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WHO YOU GONNA BELIEVE?

A few days ago, we reported that the success rate for post-conviction petitions in the Courts of Appeal hovers somewhere around 6%. There’s a reason for that.

Contrary to what a lot of do-it-yourself habeas corpus writ-writers clearly believe, success on a post-conviction attack on an inmate’s conviction or sentence is not pegged to how many cases you can cite in your pleading. And the number of Latin phrases you can spout ¬– while impressive to a student of the classics – is not proportional to the likelihood of winning a shorter sentence.

Post-conviction motions are fact-driven things. If you think you’re going to prevail, you had better have a lot of facts – good facts, facts that haven’t been put in the record before – and you had better be able to stitch those into a narrative that rings the bells of the Strickland v. Washington standard.

There is always a special problem when a district court is judging a claim of attorney ineffectiveness, and must choose between the credibility of an already-convicted defendant whom the court will probably never see again, and the word of a well-known defense attorney who appears in front of the court all the time. Whom is it more convenient to believe, a friend you see every day or some durn stranger?

Today’s case illustrates the point. Jose Rivera-Rivera worked for a Puerto Rican conspiracy as a drug runner, someone who supervised retail sellers’ day-to-day activities, supplied them with drugs for distribution, and collected proceeds. He was charged along with over 100 codefendants, in connection with a sprawling drug-trafficking enterprise operating in and around Ponce.

On the morning of trial, Jose – who was represented by court-appointed counsel named Raymond Esteves ¬– entered a straight-up guilty plea. Although the judge explained the benefits of the safety valve option, Jose was a stand-up guy: he refused to take it. He got a mandatory minimum 10 years.

Shortly after the sentence, Jose decided that “stand up” wasn’t all it was cracked up to be. He had his lawyer tell the court he wanted the safety valve after all, but that train had left the station. After a failed appeal, Jose filed a 28 USC 2255 claim that Ray was an ineffective attorney.

Jose said Ray never told him about a 9-year plea offer made by the government. The 2255 went to a hearing, and the tales were in conflict.

Jose said he had always been willing to plead guilty because he knew the government had a strong case. But, he claimed, his communications with lawyer Ray had been so bad that the attorney had never told him about a 9-year plea offer the government made in law in March 2010. Jose said later he showed up in court for what he thought was a pretrial hearing only to find out it was the trial, something else Raymond never told him. Because he felt completely unprepared, Jose said, he entered a straight-up plea then and there.

Ray had a different story. “Although he could not remember many of the details about the petitioner’s case given the passage of years between the dates of the critical events and the date of the evidentiary hearing,” the Court of Appeals said, “he recalled that he had discussed the 9-year plea offer with the petitioner” at least six times.” Ray was pretty foggy on the details, so the district court let him rely on his CJA voucher (which he had submitted to get paid for representing Jose) to refresh his recollection.

Unsurprisingly, the lawyer said he encouraged Jose to take the deal, but Jose insisted on seeking a more favorable offer or going to trial. Ray could not remember if he had passed the 9-year plea offer on to Jose before the deadline, but he said he urged Jose to consider it even after the deadline because he thought there would still be a chance to get the same terms. The CJA voucher corroborated that some of telephone calls Ray said he made were indeed made, and one entry specifically noted that Ray and Jose had discussed a plea offer.

The voucher also noted that the day after the government made the 9-year plea offer in writing, Ray made several telephone calls to Jose’s house. The next communication noted in the voucher (a telephone call on March 23, 2009) indicated that Ray spoke to Jose about “a plea offer.”

After the 2255 hearing, the district court found lawyer Ray’s version of events to be generally “consistent and credible,” and denied the 2255.

Everyone knows that “a party challenging a trial court’s factual findings faces a steep uphill climb.” The climb becomes an ascent of Mt. Everest when “the challenged findings hinge on the trier’s credibility determinations,” to which a reviewing court must afford great deference.

Last week, the 1st Circuit unsurprisingly upheld the district court’s findings. “We have made it pellucid,” the Court said, “that when the fact finder chooses between two plausible but competing views of the evidence, the fact finder’s choice cannot be clearly erroneous.” Here, the district court was confronted with two diametrically opposed accounts. The judge saw and heard the witnesses, “and rested his decision on a determination that [Ray’s] version of the salient events was more credible than [Jose’s] version. The record, considered as a whole, provides adequate support for the judge’s appraisal.”

