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Congress, Media Force BOP to Back Down on Book Restriction – Update for May 7, 2018

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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. 

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BOP REVERSES COURSE ON BOOK LIMITATIONS

Next to watching the FBI walk a Bureau of Prisons employee off the premises in handcuffs, there is nothing BOP management hates more than congressional heat. Last week provided a perfect illustration of that basic truth, as the BOP hastily reversed a controversial policy that had was making it harder and more expensive for inmates to receive books by banning direct delivery through the mail from publishers, bookstores and book clubs.

books180507The policy banned books from outside sources, including Amazon and Barnes & Noble. Instead, prisoners would have had to submit a request to purchase books through an ordering system run by the commissary in which they would pay list price, shipping and a 30% markup, and could buy hardcover books only, according to memos distributed in at least three BOP facilities. Under the new protocol, a book Amazon might sell for as little as $11.76, including shipping, could cost more than $26.00.

The book policy has been in effect at USP Atwater since last October, USP Victorville since February, and reportedly at USP Lee as well. But the issue only erupted publicly last month at House oversight hearings on the BOP, where Director Inch had his head handed to him by Congresswoman Karen Bass, who raised the issue of the policy being implemented at USP Coleman and lambasted the Director for adopting a policy that seemingly banned books.

We reported last month that Inch seemed nonplussed, saying he was unaware of the Coleman policy and would look into it. When he suggested Rep. Bass might misunderstand the policy, she shot back, “I hope you follow up with Coleman, because this does not seem to be a misperception, this seems to be a directive.”

At the time, we figured the Coleman warden’s new policy was a frolic that the Central Office might not know anything about, but the fact that the policy has been on a slow-walk rollout at joints in California, Virginia and Florida suggests that Director Inch’s denial of knowledge about the book restriction might be less than candid.

petition180507After the House hearings raised the book restriction issue, The Washington Post followed up, asking the BOP for the identity of the book vendor the BOP would use, the markup and the rationale for the restriction. The Central Office refused to say, but told the Post in an email last Thursday that the BOP had rescinded the memos and will review the policy to “ensure we strike the right balance between maintaining the safety and security of our institutions and inmate access to correspondence and reading materials.”

“You shouldn’t have to be rich to read,” complained Tara Libert, whose D.C.-based Free Minds Book Club has had reading material returned from two California prisons in recent months and has stopped shipping to two others because of the policy.

So the complaints went from inmates to families to congressional representatives to the media, demonstrating that if the issue is right, even the people who seem to have no power can end up making government accountable.

Washington Post, Federal prisons abruptly cancel policy that made it harder, costlier for inmates to get books (May 3, 2018)

In Justice Today, New Federal Prison Policies May Put Books and Email on Ice (Apr. 27, 2018)

– Thomas L. Root

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Supreme Court Taking Another Look at ACCA Predicates – Update for May 3, 2018

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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. 

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IT’S DEJA VU ALL OVER AGAIN

deja171017It will seem like old times – James, Begay, Chambers, Sykes, Johnson, Mathis, and Beckles – as the Supreme Court has granted review to yet another pair of Armed Career Criminal Act cases last week. These companion cases focus on the question of whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the ACCA. The cases will be decided together during the Supreme Court term beginning in October 2018.

At the same time, we’re watching a trio of cases that are awaiting a decision by SCOTUS on certiorari. The petitions for certiorari have been “relisted” eight times, an astounding number of deferrals by the Court. (A relist is when the Supreme Court schedules a case for a decision on certiorari at the weekly Friday justices’ conference, but then defers decision until the next conference, essentially “relisting” it on the next week’s conference list).

The three cases, Allen v. United States, Gates v. United States, and James v. United States, all ask whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

BettyWhiteACCA180503Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, noted that the Stitt and Sims cases are being heard “because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits.” Still, he admitted to “growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity… Many other issues that are so very consequential to so many more cases – e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices’ attention while nearly a dozen ACCA cases have been taken up by SCOTUS in the last decade.”

