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The Box Gets Even More Banned in New York – Update for June 1, 2017

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

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EX-OFFENDER EMPLOYMENT RIGHTS GET A BOOST

banbox170601It’s no secret that ex-offenders find job prospects daunting upon their release from prison. Given a choice, especially in this litigious society, employers will pass on hiring someone with a felony conviction, if not for irrational fear that their employee will embark on a jobsite crime spree, then because if someone claims injury from what the employee does at work, the employer will be squirming in the witness chair trying to justify to a skeptical jury why he or she hired a criminal.

In the past few years, there have been some initiatives to “ban the box,” that is, to remove the question from employment applications about prior felony convictions. The states and cities that have passed laws banning the box largely limit the ban to government employment, and often only defer an employer’s asking the felony question until later in the employment process.

A notable exception is § 296(15) of New York State’s Human Rights Law, which prohibits discrimination on the basis of criminal record, unless there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

excon170601Yesterday, the 2nd Circuit put some teeth in the statute. Tranthony Griffin and Mike Godwin worked for Astro Moving, an agent of Allied Van Lines, a local mover who had signed a contract to be part of the Allied system. One of the terms of the contract prohibited Astro from employing people convicted of certain types of crimes. The local mover had discovered Tranthony and Mike had records, and fired them.

Tranthony and Mike sued Allied, arguing that it was liable for violating § 296(15) by aiding and abetting Astro’s violation through its contract. The district court threw out the suit, holding that Allied was not the guys’ employer, but rather Astro was.

The 2nd Circuit used a process known as certification, sending three state law questions over to New York State’s highest court for interpretation. The New York Court of Appeals sent answers back to the 2nd Circuit, which yesterday reversed the district court and sent the case back for trial.

realboss170601New York law determines whether an entity is an employer based on whether it controls (1) the selection and engagement of the employee; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the employee’s conduct.” The control Allied had over ordering and controlling whether Tranthony and Mike could be employees may be enough to make Allied into their employer, at least for purposes of the Human Rights Law.

The New York Court of Appeals also ruled that the Human Rights Law could reach out-of-state defendants like Allied.

The case will return to district court, where Tranthony and Mike will be allowed to make their case.

The ruling may prevent local employers, such as retail stores, fast-food establishments and service facilities, from hiding behind contracts with out-of-state entities in banning ex-felons from employment. At the same time, it may convince nervous employers to err on the side of caution, and simply avoid asking the question about prior record altogether. To be sure, it protects employers from being accused of negligence for hiring ex-offenders in the first place.

Griffin v. Sirva, Inc., Case No,. 15-1207 (2nd Cir., May 31, 2017)

– Thomas L. Root

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Easter Bunny, Unicorns, and Low-Level Drug Offenders Don’t Exist! – Update for May 31, 2017

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

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 DOG BITES MAN

Dogbite160314The debate over the May 10th release by Attorney General Jefferson Beauregard Sessions III of a new directive that effectively cancels the 2014 Holder memorandum continues to rage. Predictably, federal prosecutors love the Sessions Memo. Dog bites man!

Last week, to the shock and amazement of absolutely no one, the National Association of Assistant United States Attorneys – the private association of AUSAs that helped sink federal sentencing reform last year by arguing that there is no such thing as a nonviolent drug offender – now argues that there’s no such thing as a low-level drug offender in the federal system, and that all the Sessions Memo does is to force prosecutors to carry out the will of Congress.

“There’s nothing… other than Eric Holder’s own personal opinion of what he considered to be a low-level offender, that provides that we should ignore the law,” Steve Wasserman, NAAUSA treasurer, told reporters last Thursday. He argued that the law as written by Congress already includes several “safety valve” provisions, and the discretion given to senior prosecutors under the Sessions Memo already provides ample avenues for sparing the truly deserving from long terms in prison.

