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

5TH CIRCUIT’S EN BANC HERROLD DECISION SURPRISES, BUT DOESN’T DISAPPOINT

The 5th Circuit handed down the long-awaited United States v. Herrold decision last week, an 8-7 cliffhanger that held by the narrowest of margins that Texas’s burglary statute was too broad to serve as a crime of violence predicate for an Armed Career Criminal Act sentence.

The importance of the decision can hardly be overstated. Texas has more people than 48 of the 50 states, and it logs over 115,000 burglaries a year. What’s more, the grounds used by the Herrold court to invalidate the burglary statute could easily resonate in many other states with similar statutes.

The Texas burglary statute provided that anyone who entered a building or habitation intending to commit a felony, or who remains concealed in a building or habitation with the intent to commit a felony, had committed a burglary. Herrold argued that the statute could not count as a burglary under the ACCA’s “enumerated offenses” clause, because it defined burglary more broadly than the ACCA’s general burglary. First, “habitation” was defined to include RVs, campers and other vehicles turned into living quarters. Second, generic burglary requires that the burglar enter the building with the intent to commit a crime. The Texas statute calls it burglary when someone enters a building for perfectly innocent reasons, but decides later to commit a felony.

The general belief was that the Herrold court would invalidate the Texas statute as an ACCA predicate, and that the vote would not even be close. After all, the Supreme Court had been clear in Mathis that a burglary statute that defined a building as including vehicles was too broad for the ACCA. But the Herrold court didn’t bite on the vehicle part of the definition. It ruled that including just vehicles that had been turned into living quarters might not make the statute too broad, and decided to save that question for another day.

The Herrold court first concluded that all of the subsections of Texas Penal Code 30.02(a)(3) were indivisible. The government found all sorts of cases where Texas courts called the various subsections of the statute “elements,” and argued that this meant the statute was divisible, and thus, even if one subsection was too broad, the other ones were not. But the Circuit cited Texas cases that held a jury did not have to be unanimous as to which subsection of the statute a defendant violated, concluding those cases settled the issue. “Mathis… demanded certainty. It demanded that we find rulings of the kind” it relied on —rulings that may definitively answer the question of divisibility. We are bound to examine how a state treats its own statute using the materials that the Supreme Court said speak with sufficient certainty on the matter.”

Because the Texas burglary statute is not divisible, if any one part of the statute is too broad for the ACCA, the whole statute fails. And fail it does. The Herrold court said that general ACCA burglary was after common burglars. “The ACCA’s definition of generic burglary requires unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime,” the Court said. “Both the Supreme Court’s language and its sources suggest that this constitutes a contemporaneity requirement: to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. Subsection 30.02(a)(3) contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry… Because of this fact, it is broader than the ACCA’s generic definition.”

The dissent was sharp, complaining that “the effect of the majority opinion, in addition to unsettling established precedent, is to render all burglary convictions in the second-most populous state in the country nullities as far as the ACCA is concerned.” The 4th has ruled the opposite on the Texas statute, and 6th Circuit has gone the other was on a similar Tennessee statute. The 8th Circuit, on the other hand, agreed with Herrold’s holding in construing a Minnesota statute.

All this means that the issue Herrold raises, which is important to ACCA and career offender defendants across the country, could well end up in the Supreme Court.

United States v. Herrold, Case No. 14-11317 (5th Cir. Feb. 20, 2018)

 – Thomas L. Root

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

PELL GRANTS FOR PRISONERS COMING BACK?

For the first time in over 20 years, Congress is seriously weighing whether to reinstate Pell grants for locked-up students, a move that would restore a federal lifeline to the nation’s cash-strapped prison education system.

Senator Lamar Alexander (R-Tennessee), chairman of the Health, Education, Labor and Pensions Committee, said last week the committee would consider including federal financial aid grants for prisoners in the current reauthorization of the Higher Education Act. This would represent a recognition of education as a centerpiece of prison reform. The grants would be used to cover the cost of college courses taught in prisons, online or both.

Congress banned Pell grants for prisoners in 1994, amid complaints that inmates should not be treated to education aid that could be spent on other programs. Since then, the short-sightedness of not using education to lower recidivism rates became clear to politicians on both sides of the aisle.

In 2015, the Education Department ran an experimental program that allowed 12,000 incarcerated students to be eligible for the financial aid. “Most prisoners, sooner or later, are released from prison, and no one is helped when they do not have the skills to find a job,” Sen. Alexander said in a statement. “Making Pell grants available to them in the right circumstances is a good idea.”

Key conservative leaders who favor prisoner rehabilitation are likely to back the proposal. Betsy DeVos, secretary of education, has called reinstating Pell grants for inmates “a very good and interesting possibility.” In his State of the Union address, President Trump cited overhauling the United States’ prisons to “help former inmates who have served their time get a second chance.” Charles G. and David H. Koch, the billionaire conservative activist brothers, have poured millions into a partnership with the Texas Public Policy Foundation to start a program, to rehabilitate the nearly 700,000 prisoners estimated to be released this year.

The national recidivism rate is 43.3% within three years, but higher education has a real impact on reducing that rate. A widely cited study conducted by the Texas Department of Criminal Justice found that higher education reduced recidivism to just 13.7% for formerly incarcerated individuals who earned an associate’s degree, 5.6% for those earning a bachelor’s degree, and less than 1% for those earning a master’s degree.

New York Times, Senate Leaders Reconsider Ban on Pell Grants for Prisoners (Feb. 15, 2018)

Big Island Now, Sen. Schatz Introduces Education Act for Incarcerated (Feb.14, 2018)

– Thomas L. Root

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

GOVERNMENT SAYS “WHAT’S YOURS IS MINE,” AND COURT AGREES

It has long been the case that the Government would freeze a defendant’s criminally-derived assets even before trial, crippling his or her ability to pay for a defense. The theory – not a bad one – is that the assets obtained from bank robbery, drug dealing, and stock frauds never really belonged to the defendant to begin with, because it was illegally obtained. Of course, the theory does not explain why that money suddenly belongs to the government, instead of the people who lost it to theft, fraud or illegal drugs… but that is a question for another day.

Restitution was another matter. Restitution to victims is paid out of a defendant’s assets other than those obtained by crime. Every inmate who has to pony up $25.00 a quarter to IFRP knows that. Many years after release, defendants continue to pay restitution out of paychecks, inheritances and even social security.

But the requirement that restitution be paid never interfered with a defendant’s right to use his or her legally-obtained cash to hire the lawyer of his or her choice – until now.

Last week, the 5th Circuit ruled in a white-collar case that once defendant Bob Scully was convicted, the government held a lien over all of his property to see that restitution was paid, even if the lien prevented him from hiring the appellate attorney of his or her choice.

The Court said, “precedent strongly suggests that the Government’s lien against the untainted funds outweighs any Sixth Amendment right Scully has to them… The Government’s lien on Scully’s funds is superior to Scully’s alleged Sixth Amendment interest in using them to pay appellate counsel… Scully no longer has any equity interest in the untainted funds he wishes to use for appellate counsel. He has no Sixth Amendment entitlement to use the Government’s money to pay for appellate counsel, ‘even if those funds are the only way that he will be able to retain the attorney of his choice.’ Further, it is established that a defendant is not entitled to ‘representation by an attorney he cannot afford…’ Scully does have a constitutional right to be represented by counsel for his first appeal of right, and court-appointed counsel are readily available if he qualifies as indigent.”

United States v. Scully, Case No. 17-50223 (5th Cir., Feb. 14, 2018)

– Thomas L. Root