United States v. Stitt, Case No. 17-765 (cert. granted Apr. 23, 2018)

United States v. Sims, Case No. 17-766 (cert. granted Apr. 23, 2018)

Allen v. United States, Case No. 17-5864 (certiorari decision pending)

Gates v. United States, Case No. 17-6262 (certiorari decision pending)

James v. United States, Case No. 17-6769 (certiorari decision pending)

Sentencing Law and Policy, SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as “burglary” (Apr. 23, 2018)

SCOTUSBlog.com, Relist Watch (Apr. 27, 2018)

– Thomas L. Root

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If a Court Screws It Up Once, Must It Do So Twice? – Update for May 2, 2018

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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. 

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ONE SWALLOW DOES NOT A SUMMER MAKE

swallow180502When Aristotle observed that sighting one returning swallow did not mean that summer was here, was talking about how a single event – often an aberration – does not constitute a trend. So it is in law.

Appeals courts are staffed with humans, and humans make mistakes. Eight years ago, the 6th Circuit held that an inmate whose was eligible for a sentence reduction under 18 U.S.C. 3582(c)(2) but whose judge decided not to grant some or all of the reduction could not appeal. In United States v. Bowers, the Circuit held that the appeal statute, 18 USC 3742, tightly limited its jurisdiction to entertain an appeal of the district court’s denial of a 3582(c)(2) sentence-reduction motion. It lacked jurisdiction to review a sentence reduction decision simply because the defendant thought it was unreasonable.

When Bill Reid asked his judge to apply the 2014 2-level drug reduction to his sentence, the district court refused, citing two disciplinary infractions Bill had gotten during his prison stint for possession of drugs and tobacco. The judge said the two disciplinary reports proved Bill had not “gained respect for the law.”

Bill appealed, argued the district court had not provided a “reasoned basis” for denial, and that it “misapplied the governing statutory criteria” to the facts of his case. He cited two cases the Circuit had decided after the 2010 Bowers decision in which it had considered the identical arguments.

oneswallow180502Yeah, the Circuit admitted last week, we did do that. But “those decisions are not faithful to Bowers. At their core, Reid’s arguments are challenges to the procedural and substantive reasonableness of the outcome of his Sec. 3582(c)(2) sentence-reduction proceeding… But Bowers explicitly held that we do not have jurisdiction under Sec. 3742(a)(1) to consider such arguments in appeals from the denial of sentence-reduction motions.”

“We are obliged,” the Court held, “to follow the explicit holding of Bowers, later cases notwithstanding… And pursuant to Bowers, we do not possess jurisdiction to entertain Reid’s Booker unreasonableness arguments.”

United States v. Reid, Case No. 17-5451 (6th Cir. Apr. 23, 2018)

– Thomas L. Root

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Thanks to Mathis, Chances Are It’s No Longer Violent – Update for May 1, 2018

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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. 

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8TH CIRCUIT SAYS NORTH DAKOTA BURGLARY TOO BROAD FOR ACCA

Courts are still struggling over the application of Mathis v. United States, the 2016 case that changed the way state statutes are interpreted for imposing Armed Career Criminal Act sentences. Mathis says that in determining whether a statute can be divided into crimes that qualify for ACCA treatment and crimes that are too broad for ACCA treatment, you first read the plain text, then see whether the separate offenses have different punishments, then look at state court decisions in the issue, and then check out state jury instructions. If none of that works, chances are it may still not count for an ACCA punishment…

mathis180501That’s what the 8th Circuit ran into last week with defendant Jon Kinney. He had a prior North Dakota burglary conviction of a “building or occupied structure” that helped qualify him for an ACCA sentence. But the state statute provided that an occupied structure could include a vehicle, and vehicle burglary falls beyond the kind of generic burglary that counts against the ACCA.

The Circuit looked at the statute, state court decisions and jury instructions, but could not tell whether “building or occupied structure” described two elements or just two means of committing the crime. Frustrated, the court gave just a “peek” at the record of Jon’s prior conviction “for the sole and limited purpose of determining whether the listed items are elements of the offense.”