The mandatory minimum sentences that sentencing reform advocates and their supporters in the media oppose, he said, apply only to weights that are atypical of personal use or small-scale dealing. Besides, even when mandatory minimums do cut in, NAAUSA argued, that “doesn’t necessarily mean that the person initially charged with the mandatory minimum is going to end up with the mandatory minimum sentence. In fact, only about 13% of our federal prisoners are serving mandatory minimum sentences and the reason for that is that even though we may charge, the individual may meet the safety valve requirement… or they may be someone who is willing to cooperate with us … that allows us to go back to the court… and explain that this is someone who has provided us with what we call ‘substantial assistance’ which allows the court to reduce the mandatory minimum.”

bling170531What NAAUSA is really saying is that the Sessions Memo once again makes it open season on black defendants. In an amazingly candid admission, Larry Leiser – a current federal prosecutor and NAAUSA president – the president of the group and a current prosecutor, told reporters on a conference call last Thursday that the Sessions Memo will let AUSAs aggressively prosecute drug crimes committed by people “wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

When a reporter braced Leiser, asking whether the remark could be construed as racist, Leiser responded, “It’s intended to be just the reality that unfortunately there are many people in the minority communities that are caught up in this terrible blight of drugs.”

Sessions’ resumption of the “get tough” policies that reigned before the 2014 Holder Memo comes as The Economist again published a withering critique of the American system of incarceration. The magazine reported that Barack Obama’s reform “caused a modest reduction in the number of federal prisoners (who are about 10% of the total). Donald Trump’s attorney-general, Jeff Sessions, has just torn it up. This month he ordered prosecutors to aim for the harshest punishments the law allows, calling his new crusade against drug dealers ‘moral and just’. It is neither.”

The Economist observes that “a ten-year sentence costs ten times as much as a one-year sentence, but is nowhere near ten times as effective a deterrent. Criminals do not think ten years into the future. If they did, they would take up some other line of work. One study found that each extra year in prison raises the risk of reoffending by six percentage points. Also, because mass incarceration breaks up families and renders many ex-convicts unemployable, it has raised the American poverty rate by an estimated 20%.”

pros170531Unfortunately, the problem – whether under Obama or Trump or any of their predecessors – is simply this: DOJ is run by prosecutors. “Despite an obvious conflict of interest,” former AUSA and law professor Mark Osler writes, “the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.”

A building full of prosecutors, Osler argues, will instinctively push back against criminal justice reforms, regardless of whether a president is hostile to reform or is as progressive as was Obama. Osler notes that while “it seemed President Obama was sincerely committed to reforming federal criminal law, his results were disappointing. And though some of this failure can be blamed on a recalcitrant Congress, that excuse only goes so far. A close examination of Obama’s record shows that many of the administration’s reforms were subverted by the DOJ, not Congress.”

Nowhere is this more evident than in the position of NAAUSA, whose members are current criminal division line AUSAs. “We at the federal level don’t prosecute ‘low-level drug offenders’,” Wasserman declared, but rather only people in the trafficking business.

In other words, Reason’s Jacob Sullum notes, “you can’t be a low-level drug offender if you participate in distribution. Hence the phrase ‘low-level drug dealer’ is, according to Wasserman, oxymoronic.”

unicornbunny170531NAAUSA’s position on the issue is sophomoric, yet unsurprising from a prosecutorial mindset. There is no distinction between someone who becomes addicted to opioids because of an injury, supplying his or her habit by selling extra pills, and the leader of a gang selling heroin on the streets of an inner city and protecting its business with guns and violence. If you sell, you’re a trafficker, and all traffickers are high-level and violent. As Sullum argues, “it is possible to draw distinctions among people convicted of trafficking, based not only on the amount of drugs involved but also on the role the offender played. A courier or street dealer might participate in an operation that handles a large quantity of drugs, but he is still on a low level compared to the people running the operation.”

While NAAUSA denies that any federal drug offenders are “low-level” or “non-violent,” at the same time it argues the law “already provides ample avenues for sparing the truly deserving from long terms in prison.” The avenue is principally sentence reductions for defendants who provide “substantial assistance” to the authorities or who qualify for the statutory “safety valve” (which lets qualifying nonviolent, low-level drug offenders avoid mandatory minimum sentences) It must be hard for NAAUSA to posit such a claim while at the same time denying that such things as “low-level” or “non-violent” drug trafficking defendants exist.