The Court of Appeals suggested it was close: “Although the attorney was unable to recall some details concerning his handling of the petitioner’s case, he was able to pinpoint several important contacts… The record further supports [the attorney’s] version of events because it shows contemporaneous court filings and CJA voucher entries referencing plea negotiations… The conclusion suggested by the court filings is reinforced by the CJA voucher, which also references plea negotiations at various points. Those entries, made long before the petitioner brought his section 2255 motion, add weight to [the attorney’s] version of events.”

The appellate panel found it “troubling that [the lawyer] had so blurred a memory of his communications with [Jose]. But several years had passed between the critical events and the evidentiary hearing, and Jose’s testimony, like the attorney’s testimony, was not a model of precision. Moreover, it is difficult to square Jose’s claim that he never knew of any plea offer with either the court filings or the CJA voucher.”

Applying the “deferential standard of review,” the Circuit honored the “judge’s choice between imperfect alternatives.” The Court said, “The judge heard conflicting testimony and made a reasonable (though not inevitable) determination regarding credibility. On this scrambled record, there is no principled way in which we can find that determination to be clearly erroneous.”

The moral is that a 2255 petitioner should know what everything in the record says before he or she files. As John Adams once said, “Facts are stubborn things.” Don’t rely on your memory where there’s a better source.

Rivera-Rivera v. United States, Case No. 15-1921 (1st Cir., Dec. 23, 2016)

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A SIGNIFICANT LITTLE HOLDING

While many people were baking cookies and buying last-minute gifts, the U.S. Court of Appeals for the 9th Circuit last week was handing down a procedural ruling of some significance to attorney-defendant relations.

Manuel Yepiz and his friends were being tried for a number of violent crimes connected to their street gang, the Vineland Boys. As happens with a significant number of defendants, Manuel became concerned about his attorney. He wrote to the judge about it.

As any lawyer who has practiced for more than few months can tell you, heaven save us from the officious little minions in the clerk’s office. They will nitpick and flyspeck pleadings, and delight in rejecting them for some alleged procedural infirmity. Not enough copies, margins wrong, certificate of service not on a separate page… If the Continental Congress had tried to file the Declaration of Independence, some colonial-era clerk would have rejected it for John Hancock’s signature being too large.

We once got so frustrated at a clerk’s office that we actually filed a petition for mandamus, asking the court to order its clerk to accept filings, and to leave a determination of procedural adequacy to the judges. The court – which has to live with its clerk’s office – declined us.

In today’s case, there came a time when Manuel decided he wanted a new lawyer. There was plenty of time before trial, so new counsel should not have disrupted anything. The general 6th Amendment rule is that an accused has the right to discharge counsel for any reason or no reason” so long as the substitution does not cause significant delay or inefficiency or run afoul of other considerations, such as the fair, efficient and orderly administration of justice. In fact, where a defendant fires retained counsel and is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act at any stage of the proceedings.

Manuel’s right to trade in his lawyer was pretty clear. The problem was that to invoke his right, Manuel wrote a letter to the judge. When the letter got to the Clerk’s office, some assistant to an assistant ¬ following the local rules – sent it back to him without the judge ever seeing it.

The letter was returned along with a form from the clerk’s office called a “Notice of Document Discrepancies” (NDD). A checked box at the bottom of the NDD stated that Manuel’s letter was “NOT to be filed, but instead REJECTED.” The NDD did not indicate the basis for the court’s rejection, and the docket description of the document only indicated that the denial was based on the fact that “[p]arties should not write letter[s] to Judge.”

Manuel wrote twice more, but each time suffered the same fate: the judge never saw those letters, either.

Last week, the 9th Circuit said the district court’s failure to consider Manuel’s request was a structural defect in the trial requiring reversal. It did not matter, the Court of Appeals said, that the judge never saw it or that the court’s local rules required that such letters be returned b the clerk. The Circuit was troubled that the rejection provided too little detail as to the reason the letter was being returned:

“Because no explanation was provided, Yepiz was not given notice as to how he could properly present his request for new counsel, and as such, the local rules served to arbitrarily deny Yepiz’s constitutional rights. Under the circumstances of this case, therefore, we reject the government’s argument that the court was excused from its duty to inquire into Yepiz’s request because of Yepiz’s failure to comply with any local rule of procedure.”

The 9th concluded that “because the substitution would not have affected the court’s calendar, Yepiz was entitled to discharge his lawyer for any reason or no reason.” For that reason, the case was reversed.

