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BAD JUDGE, BAD LAWYER

It sounds more like juvenile court than a federal criminal trial. An attorney and judge going at it hammer-and-tong, the judge remonstrating the lawyer for “misleading questions,” admonishing counsel to “do your homework,” and telling him to “shut up and sit down.” And when all that failed, the court – in the presence of the jury – directed a U.S. Marshal Service deputy to forcibly place the attorney in his chair (if not in his place).

Too many judicial highjinks for due process to tolerate? Not so, the 1st Circuit said told unlucky defendant Rene Márquez-Perez on Tuesday. The Court of Appeals held that, but for the chair-seating incident, the trial judge was well within his discretion in how he controlled his courtroom.

The forcible seating came when the government objected to a defense question. The defense attorney, brash but not too bright (see below), objected to the government’s objection. After he interrupted the court and prosecutor repeatedly, even after the judge explained that you can’t object to an objection, the judge exploded, “Sit down and shut up. Sit down and shut up while he makes his objection.” When counsel was too obtuse to concede, the judge ordered, “Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.”

The 1st Circuit agreed that forcing the lawyer into his chair stepped over the line. The panel noted that “the trial judge did not command force to counter a physical threat or else as a last resort. Rather, he directed the security officer to forcibly seat counsel to resolve a verbal dispute that had erupted just moments earlier. The judge did so in the presence of the jury, and without first exhausting other options, such as removing the jury and pronouncing a stern warning of sanction or contempt. Under these circumstances, the judge used force not as a last resort, but nearly as a first one. We are not indifferent to the difficult task that a trial judge sometimes faces in maintaining control of a courtroom, nor to the reality that a judge’s demeanor while exercising that control will not always project unruffled serenity. On this record, however, we conclude that the judge’s speedy resort to use of force was not consistent with the very purpose of a court system to adjudicate controversies. . . in the calmness and solemnity of the courtroom according to legal procedures.”

Nevertheless, the judge’s over-reaction to defense counsel’s courtroom conduct did not require a new trial. The appellate panel said the trial judge’s resort to the Marshals “carried no suggestion that the defense case was weak or that the judge sided with the prosecutor.” While the error did take place in the jury’s presence, it “did not affect critical evidence, or otherwise deter Márquez from presenting his case; indeed, the judge eventually overruled the government’s objection in favor of Márquez.”

All was not lost for defendant Márquez, however. He complained that if his lawyer had shown him the government’s video evidence before trial, he would have pled guilty. Márquez did not benefit from counsel’s advice about the videos because counsel had not watched them, either: although counsel could have done so, he admitted to the district judge that he “decided not to see them, for the record.” Arguing that his lawyer was ineffective – in part because of this foolish record admission – Márquez asked that his conviction be vacated so he could from the government’s plea deal he had previously rebuffed.

Instances where a direct appeal wins a remand for ineffective assistance of counsel are very unusual. Courts typically deny ineffectiveness claims on direct appeal “due to an insufficiently developed record, leaving defendants to bring a collateral attack under 28 U.S.C. § 2255.” However, the panel said, “in rare cases where the record is sufficiently developed, we may resolve the claim on direct appeal. Moreover, even on an inchoate record, we will sometimes remand for an evidentiary hearing where the defendant has identified in the record sufficient indicia of ineffectiveness.”

Here, the 1st said Márquez had identified “sufficient signs of ineffectiveness” to justify a remand for an evidentiary hearing. “Here,” the Court said, “counsel’s failure to watch the videos appears to fall below [the] standard. First, counsel knew that the government probably would rely on the videos because the government formally designated the videos as evidence-intended-for-trial Counsel’s failure to watch the videos was exacerbated by his own beliefs, as expressed in a motion that he filed, that the videos contained exculpatory evidence. Second, the videos were easily accessible because the government produced them in discovery, presenting most of the videos to the defense two months before trial.”

The Court found evidence Márquez was prejudiced by counsel’s failing, because there was indication that “but for his attorney’s deficient performance, he would have pled guilty and received a lesser sentence.”

United States v. Márquez-Perez, Case No. 14-2246  (1st Cir. Aug. 30, 2016)

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A PRISON WITHOUT BARS

One of the oft-overlooked requirements for filing a habeas corpus action under 28 U.S.C. Secs. 2241, 2254 or 2255 is that the petitioner be “in custody.” You’d think it would be pretty binary – either you’re locked up or not. But it’s not that easy, and last week, the U.S. Court of Appeals for the 2nd Circuit got to grapple with it.