Breitbart.com, Federal Prosecutors Hit Back at Media Criticism of Sessions Sentencing Memo (May 29, 2017)

The Daily Caller, Federal Prosecutor Says DOJ’s New Focus On Drug Crimes Will Target People Wearing ‘Heavy Gold And Chains’ (May 25, 2017)

Economist, America’s prisons are failing. Here’s how to make them work (May 27, 2017)

Mark Osler, The Problem with the Justice Department, The Marshall Project, (May 31, 2017)

Jacob Sullum, Federal Prosecutors Say They Never See Low-Level Drug Offenders, Reason.com (May 30, 2017)

– Thomas L. Root

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“Any Last Words?” — Allocution Prejudice Is Once Again Presumed – Update for May 30, 2017

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

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SPEAK NOW OR FOREVER HOLD YOUR PEACE

For more than 300 years, courts have recognized that a criminal defendant has a right to speak directly to the court before sentence is imposed. The judge’s failure to ask a defendant if he had anything to say – known as the right of allocution – traditionally has always required reversal. After all, as the Supreme Court put it, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

allocution170530The allocution cases that make it to appeal inevitably result because the judge forgets to offer the defendant the right, and the defense attorney fails to notice the omission. In those cases – because no objection has been lodged – in order to complain about the mistake, a defendant had to show “plain error” that prejudiced him, affected his “substantial rights” as Federal Rule of Criminal Procedure 52 puts it.

Until the Guidelines came along in 1987, the courts always assumed that a defendant had been prejudiced if he or she was denied allocution, because the right had “symbolic meaning that lent legitimacy to the sentencing process.” But after the Guidelines, courts ruled that prejudice could be found only if a defendant was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Until United States v. Booker – that is, for about 18 years – the Guidelines were mandatory, meaning the judge had virtually determined by the Guidelines’ confusing calculus.

This meant that if a defendant had a mandatory sentencing range of, say, 108-121 months, and the judge sentenced him or her to 108 months, the defendant could not claim prejudice because he or she was denied a chance to speak, because practically speaking, the defendant had already gotten the best deal he or she could possibly get. No harm, no foul.

guidelines170530Then the Guidelines became advisory. Yet in the 12 years since Booker, no court has bothered to change the “no prejudice” rule. Thus, when Tony Doyle appealed the fact the district court forgot to give him his right of allocution, the government argued that because Tony had gotten sentenced at the bottom of his Guideline range, the denial of the right to allocate did not hurt him.

Last week, the 11th Circuit said it was time to pitch the old Guidelines “no prejudice” presumption. Pointing out that Booker brought a “sea change” in sentencing practices, the Circuit said “a sentence outside the guidelines range is not the extraordinary event that it once was.” In fact, during 2016 almost half of the sentences handed out in the 11th Circuit were below the Guidelines range.

“Because Booker knocked out” the premise that the bottom of the Guidelines range was as good as it was going to get for the defendant, the Circuit said, “a defendant will generally be entitled to a presumption that he was prejudiced by the district court’s failure to afford him his right of allocution, which will satisfy the plain error rule’s third requirement, even if he received a sentence at the low end of his advisory guidelines range.”

United States v. Doyle, Case No. 14-12818 (May 25, 2017)

– Thomas L. Root

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5th Circuit Finds Sentencing Commission Mitigating-Role Amendment to be ‘Clarifying’ – Update for May 25, 2017

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 I’M ONLY THE PIANO PLAYER

whore170525When a cop stopped Frank Sanchez-Villarreal in Texas., he found six kilos of coke and a gun. Frank admitted that he had been hired by someone he only knew as “Chaparro” to deliver the cocaine to someone he did not know, for which he would be paid $1,000.00. He said the guy who hired him had given him the gun for protection.

