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Justice Must be Timely, Or Not At All – Update for February 14, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CORAM NOBIS – HE WHO HESITATES…

Oliver Wendell Holmes famously lectured a new lawyer from the bench, after the tyro attorney started arguing about justice, “This is court of law, young man, not a court of justice.”

lawnotjustice190213Well, it’s an imperfect world, but over the centuries, the common-law system developed a body of law authorizing writs – called “extraordinary writs” because they were, indeed, out of the ordinary – each tailored to address some injustice (sorry, Ollie) that the strictures of the law otherwise overlooked. The most famous is the writ of habeas corpus, an order from the court to a jailer to produce the prisoner before it and show by what authority the poor fellow was being detained. Injunctions, orders that a certain activity be stopped, likewise are extraordinary writs, as are their lesser-known prerogative-writ cousins, writs of prohibition, writs of quo warranto, and writs of mandamus. Then, there are the real unknowns, such as the writ of audita querala or writ of error coram nobis.

Many courts have limited the use of extraordinary writs, but not the Feds: the All Writs Act, passed as part of the Judiciary Act of 1789, authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

secondbiteapple190213Federal prisoners, who as a group sat in the back of the room during high school government class, discover the All Writs Act like travelers in the desert stumbling on an oasis of cool water and verdant fruit trees. With post-conviction petitions seemingly limited to a single 28 USC 2255 motion except in the most restricted of circumstances, inmates seeking a second or late-filed bite of the apple often consider a petition for a writ of error coram nobis to be a novel end run around the ban on multiple 2255s may want to look at what happened to Reuben Delhorno.

This is largely because newbies in the law library have forgotten or never knew what my wife calls the “Greater Minds Than Mine” rule. Any novel dodge or loophole you may discover in the law has already been found, beaten like a rented mule, and usually plugged by one court of aother. Greater minds than yours (or mine) have stumbled on your discovery a long time before you (or I) did.

rentedmule190213Reuben filed a petition for writ of error coram nobis, seeking to get out of a plea agreement for a conviction on which he had already served his sentence, in order to avoid deportation.

Coram nobis is a common-law writ available to correct errors of fact and law in criminal cases, but only when the movant is no longer in custody, and (1) the error is of the most fundamental character so as to render the criminal conviction invalid; (2) there are ‘sound reasons’ for the defendant’s ‘failure to seek earlier relief’; and (3) the defendant continues to suffer from his conviction.

Generally, a petition for writ of error coram nobis cannot be used for a second bite of the 2255 apple. As one court put it, given the broad purpose of the Antiterrorism and Effective Death Penalty Act, it would be “astounding if the ‘second or successive’ restrictions on 2255 motions could be rendered wholly ineffective by the simple ruse of labeling future § 2255 motions as petitions for writs of coram nobis.”

But Reuben did not do that. Instead, he sat on his hands while locked up, letting the deadline to file a 2255 pass. Only after he finished his term and found that ICE was waiting to hustle him back to Mexico did he wake up to the errors in his criminal proceeding.

At his change of plea hearing, Reuben said that he was born in Mexico but no one mentioned the immigration consequences of a guilty plea, even though the hearing took place more than a year after the Supreme Court held in Padilla v. Kentucky that a defense lawyer provided ineffective assistance by failing to advise the client that a guilty plea would result in automatic deportation.

nothappen181016Reuben complained his attorney’s representation was unreasonable, because he never discussed with Reuben the immigration consequences of conviction. The Court was “troubled that apparently neither his counsel, the prosecutor, nor the court raised the issue of the mandatory immigration consequences with him.” However, it found that Reuben lacked evidence that he would not have pled guilty even if he had been told about deportation.

But Reuben’s biggest problem was that he could not explain why he waited five years to raise the issue, instead of on appeal or in a 2255 motion. “A person seeking a writ of coram nobis,” the Court ruled, “must offer sound reasons for his failure to seek relief earlier.” Reuben could not, and thus had his coram nobis dismissed.