In a split decision, a Circuit panel reinstated the habeas petition of Robert Nowakowski, a man convicted in state court of 2nd degree harassment for a 2006 assault on a tenant in his building, despite his claim that the charge was fabricated by his landlord and neighbors.

Bob was sentenced to serve a year of conditional discharge with one day of community service, a sentence that included no jail time at all. Before he completed his sentence, such as it was, Bob filed a pro se petition for a writ of habeas corpus in the Eastern District of New York.

The Judge held the petition was moot because Bob had completed his sentence during the habeas proceeding. Thus, the district court said, there was no live case or controversy under Article III of the Constitution, and thus Bob had no standing.

Last week, the 2nd Circuit reversed on both grounds. True, the majority held, 28 U.S.C. § 2254 requires that a petitioner be “in custody,” but courts “have recognized that a variety of nonconfinement restraints on liberty satisfy the custodial requirement,” including restraints that “required petitioners to appear in certain places at certain times, thus preventing them from exercising the free movement and autonomy available to the unrestricted public, or exposed them to future adverse consequences on discretion of the supervising court.”

The Kings County District Attorney’s Office had told Bob to show up for a day of community service with the Department of Parks and Recreation or risk a bench warrant. That directive, the Court said, “falls within the category of restraints that satisfy the statutory requirement of custody.”

Additionally, the Court said, just because Bob’s year was up did not mean the habeas petition was moot. The Supreme Court in Sibron v. New York articulated a presumption that criminal convictions have continuing collateral consequences. Once a petitioner identifies at least one collateral consequence flowing from the conviction, the state has the burden of proving there is “no possibility” that such consequences will attach.

Here, the Court held, Bob has shown his “conviction subjects him to the possibility of impeachment in a future criminal proceeding and thus presents a sufficient continuing collateral consequence to satisfy the requirements of a live case or controversy.”

Nowakowski v. New York, Case No. 14-1964 (2nd Cir.  Aug. 26, 2016)

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7TH CIRCUIT GETS ON BOARD BECKLES TRAIN

In the waning days of its last term, the Supreme Court agreed to take up Beckles v. United States, which asks whether Johnson v. United States invalidates the “residual clause” of the U.S. Sentencing Commission’s career offender guidelines.

The residual clause of U.S.S.G. § 4B1.2(a)(2) includes in the definition of “violent crime” any offense that “presents a serious potential risk of physical injury to another.” In June 2015, Johnson invalidated identical language from the Armed Career Criminal Act as being so vague as to violate the due process clause of the 5th Amendment.

Holding that the Beckles “decision is many months away, so we think it best not to hold these cases,” the 7th Circuit decided yesterday to reach the question. In an en banc ruling, the Court admitted that previously, it had held that “vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds. But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning. Accordingly, we now overrule Tichenor. Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.”

Especially interesting is the list of offenses contained in the “career offender” guideline application notes. The Court gave short shrift to those listed crimes – “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling” – holding that the note did not stand on its own.

The en banc Court said, “application notes are interpretations of, not additions to, the Guidelines themselves; an application note has no independent force. Accordingly, the list of qualifying crimes in application note 1 to § 4B1.2 is enforceable only as an interpretation of the definition of the term “crime of violence” in the guideline itself. More specifically, the Sentencing Commission has interpreted the residual clause in § 4B1.2(a)(2) to include the specific crimes listed in application note 1. That interpretation is entitled to Auer deference… but the note has no legal force standing alone. It follows, then, that because the residual clause in § 4B1.2(a)(2) is unconstitutional, the application note’s list of qualifying crimes is inoperable and cannot be the basis for applying the career-offender enhancement.”

United States v. Rollins, Case No. 13-1731 (7th Cir. 2016)

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MICHIGAN SEX OFFENDER REGISTRATION LAW HELD TO BE EX POST FACTO PUNISHMENT

The U.S. Court of Appeals for the 6th Circuit last Thursday declared 2006 and 2011 amendments to Michigan’s “byzantine” sex offender registry law (“SORA”) to be ex post facto punishment statutes that cannot be applied to people convicted of sex offenses prior to the amendments’ passage. At the same time, the Court strongly hinted that the parts of SORA may be unconstitutionally vague, violate free speech and impose strict liability in violation of due process.