It turned out that each of Jon’s charges just accused him of burgling “a building or occupied structure.” The fact that his indictments listed both, the Court held, was “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Thus, the Circuit held, Jon’s prior North Dakota convictions can’t count as predicates for the ACCA.

United States v. Kinney, Case No. 16-3764 (8th Cir. Apr. 23, 2018)

– Thomas L. Root

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New Delay on Prison Reform Committee Vote May Jeopardize Passage – Update for April 30, 2018

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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. 

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HOUSE MARKUP OF PRISON REFORM BILL DELAYED AGAIN

roadblock180430Disagreements over provisions in the Prison Reform and Redemption Act, H.R. 3356, backed by the White House, forced House Judiciary Chairman Robert Goodlatte (R-Virginia) to postpone markup of the bill previously scheduled for last Wednesday, and called into question the future of any type of criminal justice reform.

“We will consider the prison reform bill at the next mark-up of the Committee, which will occur the week of May 7th,” Goodlatte said. “I look forward to considering it then.”

The PRRA, co-sponsored by Reps. Doug Collins (R-Georgia.) and Hakeem Jeffries (D-New York), rewards inmates’ completion of programs like drug treatment, adult education classes and vocational training with additional halfway house and home confinement. Any sentencing reform – such as change in mandatory minimums and retroactivity of the Fair Sentencing Act – was left out because of White House and Justice Department pressure.

The Hill reported that House Judiciary Democrats are battling with some Committee Republicans over PRRA provisions that restrict the kinds of programs offered and the kinds of convictions that will be excluded from benefits. Multiple House sources, however, blamed the delay not on House negotiations but instead on a behind-the-scenes opposition campaign from two Senate heavyweights, one from each party.

SRCARIP180430Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Senate Minority Whip Dick Durbin (D-Illinois) reportedly told House Judiciary panel members to oppose the PRRA unless it adds the sentencing overhaul contained in the Sentencing Reform and Corrections Act, S.1917, which they co-sponsor and which was reported out of the Senate Judiciary Committee two months ago.

The Trump administration wants to see a prison-only bill, not the broader SRCA, but that’s not stopping Grassley and Durbin from what one Republican complained was meddling in the House debate. “Frankly, I respect the two senators, but they have enough problems in the Senate,” said Rep. Doug Collins (R-Georgia), one of the PRRA’s authors. “I wish they would actually focus on passing bills over there.”

The PRRA also has been criticized by civil and human rights groups, who have long focused their fight for criminal justice reform on measures that reduce mandatory minimum prison sentences. More than 60 police chiefs and prosecutors wrote to Congress and the White House last week, urging that the PRRA be amended to include mandatory minimums reform. The group, called Law Enforcement Leaders to Reduce Crime and Incarceration is concerned that the PRRA doesn’t address sentencing.

“Improving prison conditions and reentry services, on their own, will not adequately solve our high rates of incarceration and recidivism,” the letter says. “Legislation like the Prison Reform and Redemption Act (H.R.3356) and the CORRECTIONS Act (S. 1994) are useful efforts to improve the lives of those in prison. But such efforts should be coupled with efforts to reduce unnecessary incarceration.”

perfect170428Last Friday, leaders of faith-based groups met at the White House to voice their support for the PRRA. The Prison Fellowship, one of the participants, sees demands for sentencing reform as a needless distraction: “The delay in voting on the Prison Reform and Redemption Act in the House of Representatives is a disappointment to Prison Fellowship and the hundreds of thousands of prisoners and families we serve in our programs,” Craig DeRoche, Senior Vice President, Advocacy and Public Policy, said. “There is no disagreement about what is in the bill, the fight is over what has not been put in this legislation—and the people who pay the price for these delays are the men and women that are incarcerated today. Delaying, or even killing these important reforms disregards the hope, dignity, value and potential of the people incarcerated today and will only serve the practical outcome of making America less safe by continuing the current recidivism rate.”

Despite the delay, Rep. Jeffries said he’s confident of a bipartisan agreement soon, and that the bill will pass in May.

