RFRA objection to Sentencing Guidelines that provide for down ward departure when a defendant has provided substantial as s istance

Scarberry, Mark Mark.Scarberry at PEPPERDINE.EDU
Sat Sep 7 13:11:04 PDT 2002


The defendant should not receive the downward adjustment in this case
without cooperating, but I do not see how an extra year in prison (or
perhaps extra years) could be thought of as an insubstantial. Most of us
would consider a year of prison to be not merely a substantial matter but an
unmitigated disaster. If the point is that loss of a downward adjustment of
a year isn't as objectionable as the addition of a year would be, that seems
to focus more on whether the failure to allow the downward adjustment is a
burden than on whether any burden is substantial. The weight--or
substantiality--of the effect is the same either way, isn't it?

I'd be willing to say that in this context the state has a compelling
interest in not providing a downward adjustment without cooperation. Or
perhaps as applied in this case RFRA might violate the Religion Clauses by
failing dramatically to provide "substantive neutrality" (as Doug Laycock
has explained that concept).

Mark S. Scarberry
Pepperdine Univ. School of Law



-----Original Message-----
From: Marci Hamilton
To: RELIGIONLAW at listserv.ucla.edu
Sent: 9/6/02 6:09 PM
Subject: Re: RFRA objection to Sentencing Guidelines that provide for down
ward              departure when a defendant has provided substantial as s
istance

The key in understanding "substantial burden" is in "substantial" and
not "burden."  All laws impose burdens; the question is whether the law
imposes such a burden that it is substantial and therefore a trigger for
heightened scrutiny under RFRA.  Being deprived of a downward adjustment
under the Sentencing Guidelines for failure to provide the information
the government requires for that particular downward adjustment does not
strike me as a *substantial* burden.

Of course, my view is that RFRA is unconstitutional even as applied to
federal law, so these cases are not getting to the real heart of the
matter.

Marci


n a message dated Fri, 6 Sep 2002 6:40:54 PM Eastern Standard Time,
VOLOKH at mail.law.ucla.edu writes:

> Of course, this is an "incidental burden," in the sense that it arises
from a generally applicable law -- but I thought that the purpose of
RFRA was to make these incidental burdens be subject to strict scrutiny,
if they are substantial.  And as I said, it seems to me that the threat
of extra time in prison is indeed a substantial burden.  It may be a
burden that could pass muster under strict scrutiny, but how can it not
> be a burden?
>         Eugene


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