One of the three judges on the panel wrote a detailed dissent, complaining among other things that the holding was contrary the local rules of all of the district courts in the circuit, and would clog up the works of the trial courts. This procedural ruling could well find its way to the Supreme Court, if the government is of a mind to seek certiorari.

United States v. Yepiz, Case No. 07-50051 (9th Cir., Dec. 20, 2016)

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A HOUSEFUL OF CHRISTMAS GUESTS…

We have all of the adult kids and spouses and sole grandkid here for Christmas and Hanukkah celebrations, so we don’t want to spend too much writing or, for that matter, complaining until next week.

Nevertheless, we want to say something about executive clemency. This past week saw another 153 people get clemency, and an additional 78 pardoned. That’s all well and good, but we have two points to make:

First, the interesting observation: Everyone knows that President Obama made grandiose promises about how he would commute 10,000 sentences this year, a figure later amended to 2,000. So far, with 28 days left before the inauguration, he has granted clemency to 1,324 people. It’s taken almost all of the year to accomplish that.

White House counsel Neil Eggleston has promised us that more commutations are coming, and others connected to the project have promised that the remaining 12,000 or so petitions will be acted upon. We have previously weighed the evidence for and against the idea that the President will grant a mass commutation before January 20th. There’s not much to go on, but…

Yesterday, we got a call from an attorney volunteering on the Clemency Project. She’s shepherding a clemency petition for a guy we’ve worked with before, and she relies on us for quick communication with her inmate. The lawyer told us she had heard from the clemency people that morning, and they urgently needed information about the inmate’s disciplinary record.

He has lived a pretty clean life in prison, so the report we returned was a good one. But we were curious that suddenly, a peculiar piece of information was needed so badly. Unfortunately, so far clemency has worked like a slot machine. If you qualify for consideration, all that buys you is a token. Put the token in the commutation slot machine, and pull the lever. Maybe you’ll win, probably you won’t.

But now, we wonder whether the end game’s afoot in Washington, and there is a sudden rush to move a mass of petitions through the system. We asked the clemency project attorney, and she told us “I personally don’t think the clemency board granted as many as it should or could have. But I’m also feeling the sense of urgency…”

It’s all reading tea leaves, but we think something out of the ordinary may be in the works on presidential commutations.

Our other point: We’re getting tired of watching Obama pat himself on the back over his criminal justice reform “legacy.” An hagiographic article last week argued that “by using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.”

Ohio State University law professor Doug Berman, who writes the best sentencing blog on the Internet, feels like we do. He blasted the article, complaining that the “bully pulpit” line

makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide “coverage for mainstream legislators to support sound policy options.” This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER “mainstream” politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

Professor Berman said he has been “seeing… the worst tendencies of the “commentariat class” since the election. Specifically, even though Prez Obama’s record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town. This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.”

Talk Poverty, The Obama Legacy: Chipping Away at Mass Incarceration (Dec. 21, 2016)

Sentencing Law and Policy, “The Obama Legacy: Chipping Away at Mass Incarceration” … but …”  (Dec. 21, 2016)

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CHOOSING PRISON

One of our favorite television shows back in the 80s was the short-lived Sledge Hammer!, a comedic takeoff about an over-the-top San Francisco cop (obviously modeled on Clint Eastwood’s Dirty Harry Callahan).

Among Inspector Sledge’s favorite observations was his thesis that “criminals have no rights: they give up their rights when they choose to become criminals.”

Well, life has always imitated that piece of art where inmates’ child support obligations are concerned. States generally adhere to the rule that voluntary unemployment is not a reason to reduce child support. That makes sense. But courts also reason that commission of a crime is a voluntary act, and incarceration is a logical and foreseeable consequence of committing a crime. Because “A” is voluntary, and “B” is the logical and foreseeable result of “A”, the states conclude therefore that “C” – going to prison – must be a voluntary act, too, the moral equivalent to quitting a job. Thus, inmates must suffer letting the child-support meter run wild while they’re in prison.

And suffer they do. A 2010 government survey found 51,000 federal prisoners –one out of four in the system – have child support orders, with over half of those inmates behind on payments, owing an average of about $24,000.

So, to channel Sledge Hammer, criminals choose to go to prison. If they’re released with a $24,000 debt hanging over them, so what?

