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When Murder Is Nonviolent – Update for July 18, 2023

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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.

IS § 924(c) A VIOLENT CRIME?

I still get questions from people asking whether 18 U.S.C. § 924(c) remains a “crime of violence.”

The answer is that § 924(c) – which criminalizes the use of a gun during a crime of violence or drug trafficking offense – has never itself been a “crime of violence.”

cmonman230718“C’mon, man!” I hear people out in TV Land saying, “how can using a gun in a crime not be a “crime of violence?”

To you I say, “Welcome to federal criminal law.”

To those prisoners with § 924(c) charges because of an underlying drug offense, violence has nothing to do with nothing. The § 924(c) applies because you had a gun in the closet while you sold meth out of your bedroom. Or because you figured it’d be cool to have a Lorcin .380 stuck in your waistband where its principal threat was to your reproductive organs. You can’t have a gun while you’re selling controlled substances. It’s illegal. (Of course, selling controlled substances is illegal, too, but that’s a topic for another day).

To those people with § 924(c) charges because of an underlying crime of violence, the § 924(c) is not the “crime of violence.” It’s just a conviction resulting from another “crime of violence.”

Section 924(c) does define “crime of violence:” It’s (1) a felony; that is either

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

violence180508But after a line of Supreme Court decisions from Johnson v. United States through last year’s United States v. Taylor decision, alternate definition (b) has been invalidated as unconstitutionally vague. As a result, conspiracies to murder are not crimes of violence, because you can conspire with your buddies all night without using or threatening someone with the use of force. Attempts to rob a fellow drug dealer are not crimes of violence because you can complete an attempt just by walking up to the victim’s door with a gun in your hand and evil on your mind. In fact, some folks are starting to think that nothing is a “crime of violence” anymore.

Under the circumstances, Tiffany Janis could be forgiven for thinking that her crime wasn’t violent, either. All she did was to come home, catch her cheatin’-heart husband in flagrante delicto, and express her displeasure by shooting him a few times.

Because the domestic discord played out on Indian reservation land, it ended up in federal court, where Tiffany was convicted of 2nd-degree murder and discharging a gun during and in relation to a crime of violence.

In a § 2255 motion, Tiffany argued that her 2nd-degree murder conviction was not a crime of violence, meaning that her § 924(c) conviction had to be vacated.

Tiffany’s murder conviction required that the government show she had killed another person “with malice aforethought.” She argued that killing a person “with malice aforethought” can be done without “us[ing] force against the person or property of another,” as required by § 924(c)(3)(A). Under SCOTUS’s Borden v. United States holding, Tiffany maintained, § 924(c)’s force clause requires “directing or targeting force” at another person or their property. The 8th’s 2nd-degree murder precedent, however, showed that “malice aforethought” can be established without a perp “targeting” force in the way that the force clause, as interpreted by Borden, requires.

The 8th Circuit disagreed, ruling:

Homicides committed with malice aforethought involve the “use of force against the person or property of another,” so 2nd-degree murder is a “crime of violence.” This holding implements the Supreme Court’s command to interpret statutes using not only “the statutory context, structure, history, and purpose,” but also “common sense…”

violent160620“Murder is the ultimate violent crime – irreversible and incomparable in terms of moral depravity,” the Court said. Borden quoted from an opinion by then-Judge Alito holding “the quintessential violent crimes, like murder or rape, involve the intentional use’ of force… Malice aforethought, murder’s defining characteristic, encapsulates the crime’s violent nature.”

Murder is still a crime of violence. Only in federal law could such a question be debatable.

Janis v. United States, Case No. 22-2471, 2023 U.S. App. LEXIS 16993 (8th Cir. July 6, 2023)

– Thomas L. Root

Is Senate Fed Up With BOP? – Update for July 13, 2023

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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.

