We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREMES BRING 7TH CIRCUIT INTO LINE WITH EVERYONE ELSE; LEGAL COMMUNITY YAWNS
Earlier this week, the Supreme Court ruled that a man who spent 48 days in jail on charges fabricated by the police could sue under the 4th Amendment for an unreasonable seizure, that being the seven weeks he spent in stir.
Dangerous controlled substance?
Elijah Manuel was riding in a car pulled over for a turn-signal violation. He complained that the Joliet, Illinois, police beat him and called his racial epithets. The police found a vitamin bottle containing pills (amazing thing, that). When field tested, the pills were found to be negative for illegal drugs, but that didn’t stop the officers from claiming the pills were Ecstasy and arresting Elijah anyway.
The pills tested negative again at the station, but the police report falsely said otherwise. A magistrate found probable cause, and kept Elijah locked up. A short while later, a grand jury – relying on the false police reports and testimony – indicted him.
Eventually, the state crime lab report came back reporting the pills were vitamins. Even then, it took a few weeks for the district attorney to dismiss charges and set Elijah free.
The issue before the Supreme Court was whether a claim for malicious prosecution could be brought under the 4th Amendment even after “legal process” – that being the magistrate’s finding of probable cause – issued. The 7th Circuit said it could not be: once legal process issued, such a complaint had to be brought under the 5th Amendment.
In the event readers wonder why we don’t always report on Supreme Court cases like this one, the reason is this: Ten out of 12 federal circuits already held that Elijah’s 4th Amendment claim worked even after legal process issued, and in fact, even after a grand jury indictment, because legal process, like the initial seizure at the time of arrest, is unreasonable if it is based on fabricated evidence. The 8th Circuit had never ruled on the issue, and the 7th Circuit – ruling in Elijah’s case – got it wrong. As far as significance, this case is a yawner.
The decision includes dissents by Alito and Thomas, as well as a number of subsidiary issues orbiting the majority opinion like a legal planetary system. The case only got to where it is today because Elijah waited to the very last minute to file the case, and in fact missed the deadline to sue for false arrest, but not to sue for continued detention. The Justices debate the proper starting point for calculating the statute of limitations, a debate that has a kind of number-of-angels-dancing-on-the-head-of-a-pin quality to it.
At most, Manuel v. Joliet provides a clear basis for an additional constitutional claim – the 4th Amendment – when someone is locked up on bogus charges. It does not, however, really plow much new ground.
Manuel v. Joliet, Case No. 14-9496 (Supreme Court, Mar. 21, 2017)
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 offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…
US ATTORNEYS TO FOCUS ON VIOLENT CRIME, WHICH INCLUDES DRUG TRAFFICKING
There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”
Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”
Attorney General Jeffrey Sessions
In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.
Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.
Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.
The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).
Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:
• the number of cases ending with guilty pleas remained steady at 97%
• 14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.
• two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.
• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).
• in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.
Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.
But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.
Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.
Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”
When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
INEFFECTIVE ATTORNEY HAS INEFFECTIVE ATTORNEY
Defendants who hired Abe (call me “Anthony”) Fisch for their criminal defense hardly enjoyed the luck of the Irish. Anthony and his sidekick – former FBI informant Lloyd Williams – would approached defendants with pending criminal charges, explaining to them that if they paid Anthony vastly inflated legal fees up front, he would use some of the money to pay off high-ranking federal officials to get the cases dismissed or settled on really good terms.
Some may find the following shocking: Anthony and Lloyd had nogovernment contacts on their bribery payroll. Instead, they just took the money and run.
It worked for awhile, with anxious defendants and their families parting with over $1.5 million to the deceptive duo. The record included tales of shoeboxes with $450,000 being left on the seat of Anthony’s car. But it all fell apart finally, and Anthony, Lloyd and (for good measure) Anthony’s wife all got charged.
Williams had a better lawyer than he deserved, because he pled guilty quickly. Anthony and his wife went to trial. Wifey got acquitted, but Anthony went down hard, getting 15 years. He appealed on a host of issues, but earlier this week, the 5th Circuit rejected them all.
All but one. Anthony – a defense attorney who talked countless clients out of reasonable plea deals because he was allegedly bribing their way out of trouble, and who discouraged clients from preparing for trial for the spurious reason that their cases were going to be thrown out – complained to the district court that his defense attorney was ineffective. If so, this would truly be cosmic justice. But even lawyers who made a career out of screwing criminal defendants are entitled to effective counsel.