An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed, aggravate a crime by bringing it into a more severe category than it was in when it was committed, change the punishment prescribed for a crime (by adding new penalties or extending sentences), or alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

Ex post facto laws are forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws).

Michigan’s sex offender registration law, which began in 1994 as a non-public registry maintained solely for law enforcement use, “has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders,” the Court said.

Several unnamed plaintiffs challenged SORA’s validity on the grounds that portions are unconstitutionally vague, that its requirements should not be construed as creating strict liability offenses, that it violates the right to free speech, and that it violates the Fourteenth Amendment by imposing oppressive restrictions on Plaintiffs’ ability to parent, work, and travel. They also contended that SORA’s retroactive application of 2006 and 2011 amendments amounts to an ex post facto punishment.

The Court held that SORA was a punishment statute, despite what the State argued. The Court said that “the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter-majoritarian principle embodied in the ex post facto clause.  As… dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.”

The Court said the retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease. As for the other claims, the Court noted that “Plaintiffs’ arguments on these other issues are far from frivolous and involve matters of great public importance. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other matters would be dicta.”

Doe v. Snyder, Case No. 15-1536 (6th Cir. August 25, 2016)

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SHARING A DEADLY LUNCH

Scott Weldon, his girlfriend and buddy David Roth decided to buy some heroin and shoot up together. They pooled their money and gave it to Scott, who bought the drugs. They then shared it, but after Scott’s girlfriend injected Scott’s buddy, the buddy died.

The Government charged Scott with drug distribution resulting in Roth’s buddy. Scott’s attorney told him he didn’t have a chance of beating the charge, which carried a minimum 20 years in prison, so Scott cooperated with the Government and got a reduced (but still substantial) eight years.

Meanwhile, Scott’s girlfriend went to trial, arguing that the act if injecting Roth was not distribution. She won.

Scott filed a 28 U.S.C. § 2255 motion, arguing that his attorney was ineffective for telling him he couldn’t win. Scott wanted to undo the plea agreement. The district court turned him down flat.

On Wednesday, the 7th Circuit reversed, and sent the case back for an evidentiary hearing. Judge Richard Posner derided the Government’s insistence that Scott had engaged in drug distribution. “Suppose you have lunch with a friend, order two hamburgers, and when your hamburgers are ready you pick them up at the food counter and bring them back to the table and he eats one and you eat the other,” Judge Posner wrote. “It would be very odd to describe what you had done as “distributing” the food to him. It is similarly odd to describe what either Weldon or Fields did as distribution.”

The Court pointed out that at the time Scott was indicted, there was plenty of precedent holding that “ individuals who ‘simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together,’ are not distributors, ‘since both acquire possession from the outset and neither intends to distribute the drug to a third person,’ and so “neither serves as a link in the chain of distribution.” Given the wealth of prior decisions on the point, the 7th said, Scott’s lawyer’s insistence “that a defense to the charge of distribution had a zero chance of success was constitutionally deficient.”

In order to win a new trial, Scott must show a reasonable probability that, except for his lawyer’s bum advice, he would not have pleaded guilty and instead would have “insisted on going to trial.” Judge Posner said such an insistence might have persuaded the government to cut a deal with Scott “that would (without the uncertainty of a trial) have reduced his punishment significantly.” Scott is entitled to an evidentiary hearing to determine that.

Weldon v. United States, Case No. 15-1994 (7th Cir. Aug. 24, 2016)

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A BUNCH OF BRADY FROM THE 3rd CIRCUIT

The 3rd Circuit handed down a whopper of a Brady v. Maryland decision on Tuesday, a 102-page en banc smorgasbord of prosecutorial disclosure violations that landed a Philadelphia man on death row two decades ago. Although no physical evidence connected him to the offense, James Dennis was convicted of the 1991 murder of 17-year-old Chedell Ray Williams, who was killed by a robber who tore off her earrings and then shot her in the neck.