ENOUGH IS ENOUGH, SENATORS MAY BE TELLING BOP

Phineas T. Barnum reputedly said, “there’s no such thing as bad publicity.” But P.T. Barnum never served as Director of the Federal Bureau of Prisons.

badpublicity230714It’s been a rough ride. First, the Dept. of Justice Inspector General has issued a scathing report of BOP mismanagement and maladministration that led to the suicide of high-value celebrity prisoner Jeffrey Epstein and the murder of Whitey Bulger. There has been a steady stream of death-of-a-thousand-cuts reports of BOP employees being convicted of everything from inmate sexual abuse to cellphone smuggling to COVID fraud. The Washington Post fumed last week that “regardless of the offense, any unnatural death in custody is a failure of the prison system.”

This week has seen well-loathed U.S. Gymnastics doctor Larry Nassar – serving an endless string of life sentences for an endless string of revolting assaults of women gymnasts – stabbed multiple times at USP Coleman by attackers unknown. BOP employees promptly blamed the attack on a short-staffed facility.

It wasn’t long before the Associated Press reported that Nassar was attacked inside his cell, “a blind spot for prison surveillance cameras that only record common areas and corridors.” The AP said, “In federal prison parlance, because of the lack of video, it is known as an ‘unwitnessed event.’”

It isn’t clear that even full implementation of the Prison Camera Reform Act (Pub.L. 117-321), hardly prevented Capitol Hill from finally having had enough of the BOP follies.

Enough is more than enough. After several half-hearted attempts to address BOP management weaknesses, a bipartisan group of senators yesterday announced the introduction of the Federal Prison Accountability Act of 2023 (no bill number assigned yet), intended to increase oversight at federal prisons.

FPAA would require the president to seek Senate advice and consent when appointing the BOP director, who would be appointed to a single, 10-year term. Sen. Charles Grassley (R-Iowa), ranking member of the Senate Judiciary Committee, said requiring Senate confirmation of the BOP director would “bring badly needed transparency and accountability to the federal prison system.”

“The Director of the Bureau of Prisons leads thousands of employees and expends a massive budget,” Grassley said in a press release. “It’s a big job with even bigger consequences should mismanagement or abuse weasel its way into the system.”

sexualassault211014It took awhile to get here. Following an 8-month investigation last year that revealed rampant sexual abuse of female prisoners and a failure to prevent recurring sexual abuse, Sen. Jon Ossoff (D-GA) introduced the Federal Prison Oversight Act (S.4988) late last year. The bill – which would have required the DOJ Inspector General to conduct inspections of the BOP’s 122 correctional facilities, provide recommendations to problems and assign each facility a risk score – was window-dressing, a political statement with no chance of passage in the waning days of the 117th Congress.

Three months ago, however, Ossoff introduced a revised version of FPOA (S.1401), with Rep. Lucy McBath (D-GA) filing a companion bill in the House (H.R.3109). The new FPOA would have, among other actions, created a hotline for prisoners to report misconduct.

mismanagement210419Now, three months later, the latest effort to reform federal prisons would subject the BOP director to the same congressional scrutiny as other law enforcement agency chiefs such as the director of the FBI, which Senate Minority Leader Mitch McConnell (R-KY) said is needed. “The Director of the Bureau of Prisons oversees more than 34,000 employees and a multi-billion dollar budget, and should be subject to Senate review and confirmation as well,” McConnell said.

Grassley introduced FPAA along with McConnell and Sens Kyrsten Sinema (I-AZ), Rand Paul (R-KY), Mike Lee (R-UT), John Cornyn (R-TX), Marco Rubio (R-FL) and Marsha Blackburn (R-TN), Mike Braun (R-IN) and Ossoff. With that kind of legislative horsepower behind it – not to mention black eyes like Jeffrey Epstein, Whitey Bulger and Larry Nasser – it’s safe to predict that Director Colette Peters may be the last BOP Director to not be approved by the Senate.