United States v. Delhorno, 2019 U.S. App. LEXIS 3977 (7th Cir. Feb. 8, 2019)

– Thomas L. Root

‘Off With Their Heads’: Supervised Release Violations to be Aired at SCOTUS – Update for February 12, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT TO HEAR SUPERVISED RELEASE CASE WITH FAR-REACHING IMPLICATIONS

Nationally, about a third of all people on supervised release – which is a period of a few years to life after a prisoner is released that is much like parole – get violated. Many of those people are sent back to prison for a term specified in 18 USC 3583(e)(3). The revocation proceeding has a star-chamber quality, employing loosely-goosey evidentiary and procedural safeguards as well as a limp preponderance-of-the-evidence standard instead of reasonable doubt.

thThe revocation hearing often comes down to the Probation Officer, herself an employee of the very court hearing the revocation, telling the court what her investigation into the alleged violation found, with that being enough for the preponderance finding, confrontation clause rights and hearsay concerns be damned.

“Although such violations often lead to reimprisonment, the violative conduct need not [even] be criminal,” the Supreme Court observed 19 years ago in Johnson v. United States. In fact, where the “acts of violation are criminal in their own right, they may be the basis for separate prosecution,” the Court said.

Now, 34 years after supervised release was created as part of the Sentencing Reform Act of 1984, SCOTUS is finally asking the hard questions about revocation procedures. In two weeks, the Court will hear oral arguments in United States v. Haymond, a 10th Circuit decision that held the supervised-release emperor has no clothes. The Tenth ruled that it was “unconstitutional and unenforceable” for a district court to revoke supervised release and impose five more years of prison on a defendant based on finding by a simple preponderance of the evidence that he violated the conditions of his release by knowingly possessing child porn.

The Circuit decision invalidated the parts of 18 USC 3583(k) that required a district court to impose prison based on a preponderance finding that a defendant violated the conditions of his release, even where the violation itself might by not be criminal.

imageA Supreme Court decision upholding the appellate decision in Haymond could have implications for over 150,000 people who are now or will someday be on supervised release. Simple math suggests that 50,000 of them will be violated – itself suggesting a systemic failure in the supervised release program – and a substantial percentage of them will face a return to prison. Not stripping defendants of their liberty, restricted though it is on supervised release, without a finding beyond a reasonable doubt that they violated supervised release seems a small price to exact from a system that fails so many.

Law360, High Court Takes On Supervised Release Revocations (Feb. 4)

United States v. Haymond, Case No. 17-1672 (Supreme Court, oral argument Feb. 26)

– Thomas L. Root

News of the (Good) Weird – Update for February 11, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SOME RUMORS ARE STRANGE ENOUGH TO BE TRUE
Did you hear about Mark getting released by his judge?
Did you hear about Mark getting released by his judge?

I hear from a lot of people, and unfortunately, most of what I hear is rumor. So I was skeptical last Friday when a guy at FCI Big Springs reported a friend of his had just gotten released on his recalculated 54 days of good time.

You should remember that in the First Step Act, Congress clarified its intent from 30 years ago that federal inmates receive 54 days of good-conduct time per year. Previously, the provision was so poorly written that the Bureau of Prisons read it to mean that after 365 days, a prisoner would get an award of 54 days. What Congress meant was that 311 days of good conduct, an inmate would be awarded 54 days (which would make a year).

What’s the difference?  Seven days a year, which the First Step Act made retroactive to the beginning of the current  sentence.  I talked to one inmate at the end of his 23-year sentence who is in line to get an additional five months off. Instead of being home for Thanksgiving, he’ll be there for July 4th.

Or he would have been. But in correcting its prior screw-up, Congress committed a new one: the effective date for the seven days additional good time was placed in the wrong section of First Step (Section 102(b)(1)(A), along with the earned-time credits). Congress intended that the earned-time credits become effective only after giving the Attorney General time to adopt a risk assessment algorithm. But it neither intended nor saw a need to delay application of the additional seven days, which the BOP can apply to inmates’ sentences with the push of a button.

