, btw.
I think I'm going through a "bar pizza" phase right now. Lemme look at my schedule and see when I can get out there. Let's say in the next couple of weeks. Perlow's pictures make it look really, really good.
Hasta la pizza, Adam
All products linked here have been independently selected by our editors. We may earn a commission on purchases, as described in our affiliate policy.


text:
As part of the 5th World Water Forum preparatory process, we invited you to help us identify the key questions you think are most pressing and to which the water community must respond.
Since December, approximately 200 of you have answered this invitation by offering your own suggestions and votes for the crucial issues and debates that should be present in the Forum. To date, we have received upwards of 460 questions from the community at large, all of which can be viewed here.
Your contribution has been an important step in providing guidance and structure for the 100 sessions that will be held during the Forum. Many of these questions were discussed in depth among over 400 stakeholders during the 2nd Thematic Coordination meeting held in Istanbul in February and will serve as the basis for the development of three to five sessions per topic that will be organized during the Forum, integrating different perspectives in order to provide answers to those main challenges identified within each topic.
For, it is not the questions themselves, but the solutions that we are able to provide and apply as a global water community that will make a difference in the sustainable management of water resources in the future. This is, indeed, the goal of the World Water Forum.The questionnaire is now closed and we thank you for your enthusiastic participation that will enable the preparatory process to continue within the spirit of involvement that already characterizes the 5th World Water Forum.
Another interactive process will soon be launched through the website and will provide the opportunity to contribute more concretely to the development of specific Forum sessions.
We look forward to your continued involvement in this process. Stay tuned!
Your 460 questions


text:
EDITORIAL: Administrative bloat taking over at UConn
U.S. universities have been hiring administrators 10 times faster than faculty members, according to the U.S. Department of Education. That lopsided administrative growth may be one of the reasons the University of Connecticut does not have enough teachers for students to take all required courses to graduate within in four years.
And, universities' top-heavy administrations are driving up the cost of a college education.
UConn's administrative bloat is conspicuous enough to have been singled out in a recent Bloomberg News report.
The university, the news service noted, "has a $312,000-a-year provost and 13 vice, deputy and associate vice provosts, including one overseeing 'engagement' who makes almost $275,000 a year. The university has seven vice presidents and 13 deans. President Susan Herbst, who receives a $500,000 salary, has a $199,000 chief of staff."
Add to that the campus police chief, who retired last year. He was paid $256,000, more than New York City's police chief. His deputy at UConn, also now retired, was paid $202,000.
The overpaid cops may be gone, but Herbst has created a new administrative post, vice president of communications. She has hired someone from the University of Iowa to fill it at a salary of $227,500.
"How aggressively we communicate about ourselves and tell our story as an institution is one of the essential components of our success as a top public university," Herbst said in a press release. Apparently, creating the image that UConn is a top public university means that you have to pay top dollar to spread that message, particularly for a "top" school ranked 63rd among national universities by U.S. News and World Reports.
If UConn's salaries and administrative structure sound similar to those of a Fortune 500 corporation, it is because it uses the same system in setting salaries that requires it to be competitive with peer institutions. It is a self-perpetuating cycle of ever higher pay.
Tuition and fees at UConn have gone up 6 percent this year and will continue to go up by as much as 6.8 percent annually through 2016. The increases, Herbst argued, are needed to hire more faculty; and, she might have added, to support all of her very well paid administrators.
Editorial courtesy of The New Haven Register, www.nhregister.com.


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Celebrities lend their voices to all sorts of cartoons, movies, and anime all the time—but you don't always pick up on it. Did you know, for example, that Breaking Bad actor Bryan Cranston has been in a bunch of anime?
That's just one example of the type of cartoon voice actor reveals featured in this cool video by Screen Junkies. You'll probably know at least a few of these—everyone knows that the genie in Aladdin is voiced by Robin Williams, for example. For the rest of us, though, there are bound to be a few surprising voice actors in here.
Shocking Celebrity Cartoon Voices! [Screen Junkies]