At sentencing, Frank’s lawyer argued that he should get a 2-level mitigating-role adjustment under the sentencing Guidelines for having played a lesser part in the drug trafficking than the average conspirator. He argued that Frank was just a “standard ‘mule’” who had been ordered to transport drugs without knowing the end location or coordinating the drug trafficking. If the conspiracy had been a whorehouse, his lawyer argued, Frank was only the piano player.

The district judge reluctantly concluded that Frank’s conduct did not warrant the USSG Sec. 3B1.2 mitigating-role adjustment. She said she “probably had some disagreement with the guidelines,” but while Frank “may be not the person gaining the most financially from this, but – but he is – I’m hesitating to use the word “critical,” but I’ll go ahead and use the word “critical.” He is critical to the operation as far as moving the drugs, and – and also, especially here, where by his own admission this was the second time he’d done this – and in that regard I do consider that, his admission – he’s –he’s entrusted, obviously to get this work done.”

mule170525While Frank’s appeal was pending, the Sentencing Commission adopted Amendment 794, and changed the commentary to 3B1.2. The changed commentary makes it clear that the standards for a minor-role adjustment are not as stringent as a number of courts had said they are. In particular, the Commission added this:

The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.

The Commission said it made the change because courts had been denying mitigating-role adjustments solely because defendants were “integral” or “indispensable” to the criminal activity. The Commission explained that such a standard was inconsistent with the primary issue of relative culpability. The Amendment Commission was intended to address a circuit split as to what an “average participant” might be.

This week, the 5th Circuit agreed with Frank that he should be considered for the 2-level reduction. In so doing, the Circuit held it could consider Amendment 794, even though it was “not effective at the time of the commission of the offense or at the time of sentencing” because it was intended only to clarify, rather than effect substantive changes.

Bit170525The 5th joined three other circuits agreed with the parties that Amendment 794 is a clarifying amendment. In determining whether a Guidelines amendment is clarifying or substantive, a court looks (1) whether the Commission declared the amendment to be clarifying; (2) whether the amendment is intended to address a circuit split (which generally indicates that the amendment is substantive, not clarifying); (3) whether the amendment was made retroactively applicable by the Commission; and (4) whether the amendment alters the language of the commentary rather than the language of the Guideline itself (which may suggest that it is clarifying). Because Amendment 794 altered the text of the commentary but not the guideline itself, and because the change was to better reflect the Commission’s intent and provide “additional guidance to sentencing courts,” Amendment 794 was clarifying.

The Circuit concluded the district judge erred in her application of Sec. 3B1.2 “by giving conclusive weight to the finding that Sanchez-Villarreal’s role was ‘critical’.” After that conclusion, the district court did not consider whether, despite playing a critical role, Frank was “substantially less culpable than the average participant in the criminal activity.” Because his culpability is the central issue in a 3B1.2 reduction, Frank was entitled to resentencing where that issue would be resolved.

United States v. Sanchez-Villarreal, Case No. 15-41303 (5th Cir., May 23, 2017)

– Thomas L. Root

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Teacher, We Hardly Knew Ye: BOP School System is Stillborn – Update for May 24, 2017

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SCHOOL’S OUT FOREVER

Alice Cooper is apparently next in line to run the Bureau of Prisons, nascent educational system, launched with great fanfare last fall. Last week, the BOP quietly fired a Texas education specialist it had hired last November to serve as the first “superintendent” of the BOP’s school system.

schoolsout170525The BOP brought on Amy Lopez last year to overhaul educational programs for prisoners, intending to ease their re-entry into society and reduce recidivism. In her position, she would have managed a “semi-autonomous school district within the federal prison system,” with the goal of giving prisoners the opportunity to earn their high school diploma and pursue post-secondary studies.

Lopez was fired last week, leaving the future of the reform efforts rather precarious.

“They’re shitcanning it,” a person who worked on the prison reform efforts told Huffington Post last week. “It’s tragic. This is really tragic.” Another unidentified person familiar with the status of the program said the school system plan had been quietly “canned or placed on hold.”

Lopez has not yet commented on her dismissal, and DOJ referred questions to the BOP. Last Friday, a BOP spokeswoman said the agency had “no announcements or updates regarding our programs at this time.”