Screwup190212Despite its intent, Congress goofed, so that instead of taking effect when the First Step Act was signed, the additional good time will not be effective until July 19, 2019. This has made a mess of halfway house and release dates for a lot of people whose date would have moved by weeks or months. Just last week, Mother Jones reported that “4,000 prisoners who hoped to be out for the holidays remain stuck behind bars waiting for answers.”

So when I heard on Friday that federal prisoner Mark J. Walker had been given his extra good time and immediately released by a Federal District of Oregon judge, I doubted it.

It happened.

There is a lot of story to this case, such as what drove Mark’s public defender to file the motion, that I just do not know. But file the PD did, delivering to the Court a 14-page petition for writ of habeas corpus on Jan. 25 that argued the only rational interpretation of the First Step Act was that the Sec. 102(b)(2) 210-day delay applied only to the new extra time credit and not to the seven days additional good time. Plus, the PD argued, delaying the effectiveness of the extra seven days violated due process by being arbitrary and capricious, and Mark’s immediate release was necessary to avoid irreparable harm.

The argument is creatively, innovatively weird. The government’s response, on the other hand, was just plain weird. The AUSA chose to ignore Mark’s substantive arguments, instead opposing the petition solely on the ground that the Oregon court lacked jurisdiction, and that Mark should have filed in the Northern District of Texas, where he was confined.

release161117Last Thursday, an Oregon federal district court ruled that “given the Government’s failure to address the merits… and the equities of the situation” it would grant “the relief requested… without a final determination of the merits of the legal issues raised by Defendant.” Senior US District Judge Ralph R. Beistline ordered the BOP to recalculate Mark’s sentence and to release him “without delay if the recalculation confirms that the Defendant’s term of imprisonment has expired.” Mark was released the same day.

By its terms, the decision is not intended to rule on the merits, and as a district court order, it lacks precedential value, but it is a creative and audacious filing that let Mark go free two months before he otherwise would have.

Order, United States v. Walker, Case No. 3:10-cr-00298 (D.Oregon, Feb. 7, 2019)

Mother Jones, Trump’s One Real Bipartisan Win Is Already Turning Into a Mess (Feb. 5)

– Thomas L. Root

Federal Judge Goes to Jail… And Does Not Like It – Update for February 7, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COLD CELLS PUT BOP WARDEN ON HOT SEAT

U.S. District Judge Analisa Torres toured MDC Brooklyn, the federal high-rise lockup in the Sunset Park neighborhood of the borough, yesterday. She did not seem to like what she saw.

hotseat190207The Judge conducted her walk-through with lawyers and a court reporter in tow, hearing about the inmates’ days in the dark and freezing cold – without medical or mental health treatment – while Federal Bureau of Prisons staff worked in coats and gloves.

CNN reported that Judge Torres spoke with inmates through their cell doors, repeating what they said for the benefit of the court stenographer and lawyers and officials who accompanied her.

One inmate described the “mental breakdown” of his cellmate while the power was out, according to the court transcript. The outage rendered “emergency buttons” to get the attention of guards ineffective.

When the inmate finally reached an officer to tell him his cellmate was suicidal, “I think they took it as a joke,” he told Torres.

The inmate said he “physically had to take … literally had to take the noose out of his cellmate’s hand.”

“He was trying to kill himself,” the inmate said.

“I’m sorry to hear that,” Torres said.

“Thank you for being worried about us, ma’am, and treating us like human beings,” the inmate told the judge.

The Judge repeated for the reporter, “He is a mental health patient, and he was feeling suicidal and no one came to help him. He said the temperature dropped to freezing. They had nothing in there, they had no thermal shirts.”

She observed water damaged ceilings in another cell, where, she said, “you can see copious amounts of paint peeling and hanging from the ceiling. The ceiling is painted white, but the water damaged area has a kind of a golden tone to it. It almost looks like wet tissues hanging from the ceiling.” The inmate in the cell told her that it was “like sleeping under a waterfall.”

“He says they didn’t care for you,” Torres told the lawyers and court reporter. “If you tried to get an extra blanket, they ignored him.”