Anthony filed a motion before sentencing claiming his trial attorney was ineffective by (1) failing to interview key witnesses, including FBI agents; (2) failing to investigate potential defenses; (3) failing to introduce impeachment evidence; (4) failing to make offers of proof to admit exhibits; (5) failing to request proper jury instructions; and (6) refusing to ask for a trial continuance after counsel fell ill during trial and underwent surgery. Anthony supported his claims with affidavits and text message conversations between himself and counsel.
The district court threw out the motion without requesting further briefing or holding a hearing. On appeal, the 5th Circuit reversed the dismissal of the claims. The Court said, “We conclude that the factual issues underlying Fisch’s claims of ineffective assistance cannot be determined on the current record. The Supreme Court has noted that such factual issues are best resolved by the district court on 28 U.S.C. § 2255 review. See Massaro v. United States, 538 U.S. 500, 505 (2003). Consequently, we decline to address Fisch’s ineffective assistance claims on direct appeal. Nothing about our affirmance of Fisch’s convictions affects Fisch’s right to bring ineffective assistance of counsel claims—including those that were stated in Fisch’s motion below—in a timely § 2255 proceeding.”
Therefore, Anthony will get another bite of the apple in a 2255 motion. We have one prediction: whatever his trial counsel’s failings (if there were any at all), they had nothing on the havoc Anthony deliberately wreaked on his clients.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BALL OF CONFUSION
The federal criminal justice system has adopted rituals as byzantine as a medieval exorcism to ensure that defendant’s guilty pleas are “knowingly, voluntarily and intelligently” made. And who can complain about that? Federal Criminal Rule 11 contains a laundry list of items a court must discuss with a defendant to make certain he or she understands all of he ramifications of a plea of guilty.
To the shell-shocked defendant entering a plea of guilty, the entire proceeding passes as a jumble of nerves, rote answers and head-pounding legalese from judges and lawyers. That’s too bad, too, because by and large the defendant is later held to have perfectly digested everything said and to have meant every word he or she uttered in return.
That’s probably the way it should be, because no system could survive that made it too easy to withdraw a guilty plea after the fact. But that is not to obscure that – out of the 97.3% guilty-plea rate in the federal system – a good number of defendants go through whatever gyrations their lawyers tell them to perform during a guilty plea hearing, and only realize the finality of what they mindlessly agreed to after the fact.
For that reason, a case like United States v. Johnson, decided this week by the 2nd Circuit, is a breath of fresh air.
To believe the Feds, Cal Johnson was a bad dude, selling all manner of drugs and keeping guns in a nightclub he ran in the southern tier of New York State. The police found a gun behind the jukebox, and Cal was charged as a felon-in-possession and for drug distribution. In federal drug crimes, if the government alleges two prior drug convictions, the defendant’s sentence can be dramatically increased. Cal had two 20-year old drug beefs when he was arrested in 2012. They may have been committed when George H.W. Bush was president, but that didn’t matter: they weren’t too old to jack his mandatory minimum sentence to life.
For reasons that baffled the Court of Appeals (and us), Johnson pled guilty without a plea agreement. At his change-of-plea hearing, the government explained that “the possible maximum penalty is life imprisonment” and that “the mandatory minimum pursuant to statute is life imprisonment.” The prosecutor also noted that “there’s a supervised release term required of at least ten years”; that “if there’s any violation of the terms of supervised release, the Court would have the power to add an additional five years of imprisonment for any violation thereof”; that the second count had a “possible maximum sentence” of ten years with “no mandatory minimum required”; and that, with respect to both counts, “in addition to these possible maximum penalties,” Cal would lose certain rights, including the right to vote, to possess a firearm, to hold certain public offices, and to obtain certain licenses.
The district judge then told Cal about the guidelines. The judge “described one calculation with the result that “the guidelines range is 30 to life,” another that is also “30 to life,” another that “would be 262 to 327 months,” another that “would be 151 to 188 months,” another that “is 108 to 135 months” and one that is “188 to 235 months.” He then added: All of the guideline provisions I’ve just described are nevertheless trumped by the fact that the statutory mandatory minimum is a life term under Section 21 U.S.C. 841(b)(1)(A) and as I indicated that is the statutory mandatory minimum in this case when I indicated the possible penalties under count one. So the Guidelines are trumped by that statutory mandatory minimum.”