The plan last fall when the BOP hired Lopez, an experienced prison educator, was for her to serve as superintendent of federal prison schools. Each inmate would get assessed upon entering the system, with an individualized plan developed for each prisoner that would include everything from remedial reading and plans to address learning disabilities, to earning a high school diploma.

warehouse170525But neither President Trump nor Attorney General Jefferson Beauregard Sessions III supports such an effort. In October 2015 congressional hearing on sentencing laws and the prison system, Sessions (then a senator) said he questioned the necessity of educational programs. “Do you think… nobody’s ever tried a program to reduce recidivism?” he asked. “My observation over the years of attempts to have education and other kind of character-building programs in prison before they’re released doesn’t seem to have much benefit.”

Former Deputy Attorney General Sally Yates said last fall that she believed the incoming administration would nonetheless maintain the new changes. She said research showed that inmates participating in prison education programs had 43% lower odds of returning to prison than those who did not, and that would mean cost savings for the Bureau Of Prisons.

“It’s smart from a public safety standpoint, and it’s less expensive,” Yates said.

beating170525Yates’ optimism appears to have been misplaced, her statistical evidence being no match for Sessions’ “observation over the years.” Yates, who was largely driving the prison reform initiative, said in a press release in November that the changes would “make our prisons more effective” and reduce recidivism ― and therefore prevent crime by “equipping inmates with the tools they need to successfully reenter society.”

A 2015 study reported that about one-third of students with learning disabilities were arrested within five years of the end of high school. The Yates plan had included more opportunities for inmates with learning disabilities and a pilot program in which inmates would be given customized tablets for online education.

But Attorney General Sessions knows best, and studies are no match for what he knows to be true.

Huffington Post, Federal Bureau Of Prisons Fires Head Of An Obama-Era Education Effort, Putting Reform Under Trump In Doubt (May 29, 2017)

Washington Post, The Justice Department just unveiled new prison reforms. But the Trump administration might scrap them (November 30, 2016)

– Thomas L. Root

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9th Circuit Further Limits Misprision Doctrine That’s Already on Life Support – Update for May 23, 2017

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“NARC, NARC!”

gravy170523Karen Olsen, a former USDA official who helped manage one of the agency’s “gravy train” grant programs, retired so that she, too, could feed at the money trough she once oversaw. She and Bob Wells got a grant to open a milk processing facility, back when milk was worth something, which it isn’t these days.

To economize, Karen and Bob co-located their new processing plant with an ice cream factory built by Kyle Beus, who had also scored the money he needed for the place from USDA. But Kyle cut corners, renting junk equipment where his USDA grant called for buying new stuff.

Karen found out Kyle had overbilled USDA and pocketed the difference. She told her assistant she could send Kyle’s “ass to jail,” and told her board of directors that Kyle “has put the entire dairy industry at risk for an ever-widening investigation closing off all loan sources and public goodwill.” Nevertheless, Karen continued to use Kyle’s equipment valuations in her own records, and did not turn Kyle in to the USDA.

misprision170523The misprision of felony statute makes it a crime for anyone having knowledge of the actual commission of a felony to conceal and not make it known to some judge or person in authority.” To convict someone under the statute, 18 USC § 4, the government has to prove (1) that someone else committed a felony; (2) that the defendant had full knowledge of that fact; (3) that he or she failed to notify the authorities; and (4) that he or she took affirmative steps to conceal the crime.

The parties agreed that under the first element, Karen had to know that Kyle had committed a crime. The government argued, however, that she did not necessarily have to know that the crime was a felony. Any crime was good enough.

Last week, the 9th Circuit disagreed. While the misprision statute did not make it clear, courts were to presume that the “knowledge” requirement – known as scienter – applied to both phrases. The history of misprision strongly suggests that “Congress intended the misprision statute to apply solely to conduct the average person would understand as criminal and serious.”