Lack of power, freezing conditions and appalling treatment of inmates at the Brooklyn facility sparked a national outcry and unprecedented protests this past weekend, leading to the Judge ordering the unusual hearing and forced tour of the prison. The string of heat outages began at the Brooklyn detention facility weeks earlier, according to jail staff and inmates who testified during the hearing.

dungeon190207Instead of intervening to protect those incarcerated at the jail, the warden at MDC, Herman Quay, lied about the extent of the crisis, while downplaying long-standing issues at the facility, attorneys told the Judge. “I have personal knowledge that what the warden said was false,” Deirdre von Dornum, attorney-in-charge of the Federal Defenders of New York, alleged during yesterday’s hearing.

Warden Quay asserted that detainees were never deprived of heat, medical access or hot meals, but von Dornum — who was able to tour MDC Brooklyn last weekend only because Judge ordered the BOP to let her in – said she witnessed clients confined to freezing cells, some of them suffering from serious medical conditions. A number had not received a hot meal in five days.

MDC inmate Donnell Murray testified that BOP employees had measured the temperature of his cell as being between 30 and 40 degrees. He complained that he was cut off from speaking with family members and attorneys — something else Warden Quay denied — and was unprepared for his impending trial.

“The lights was out. The heat was off, and we was locked in,” Murray testified. “It was hard on me because it was dark. It was cold. I was nervous.”

The hearing came after Federal Public Defender Ezra Spilke requested the Court look into “inhumane conditions” at MDC. It was the first time that BOP employees testified under oath about conditions at the facility. BOP lawyers tried to postpone the hearing and Judge Torres’ inspection tour on Monday night, but were denied.

Warden Quay, who has been accused of lying by officials, BOP staff and inmates, was a “no-show” at the hearing. BOP employees who did testify offered details that directly conflicted with Quay’s denials and the BOP spin that the prison was merely “experiencing a partial power outage” related to an electrical fire last Sunday.

liar151213The heat is on, if not in the facility, then at least on the Warden’s backside. The Dept of Justice announced Wednesday that its Inspector General will investigate the BOP’s response to heating and electrical failures at MDC Brooklyn.

In a statement, the DOJ said the IG, who conducts independent, internal investigations, would determine if the BOP properly responded to the crisis at the Metropolitan Detention Center and whether it had adequate contingency plans in place.

Rep. Jerrold Nadler (D-New York), denounced what he called a “total lack of urgency and concern” by the BOP. Nadler and other officials toured the facility last weekend, where according to The New York Times, over 1,600 inmates have been largely confined to their freezing, dark cells for nearly a week, since an electrical fire partially cut off power to the jail. The fire resulted in a ban on visitation and a lockdown.

“The situation is really, really a nightmare,” said Rep. Nydia M. Velázquez (D-New York), whose district includes the jail. Officials, including Rep. Velázquez and Nadler, initially were denied a tour of the facility on Friday night.

gulag190207

The BOP said in a statement on Saturday night that a new electrical panel had been installed by that day and that the “facility is working to restore power as expeditiously as possible.” It expected work to be completed by yesterday. Earlier, the BOP issued a statement that the facility was “experiencing a partial power outage… Cells have heat and hot water, there is lighting in the common areas and inmates are receiving hot meals,” the release said. The BOP blamed the electrical failure on Consolidated Edison, the local electric utility.

Con Ed disputed the BOP report, saying “It’s an internal problem, and their electricians will have to fix it. End of story.” Likewise, correctional officers’ union leaders and defense lawyers rebutted the BOP account. The local union president said the problems began around Jan. 5, when the facility first lost power. The heating issues began last week, leaving inmates and staff to face freezing weather for the first time. “We didn’t have heat in the building, we didn’t have light,” he said. “The weather was actually unbearable.”

A case manager told The Times that the inmates “just stay huddled up in the bed. “I have several inmates that are very elderly. One of them complained that he’s been sick for the last few days. He looks sickly. He’s walking slower. Talking slower.”

The City of New York offered relief supplies to MDC Brooklyn late last week. The facility initially turned down the relief supplies, but after New York City William diBlasio said the City was sending trucks full of blankets, hand warmers, and generators, regardless of whether they’d be accepted. MDC Brooklyn reportedly said Saturday it would accept the help, and the supplies arrived late in the evening.