The Hill, Bipartisan senators introduce bill to increase federal prison oversight (July 13, 2023)

Sen. Charles Grassley, Senators Introduce Bipartisan Bill to Increase Accountability at Federal Prisons (July 13, 2023)

Associated Press, Larry Nassar was stabbed in his cell and the attack was not seen by prison cameras, AP source says (July 11, 2023)

Associated Press, Former federal prison guard sent to prison for violating civil rights of injured inmate (July 11, 2023)

Washington Post, Jeffrey Epstein’s suicide reveals grave failures of U.S. prisons (July 10, 2023)

– Thomas L. Root

Sisyphus and Marijuana Reform – Update for July 13, 2023

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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.

MEANWHILE, CONGRESS IS HARD AT WORK…

Just kidding.

sisyphus230713Sisyphus – who pushed the rock up the hill, for you mythology-challenged readers – was a model of efficiency compared to Congress. That’s generally so, but hardly better illustrated than in the world of marijuana reform.

Marijuana – now known by its preferred pronoun “cannabis” – has nearly reached the top of legislative mountain before. States have OK’d it for medical use and in some places, for recreational toking. I drove through Michigan last weekend, where you can no longer see the forests for the recreational “cannabis” dispensary billboards. But federal recognition of the states’ fait accompli? Not even close.

Forbes last week ran a piece explaining why federal legalization of marijuana (which I figured was a done deal when the 2021 Congress convened) is at least a decade away.

“President Joe Biden isn’t pro-cannabis, nor are any of the other major declared candidates, including former President Donald Trump,” Forbes stated. “Trump said that drug dealers should be executed. Former New Jersey Governor Chris Christie, who opposed cannabis legalization during his first bid for president in 2016 and referred to tax revenue from pot sales as “blood money,” said during a town hall on CNN that he would end parts of America’s drug war, but still opposes legalization. Robert F. Kennedy Jr., who is running as a Democrat and got arrested for marijuana and heroin decades ago, said he would decriminalize weed, but he stopped of supporting legalization.”

Forbes recounted that Morgan Paxhia, co-founder of San Francisco-based cannabis investment firm Poseidon, “was lobbying in Washington, D.C. late this spring when he finally accepted that America’s prohibition on pot is not going to end soon. Any hopes that the Biden Administration will remove marijuana from the list of controlled substances is ‘dead in the water,’ according to the politicians and staffers Paxhia met with. “My feeling of federal legalization is that it could be 10 years or more,” Forbes quoted Paxhia as saying.

potbillboard230713However, writing in Marijuana Moment last week, Rep. Earl Blumenauer (D-OR) noted that the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports is recommending the removal of marijuana from its list of prohibited substances and that the House has passed legislation to enable state-legal cannabis companies to have banking services seven times. Despite the fact this happened last year, when the Dems controlled the House, Blumenauer hopefully writes, “Perhaps this is the final stretch towards ending the failed war on drugs. If the NCAA is issuing a call for a reasonable, rational drug policy, can Congress be far behind?”

Meanwhile, Robert Wood – writing in The Hill last week – argued that justice demanded that the stalled EQUAL Act be passed. Wood, who won a sentence reduction under First Step Act’s Section 404, which made the 2010 Fair Sentencing Act retroactive, argued that the EQUAL Act’s opponents “often fail to comprehend the human aspect of these unjust sentences. We are talking about individuals who have served 10, 15 or even 20 years in prison, with some serving life sentences. These men and women are not statistics; they are our fellow citizens, who have families and communities to return to… The goal of passing the EQUAL Act and ensuring its retroactivity is to rectify the wrongs committed under an unjust system. By providing these individuals with an opportunity for redemption, we embrace the core principles of fairness, equality and justice. As a nation that prides itself on these values, we must not turn a blind eye to the suffering caused by outdated policies.”