Over four vigorous dissents, the en banc court in Dennis v. Sec’y, DOC, held that the Commonwealth of Pennsylvania had withheld documentary evidence proving that a witness could not have seen what she said she saw, evidence that the Commonwealth’s principal eyewitness had provided a crucial inconsistent statement right after the murder, and reports police had received even before Dennis was arrested suggesting that a jailhouse “snitch” had heard another man confess to the crime.

Lower courts, as they are wont to do in Brady cases, had ruled that the evidence was not really favorable to Dennis and it lacked materiality. The 3rd Circuit buried those findings under an avalanche of Brady analysis.

The decision is a lengthy read, but it constitutes a veritable primer on the law of Brady: For example, the Court held that evidence proving that witness Latanya Cason – who said she saw the murdered on a bus two hours later than he said he was – was wrong would have tended to support “Dennis’s and his father’s testimony about his alibi on the day in question…” That alone, the Court said, “is sufficient to demonstrate favorability under Brady. Exculpatory evidence need not show defendant’s innocence conclusively.”

The Court also held that the mere fact that others had testified in support of Dennis’s alibi did not negate the requirement that the Commonwealth turn over the evidence. The Court said, “as both parties note, the other witnesses that testified on behalf of Dennis were friends and family, who were vulnerable to arguments of bias. To the contrary, Cason offered disinterested testimony that corroborated the government’s theory.”

The Commonwealth suggested that some of the Brady evidence could have been found by the defense if it had only tried harder. The Court emphatically rejected the argument. Supreme Court precedent “lends no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. To the contrary, defense counsel is entitled to presume that prosecutors have discharged their official duties… The duty to disclose under Brady is absolute—it does not depend on defense counsel’s actions. Thus, we need to clarify our position: the concept of “due diligence” plays no role in the Brady analysis.”

The Commonwealth argued that evidence correcting the time that Cason saw the defendant failed to meet the Brady materiality test, because the correct time still made it possible for Dennis to have killed the victim and made it back home. The Court rejected this argument as well. “Brady materiality,” it said, “does not turn on a determination of the sufficiency of the evidence, but instead requires the court to consider the constitutional error in light of all the evidence to determine whether it puts the whole case in such a different light as to undermine confidence in the verdict. Transforming Cason, a disinterested individual with documentary support, into a defense witness meets the requirements of Brady materiality because it would have necessarily bolstered Dennis’s alibi defense narrative… The type of impeachment evidence provided by the activity sheet would have undercut the credibility of a key prosecution witness in a manner not duplicated by other challenges the defense was able to level…”

The en banc Court similarly eviscerated Commonwealth arguments about two other pieces of Brady evidence. It thus upheld the district court decision that Dennis be released or retried.

The Philadelphia Inquirer reported that attorney Ryan D. Guilds of the Washington, D.C., powerhouse law firm of Arnold & Porter, one of Dennis’s attorneys, said, “Today, another court has reaffirmed that his trial was fundamentally unfair. We hope the commonwealth will take swift action to end this case.”

Dennis v. Sec’y, DOC, Case No. 13-9003 (3rd Circuit, August 23, 2016)

MOST STEALING NO LONGER A FELONY IN MISSOURI

In an unnoticed opinion last Tuesday, the Missouri Supreme Court effectively made most theft offenses no longer felonies, due to an apparently inadvertent change to state law in 2002.

The case – State v. Bazell – was brought by a woman who had been convicted of multiples firearms-theft felonies. The court said those felonies should be misdemeanors because a part of the state’s criminal code designating certain offenses as felonies is written in a way that doesn’t make it applicable to the state’s definition of stealing itself.

“If the words are clear, the Court must apply the plain meaning of the law,” the opinion said. “When the meaning of a statute is clear, the Court should not employ canons of construction to achieve a desired result.”

Because of the ruling, people charged with Missouri felonies for a number of theft offenses stand to have their convictions knocked down to misdemeanors, according to the public defender who represented the defendant in Bazell. Federal prisoners with prior Missouri theft offenses should check to determine what effect, if any, this has on their criminal histories or enhancing state charges.

State v. Bazell, Case No. SC95318  (Supreme Court of Missouri, August 23, 2016)

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PRIOR HISTORY

Mom was an English teacher, and she would have taken strong exception to the redundant expression “prior history.” Anyone who has enjoyed the eye-blurring and mind-numbing experience of online legal research is familiar with the phrase. “Prior history” is the label used for the record of what happened to a case before the decision on the screen. Unsurprisingly, “subsequent history” is sometime employed to describe the record of what went on with a case after the decision being read.