Finally, the judge asked Cal’s lawyer if he knew any reason why Johnson should not plead guilty. Defense counsel said no. The judge accepted Cal’s plea.
A few months before sentencing, however, Cal wrote to the judge saying he wanted to withdraw his guilty plea, because
my plea was not made knowingly or voluntary. I was mislead and ineffectively assisted by my attorney into believing that your Honor could sentence me to a sentence lower than the statutory sentence provided in Section 841(b)(1)(a) of the sentencing codes.
During my plea allocution you stated that you had the power to go above, below, or even outside the guidelines depending on the laws at the time of my sentencing. I misunderstood you to mean you could sentence outside of the statutory sentences as well.
Without being lead to believe this by my attorney I would never have plead guilty to charges that sentence me to a mandatory term of life in prison.
The district court told Cal that it was his tough luck: the life sentence was mentioned during the change-of-plea. He should have paid better attention.
Last Tuesday, the 2nd Circuit disagreed. Certainly, Cal was told about the life sentence. The problem is that he was told too much. With all the jibber-jabber about statutory maximum sentences, statutory minimum sentences, applicable guidelines and supervised release after incarceration ended, Cal had been so bombarded with data that he was worse off than if he had no information at all. The Court said that “the baffling complexity of the prosecutor’s account did, however, render serious the failure by the court to confirm that Johnson understood the sentence that his guilty plea entailed. Johnson says that he was confused, and it is easy to see how that might be. Johnson was not trained in the law.”
The matter that most concerned the 2nd Circuit was especially noteworthy, because all too often, we see it ignored by courts facing this kind of issue. The Circuit complained that his lawyer’s statement that he saw no reason for his client not to enter a plea was utter nonsense. “The most significant fact for Johnson at his plea hearing—a fact that he had to understand for his plea to be voluntary, knowing, and intelligent—was that life imprisonment was the certain consequence of pleading guilty. This was not merely a potential sentence, or one possible maximum among other possibilities, but his certain and inevitable sentence upon conviction. By pleading guilty, he was effectively sentencing himself to spend the rest of his life in prison; yet this fact was not conspicuous at his plea hearing, which included discussion of many other “possible” (though actually impossible) sentences and robotic references to (inapplicable) calculations and judicial discretion.”
Johnson’s plea gained him absolutely nothing. The Court expressed wonderment that “Johnson—in the midst of trial preparation—would knowingly elect to plead when a plea could yield no discount from the worst that could happen at trial.”
Johnson’s plea was withdrawn, and the case was sent back to the district court for trial.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
4TH CIRCUIT REVERSES SELF, HOLDS VIRGINIA COMMON-LAW ROBBERY IS NOT VIOLENT
With all of the recent news about Beckles v. United States, where the Supreme Court held that constitutional vagueness cannot apply to Guidelines sentences, it’s easy to forget that there is still a burgeoning legal industry in weighing whether crimes once thought to be violent for Armed Career Criminal Act cases are still violent.
The ACCA enhances the sentence of a felon caught with a gun if he (or in rare cases, she) has three prior qualifying convictions. The convictions may be serious drug offenses or “crimes of violence.” A “crime of violence” has traditionally been (1) burglary, arson, extortion or use of explosives (the “Enumerated Clause”); (2) a crime that involves use or attempt to use physical force (the “Force Clause”); or (3) a crime that involves significant risk that physical force may be used (the “Residual Clause”).
In 2015, Johnson v. United States held that the Residual Clause was unconstitutionally vague. In the wake of the decision – which was held by the Supreme Court to retroactively apply to people already convicted of ACCA offenses – prisoners have been returning to court to escape harsh ACCA sentences (which start at 15 years) where their predicate offenses no longer qualify.
A substantial procedural problem for a lot of the defendants is that the district courts often did not bother to explain under which ACCA clause their prior crimes fit. It hardly seemed to matter: if someone had been convicted of robbery, it seemed to fit under the Force Clause or the Residual Clause, so it hardly mattered to the outcome which clause it was on which the sentencing judge relied.
After Johnson, however, it suddenly made a big difference. It certainly did to Bobby Winston, who got 275 months back on 2002 for a felon-in-possession charge, where one of the predicate crimes was Virginia common-law robbery. The Johnsonretroactivity gave prisoners a one-year window to file motions under 28 U.S.C. Sec. 2255 seeking relief if Residual Clause cases had been used to bootstrap their convictions into ACCA sentences. Bobby filed, arguing that the Virginia common-law robbery could no longer be a predicate for his lengthy sentence.
