Constitution Daily Update: Manning learns his fate, Obama’s problems with young voters

WikiLeaks suspect Bradley Manning gets his prison sentence today; President Obama is losing his appeal to young voters; a side of the jail sentencing story that could give prisoners longer, and not shorter, sentences.

800px-Barack_Obama1. A military judge will sentence Pfc. Bradley Manning today for giving hundreds of thousands of classified documents to WikiLeaks. He faces up to 90 years in a federal prison.

2. President Barack Obama may be losing his appeal to younger voters, likely because the NSA surveillance story. A survey from The Economist and You Gov shows 14-point difference in President Obama’s approval and disapproval rating among voters aged 18-29 in polls taken immediately before the NSA revelations and in mid-August.

Developing Questions …

Here are some updates on new discussions about top-of-mind constitutional issues.

1. The Sentencing Saga, Continued

Doug Berman’s Sentencing Law & Policy Blog regularly covers opinions by Federal District Judge Mark Bennett from Iowa. Here are a couple of other examples:; and

The latest, handed down on August 16th, focuses on a problem of mandatory minimum sentencing under federal law that few people know about and that makes even more compelling Attorney General Eric Holder’s recent call for a comprehensive review of mandatory minimum sentencing laws: the opportunity those laws give for the Justice Department to make the sentences even longer, under so-called enhancements.

Here is part of Judge Bennett’s opinion:“This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity.”

For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532 percent more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency.  See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”).

Attorney General Eric Holder’s August 12, 2013 memorandum, while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.


On this day in 1959, Hawaii officially became the 50th state, as part of an unwritten deal to add Alaska as the 49th state. Hawaii’s first official representative in Congress was the legendary Daniel Inouye.

Closing Notes

1. Al Jazeera America has filed a lawsuit against AT&T, which dropped the debuting news channel from its pay-TV service at the last minute,  citing “breaches by Al Jazeera of the existing agreement.” Al Jazeera America launched on Tuesday, but it has carriage deals with just 4 of the 10 major television providers.

2. In an exclusive, BuzzFeed says the NRA has compiled its own massive database of gun owners as it fights perceived government efforts to build a national gun registry.

Editor’s note: The Update is a summary of news and commentary about the Constitution and related issues, as reported around the digital world. Guest contributors and our editorial staff add to the daily update, and we welcome your suggestions (and reports) at [email protected].

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