The “voluntary prison” rule against child-support modification is as deeply flawed as it is superficially appealing. The notion of criminal conduct – especially breaking federal laws – being a voluntary choice of the criminal underclass is a myth. It was best put by Judge Alex Kozinski of the 9th Circuit in his 2009 essay You’re (Probably) A Federal Criminal: “Most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted.” His point? Currently, there are nearly 5,000 federal criminal statutes and over 30,000 criminal regulatory offenses in the Code of Federal Regulations. Breaking federal law is as easy as getting out of bed in the morning.

For example, 52% of all Americans 18 to 25 have possessed marijuana at least once, and 46% of all Americans over 25 have done the same. By the simplistic reckoning of the “voluntary prison” syllogism, each of these people has voluntarily committed a felony (violation of 21 USC 844) and each thus has a reasonable expectation of incarceration as a result. Although federal prosecution for simple drug possession is rare, it can happen any time at the government’s discretion. And that is precisely Judge Kozinski’s point.

What’s more, contrary to the supposition that criminals can reasonably expect prison to follow crime, that is hardly true. Beyond the fact that 23.4 million people over the age of 18 committed the federal offense of drug possession, but only 108 people were prosecuted for it, national crime statistics show that the likelihood that crime will lead to punishment is way less than certain. A person who commits murder has a 37.5% chance of not being prosecuted. A rapist has a 60.0% chance of not being prosecuted. A robber has a 72.1% chance of not being prosecuted. And for job security, nothing beats burglary, which has an 87.3% chance of not being solved.

There simply are no data to support the theory that someone who commits a crime in the United States has reason to believe that he or she will be locked up. Some may, others may not, but – like the question of whether unemployment is voluntary – it is a question of fact, not one of law.

So what is the effect of the “voluntary prison” child-support rule? Prisoners who were diligent at paying child support before being locked up are deeply in debt when they are released, and suffer the same loss of licenses and government services reserved for deadbeat dads who never left the street. In addition to the stigma associated with being an ex-con, a released offender owing past-due child support is hobbled by denial of the basics needed to be re-established as a productive member of society. Why punish a guy for five years when you can do it for a lifetime?

There’s a reason for our rant. On Monday, the U.S. Department of Health and Human Services Administration for Children and Families announced some sanity, new rules that will requires state child support to ensure that child support orders – the amount noncustodial parents are required to pay each month – reflect the parent’s ability to pay. Tucked into that rule is reform of the “voluntary prison” rule.

The new regs require that prisoners be allowed to seek to lower the amount of child support they pay while in prison. This is not just a bone thrown to prisoners, but rather one that studies show will ultimately increase support payments for kids. “Orders often go unpaid when they are set beyond the ability of unemployed and low-wage parents to pay them, resulting in large arrearages that themselves lead to less employment and support paid. The rule is intended to ensure that all families receive the support they need,” Vicki Turetsky, Commissioner, HHS Office of Child Support Enforcement, said in a statement.

Under the new rules, states will no longer be allowed to treat incarceration as “voluntary unemployment.” States will also be required to notify both parents of the right to seek changes to child support payments if one of the parents is incarcerated for more than six months.

No one knows whether the new rule will face opposition from incoming Republican President Donald Trump or the Republican congress. While some lawmakers have opposed the regulations, arguing they would allow parents to avoid their financial responsibilities, it may be that the issue is too small to be able to compete with all of the other issues facing the new Congress and President.

Reuters, Obama administration revamps child support rules for prisoners (Dec. 19, 2016)

U.S. Dept. Health & Human Services, New rule will increase regular child support payments to families (Dec. 19, 2016)

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 WHAT ARE THE ODDS?

Business is falling off at the United States Courts of Appeal, but for a change you can’t blame the criminal element for the slump. In a report issued yesterday, the Judiciary Data and Analysis Office of the Administrative Office of the U.S. Courts reported that while last year saw a 1 percent decrease in appellate filings, criminal appeals increased by 15 percent.

The increase in direct criminal appeals, according to the JDAO, was fueled by drug cases, mostly for drugs other than marijuana. This suggests either a decrease in enforcement efforts aimed at pot or the increase in opioid distribution, or – most likely – a combination of the two.

Curiously, 2015 showed the fifth consecutive year of decrease in the prisoner petition category, which includes post-conviction appeals of 2254 and 2255 motions. The number of prisoner petition appeals fell by 7.2 percent from 2014, and is down by 12 percent from 2011.