Bobby ran straight into a procedural buzzsaw. The government argued that his 2255 motion had to be dismissed., because the district court had never said Virginia common-law robbery was a Residual Clause offense. The government contended it was a Force Clause offense, which was consistent with a 22-year old 4th Circuit decision that the Virginia crime employed physical force.
Monday, the 4th Circuit handed Bobby a win. First, the Circuit rejected the government’s procedural roadblock, holding that which the sentencing record did not establish that the Residual Clause served as the basis for concluding that Bobby’s common-law robbery conviction was a violent felony, “nothing in the law requires a court to specify which clause… it relied upon in imposing a sentence.” The appellate panel said, “We will not penalize a movant for a court’s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony. Thus, imposing the burden on movants urged by the government in the present case would result in selective application of the new rule of constitutional law announced in Johnson, violating the principle of treating similarly situated defendants the same.”
But is Virginia common-law robbery a violent crime? The 4th noted that since its 1995 decision that the offense qualified, the Supreme Court had ruled that the Force Clause only applied to “violent force… capable of causing physical pain or injury to another person.” Applying that standard, the Circuit said, requires that the federal court adhere to how state courts apply the offense, focusing on “the “minimum conduct criminalized by state law, including any conduct giving rise to a realistic probability, not a theoretical possibility that a state would apply the law and uphold a conviction based on such conduct.”
Common-law robbery or a simple purse-snatching?
Virginia courts have held that commission of common-law robbery by violence requires only a “slight” degree of violence, “for anything which calls out resistance is sufficient.” The violence used to commit common-law robbery “does not need to be great or cause any actual harm to the victim.” Thus, in one case, when a defendant grabbed a woman’s purse with force enough to spin her around but not cause her to fall, the force was enough for common-law robbery, but was not violent force within the U.S. Supreme Court’s definition.
Therefore, the 4th said, Virginia common-law robbery was no longer a crime of violence, and it will not support an ACCA conviction.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Oh, if Will had only been a regular reader of what is derisively known in the prison system as “inmate.com.” If Will had done any time, he’d have really known what rumors are all about.
The inmate.com we’re talking about is not the real inmate.com, run by an inmate penpal service: these folks are not the culprits we’re looking for. Instead, the inmate.com we mean is the one that spews false hope like a broken sewer. We get asked almost weekly to clear up rumors of pending legislative, judicial, regulatory or presidential actions that will release prisoners. The only common thread running through all the rumors sent to us is that they’re false.
In the past two weeks, we’ve heard from a number of inmate readers with questions like this one:
There is a new rumor going around here that President Trump has requested the House Judiciary Committee to close the wasteful federal prison camps? and if it does not get done he will do it by executive order.
Another writer asked:
Have you heard rumors that Trump is supposed to close 78 federal camps and put the inmates on home confinement? It’s all over the prison system and officers have been talking about it… The rumor about the home confinement came from the suggestion from the BOP director. You can go online and see he made a recommendation to Congress. I have seen a copy of the suggestion…
This rumor arose so quickly, and was being reported so widely, that we figured we would explore it. It did not take long for the Internet to yield the facts.
First, the bad news. President Trump – who along with the Attorney General wants to increase the prison population, not cut it – never said any such thing. Because of federal law – which limits home confinement to 10% of the sentence or 6 months (whichever is less) – the president could not order the camps closed and inmates sent home (unless he commuted their sentences, and given what Trump thought of Obama’s commutations, that’s not going to happen).
Likewise, Thomas R. Kane, Ph.D., acting director of the BOP for the past year, made no such request to Congress.
So where did this rumor start? On Feb. 28, 2017, an online press-release service called ReleaseWire.com – a website that will distribute anyone’s news release for about $50.00 – published a news release from a Colorado nonprofit group calling itself “A Just Cause” (“AJC”) The press release, headlined House Judiciary Committee and Trump Asked to Close Wasteful Federal Prison Camps, begins:
According to the February 8, 2017 Bloomberg Criminal Law Reporter (Vol. 100, no. 18, pg. 393), House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Democrat John Conyers (D-MI) are ready to release criminal justice reform legislation but are waiting on a green light from the White House. A Just Cause is urging Congress and President Trump to close 76 federal prison camps and eliminate this wasteful extension of the welfare system that, according the Federal Bureau of Prisons website, houses, clothes, feeds and provides healthcare for nearly 22,000 non-violent offenders…
Some of the lazier news media receiving the “news” release ran with it. However it happened, AJC’s self-generated “news” that it had asked Congress to do something as unlikely as to send 30,000 federal prisoners home at once spread in the prison system far and wide.