The Hill, House Judiciary delays markup of prison reform bill (Apr. 25, 2018)

Politico, Kushner-backed prison reform bill stumbles in House (Apr. 25, 2018)

– Thomas L. Root

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Pulling the ACCA Switcheroo – Update for April 25, 2018

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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. 

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THE JUDGE KNOWS BEST

burglary160502Some people who received Armed Career Criminal Act sentences have gone back to court in the last few years arguing that since Johnson v. United States, their crime is no longer an ACCA predicate. They are disappointed where their district judge peremptorily decides that the Johnson argument doesn’t matter, because the crime still counts under a different ACCA clause.

More than one guy has asked, “Hey, can they do that?”

Last week, the 6th Circuit said, “Yes, they can.”

Tony Potter’s presentence report identified a prior Georgia burglary that put him over the three-violent felony limit for the ACCA. His PSR did not spell out whether the conviction counted as a violent crime under the statute’s enumerated crimes clause, the elements clause, or the residual clause. The district court accepted the PSR and held Tony qualified for an ACCA sentence without specifying why the Georgia burglary counted.

After Johnson, Tony filed a 2255 motion claiming his burglary could no longer be used as a predicate for the ACCA. The district court turned him down, saying the prior counted toward the ACCA under the enumerated crimes clause because it fit the generic definition of burglary. Tony appealed, arguing that the district court was not allowed to now say his prior did not fall under the residual clause if it did not say so at the time he was sentenced.

This bumper sticker is not on any 6th Circuit judge's car.
This bumper sticker is not on any 6th Circuit judge’s car.

The 6th Circuit disagreed. It accepted the court’s finding, holding that “it is difficult to think of a better source of information about what happened the first time around” than the judge who sentenced Tony. And Tony’s argument that the Georgia burglary conviction did not meet the ACCA’s definition of “burglary” under Mathis v. United States could be considered. Mathis, the Circuit said, involved an old rule of statutory law, not a new rule of constitutional law, and thus does not open the door for a second collateral attack.

“Nor,” the 6th said, “does Johnson open the door for prisoners to file successive collateral attacks any time the sentencing court may have relied on the residual clause. That approach turns collateral sentencing challenges on their head. Instead of requiring prisoners to prove that they are entitled to relief because they have been incarcerated illegally, Tony’s approach would require the government to prove years later (more than a decade later in this case) that the prisoner’s sentence is lawful. Other courts have rejected this approach.”

So did the 6th Circuit.

United States v. Potter, Case No. 16-6628 (6th Cir. Apr. 17, 2018)

– Thomas L. Root

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Dimaya Snake Oil for Sale – Update for April 24, 2018

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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. 

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HOPE AND HYPE FOLLOWS DIMAYA RULING

snakeoil170911Judging from the flames erupting from our Corrlinks email inbox, federal prisoners’ excitement over Sessions v. Dimaya is at a fever pitch. We have had requests from guys with convictions for drugs, tax evasion, bank robbery and even child porn downloading for help on using Dimaya to attack their sentences. At the same time, we hear that inmates are hearing from several “paralegal” firms urging them to file Dimaya petitions.

As Lee Corso likes to say, “Not so fast, my friend.” First, while Dimaya could be huge down the road, it is not huge yet. Dimaya held that 18 USC 16(b), which defines a “crime of violence” to include “any other offense that… by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” was struck down as unconstitutionally vague. As the court put it, “Johnson tells us how to resolve this case… None of the minor linguistic disparities in the statutes makes any real difference.”

Dimaya principally helps people facing deportation for “aggravated felonies,” which are defined as including “crimes of violence” as defined in 16(b). Right behind them may be people with 18 USC 924(c) convictions whose underlying crime was a crime of violence under the residual clause. The case does not help people who got Guideline enhancements for crimes of violence that are no longer violent. The Supreme Court saw to that in the Beckles case.

corso170112Second, Dimaya has not suspended the many procedural hurdles facing people wanting to attack their already-imposed sentences. Dimaya has not been declared to be retroactive, although it may be in the future. Dimaya has nothing to do with sex, drugs or taxes. Most important, as law professor Leah Litman wrote in the Harvard Law Review Blog last Tuesday, “it’s not yet clear how many wrongs of the past Dimaya will ultimately right. Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.”