CNN, A federal judge toured a troubled New York jail. What she found is disturbing (Feb. 7)

The New York Times, ‘A Nightmare’: Inside the Federal Jail in Brooklyn With Little Heat or Electricity (Feb. 2)

The New York Times, Justice Department Calls for Investigation Into Brooklyn Jail Where Heat and Power Failed (Feb. 6)

The Gothamist, Protests Continue As Officials Report ‘Intolerable, Immoral’ Conditions Inside Freezing Brooklyn Jail (Feb. 3)

The Gothamist, Brooklyn Jail Officials Accused Of Lying About Heat Outages: ‘What The Warden Said Was False’ (Feb. 5)

– Thomas L. Root

Some of It’s Violent, Some of It’s Not – Update for February 5, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MIXED WEEK FOR CRIMES OF VIOLENCE

Defendants arguing that prior state convictions were not crimes of violence enjoyed mixed results last week.

violent160620A 10th Circuit panel ruled in United States v. Bong that robbery under Kansas law can be accomplished with minimal force that falls short of the “violent force” required under the Armed Career Criminal Act’s elements clause. What’s more, Kansas aggravated robbery – a robbery committed by someone armed with a dangerous weapon or who inflicts bodily harm during course of a robbery – is not violent, either. Merely being “armed” with a weapon during the course of a robbery, the court said, is not sufficient to render the state offense a “violent crime” for ACCA purposes.

Things did not go so well in the 2nd Circuit. There, the court held in United States v. Thrower that 3rd degree robbery under N.Y. Penal Law 160.05 is a crime of violence for ACCA purposes. The crime requires “forcible stealing,” which is defined as common to every degree of robbery in New York State, requires use or threat of the immediate use of physical force sufficient to prevent or overcome victim resistance. “By its plain language,” the Circuit said, “the New York robbery statute matches the Armed Career Criminal Act.” The holding includes not just 3rd degree robbery, but by necessity all levels of New York robbery.

A 9th Circuit panel, however, held in United States v. Vederoff that 2nd degree assault under Wash. Rev. Code 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault, because the statute encompasses assault with intent to commit a felony. Because Washington’s 2nd-degree assault statute is indivisible, the panel could not apply the modified categorical approach, and therefore concluded that Washington second-degree assault does not qualify as a “crime of violence” under the enumerated clause of USSG 4B1.2. For the same reason, the panel held, 2nd-degree murder under Washington Code 9A.32.050 is overbroad because the statute covers felony murder. The panel found the statute indivisible, and therefore concluded 2nd-degree murder is not a “crime of violence” under the enumerated clause of USSG 4B1.2.

The 8th Circuit ruled in Mora-Higuera v, United States that a defendant’s 2255 motion, asserting a due process right to be sentenced without reference to the residual clause of USSG 4B1.2(a)(2) under the mandatory guidelines, was not dictated by Johnson v. United States, because it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines.” Thus, the defendant was not able to challenge his mandatory Guidelines career offender sentence on the grounds one of the prior crimes of violence was invalidated by Johnson.

vaguenes160516Finally, the 10th Circuit agreed in United States v. Pullen that “the Supreme Court has never recognized a void for vagueness challenge to the Guidelines and so Johnson neither creates a new rule applicable to the Guidelines nor dictates that any provision of the Guidelines is subject to a void for vagueness challenge.”

United States v. Bong, 2019 U.S. App. LEXIS 2798 (10th Cir. Jan. 28, 2019)

United States v. Thrower, 2019 U.S. App. LEXIS 3145 (2nd Cir. Jan. 31, 2019)

United States v. Vederoff, 2019 U.S. App. LEXIS 3314 (9th Cir., Feb. 1, 2019)

Mora-Higuera v. United States, 2019 U.S. App. LEXIS 3139 (8th Cir. Jan 31, 2019)

United States v. Pullen, 2019 U.S. App. LEXIS 2937 (10th Cir. Jan. 29, 2019)

– Thomas L. Root

Employers Commit to Hire Felons After First Step, But Much Remains to be Done – Update for February 4, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HOUSEKEEPING CONCERNS, LOWER EXPECTATIONS, AFTER FIRST STEP

Now that the First Step Act is law, the question becomes what is next at the federal level and what policy innovations can state governments develop to continue the national momentum toward a more efficient and effective justice system.