And who is the advocacy group “A Just Cause?” AJC appears to run a website and do little else. The site lists some staff names and has a page for a board of advisors that indicates that despite being in existence for 11 years, the group has yet to name board members. How active the group is can be inferred from the banner on its website front page, urging people to “take action today and sign the petition asking President Barack Obama to free the innocent men known as the IRP6!” AJC has been so busy advocating it missed the November election and January inauguration.
And who are the IRP6? AJC turns out to be little more than a front made up of the family members of six Colorado defendants who got hammered with 7- to 11-year sentences for a white-collar fraud a few years ago. The AJC has been trying without success to whip up public outrage over the convictions ever since. In fact, in the past year AJC has published a blizzard of news releases excoriating the federal prison camp director where some of the IRP6 are housed because of visiting restrictions they claim are discriminatory.
AJC’s demand that camps be closed makes more sense knowing the backstory, because the six defendants appear to all be in camps. If the camps close, their loved ones come home. There’s nothing wrong with a little enlightened self-interest.
The snowball effect… about to roll over the hopes of an inmate near to you.
Likewise, there’s nothing wrong with advocacy by friends and family of inmates, and AJC’s Feb. 28 news release appears to have been completely accurate. Nevertheless, an off-the-radar advocacy group’s exercise of its First Amendment rights somehow morphed into a grand rumor of Trump, the BOP and Congress setting off on a crusade to send 33,200 BOP campers home.
The earth is more likely to fall into the sun before next weekend than is anyone in Congress likely to pay attention to AJC’s request. Certainly, the rumor that Trump has proposed it is wrong. Congress has not proposed it, either, nor has the BOP. In fact, no mainline advocacy group (such as FAMM) has proposed it.
For that matter, no one in Congress has yet introduced any sentencing reform legislation whatsoever. President Trump has not been bothered to appoint a new BOP director. The Attorney General, only a few weeks on the job, is busy firing U.S. attorneys.
We called AJC during business hours to ask for a comment about the firestorm their letter to a couple of legislators has ignited, but we got no answer.
The report that camps will be closing, and campers sent home is a rumor. And it’s as false as it is implausible.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ROACH MOTEL
Besides the obvious fact that society abhors sex crimes against children – including the possession of kiddie porn – one of the rationales for handing out Draconian sentences to defendants convicted of such offenses is that they pose such a danger to the public if they’re roaming free.
Everyone knows that’s true. After all, the Supreme Court itself has recognized that an “frightening and high” percentage of untreated child porn offenders “re-offend” – which is sociologist-speak for “commits the same crime again” – after release. The statistic everyone loves to cite is 80%.
Except it now appears that the statistic is wrong. But like roaches at the Roach Motel, the “alternate fact” has checked into federal jurisprudence, and it shows no sign of checking out.
A New York Times article published last Monday took the State of North Carolina to task for an argument its attorney made during the Supreme Court oral argument the week before in Packingham v. North Carolina. “This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” attorney Robert C. Montgomery told the court during his defense of a state law that bars sex offenders from using social media services.
Attorney Montgomery was literally correct. The Supreme Court observed in a 2003 decision, Smith v. Doe, that the risk that sex offenders will commit new crimes is “frightening and high.” The Times said the holding, in a decision affirming Alaska’s sex offender registration law, has been “exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.”
Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited McKune v. Lile, a decision from the year before, which noted that “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” That decision cited a 1988 Justice Department study entitled A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender, which was a collection of studies by experts in the field. Ironically, most of the recidivism rates cited in the Guide showed slight recidivism rates for sex offenders. One source, however, claimed an 80% re-offense rate, a number that the Guide itself cautioned might be an outlier.
That source was a 1988 article published in the popular trade magazine Psychology Today. The Psychology Today piece simply asserted that “most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This statistic was not supported by any empirical evidence. In a recent Boston College Law Review article, Dr. Melissa Hamilton (who is both a criminologist and a lawyer) writes, “The Psychology Today authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training. Evidently, the authors’ “statistic” was simply based on personal observations from their local treatment program.”