Those restrictions include retroactivity, limitations on second-and-successive 2255 motions, limitations on 2241 “actual innocence” motions, and the statute of limitations set out in 28 USC 2255(f)(3). Prof. Litman noted that people sentenced based on 16(b) have a year from Dimaya to file, “but what about prisoners who were convicted or sentenced under provisions that closely resemble section 16(b)? It’s not clear whether the statute of limitations has restarted for them.”

furball180425For example, 16(b) and 924(c)(3)(B) use very similar residual clause language, but they are not identical. Prof. Litman wrote “assuming a court of appeals thinks that the best reading of Dimaya is that section 924(c)(3)(B) is also unconstitutionally void for vagueness, did Dimaya restart the statute of limitations clock for persons convicted of section 924(c)(3)(B)? On the one hand, we want errors of that kind to be corrected, and corrected quickly, given that prisoners whose convictions may be affected could be serving more time in prison than they should be. On the other hand, Dimaya didn’t involve section 924(c); it just involved the materially identical section 16(b). In light of that, did the “Supreme Court” itself recognize that section 924(c) is void for vagueness, as the statute of limitations provision requires? Perhaps not.”

Dimaya has potential, but even if it benefits you, it’s a procedural furball. Part with your money very carefully.

Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, Apr. 17, 2018)

Harvard Law Review Blog, Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity? (Apr. 17, 2018)

– Thomas L. Root

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BOP Director Has a Bad Day on Capitol Hill – Update for April 23, 2018

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BOP DIRECTOR SAYS THERE’S NOTHING BETTER COMING ON HALFWAY HOUSE

punchinface180423Talk about violence directed at BOP employees… Director Mark Inch was beaten up pretty well last week when he delivered his largely fact-free report on the BOP to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, with the chief executive at the BOP Coleman complex likely to have been taking it on the chin as soon as Inch could get out of the hearing room door.

We thought we were the only ones who found Director Inch’s obsequious and bureaucratic delivery tedious, but it became clear during his nearly 2-hour session that the Committee members were a little frustrated at Inch’s habit of turning every answer into a pretzel and coming up short on meaningful data about his agency.

Congressman Jamie Raskin (D-Maryland) asked about the cancellation of 16 halfway house contracts, and demanded Inch square that with the shortage of halfway house bed space nationwide. Congressman Jerrold Nadler (D-New York) cited the prior BOP director’s complaint that it is “scarce and expensive” to put people in halfway house, and demanded that Inch to explain the cancellations in light of the scarcity.

halfway161117In response to a question from Rep. Steve Chabot (R-Ohio) on BOP halfway house plans, Inch said the BOP spent $350 million on halfway house at 230 centers nationwide last year. Of the approximately 44,000 inmates released annually, he said, 80% get halfway house or home confinement placement. Inch said that reentry centers are “mostly important for inmates at the high end” of sentences.

In 2017, Inch said, the BOP overspent for halfway house and exceeded contractual limits on some locations while others were underused. He anticipated the halfway house placement will remain unchanged in 2018. “The challenges I look at – the constellation of our residential reentry centers is two things, is to the extent of how far out it can spread and the cost that is associated with it – our goal this year in 2018, is to have very clear usage figures data against the ascribed budget so I can make very logical budget requests in the future.”

Stripped of bureaucratic–speak, that means nothing is going to change in BOP halfway house placement any time soon.

work180423The representatives, who have been hearing loud complaints from their BOP employee-constituents, also pushed Inch hard on augmentation, the BOP practice of using noncustody people like nurses, teachers and front-office workers in CO positions. Inch assured the Subcommittee that all of the 6,000 BOP positions being eliminated this fiscal years were vacant, and not the reason for augmentation. The director told the Subcommittee that “a lot” of the BOP staffers used for augmentation had started their careers as COs, and thus were well qualified to fill in on custody positions.