The Circuit concluded that “in sum, in light of Supreme Court precedent and relevant history, we hold the misprision statute requires knowledge not only that the principal engaged in conduct that satisfies the essential elements of the underlying felony, but also that the underlying offense is a felony.

snitch161004Karen was not off the hook, however. The 9th noted that Congress had clearly defined “felony” as a crime punishable by death or imprisonment for more than one year, and the USDA forms for the grant, with which Karen was well acquainted, had printed on them the warning that anyone making “false statements to the USDA could be imprisoned up to five years.” That was enough for the jury to hold that Karen knew Kyle’s lies were felonies.

There is something a little disturbing in making it a felony not to “narc” out other peoples’ crimes. The Circuit itself observed in passing that “misprision has become a little used and much maligned criminal charge.” England, where the crime originated, eliminated the offense in the mid-1960s, and “American commentators have urged Congress to do the same, arguing the crime has outlived its usefulness in light of modern methods of law enforcement.”

United States v. Olsen, Case No. 15-30022 (9th Cir., May 15, 2017)

– Thomas L. Root

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Did Holder’s Charging Policy Really Matter? – Update for May 22, 2017

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THE NUMBERS TELL A DIFFERENT STORY

The media continued its feeding frenzy last week about Attorney General Jefferson Beauregard Sessions’ memo rolling back the Obama kinder-and-gentler drug charging and sentencing policies.

sessionsmemo170522Numbers that DOJ cited last year suggest former AG Eric Holder’s Smart on Crime Initiative had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to Sentencing Commission data, the share of federal drug offenders subject to mandatory minimums has fallen steadily from 62% of all defendants in 2013 to less than 45% in 2016.

But as Benjamin Disraeli put it, there are three kinds of lies: “lies, damn lies, and statistics.” It turns out the Sentencing Commission number includes drug defendants who did not actually receive mandatory minimums. Many of them were subject to mandatory minimums, but escaped because they gave the feds “substantial assistance” or got “safety valve” treatment.

liesdamnlies170522A Federal Public and Community Defenders analysis, however, did toke those other forms of relief into account. That study found “6,780 defendants convicted under drug statutes carrying a mandatory minimum penalty… received some form of relief from the mandatory minimum penalties. All but 868 of those defendants were already eligible for relief, and judges gave 467 of them sentences longer than the mandatory minimums, which suggests the new rule would not have helped them.”

Out of the 6,780 defendants, only 8% “would likely have received a lower sentence if the Holder memo had been in effect in 2012.” The analysis suggests that the vast majority of drug offenders who seem to have benefited from the Holder 2013 memo — thousands each year — did not actually receive shorter sentences as a result of the policy change.

Deal170216The biggest change in sentencing resulting from the Holder memo is the one few are talking about. By cutting the number of drug defendants eligible for mandatory minimums, the new approach puts less pressure on defendants to cooperate with the feds. Ratcheting up the penalty will again increase the number of defendants willing to make a deal.

Reason.com, How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded? (May 17, 2017)

– Thomas L. Root

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The Court Giveth, The Court Taketh Away – Update for May 18, 2017

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TAKE MY MONEY

cartheft170519Kapelle Simpson-El had, in an earlier life, sold cars. Stolen cars. The feds caught up to him, and he was duly locked up. His sentence included the mandatory restitution obligation, in Kapelle’s case about $433,000.

Kapelle did his time, and after he was released, he dutifully paid at least 5% of his monthly paycheck toward restitution. No surprise there: on supervised release, an offender can be sure that his or her probation officer is first and foremost a collection agent for the court.

It will come as little surprise to anyone who has received Bureau of Prisons medical care that Kapelle, who was injured in prison, received “inadequate medical attention and a lack of treatment” from Health Services. After he got out, Kapelle sued under the Federal Tort Claims Act, and settled with the government for $200,000.

lord170519At that point, the government asked Kapelle’s sentencing judge to modify his restitution payment based on Kapelle’s “material change in economic circumstances.” The government wanted him to turn over the entire $200k for restitution. The district court ordered Kapelle to apply $145,640 of the settlement funds toward restitution.

Under 18 U.S.C. § 3664(k), a court can adjust a restitution order when there is a “material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution.” The district court invoked this authority, reasoning that the settlement funds could affect Kapelle’s ability to pay restitution.