In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending. Unfortunately, the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.
That may soon change. Pending before the Supreme Court is a petition for writ of certiorari in Doe v. Snyder, the 6th Circuit’s maverick decision to reject the “frightening and high” recidivism canard, in holding that Michigan’s civil sex offender law is unconstitutional. Hamilton argues that “Snyder’s engagement with scientific evidence has the potential to change the jurisprudence surrounding sex offender laws.”
With the Doe v. Snyder certiorari issue to be decided in the next few weeks, the argument against the 80% figure gain traction yesterday with a U.S. Sentencing Commission release of The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders. The study, which is third in a USSC series on the topic, reported that persons convicted of child pornography had a recidivism rate of 37.6%, lower than any other category of offense except economic crimes (which, at 35.9%, was almost indistinguishable). Violent crime offenders, by contrast, reoffended at a 64.1% rate, and drug traffickers at a 50.0% rate.
Benjamin Disraeli (or Mark Twain, no one’s really sure) famously said, “There are three kinds of lies: lies, damned lies, and statistics.” He has a “frightening and high” 80% chance of being right.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
We confess to a lack of creativity. This is the second time in less than a month that we’ve pinned our theme to lyrics from Vicki Lawrence’s 1973 hit, The Night the Lights Went Out in Georgia. What compounds our intellectual felons is that the judge in today’s report had hands stained green, not red.
The big Supreme Court news Monday was the unsurprising (to us, at least) Pena-Rodriguez v. Colorado decision, in which the Court held that the sanctity of the jury room could be invaded where a juror showed racial bias. The decision of importance to our readers, Beckles v. United States, ran a distant second in the news. And the case we’re looking at today, a summary disposition in Rippo v. Baker, was almost completely ignored.
Mike Rippo is a Nevada death-row inmate who alleged that the judge in his state trial was biased. Mike was tried for two murders in 1992. Shortly after his trial started, newspaper stories revealed the judge, Gerard Bongiovanni, was under investigation by a federal grand jury for allegedly taking bribes. Mike moved for the judge’s recusal as a matter of due process, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. Mike argued the judge had a motive to favor the prosecution in his case, in order to curry favor.
The DA falsely denied that his office was part of the bribery probe, and the judge himself said he did not know about any state law enforcement involvement in the fed’s investigation. The trial went on, and Mike was convicted. But after the trial ended, the judge was indicted by a federal grand jury for bribery unrelated to Mike’s case.
In a later state post-conviction proceeding, Mike advanced his bias claim again, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the bribery investigation. The state court denied the motion, and the Nevada Supreme Court affirmed. It reasoned that Mike was not entitled to discovery or an evidentiary hearing because his allegations “did not support the assertion that the trial judge was actually biased in this case.”
The U.S. Supreme Court dithered over Mike’s petition for certiorari, re-listing it for conference five times. Finally, last Monday the Court summarily reversed the Nevada courts and sent the case back.
The Nevada courts’ error, last Monday’s short opinion said, was in applying the wrong legal standard. The due process clause “may sometimes demand recusal even when a judge has no actual bias,” the Court ruled. “Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”
The Rippo decision may save some people from writing pleadings on the sides of their cars…
The test is not “whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” To make out a bias complaint, a litigant need not “show as a matter of course that a judge was actually biased in the litigant’s case.” Such a standard would be nearly impossible to meet. Instead, it is enough if “the circumstances alleged” are such that “the risk of bias” is too high to be constitutionally tolerable.
And how high is too high? We’ll have to wait for further opinions to resolve that.
Rippo v. Baker, Case No. 16-6316 (March 6, 2017) per curiam
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 FURTHER MUDDLES GUIDELINES
In a decision long awaited by federal inmates, the Supreme Court yesterday held that unlike criminal statutes, the federal sentencing guidelines can never be void for vagueness. But in so ruling, the Court may have weakened the guidelines rather than strengthened them.
The history: In 2015, the Supreme Court ruled in Johnson v. United States that a part of the definition of “crime of violence” found in the Armed Career Criminal Act – the “residual clause” that swept up offenses with a significant chance that someone might get hurt as being violent – was unconstitutionally vague. That ruling made sense: crimes such as drunk driving and not stopping for the police were being called “violent,” and on the strength of such dubious definitions, the law was making 51-month sentences into 15-year bits.