Still, it’s a grating phrase. History is by definition “prior.” History that is subsequent, or “future history,” cannot be history because it hasn’t happened yet.

This brings us to an all-too-common lament of inmate pro se litigants that, ignoring for a moment what happened when they either pled guilty or went to trial and had their heads handed to them, their convictions should be set aside because of some kind of grand jury error or another. As the 9th Circuit reminded everyone the other day, that’s “prior history,” and it hardly ever matters.

Defendant Jamie Harmon had been a criminal defense attorney. When her client – charged with selling stolen computers – thought his bank accounts were about to be seized, he gave Jamie over $100,000, which she put in her trust account and then doled back out to her client for his living expenses. She and her client were charged with money laundering.

Suffice it to say that the government arguably used perjured testimony at the grand jury to get Jamie and her client indicted. After the indictment, Jamie’s client turned on her, and he testified against her at her trial. She was convicted.

When Jamie later found out that the government helped its informant lie to the grand jury about why he was testifying (and about his paid status as a government informant), she argued that her conviction should be thrown out, because the perjury created a structural error in the grand jury process.

Jamie’s problem – one shared by countless inmates – was this: after a conviction, any error in the grand jury proceeding connected with the charging decision is deemed harmless beyond a reasonable doubt as a matter of law. It’s like Ohio State being picked for the NCAA Football Final Four in 2014. A lot of people complained it should have been Baylor or TCU.

But after the Buckeyes walloped Alabama and then rolled over Oregon for the title, no one had any basis for saying OSU didn’t belong in the top four.

Jamie may have been on the right track, but her train did not make it to the station. The 9th Circuit last week denied her post-conviction motion. It noted that “most constitutional errors can be harmless. Only in rare cases has [the Supreme Court] held that an error is structural, and thus requires automatic reversal. In the grand jury context, the only identified structural error to date is discrimination on account of race or sex in the selection of grand jurors. This error – which concerns the composition of the grand jury – is structural, as it ‘permeate[s] “the entire conduct of the [proceeding] from beginning to end”,’ and cannot be ‘quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt’.”

The Circuit held that neither the failure to correct false testimony affecting a witness’s credibility nor to disclose impeachment information falls into the narrow structural category that requires automatic reversal. The Court said “[d]ismissal of the indictment is not appropriate when a witness’ alleged perjury is not material to the defendant’s indictment and instead affects only the witness’ credibility.” The appellate panel believed that the witness’s lies about his motivation for testifying “was not structural because it is an error susceptible of quantitative assessment to determine its effect, and therefore suitable for harmless error analysis.”

The Court was undoubtedly swayed because the witness who lied about his motives before the grand jury did not testify at Jamie’s trial. In other words, the government proved her guilt beyond a reasonable doubt without the tainted testimony. It would have been considerably more interesting if the grand jury witness had lied in material parts of his testimony, but had not testified at trial. There, the 9th Circuit suggests, the error may have been structural. A decision on that, however, must await another day.

For now, once a defendant is convicted, whatever happened before the grand jury is prior history.

United States v. Harmon, Case No. 15-10034 (9th Cir.  Aug. 18, 2016)

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C’MON NOW, TOUCH ME…

Jim Morrison and the Doors weren’t thinking about this kind of touching, but neither, it turns out, do federal statutes. Applying Johnson v. United States and Descamps v. United States to sex offenses, the 3rd Circuit ruled last week that a defendant was improperly sentenced under the Repeat and Dangerous Sex Offender guideline, USSG Sec. 4B1.5, because – applying Descamps‘ categorical approach – the Delaware statutes underlying his prior convictions were broader than federal law.

U.S.S.G. Sec. 4B1.5 refers to a qualifying predicate “sex offense conviction” as “any offense [under 18 U.S.C. Sec. 2426(b)(1)(B)], if the offense was perpetrated against a minor.” The government claimed the defendant’s 1991 Delaware convictions for 1st- and 3rd-degree sexual contact were equivalent to a federal conviction for aggravated sexual abuse under 18 U.S.C. Sec. 2241.