Despite union protests and Federal Labor Relations Authority rulings in favor of BOP employees, the Director insisted that augmentation was safe for employees. “You say it’s not a dangerous situation?” Rep. Michael Johnson (R-Louisiana) asked Inch incredulously. “I’ve met with a number of these [BOP] people from my home state of Louisiana, and they’re not comfortable with this situation.”

At one point in the hearing, Inch was blindsided by charges the BOP was banning books, an allegation arising from a policy being adopted by the Coleman, Florida, federal prison complex. The Coleman policy, which goes into effect next week, bans purchase of any books except those bought through the commissary for a 30% surcharge over list.

ban180423Congresswoman Karen Bass (D-California), who apparently believed the policy was a BOP ban on books, asked the Director how he could adopt such a policy. Inch seemed nonplussed, saying he was unaware of the Coleman policy and would look into it. He suggested Rep. Bass’s understanding of the policy might be a misperception, leading her to snap back, “I hope you follow up with Coleman, because this does not seem to be a misperception, this seems to be a directive.”

In point of fact, the Coleman policy is a book ban of sorts, because every inmate book request is filter through a BOP employee, who could simply refuse to honor a request for a book the BOP felt was inappropriate for whatever reason.

We suspect the Coleman warden, who appears to have violated the sacred bureaucratic rule of “don’t make your boss look bad,” got an unpleasant call from the Director about five minutes after the hearing ended.

House Judiciary Committee, Subcommittee on Oversight, Oversight of the Federal Bureau of Prisons (Apr. 17, 2018)

– Thomas L. Root

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Another Case of the “Shorts” – Update for April 19, 2018

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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.  Today, we’re doing clean-up with a number of short takes from our most recent newsletter to inmates.

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8TH CIRCUIT RULES MISSOURI 2ND DEGREE BURGLARY DOES NOT COUNT FOR ACCA

burglary160502Chuck Naylor pleaded guilty to being a felon in possession of a firearm. The district court found that four of his prior Missouri 2nd-degree burglary convictions qualified as violent felonies under the Armed Career Criminal Act. On appeal, the 8th Circuit agreed, because it was bound by United States v. Sykes.

But in an April 5 rehearing en banc, the Circuit changed its mind, holding that “convictions under Mo. Rev. Stat. § 569.170 (1979) do not qualify as violent felonies under the ACCA. To the extent Sykes concluded otherwise, it is overruled.”

The decision suggests that a lot of people doing ACCA time because of the Sykes decision will be visiting their local district courts soon with 28 USC 2241 petitions.

United States v. Naylor, Case No. 16-2047 (8th Cir. Apr. 5, 2018)

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FDA SEEKING COMMENT ON MARIJUANA DRUG SCHEDULE

Mike, an alert reader, brought to our attention that the FDA and Trump Administration have asked the public to comment on the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use of” marijuana and its derivatives. Mike noted that “there are medical benefits, jobs to be had, taxes to be made to go to education, a sure way to help get the people off opioids, not to mention a drop in schedule would help all those incarcerated with mandatory mins.”

Any interested person can comment on the proposal online.

Food and Drug Administration, Case No. FDA-2018-N-1072), International Drug Scheduling; Single Convention on Narcotic Drugs; Cannabis Plant… Request for Comments

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CALLING JUDGE POSNER

paging180419We wrote about Judge Posner’s new pro se assistance organization a few weeks ago, and since then, we’ve heard from a number of people wanting contact information. We still do not have an address, but the editor at Litigation Daily provided us with the organization’s web address:

http://www.justice-for-pro-ses.org
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THE AUSA, NOT THE COURT, PULLS 5K1.1 STRINGS

When a federal defendant assists the authorities prior to his or her being sentenced, the government returns the favor by filing a motion with the sentencing court under Sec. 5K1.1 of the Guidelines, asking for a sentence cut. Sec. 5K1.1 is about the only way a defendant can get a substantial reduction in sentence (the cut averages about 52%), and only the government can make the motion.