Unfortunately, the definition of “crime of violence” (along with the “residual clause”) was not just an ACCA provision. Instead, the same definition had metastasized throughout the criminal code and guidelines. Under the legal principle that quid est ius gander anserem condimentum (“what’s sauce for the goose is sauce for the gander”), inmates whose sentences had been shot into low-earth orbit by the guidelines’ “career offender” provision immediately began arguing that their sentences were based on an unconstitutionally vague “residual clause” as well.
The United States Sentencing Commission lent some support to the argument. After Johnson, the Commission changed the guidelines’ “crime of violence” definition to comport with Johnson. But a few courts of appeal held that guidelines are different from statutes, and could never be void for vagueness.
Yesterday’s Decision: Beckles v. United States was such a case. Travis Beckles had been sentenced to double prison time for possessing a sawed-off shotgun under the “career offender” guideline. If the ACCA “crime of violence” definition was unintelligible, Travis argued, so was the guidelines definition that matched it word for word.
Yesterday, the Supreme Court disagreed. Because guidelines are merely advisory and judges hold the final authority on sentences, the Court held, defendants cannot successfully argue that a sentencing guideline is so vaguely worded as to violate the constitutional right to due process. Laws that “fix” the sentencing range can be challenged in ways that “advisory guidelines” simply cannot.
The Fallout:Beckles hobbles what has up to now been a well-honed defense tool, while exposing contradictions between the guidelines in theory and in practice in a way that almost guarantees further litigation.
Not if it’s in the guidelines…
One former federal prosecutor notes, “Saying those guidelines can’t be challenged for vagueness takes away a tool for review and puts the onus on the Sentencing Commission to keep going back and looking at how they are being applied.”
Up to 2005, judges had been required by law to apply the Guidelines in sentencing. But in United States v. Booker, the Supreme Court decided mandatory guidelines the Sentencing Reform Act of 1984created were unconstitutional. Instead of throwing the whole law out, the court decided the guidelines should be considered advisory.
The broad opinion Justice Clarence Thomas wrote in Beckles built on Booker, differentiates between sentencing provisions in laws like the ACCA and the guidelines, which are subject to district courts’ discretion.
A former associate deputy attorney general who is now a law professor said the Beckles decision is a symptom of the hybrid situation that flowed from Booker: “You live in this weird world where the guidelines are both advisory and highly influential.”
Justice Sonia Sotomayor concurred in Beckles with a scathing rejection of the majority’s reasoning. She argued that while the guidelines may be “advisory” in name, in practice judges often consider them a default, meaning they should get the same treatment as a law under the constitution. Ironically, this is the same argument that helped carry the day in a 2011 decision, Peugh v. United States, which held the guidelines could be subject to an ex post facto analysis.
Sotomayor argued that Booker tweaked the guidelines’s status but left them at the heart of the sentencing consideration — or as the court put it last year in Molina-Martinez v. United States, the “basis” for the sentence. “It follows from the central role that the guidelines play at sentencing,” Sotomayor wrote, “that they should be susceptible to vagueness challenges under the due process clause,” she wrote.
Another law professor who filed an amicus brief in Beckles argued yesterday that the majority’s ruling ignores the “messy reality” of federal sentencing. “It reads as though the federal sentencing guidelines are just advice for district court judges that they can take or leave as they want, but that’s just not true,” she said.
An optimistic footnote to Beckles: Justice Kennedy’s short concurring opinion may hint at another option for defendants. He wrote that while the legal tests for constitutional vagueness are ill fitted to the sentencing guidelines, a defendant might still run into a sentence that is “so arbitrary that it implicates constitutional concerns.” Kennedy said, “In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed.”
Most notably, Beckles underscores to district court judges that the guidelines are not just purely advisory, but occupy a place in the law that is considerably less that statute, and perhaps much less than regulation as well. “It sends a signal to district court judges and reinforces the message that is already out there that these guidelines are purely advisory,” one lawyer said.
That may embolden courts to deviate from guidelines to an even greater extent than they have before. Courts have repeatedly held that a within-guidelines sentence is “presumptively reasonable.” If those guidelines can be so vague as to defy fairness – too vague to survive a constitutional analysis were they statutes – how long can such a reasonableness presumption endure?