The JDAO reports that the overwhelming majority of appeals are unsuccessful. Fewer than 9 percent of cases decided in 2015 resulted in reversals of lower courts. Unsurprisingly, it’s worse for direct appeals of criminal cases: only 6.9 percent of district court convictions or sentences are reversed, and this figure does not differentiate between overturned convictions and cases where the conviction is upheld but the sentence is vacated. Prisoner petitions fare even worse: last year, only 4.6 percent resulted in reversals of district court decisions in those cases.

The courts are getting quicker in resolving cases, because, after all, how long can it take to say ‘no’? Median disposition times for cases have fallen by 20 percent over the past five years, from 10.8 months in 2011 to 8.6 months in 2015. The appellate courts started the year with 2,221 federal post-conviction cases pending, and added another 4,034 filings to that pile during the year. The courts decided 4,000 of the cases, ending the year with just about the same backlog as it had at the start.

The number of 2255 appeals pending at the end of the year? An ironic 2,255 of them.

Judiciary Data and Analysis Office, Administrative Office of the U.S. Courts, Just the Facts: U.S. Courts of Appeals (Dec. 20, 2016)

Statistical Tables for the Federal Judiciary (Dec. 20, 2016)

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YESTERDAY’S NEWS

Criminal justice news was dominated yesterday by more Obama Administration grandstanding on clemency, as the outgoing President commuted 153 sentences and pardoned another 78 people who had already done their time. Although the pardons spanned a variety of offenses from perjury to manslaughter, the commutations were again all for drug offenders.

None of the pardoned offenders was Hillary Clinton, Chelsea (née Bradley) Manning or Edward Snowden. Deputy Attorney General Sally Q. Yates said Obama is not done. “Today, another 153 individuals were granted commutations by the President. Over the last eight years, President Obama has given a second chance to over 1,100 inmates who have paid their debt to society. Our work is ongoing and we look forward to additional announcements from the President before the end of his term.”

With yesterday’s announcement, Obama has commuted 62.3% of his self-proclaimed goal of 2,000 sentences. No panic. He still has 30 days left.

In more interesting news, the U.S. Court of Appeals for the 1st Circuit reversed the racketeering convictions of Massachusetts Probation Office chief Jack O’Brien and two other senior officials who had “abused the hiring process to ensure that favored candidates were promoted or appointed in exchange for favorable budget treatment from the state legislature and increased control over the Probation Department.”

The Probation Office had detailed and influence-neutral hiring procedures in place. However, while the senior officials assured Massachusetts judges that the Office was following the handbook, they in fact hired unqualified candidates favored by influential lawmakers to ensure that they maintained “a good rapport with the legislature to facilitate a beneficial budget to the Probation Department.” The scheme unraveled in 2010 when the Boston Globe reported that ‘After 12 years in charge, Jack O’Brien has transformed the Probation Department from a national pioneer of better ways to rehabilitate criminals into an organization that functions more like a private employment agency for the well connected…”

The Feds, never ones to overlook a chance to capitalize on a high-profile story, obligingly indicted the three under the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d). After a 47-day trial, a confused jury convicted them of the RICO conspiracy and a few of the underlying mail-fraud counts, but acquitted them of bribery.

Holding that “not all unappealing conduct is criminal,” the 1st Circuit yesterday held that the RICO charge was not proven. The Court said that just showing that goldbricks and idiots were hired “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future” was not enough: the government had to show that the hiring of sponsored applicants was linked to a specific official act by the sponsor.

The Circuit threw out the mail fraud convictions as well. The government argued that use of the mails to send unsuccessful candidates their rejection letters was enough to bring the case under the mail fraud statute, because “such rejection letters in a corrupt hiring system satisfy Sec. 1341‘s mailing element where they help to maintain a facade of a merit-based system.” The appellate court rejected this argument:

The Government presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous function. Had unsuccessful applicants received no notice, they may have assumed they were not hired or else called OCP to check their status. The Government identifies language in the rejection letters stating that “[t]he selection of the final candidate was a difficult process” and that the deputy commissioners “were very impressed with [the recipients’] qualifications” to demonstrate that the letters were intended to convince rejected candidates that their selection was based on merit. We are not convinced that such vague platitudes, hallmarks of any rejection letter, sufficiently demonstrate that the rejections had any real tendency to convey a merit-based selection system.

The Court also dismissed Government arguments that the rejection letters “tended to perpetuate the scheme by making the rejected applicant less likely to call to inquire as to his status, thereby making it less likely that such a call might lead to some inquiry that would uncover the scheme.” The Court characterized this argument as “rank speculation,” saying that the” Government’s evidence provided no plausible mechanism by which a call from a rejected applicant asking about his or her status would lead to the discovery of the scheme.”