An unnamed defendant who helped out the government received his USSG Sec. 5K1.1 motion at sentencing, but the Feds only recommended dropping his 235-293 sentencing range to 135-168 months. That was a nice reduction, but was still above his 120-month statutory minimum sentence. The sentencing judge granted the 5K1.1, but departed downward to 80 months. The government thought that was too much, and appealed.

toughluck180419Last week, the 5th Circuit reversed, holding that the law is clear a court cannot impose a sentence below a statutory minimum for substantial assistance unless the government, in its 5K1.1, specifically moves to go below the minimum. The district court knew this, but justified its sentencing decision by citing its authority “to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find the refusal was based on an unconstitutional motive.” The district court said its bigger reduction was warranted because the government did not take into account the lower Guidelines sentencing range the district court had applied, and overlooked other grounds, such as the fact that Appellee voluntarily withdrew from the conspiracy early on, encouraging others in the conspiracy to quit, volunteering at a local church, and maintaining a job. The district judge said he “disagrees with the concept of mandatory minimum sentencing by which members of the legislature and the executive who do not see the human beings before the Court nevertheless impose on the judiciary arbitrary minimum sentences.”

Tough, the Circuit said. Regardless of the district court’s own policy views about the use of mandatory minimum sentences, the law in this area is clear. And we must faithfully apply it. A motion by the government was required for the district court to depart below the minimum term of imprisonment established by Congress for the drug offense Appellee committed. Thus, it was error for the district court to sua sponte depart from the minimum.”

United States v. Sealed Appellee, Case No. 17-50451 (5th Cir. Apr. 10, 2018)

– Thomas L. Root

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Dimaya Strikes Down “Crime of Violence” Residual Clause Throughout the Code – Update for April 18, 2018

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SUPREME COURT DECLARES 18 USC 16(b) CRIME OF VIOLENCE RESIDUAL CLAUSE UNCONSTITUTIONALLY VAGUE

violent170315The Supreme Court handed down the long-awaited Dimaya decision yesterday, a 96-page tome with splintering concurrences and dissents going everywhere, but holding by a 5-4 majority that the residual clause of the 18 USC 16(b) crime of violence definition is unconstitutionally vague.

For those who just joined us, 18 USC 16 defines “crime of violence” as the term is used throughout the criminal code. The statute in it entirety reads:

The term “crime of violence” means 

(a)  an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

burglar160103The focus, ever since Johnson v. United States, has been on the vagueness of subsection (b). Mr. Dimaya is a noncitizen being deported because of two California burglaries. He challenged whether those were crimes of violence. While his case was pending, Johnson was handed down, so he added a Johnson claim. The government argued Johnson did not apply to 18 USC 16(b).

The liberal wing of the Court – Kagan, Sotomayor, Brennen and Ginsburg – were joined in a concurrence by newest Justice Neil Gorsuch – in holding that “a straightforward application of Johnson effectively resolves” Dimaya. The majority said that Section 16(b) of the Criminal Code has the same two features as the residual clause of the Armed Career Criminal Act struck down in Johnson — an ordinary-case requirement and an ill-defined risk threshold — combined in the same constitutionally problematic way.

The opinion noted that the ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tied the judicial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

risk160627The majority said Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, 16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. And its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. Thus, the majority concluded, the same “two features” that “conspired to make” ACCA’s residual clause unconstitutionally vague also exist in 16(b), with the same result.

The Court’s “ordinary-case requirement and an ill-defined risk threshold” test for determining vagueness strikes us as a bludgeon that inmates should be able to use in attacking vagueness in 18 USC 924(c) crime of violence residual clause, as well as anywhere else the “crime of violence” definition appears. 

devil180418There’s a lot to this case (especially if you take time to read the dissents), and the politics of the majority opinion, four liberal bomb-throwers joined by cool, conservative Neil Gorsuch, should engender its own comment. But for now, we can say this is a big win for criminal justice (and we mean “criminal justice” in a good way). But beware: as law professor Leah Litman noted at the Harvard Law Review blog this morning, because the devil’s in the details:

Dimaya was right to correct a wrong of the past. But while Dimaya may prevent another rerun of the ACCA insanity, it’s not yet clear how many wrongs of the past Dimaya will ultimately right. Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.

Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, April 17, 2018)

– Thomas L. Root

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