Rosie190204The next order of business, according to The Hill, is for the Senate to confirm William Barr as Attorney General. Barr would be responsible for selecting a new director for the Bureau of Prisons, as well as for ensuring that the BOP accurately administers the codified risk assessment system for low-level, non-violent offenders who are eligible for release, and provide these inmates with the programs required by the Act. The statutory deadline for adopting the risk-assessment system is five and a half months away.

While the sentencing reforms contained in the First Step Act were secondary to the prison reforms that are to be administered by the Dept of Justice, further sentencing improvements are possible through the U.S. Sentencing Commission. However, the Commission has lacked a quorum since last December. The acting chair, Judge William Pryor of the 11th Circuit, is currently awaiting renomination by the White House and confirmation by the Senate. Until the Commission gains two more commissioners, it will be unable to adopt any Guidelines amendments. The Commission customarily issues amendments every April, which become effective November 1st unless Congress vetoes them ahead of time. Only twice in its 30-year history has the Commission failed to adopt any Guidelines amendments. The most recent time was 2017, when the Commission – as it does now – lacked a quorum.

Meanwhile, conservative billionaire industrialist Charles Koch, who spearheaded business support for First Step, has challenged a broad coalition of business groups is to hire workers with criminal backgrounds in the wake of First Step’s passage.

Koch has enlisted the support of the Society for Human Resource Management, the U.S. Chamber of Commerce, the National Retail Federation, the National Restaurant Association and the American Staffing Association. Together, the groups represent businesses that employ roughly 60% of the American workforce.

First Step made changes in the 2010 Fair Sentencing Act retroactive, allowing an estimated 3,000 people still serving long convictions for crack cocaine to petition for a reduction in their sentences. The provision allowed Matthew Charles, whose case was widely publicized in 2017, to exit prison at the end of 2018. Michael Holley, a federal defender who worked on Charles case, said that Charles was an ideal candidate for sentencing reduction, and his case was ideally positioned to be heard right away.

release160523“It was all primed for the government to look at,” he said. “We’d had all this litigation in the past year… so the judge was fully aware of his case and the prosecutor was fully aware of the case.” The government responded to the Charles petition ahead of the deadline to indicate no opposition the Charles’ request, Holley said, allowing him to get out even more quickly.

For other people, the process will take longer. The Federal Public Defenders Offices nationally have compiled a list of people in their records who might be able to benefit from the law, and attorneys in the office are reviewing the cases for anyone they find to be eligible.

Prosecutors are able to contest a defendant’s eligibility, and can argue that an individual does not deserve a sentence reduction, meaning the process, like 18 USC 3582(c)(2) proceedings, may get protracted.

The Hill, Federal criminal justice reform is now law: What comes next? (Jan. 26)

Law360, For Inmates, Sentencing Reforms Bring Hope And Frustration (Jan. 27)

CNBC, Koch network leads coalition urging businesses to hire former inmates (Jan. 27)

– Thomas L. Root

‘Bang’ Goes the Jury: Lawyer Ineffective For Not Protesting Judicial Arm-twisting – Update for February 1, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BLOWING UP THE JURY

juryduty180226Simon Brewster was on trial in state court for bank robbery. The jury went out, but reported to the judge a few hours later that it was hopelessly deadlocked 9-3 for conviction. The judge gave the jury the Allen charge, known colloquially as the “dynamite charge,” which pressures the jurors to reach a decision by continued deliberation by appealing, essentially, to their desire not to have wasted their and the court’s time.

The jury remained deadlocked, and the judge gave another Allen charge, two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.