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SCHADENFREUDE
English lacks any word that captures the essense of “schadenfreude,” a German word meaning taking delight in the misfortune of others. But schadenfreude is what anyone caring about the future of sentence reform must be feeling at the firestorm aimed at Attorney General Jeff Sessions – our own 21st Century American version of Vlad the Impaler – this past week.
The man who as a senator led the battle against the Sentencing Reform and Corrections Act of 2015, and as Attorney General has rescinded the BOP ban on further use of private prisons, was accused last week of perjuring himself when he told a Senate committee during his confirmation hearings that he had not had contacts with the Russian government while working with the Trump campaign. After revelations that he had met twice with the Russian ambassador, Democrats predictably called for his resignation.
Even if Sessions didn’t commit perjury during his confirmation hearing, he could still be in other kinds of legal trouble. “It is, at best, very misleading testimony,” said Richard Painter, formerly the top ethics lawyer in President George W. Bush’s White House. “I don’t go so far as to say that it’s perjury, but there is a lesser charge of failing to provide accurate information to Congress. A nominee at a confirmation hearing has an obligation to provide full and complete information to Congress. Conduct that might be just short of perjury in a deposition in a typical civil case is entirely inappropriate in front of Congress.”
Late last week, Sessions recused himself from involvement in any probe of Russian contacts with the Trump administration. The man Trump has nominated to hold that No. 2 DOJ job, Rod Rosenstein, faces a Senate confirmation hearing this week where Sessions’ testimony and the potential for a special prosecutor are now expected to take center stage.
The damage to Sessions’ reputation from the Russian disclosure could be substantial. He is a self-styled Mr. Law-and-Order, whose supposed respect for the rule of law has led him to fight against lightening drug sentences, because all drug dealers are “violent criminals.” He also opposes a path to citizenship for people who entered the country illegally. During his confirmation hearings, Sessions’s supporters repeatedly cited his “integrity” as so unquestionable that those alleging impure motives on his part during his days as a federal prosecutor were guilty of character assassination.
New York magazine last week said “Sessions is now seriously damaged goods after all the endless and interminable and redundant assurances he and his friends have made about his spotless honesty and love for the majesty of the law. He should have told the whole truth during his confirmation hearings. That’s the simple proposition that all the finger-pointing and blame-shifting his allies try to utilize to get him out of this self-imposed jam cannot obscure.”
The hobbling or, even better, removal of Sessions as Attorney General would be opportune. In his reversal of the private prison ban two weeks ago, Sessions hinted that increasing private prison capacity was premised on the “future needs” of the federal prison system. This suggests that many of the reforms of recent years may be subject to a substantial shift in policy, one that reverses the recent reductions in federal prison population.
After almost eight weeks of the new Congress, no sentencing reform bills have yet been offered. Replacement of Sessions with virtually anyone more reasonable that Vlad the Impaler might improve the odds that Congress would take up such a measure. But Ohio State University law professor Doug Berman, who writes the respected Sentencing Law and Policy Blog, said last Thursday that he is “inclined to believe that AG Sessions and Prez Trump will resist these calls for the AG to resign over this latest Russian kerfuffle, but in all sorts of ways this development is disconcerting for the future work of the Department of Justice. Sessions seemed to me a controversial choice primarily because of his policy positions, and a whole lots of reputable folks were quick to assert that Sessions was a man of integrity who had the kind of values and character needed to be an effective Attorney General. This latest development would seem to weaken that claim and more broadly weaken Sessions’ ability to be an effective AG.”
Berman suspects Sessions’ decision to recuse himself “from any matters arising from the campaigns for President of the United States” will be “more than good enough for Prez Trump and just good enough for most Republicans in Congress and not good enough for most Democrats in Congress.” After all, as the Wall Street Journal observed this morning, Senate Minority Leader Chuck Schumer “may eventually call for everyone in the Trump Administration to resign.
In the event readers wonder why we don’t always report on Supreme Court cases like this one, the reason is this: Ten out of 12 federal circuits already held that Elijah’s 4th Amendment claim worked even after legal process issued, and in fact, even after a grand jury indictment, because legal process, like the initial seizure at the time of arrest, is unreasonable if it is based on fabricated evidence. The 8th Circuit had never ruled on the issue, and the 7th Circuit – ruling in Elijah’s case – got it wrong. As far as significance, this case is a yawner.