The 3rd Circuit disagreed. It found that Federal aggravated sexual abuse had “sexual act” as an element. The least serious form of a sexual act was touching a person’s private parts, but not through clothing. Delaware law, on the other hand, prohibited “sexual contact,” which specifically included touching another’s privates through clothing.

What’s more, the Court said, Federal law required an “‘intent to abuse, humiliate, harass, degrade, or arouse or gratify’ a sexual desire. By contrast, Delaware’s definition omits this specific intent requirement and criminalizes intentional touching ‘which touching, under the circumstances as viewed by a reasonable person, is sexual in nature’. This reasonable person standard is broader than the federal law’s intent requirement.”

Finally, at the time the defendant was convicted of Delaware 3rd-degree unlawful sexual contact, “the crime prohibited consensual contact the defendant none-theless knew was ‘offensive to the victim’.” Federal aggravated sexual abuse, by contrast, involves only nonconsensual sexual acts.

Even though the defendant did not raise the Descamps issues in the district court, the 3rd Circuit said the law was sufficiently clear that the sentencing mistake constituted F.R.Crim.P. 52(b) plain error. While the Court noted “the severity” of the defendant’s offenses, it nonetheless noted that the 292-month sentence substantially affected his rights and the fairness of the proceeding, and sent the case back for resentencing without the Repeat and Dangerous Sex Offender guideline.

United States v. Dahl, Case No. 15-2271 (3rd Cir. Aug. 18, 2016)

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ENOUGH OUT OF YOU, BUB

In a precedent-setting decision handed down last Friday, the D.C. Circuit Court of Appeals held that BOP placement of inmates in  Communica-tions Management Units (CMUs) implicates their due process rights.

Three inmates with terrorism-related convictions sued the BOP for constitutional violations arising from their serving years in BOP  CMUs. While the Circuit found the BOP officials named in the damages suit had qualified immunity in this case, its decision breaks new ground in application of the 1st and 5th Amendment to prison conditions.

About a decade ago, the BOP opened two CMUs at Terre Haute, Indiana, and Marion, Illinois.  CMUs are described by the BOP as housing “inmates who, due to their current offense, conduct, or other verified information require increased monitoring of communications with persons in the community to ensure the safe, secure, and orderly running of BOP facilities and to protect the public.”

An inmate can be designated to a CMU for several reasons, including a terrorism conviction, a propensity for using communication channels to further illegal activity outside the prison or to contact victims, abuse of approved communication methods, or a potential threat to prison facilities or the public as a result of unmonitored communications. An inmate gets sent to a CMU after a BOP review concludes “designation . . . is necessary to ensure the safety, security, and orderly operation of correctional facilities, or protection of the public.”

CMU inmates have limited and less private communications compared to general population inmates. All visits other than from lawyers are “non-contact,” meaning a glass wall separates the inmate and visitor and communication takes place with a microphone. The visits must be conducted in English, live-monitored, and recorded by BOP. CMU inmates are limited in phone calls and email privileges, and receive enhanced mail screening. But for those limitations, housing unit life is about the same as for the general population.

The Court found it significant that CMU placement is exercised selectively and its “duration is indefinite and could be permanent; the deprivations — while not extreme — necessarily increase in severity over time… Inmates housed in CMUs… may spend years denied contact with their loved ones and with diminished ability to communicate with them. The harms of these deprivations are heightened over time, as children grow older and relationships with the outside become more difficult to maintain.”

The Circuit also seemed a bit concerned that CMU treatment is “viewed as an unusual designation reserved primarily for Muslim individuals convicted of terrorism-related offenses—giving rise to a stigma analogous to sex-offender classification.” Nevertheless, the Court concluded that unlike the stigma of sex offender status, for example, “CMU designation is not based on any formal status as a ‘terrorist’ and not every CMU inmate is associated with terrorist activities. Additionally, CMU designation has no bearing on the length of an inmate’s sentence. Thus, we do not find stigma to be relevant in this context.”