Clearly, the 1st Circuit panel found the Government’s use of RICO – originally intended to fight the Mafia – on a two-bit political patronage scheme to be akin to the application of a meat axe where a scalpel would have sufficed.

United States v. Tavares, Case No. 14-2313 (1st Cir., Dec. 19, 2016)

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IT’S QUIET OUT THERE… TOO QUIET

President Obama has gotten strangely quiet about granting clemencies since his last 79 commutations right before Thanksgiving. He’s granted 1,023 commutations so far and denied 14,485, without much pattern as to why some are granted and many are turned down. As of today, there are 13,042 petitions still on file and only 32 days left to do something about them.

Last week, another coalition of ex-prisoners, advocates, defense attorneys and former prosecutors joined the chorus urging Obama to grant blanket clemencies to drug offenders before his term ends January 20.

But at a breakfast event last week, Attorney General Loretta Lynch poured cold water on the notion of any blanket commutation. “When you’re talking about clemency,” she said, “…it’s a very individualized decision. I think it would be hard to craft a system for a blanket commutation of a class of people.”

Some have suggested that the pace of commutations has slowed because the President is preparing a sweeping clemency gesture. After issuing two batches of commutations monthly since September, the Obama pen has lain dormant for almost 4 weeks. With time to act on the remaining applications waning, there is little explanation for the inaction other than plans are underway for a major clemency action.

We’ll know in a month.

Wall Street Journal, Barack Obama Weighs Final Requests for Clemency (Dec. 17, 2016)

CNN, AG Loretta Lynch says don’t expect blanket pardons from Obama (Dec. 15, 2016)

HOPE FOR SENTENCING REFORM IN THE NEW YEAR?

Based on their public comments, President-elect Trump and Attorney General-designate Jeff Sessions may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the role of private prisons, accelerate deportations, and use the threat of financial sanctions to challenge so-called sanctuary cities.

But those inclined to look for a silver lining in 2017 may find one on Capitol Hill.

A New York Times/Marshall Project analysis last week suggested four reasons why the odds of sentencing reform may be better than critics fear.

First, 2017 is not an election year, meaning legislators have less to from critics for take unpopular stands. Second, President Obama will be gone, and with him the almost fanatical resistance to any position urged by the President. Third, one of sentencing reforms biggest opponents, Jeff Sessions, will be gone from the Senate. While as attorney general, Sessions will be able to encourage a presidential veto, he won’t be be joining the obstructionists who this year never let a sentencing reform bill come to a vote at all. Finally, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top.

The Marshall Project, Why Congress May Bring Criminal Justice Reform Back to Life (Dec. 16, 2016)

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TAKE MY WIFE… PLEASE

Almost everyone (us included) discusses federal criminal sentences in terms of months of incarceration. Although every imprisonment is followed by a statutorily-required term of supervised release, we tend to treat that as an afterthought.

It’s not. Rather, supervised release is one of those ideas that is great political theater and a great job creator for the United States Probation Office. As far back as 1994, public defenders observed that “supervised release, as it now operates, is far different from what Congress intended… What was originally designed to assist re-integration into the community is instead facilitating reincarceration.” Two years ago, a senior officer in the Probation Office for the Northern District of Ohio publicly stated that a third of all people his office supervised would be violated during their term of supervised release, a figure that suggested a failure of the system rather than a failure of the ex-offenders.

There appears to be little research on the effectiveness of supervised release, permitting us to speculate that system-wide, it provides as few useful services to ex-offenders and as many snares for the unwary as our own observations and anecdotal evidence suggests. Primarily, supervised release focuses on collecting restitution payment from ex-offenders on pain of revocation and re-imprisonment. Think of probation officers as debt collectors who can jail debtors who don’t pay enough.

But occasionally, even we – as jaded as we are – can be awed by the majesty of the arrogance of supervised release. Today’s case is one of those examples. In 2009, Cindy Hobbs and her husband were convicted of the quintessential white-collar offenses of identity theft and bank fraud conspiracy. Cindy did her 56 months, and was released. Her husband served 80 months. On supervised release, they owed a rather paltry $18,000 in restitution.

When Cindy started out on supervised release, she had no problems. But after a year, her husband was released. Cindy committed the unpardonable supervised release sins of moving and quitting her McDonald’s gig without telling her PO, of not showing up for a urine sample, and of no longer making her monthly restitution payments.

