How to negate the three worst judge-created doctrines
There are three toxic examples of judges creating new powers for themselves out of thin air. They are...
The compelling state interest doctrine
Qualified immunity
Judicial findings (acquitted conduct sentencing)
Can these nasty ideas be overturned?
The best argument against compelling state interest
The Supreme Court invented the "compelling state interest" doctrine in the 1950s. It allows politicians to infringe on your constitutional rights if courts believe the State has a "compelling" reason to do so.
We have an idea that could overturn this doctrine…
The Constitution already sets the bar for changing rights – it's called the amendment process. If government officials believe they have a compelling reason to infringe on existing rights, they should prove their case by passing a constitutional amendment. But…
Courts should not bypass this process by creating new exceptions from the bench.
We seek the right test case to end this practice and make a successful argument to overturn compelling state interest.
Qualified Immunity
Courts created this terrible doctrine out of thin air in 1967. It asserts that the police and other government agents owe you no compensation for any unwarranted harm they do you.
The Supreme Court created this whopper in 1997. It asserts that a judge can sentence you for conduct of which you have been acquitted, as long as you were convicted of something else during the same trial.
This was how Ross Ulbricht got sentenced to life in prison, even though the crime he was convicted of carried a sentence of only a few years. Fortunately, heavy pressure from friends and supporters convinced President Trump to pardon Ulbricht, but not everyone is so lucky.
And the negative side effects may be even worse than the individual cases of injustice. Billy Binion, writing for Reason, makes the following observations...
Nearly all federal convictions – 97% in 2023 – come from plea deals rather than trials. This happens because prosecutors can pile on additional charges to coerce guilty pleas. Acquitted-conduct sentencing raises the incentive to accept a plea deal, because if you are acquitted of most charges but found guilty of just one, the judge can still sentence you as if you were convicted of everything!
If that seems scary and unfair to you, you should join The 300 people in your district who will persuade your elected reps to outlaw acquitted conduct sentencing.
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