Shortly thereafter, when told that the one juror who wouldn’t vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be effective. The jury convicted 20 minutes later.

dynamitejury190201Last week, the 11th Circuit granted Simon’s habeas corpus motion, holding that his lawyer was asleep at the switch for not objecting to the court’s strong-arming the jury. The 11th decided that even if Simon could not prove that judge would have granted a mistrial if he had been asked to do so, Simon was prejudiced. “An assessment of the likelihood of a result more favorable to a defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification, and the like,” the Circuit said. “It does not matter for prejudice purposes whether the judge at a defendant’s trial would have sustained an objection; what counts is whether the judge would have been required to do so under the applicable law and, if so, whether doing so would have resulted in a reasonable probability of a different result.”

Brewster v. Hetzel, 2019 U.S. App. LEXIS 1931 (11th Cir. Jan. 22)
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– Thomas L. Root

Fair Sentencing Act Retroactivity Benefits Are Broad – Update for January 31, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FAIR SENTENCING ACT RETROACTIVITY HELPING CAREER OFFENDERS, TOO

Section 404 of the First Step Act, which authorizes the retroactive application of the 2010 Fair Sentencing Act to people sentenced for crack cocaine offenses before its enactment, is already opening the jailhouse door for some inmates.

... had nothing on crack hysteria.
… had nothing on crack hysteria.

Prior to 2010, crack cocaine was treated by the law with a level of hysteria that made “reefer madness” seem rational. A defendant caught with 10 grams of crack was treated as though he had a kilo of powder cocaine. The Fair Sentencing Act, passed in 2010, reduced this 100:1 ratio of crack to powder to 18:1, a ratio still untethered to reality but the best the bill’s sponsors could negotiate with some Senate holdouts. Still, the Act meant that a defendant had to be caught with 28 grams for a mandatory minimum five years in prison rather than a mere 5 grams.

The other concession the bill’s sponsors had to make in order to ensure the measure’s passage was to agree that the Act would be prospective only, that is, apply only to people sentenced after the measure was enacted. It took eight years for another bill, this one the First Step Act, to do what should have been done in 2010, and that is to treat the guy sentenced on August 1, 2010, the same as the guy sentenced two days later.

The Sentencing Commission has lowered the drug guidelines twice since 2010, and each time made the change retroactive. However, retroactivity did not help guys who had mandatory minimum sentences under 21 USC § 841(b)(1) that would no longer be as onerous if the Act had passed. Likewise, a lot of defendants had had two qualifying prior cases, and were thus considered career offenders under the Guidelines. Career offenders have been deemed by the courts to not have been sentenced under the drug quantity guidelines, and thus the Sentencing Commission’s changes to those guidelines did not benefit them.

But now, a weird effect of the retroactive Fair Sentencing Act is giving hope to guys who sentenced as Guidelines career offenders in crack cases.

Logan's going to the street...
Logan’s going to the street…

Logan Tucker was convicted in 2001 for a crack offense. His original 262-month sentence was driven not by a statutory mandatory minimum, but rather by the Guidelines career-offender provision. Although Logan’s sentence for a crack offense was driven by the Guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a 2-level reduced sentence due to retroactive Guideline changes because of his career offender status.

But last week, Logan got his break. His sentencing judge ruled that Logan was originally sentenced for a crack offense, and the Fair Sentencing Act lowered the statutory maximum he would have faced. The career offender guidelines, strangely enough, are set under USSG § 4B1.1 by the statutory maximum sentence a defendant faces. Logan’s new lower statutory maximum effectively lowed his career offender guideline.

Logan’s judge imposed a reduced sentence of 188 months, the low end of the new guidelines range, and let him walk out of the courtroom a free man (or as free as supervised release lets one be). Notably, the government in this case conceded that the First Step Act authorized the reduced sentence (although, being prosecutors to the end, the AUSAs urged the court to exercise its discretion not to reduce Logan’s original sentence).

Order, United States v. Logan, Case No. 3:00-cr-00246 (S.D. Iowa, Jan. 23)

– Thomas L. Root

First Step 2.0 Already Being Planned – Update for January 30, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NEXT STEP ACT ALREADY IN WORKS

The bipartisan team that rallied House support for the First Step Act is drafting new legislation to clean up the existing criminal records of nonviolent drug offenders, a centerpiece of their efforts to pass further reforms.