Although Cindy’s probation officer did not establish she had had any contact with her husband since his release, the government decided that he was the problem, and the district court agreed. “Ms. Hobbs was doing very well on supervision when she was living independently and Mr. Hobbs was still incarcerated,” the judge held. “And then, this contact occurs with her spouse, and those positive steps forward cease and, in fact, she absconds from supervision. That time line seems to the court to be instructive.” The court gave her 30 days in jail, reimposed her supervised release for another 3½ years, and ordered her to have no contact with her husband for the remainder of the supervised release term.

Two days ago, the 8th Circuit reversed the no-contact order. To be sure, a sentencing judge is afforded wide discretion when imposing terms of supervised release, the Court held, but special supervised-release conditions “must reasonably relate to the nature and circumstances of the offense, the defendant’s history and characteristics, deterring criminal conduct, protecting the public, and promoting the defendant’s correctional needs.”

The problem with the district court’s draconian no-contact order is that marriage is one of those constitutional things: the right to a marital relationship is a substantive due process right under the 14th Amendment ever since Loving v. Virginia. The Court of Appeals said “we are particularly reluctant to uphold sweeping restrictions on important constitutional rights.”

The Court of Appeals acknowledged that Cindy and her hubby had been “criminals in concert.” But that did not justify the “sweeping condition” imposed here. The Circuit observed that “nothing in the record shows that Hobbs’s husband influenced her to defy her release conditions… The timeline-based decision was pure speculation or assumption.”

The 8th said the “evidence did not justify effectively divorcing Hobbs from her husband during supervision to achieve any valid sentencing purpose… The state is inserting itself into Hobbs’s marital relationship in an overly broad way, and the condition thus involves a greater deprivation of liberty than is reasonably necessary.”

Because the district court’s condition was overbroad, the Court struck it down without reaching the constitutionality question, but any reader of the decision will conclude that the appellate panel believed it to be a due process violation.

United States v. Hobbs, Case No. 16-1956 (8th Circuit, December 14, 2016)

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SUPREME COURT GRANTS CERT TO BRADY, INEFFECTIVE ASSISTANCE CASES

It’s been a week for criminal law at the Supreme Court, a forum that typically devotes no more than about 20 percent of its time to criminal law questions.

On Monday, the Court granted certiorari – that is, agreed to hear – to Honeycutt v. United States, a case that asks whether 21 U.S.C. 853(a)(1) requires that forfeitures – which are different than restitution – be assessed jointly and severally among all of the coconspirators in a drug scheme. liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. In the case, Terry Honeycutt worked as a salaried employee at a hardware store owned by his brother, Tony. The two brothers were charged with drug crimes for the store’s sale of an iodine-based water disinfectant which can also be used to make methamphetamines. Tony forfeited $200,000 to account for the proceeds of the illegal sales. Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry said he shouldn’t have to forfeit the remaining proceeds because he was just a worker bee, and never received them. The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed, holding that Terry could be held independently liable for the meth precursor sales proceeds even if he never got any of the money.

Observers are hoping that the case may help put the brakes on what some see as a runaway and muddled forfeiture culture.

Yesterday, the Supreme Court added two more criminal issues to the docket, although one of the two issues has two separate cases consolidated for review. Both cases address prosecutors’ Brady v. Maryland obligations to turn over to the defense any material evidence that tends to be exculpatory for the defendant.

In Turner v. United States, several defendants were convicted in a murder years ago based in large part on eyewitness testimony. However, the prosecution did not turn over evidence pointing to several alternative suspects, including one who committed almost an identical murder after the trial ended. Lower courts turned down their post-conviction claims. The case focuses on whether the prosecution discharged its Brady obligations, and – in the consolidated case, Overton v. United States – whether the fact that the other suspect committed an identical crime after the trial that suddenly made the prosecutor’s failure to disclose information about him very material – had any bearing on whether a Brady violation occurred. In other words, is Brady materiality measured at the time of trial, or is hindsight required as well?

Curiously, the Supreme Court granted certiorari on the very general question of whether the conviction should be set aside for noncompliance with Brady. A decision in these cases could be sweeping, or it could be so case-specific as to provide little general guidance on Brady.