Kapelle appealed, arguing that the settlement was just intended to make up for “a lifetime of lost income.” Earlier this week, the 10th Circuit upheld the shakedown.

The Circuit complained that Kapelle’s “lost income” characterization “rests on a questionable factual foundation, for the settlement might have included some compensation for non-economic harm. After all, the settlement resolved a suit in which Mr. Simpson-El had claimed ‘hedonic damage to his quality of life’ as well as economic loss.” Even if Kapelle was right, the 10th said, the fact that money he would earn in the future was delivered to him now in a lump sum was “time-savings [that] could reasonably be viewed as a material change in economic circumstances.”

lottoThe Circuit panel said the district court properly considered Kapelle’s current economic condition. “The court stated the obvious,” the 10th wrote. “There was now a substantial new fund that had not existed before the time of the settlement. Pointing to the newly created fund, the court relied on a readily apparent change: Before the settlement, Mr. Simpson-El would have had to wait years to earn $200,000; after the settlement, he would immediately recoup $200,000.”

Of course, if Kapelle had earned the $200,000 over 10 or 15 years, he would have paid 5% of that (or $10,000) in restitution on it. Receiving it all at once, he paid at the rate of 72%. Of course, Kapelle’s victims would see no problem with such an outcome, and they would have a point. Still, the math is troubling.

United States v. Simpson-El, Case No. 16-3107 (10th Cir., May 17, 2017)

– Thomas L. Root

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A Shot Across DOJ’s Bow – Update for May 19, 2017

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IN RESPONSE TO SESSIONS’ GET-TOUGH MEMO, A LITTLE SENTENCE REFORM…

shot170522In an obvious shot across the Trump Administration’s bow, Senators Rand Paul (R-Kentucky), Patrick Leahy (D-Vermont) and Jeff Merkley (D-Oregon) on Tuesday reintroduced the Justice Safety Valve Act, S. 1127. Representatives Bobby Scott (D-Virginia) and Thomas Massie (R-Kentucky) did the same in the House of Representatives with H.R. 2435.

Earlier this week, Attorney General Jeff Sessions ordered federal prosecutors to bring the most serious charges and maximum sentences in their cases, meaning stricter enforcement of mandatory minimum sentences that was the rule under the Bush and most of the Obama administrations. The Justice Safety Valve Act would act as a check on that, giving federal judges discretion to impose sentences below mandatory minimums where they believed it necessary to honor the sentencing factors of 18 U.S.C. § 3553(a).

Attorney General Jefferson Beauregard Sessions III
      Attorney General Jefferson Beauregard Sessions III

“Mandatory minimum sentences disproportionally affect minorities and low-income communities, while doing little to keep us safe and turning mistakes into tragedies,” Paul said in a press release. “As this legislation demonstrates, Congress can come together in a bipartisan fashion to change these laws.”

Scott said, “Attorney General Sessions’ directive to all federal prosecutors to charge the most serious offenses, including mandatory minimums, ignores the fact that mandatory minimum sentences have been studied extensively and have been found to distort rational sentencing systems, discriminate against minorities, waste money, and often require a judge to impose sentences that violate common sense. To add insult to injury, studies have shown that mandatory minimum sentences fail to reduce crime. Our bill will give discretion back to federal judges, so that they can consider all the facts, issues, and circumstances before sentencing.”

The legislative equivalent of this...
     The legislative equivalent of this…

Although called “The Justice Safety Valve Act,” the bills do not really extend the “safety valve” provision in § 3553(f), which is a good thing. Section 3553(f) limits its application to people meeting a restrictive criteria. Instead, as presently drafted, the bill simply expands a judge’s discretion without any limitations imposed beyond those guiding courts under § 3553(a). In fact, the measures as written would strip away the last compulsory restrictions hold judges back from using discretion.