Reps. Hakeem Jeffries (D-New York) and Douglas Collins (R-Georgia) are looking at how to expunge the criminal records of people convicted of drug crimes before minimum sentencing requirements were reduced, to restore their eligibility to apply for certain jobs. Nationally, one out of five jobs requires some kind of license, which excludes just about everyone with a prior felony. “’What is being contemplated is removing the stain that has been put on their life’s journey as a result of a nonviolent drug offense, often occurring at a very adolescent stage of their life,” Jeffries said.

jeffries-collinsA190130The bipartisan legislation could form the basis for what Collins said might be called a ”Next Step Act,” to follow up on the pair’s successful efforts to pass a First Step last year. Both lawmakers hope to continue their established partnership with President Donald Trump’s son in law and senior adviser Jared Kushner, with whom they worked on last year’s criminal justice reforms.

Jeffries said he also hopes to address marijuana as part of any future criminal justice package. “There’s a growing number of conservatives, libertarians and Republicans who are in agreement with Democrats, who believe that we should at least take a hard look at descheduling marijuana,” he said. “[It] shouldn’t actually be that controversial, and it’s consistent with Republican principles of states’ rights and federalism.”

Washington Post, Next step in criminal justice reform could target jobs for ex-convicts, marijuana law (Jan. 17, 2019)

Chicago Tribune, Bipartisan authors of federal sentencing reform have new goal (Jan. 23)

– Thomas L. Root

Err in Haste… Congress Screws Up First Step Implementation – Update for January 29, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRYING TO FIX FIRST STEP’S 54-DAY FIASCO

finemess190129The expanded good-conduct time credit in the First Step Act – which increased the number of days awarded a federal inmate for good behavior from 47 to 54 days a year, retroactive to the beginning of an inmate’s current sentence – was intended by Congress to be immediately effective, The Congressional Budget Office estimated that the change would immediately release about 4,000 people.

The good-time fix, however, was inexplicably tucked into the earned-time credit section of the Act. A subsection of that provision, which was quite reasonably intended to delay implementation of the earned-time program until the Attorney General adopted a risk-assessment tool to use in order to measure its effectiveness, had the completely unintended effect of delaying award of the additional good-time credit as well. Thus, increased good-time will not be until July 19.

The Washington Examiner reported last Friday that “three sources who work closely with lawmakers and administration officials say it’s their understanding that the White House is looking for an administrative fix.”

White House Counsel Pat Cipollone reportedly met with advocates in mid-January to discuss the issue. “I think he really understood the intent,” said a person with direct knowledge of the meeting. “I think they understood this was a key provision… This was a key part of legislative negotiations.”

For people serving decades, seven additional days means release months early. The increased “good time” expansion and the extension of the Fair Sentencing Act were intended to be retroactive, unlike everything else in the bill.

Mybad190129It quickly became clear, however, that an immediate award of the extra seven days per year was not happening. “I think it was just an oversight,” said Kevin Ring, president of FAMM. “People were focused on making sure the good time got increased and that it was retroactive. It ended up getting put in the section with ‘earned time.’”

A few fixes are being discussed. The easiest would be for the White House to order the Justice Department to apply the 54 days of “good time” credit immediately. Other fixes would require legislation — either a unanimous consent motion or a spending bill provision — but legislative gridlock amid a partial government shutdown makes neither likely.

“I don’t think it’s something that gets cleared up quickly,” said Jessica Sloan of #cut50, one of the people at the White House meeting. “I’m hopeful the White House will issue some sort of directive to the DOJ, which will issue a directive to BOP, but there are a lot of administrative steps there.”

Ohio State University law professor Douglas Berman said last weekend in his Sentencing Law and Policy blog that he “had very little “faith” in anyone inside the Beltway fixing things these days, but it is encouraging that two very effective advocates had the opportunity to address the White House Counsel about potential fixes.”

Washington Examiner, Drafting error stalls inmate release under Trump plan (Jan. 25)

– Thomas L. Root