The BOP argued that the Prison Litigation Reform Act blocked any suit, because the inmates could allege no physical harm. The Court disagreed, holding that the PLRA only prohibited suing for mental or emotional damages absent the presence of physical damages, too. Here, the Court said, the suit alleged constitutional violations, and physical damages did not have to be pled. The Court said, “we find it hard to believe that Congress intended to afford virtual immunity to prison officials even when they commit blatant constitutional violations, as long as no physical blow is dealt. It is especially difficult to see how violations of inmates’ First Amendment rights could ever be vindicated, given the unlikelihood of physical harm in that context. Against that backdrop, and a legislative record indicating an intention to still allow awards for meritorious claims, we believe our reading of Section 1997e(e) best aligns with the purposes of the PLRA.”

The BOP officials were entitled to qualified immunity, the Court said, because the constitutional rights they violated were not so “clearly established” that they would have known of them. Even if that is the case, they’re certainly on notice after this decision.

Aref v. Lynch, Case No. 15-5154 (D.C.Cir.  Aug. 19, 2016)

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DOJ TELLS BOP TO END PRIVATE PRISON CONTRACTS

Bad news came out of Washington, D.C., for all of those people who believe that a third inmate sleeping on the floor in a two-man cell, a nonstop diet of rice and beans, and understaffed health services constitute reasonable and effective corrections policy: the Dept. of Justice directed the BOP to phase out all private prison contracts over the next five years.

In a memo to the Director of the BOP, Deputy Attorney General Sally Q. Yates wrote “I am directing that, as each contract reaches the end of its term, the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population.”

Yates’ action comes on the heels of a DOJ Inspector General’s report issued last week, which looked at 14 contract prisons used by the BOP, and found that in a “majority of the categories… contract prisons incurred more safety and security incidents per capita than comparable BOP institutions… From FYs 2011 through 2014 in eight key categories: (1) contraband, (2) reports of incidents, (3) lockdowns, (4) inmate discipline, (5) telephone monitoring, sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions… For example, the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.”

The inspector general’s report concluded that private prisons are dramatically less safe, less secure, and more costly than the BOP’s own prisons. The private facilities, Yates wrote in yesterday’s memo, “simply do not provide the same level of correctional services, programs, and resources” and “do not save substantially on costs.”

As of December 2015, contract prisons housed roughly 22,660 federal inmates, or about 12 percent of the BOP’s inmate population. Yates’ directive means that by next May, when many of the current federal contracts end, the number of BOP inmates in private prisons will drop to 14,200, down from a high of nearly 30,000 in 2013. Within five years, every current BOP contract with a private prison will have ended.

The DOJ move will undoubtedly come as a disappointment to Donald Trump. When asked recently how he planned to reform the country’s prison system, Trump said, ““I do think we can do a lot of privatizations, and private prisons it seems to work a lot better.”

Publicly traded prison stocks The GEO Group Inc. (NYSE:GEO) and Corrections Corporation of America (NYSE:CXW) were off around 40% yesterday afternoon after the DOJ announcement.  GEO and CXW shares have climbed 65% and 40%, respectively, in the past several years, but they gave up much of that gain in the wake of the DOJ announcement.

Private prisons like GEO Group and CCA have long been criticized for inefficiency, deplorable conditions and, and in some cases, corruption. For example, a University of Wisconsin study examined Mississippi data showing state prison terms were being manipulated to bolster private prisons’ profits. Prisoners suffered longer sentences than their publicly imprisoned peers, and were more likely to return to jail. Other critics have accused private prisons of fostering higher recidivism rates. In fact, in the past, CCA has touted ‘high recidivism’ as a reason private prisons are a ‘unique investment opportunity.’” 

The DOJ decision does not necessarily affect Geo Group’s and CCA’s state business, but the states (which account for about half of all private prison business) could follow the DOJ’s lead, especially if they fear that the DOJ report could provide a basis for prisoner lawsuits against them arising from private prisons’ failings. Likewise, the new DOJ policy does not affect private prison contracts with Immigration and Customs Enforcement to run immigrant detention centers or with the U.S. Marshals Service to jail detainees for short periods of time.

The BOP recently declined to renew a contract for approximately 1,200 beds. Yesterday, the BOP amended a current contract solicitation to reduce an upcoming solicitation from a max of 10,800 beds to a max of 3,600. Yesterday’s BOP memo asserted that “taken together, these actions will allow the Bureau to end the housing of inmates at three or more private contract facilities over the next year, and will reduce the total private prison population to less than 14,200 inmates by May 1, 2017 – a greater than 50 percent decrease since 2013.”