Finally, in Lee v. United States, the justices return to a topic familiar to Padilla v. Kentucky fans: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice that jeopardizes his or her right to stay in the United States. Jae Lee is a South Korean immigrant who moved to the U.S. 34 years ago and became a successful restauranteur. But in 2009, he was charged with possession of MDMA (known as “ecstasy”) with intent to distribute. The Feds had Lee pretty much dead to rights, so his lawyer advised him to plead guilty and get a shorter sentence for acceptance of responsibility under USSG Sec. 3E1.1. The lawyer assured Lee the conviction wouldn’t hurt his resident status in the U.S., but of course it did, resulting Lee’s permanent and mandatory deportation.

Lee filed a 2255 motion, seeking to vacate his conviction on the grounds he had been denied his 6th Amendment right to effective assistance from counsel. The lower courts ruled that Lee could not that he was prejudiced by his lawyer’s bad advice, because he would have been convicted and deported anyway. Time was, the only issue on bad advice over a guilty plea was whether the defendant would have been likely to go to trial but for the bad advice, a standard set by Hill v. Lockhart in 1985. Padilla put some gloss on that by holding that it was the defendant’s job to “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”

Now, the Supreme Court will consider whether bad advice on a guilty plea may be harmless, even if the defendant would have chosen to go to trial anyway, because if he had decided on a trial, he would have lost.

The decision could have substantial implications for thousands of 2255 motions, well beyond the confines of immigration consequences.

The cases on which review were granted will likely be argued in late winter or early spring.

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SANDBAGGED

About 10 years ago, Jakeffe Holt was convicted of being a felon-in-possession of a firearm under 18 U.S.C. 922(g)(1). That crime carries a maximum sentence of 10 years, unless the defendant is deemed an armed career criminal under 18 U.S.C. 924(e), which applies to people with three prior violent felonies or serious drug offenses. Then, the punishment is 15 years to life.

Jakeffe got a 200-month sentence. But after Johnson v. United States held in 2015 that the residual clause in Sec. 924(e)(2)(B)(ii) was unconstitutionally vague. Jakeffe filed a collateral attack on his sentence under 28 U.S.C. 2255. The district court had counted a burglary conviction among the three predicate acts. Jakeffe argued that this was a mistake, but the district court disagreed, and upheld his sentence.

While Jakeffe’s appeal was pending, the 7th Circuit ruled that the version of the Illinois burglary statute under which he had been convicted was not a “violent felony” because it does not satisfy the
definition of “burglary” used in Mathis v. United States. All of a sudden, Jakeffe was clearly not an armed career criminal, and he had served more time that the maximum to which he could have been sentenced.

Easy, right? Just send that man home. But, no, the procedure is anything but easy. The 7th Circuit ruled yesterday that because Jakeffe had already filed his one 2255 motion, he’s out of luck. Under the law, a second 2255 is allowed only if the court of appeals certifies that it rests on newly discovered evidence (which Jakeffe’s did not) or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. 2255(h)(2).

While Johnson was a new rule of constitutional law made retroactive, Jakeffe’s new argument rests on Mathis, which is not. Instead, Mathis just interprets the statutory word “burglary” and “does not depend on or announce any novel principle of constitutional law.” By knocking out the residual clause, Johnson opened the door to arguments based on the limits of the elements clause, the Court said, but it did not declare it unconstitutional.

The problem, the Court said, was that Jakeffe was treating the ACCA as having only two clauses – elements and residual – when it really had three. That third includes as violent crimes “burglary, arson, or extortion [or] involves use of explosives…”

Zakeffe’s burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson affects the proper treatment of burglary convictions. So Zakeffe’s second collateral attack cannot rest on Johnson.

If the court of appeals denies a request to file a second or successive application, no one may seek reconsideration or file for certiorari in the Supreme Court. Thus, the Circuit said, it “cannot treat the prosecutor’s supplemental brief as implying a request that we rehear, and rescind, the certificate authorizing a second collateral attack.”

Here, the district court found that Jakeffe’s 2255 relied on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the 2255. The judge acted before the Supreme Court released Mathis, so she did not appreciate that Jakeffe’s burglary conviction had been misclassified when he was sentenced. She did, however, understand that his argument was statutory rather than resting on Johnson or any other retroactive rule of constitutional law.

So Jakeffe, who is undoubtedly innocent of an ACCA enhanced sentence, must do an extra 80 months regardless, because procedure demands it. The 7th did note that whether Jakeffe “might be entitled to relief under 28 U.S.C. 2241, should he pursue that route in the district where he is confined… is a question we need not consider.”

Holt v. United States, Case No. 16-1793 (7th Cir., Dec. 13, 2016)