Paul acknowledged to reporters that lawmakers will have an “uphill battle” getting support from the White House for the sentencing reform bill. As a Republican senator, Sessions was a leading opponent of last year’s sentencing reform legislation. But with the bright star of the new Administration fading rapidly, Sessions’ views may be less and less relevant, and indeed, the harder he pushes law and order, the more Congress might be convinced to pass sentencing reform.

Press Release, Paul, Leahy, Merkley, Scott, & Massie Lead Bipartisan, Bicameral Introduction of the Justice Safety Valve Act (May 16, 2017)

Washington Post, Bipartisan group of senators push back on Sessions’s order to pursue most severe penalties (May 17, 2017)

– Thomas L. Root

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DOJ Maintains Two Standards for Disclosure of Misconduct – Update for May 17, 2017

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

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BEHAVING BADLY

Forgive us for observing that as a group – and we concede there are a few exceptions – Assistant United States Attorneys who handle criminal matters are as sanctimonious a lot as a conclave of newly-converted vegans. It’s hardly their fault: look at their leader, Jefferson Beauregard Sessions III.

Attorney General Jeffrey Sessions
Attorney General Jefferson B. Sessions III

In 2009 the man opposed the appointment of an attorney to head DOJ’s Civil Rights Division because 27 years before he had represented a defendant accused of killing a copy, saying his opposition “was based upon the fact that the civil rights division ‘must protect the civil rights of all Americans’ and not be used as a tool to further the political agenda of ‘special interest groups’.” Most recently, he said, “Drugs and crime go hand in hand… Drug trafficking is an inherently violent business.”

OK, to be fair, prosecutors have always thought they were on the side of the angels, and therefore, no holds are barred in winning a conviction. And sure, every newly minted AUSA can quote the aphorism from Berger v. United States that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.”

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And that happens? You could ask the late Senator Ted Stevens (R-Alaska), if he weren’t dead. Or check in with Reddy Annappareddy, a guy who isn’t dead, and whose federal healthcare fraud case folded like a cheap suit a couple weeks ago after the judge found “multiple instances of prosecutor misconduct.” Finally, watch between now and June 30th to see what the Supreme Court holds in Overton v. United States, a Brady case in which the prosecution is accused essentially of keeping the wrong guys locked up for 33 years by hiding evidence.

But this is not about misconduct in the U.S. Attorney’s Office as much as it is about the double standard DOJ uses when such misconduct is found. A defendant is convicted and then sentenced, and the DOJ gleefully piles it on with a supercilious press release like this one, about a Navy admiral whose career is in tatters and pension gone, and is now headed off to a camp somewhere for about 15 months net.

The Admiral was high profile, and so his conviction will live forever on the Internet anyway. But how about some poor schmuck in North Carolina who just got 120 months for a tax preparation fraud? Someday he’ll be back in society, and the DOJ press release will dog his heels on the Internet for the rest of his life.

romance170517If you’re going to do that kind of thing, the least the public should expect is that you’re consistent. Yesterday, the Dept. of Justice Office of Inspector General announced that it had found that “a United States Attorney (USA), now retired, engaged in misconduct by engaging in an intimate personal relationship with a high‐level, but subordinate, supervisor in the Office (Supervisory AUSA).”

That’s right. No names, no location, no time frame. The U.S. Attorney – appointed by the president and approved by the Senate – did something that “gave the appearance of partiality, created a difficult work environment, and violated Executive branch‐wide standards of conduct, federal ethics regulations, and possibly federal regulations and DOJ policy regarding sexual harassment in the workplace.” But we’re not allowed to know who the malefactor was, because – however badly he behaved – he was one of “them.”

hypocrisy170518By the way, the “Supervisory AUSA” – who apparently still works there – “inadvertently failed to report spousal stock trades completely and accurately on required financial disclosure forms.” One might reasonably think that the public has an interest in knowing that a “Supervisory AUSA,” who is given substantial responsibility for holding other people accountable (and who generally ensures that AUSA sanctimony is the rule rather than the exception, was cavorting with his or her boss and, at the same time, was negligent (or worse) with his or her own financial reporting of the cuckolding spouse.

One might reasonably think that, but one would be wrong.

– Thomas L. Root

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