No hearings have been held on EQUAL this year, and I suspect that none will happen. Jacob Sullum noted in Reason last week that “Donald Trump can’t seem to decide whether he wants to execute drug dealers or free them from prison. The former president’s debate with himself reflects a broader clash between Republicans who think tougher criminal penalties are always better and Republicans who understand that justice requires proportionality.”

warondrugs211028Trump, who brutal drug warriors like Rodrigo Duterte, the former president of the Philippines, said last fall that “We’re going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts.” When he repeated that two weeks ago during a Fox News interview, anchor Bret Baier pointed out that a policy of executing “everyone who sells drugs” was inconsistent with Trump’s record as president, which included passage of First Step and clemency aimed at reducing drug penalties that Trump described as “very unfair.” Baier pointed out that Alice Marie Johnson, a first-time, nonviolent drug offender whom Trump granted a commutation and later a full pardon for her participation in a cocaine conspiracy, would have been “killed under your plan,” Baier noted, “as a drug dealer.”

As long as the presidential campaign, which has over 15 months to go, is focused on crime, expect nothing from Congress.

Forbes, Why National Cannabis Legalization Is Still A Decade Away (June 30, 2023)

Marijuana Moment, If NCAA Can End Marijuana Ban, So Can The Federal Government, Congressman Says (July 3, 2023)

The Hill, Justice for all: It’s time to end the discrimination between crack and cocaine sentencing (July 4, 2023)

Reason, Trump Can’t Decide Whether To Free Drug Dealers or Kill Them: The Former President’s Bloody Rhetoric Undermines His Defense of Sentencing Reform (June 28, 2023)

– Thomas L. Root

What’s Old Is New – Update for July 11, 2023

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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.

SCOTUS DENIAL OF ACQUITTED CONDUCT SENTENCING REVIEW MAKES LITTLE SENSE

As everyone knows, on June 30 the Supreme Court finally denied review to a thundering herd of petitions (13 in all) raising the constitutionality of acquitted conduct sentencing. And in so doing, the Court suggests that it’s way behind the times.

acquitted230106Acquitted conduct sentencing is the practice of using a charge of which a defendant was acquitted by a jury to enhance a sentence. The lead petitioner, Dayonta McClinton, was convicted of robbing pharmacies but acquitted of killing one of his fellow robbers in an argument over sharing proceeds. Nevertheless, the judge more than tripled his sentence from a range of 57-71 months to a sentence of 228 months because the murder was “related conduct,” despite the fact a jury said the petitioner was not guilty of killing his co-conspirator.

A careful reading of the statements issued by some Justice on the denial adds equivocation to five months of evasion.

When the Supreme Court denied review, Justice Sotomayor dissented and several other Justices issued statements. Last week, in his Sentencing Policy and the Law blog, Ohio State University law professor Doug Berman wrote at length about the denial of review. “It is quite obvious that objections to the use of acquitted conduct at sentencing raise constitutional issues,” he said. The certiorari petition filed by Dayonta McClinton makes this clear in its Question Presented: “Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant…’ These rights are, as the Court put it in Apprendi, “constitutional protections of surpassing importance” because they define restraints on state powers and processes to impose criminal punishments.”

The statements of Justices Kavanaugh, Gorsuch and Barrett suggested these Justices voted against granting certiorari because the Sentencing Commission was considering new guidelines for acquitted-conduct sentencing. Justice Kavanaugh wrote that it is “appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.” But as Berman observes, Kavanaugh

does not explain why it is ‘appropriate’ to leave unresolved a constitutional issue while a federal agency might address a policy issue… The Justices’ statements referencing the USSC do not account in any way for how any ‘Sentencing Commission determination’ would have any impact on the Court’s consideration of ‘constitutional protections of surpassing importance.’

Policy is policy, but constitutionality is fundamental. As Berman notes, whether acquitted conduct sentencing is constitutional has nothing to do with whether the USSC thinks that it makes policy sense to permit acquitted conduct sentencing. Obviously, the USSC once thought so (given that USSG § 1B1.3 relevant conduct sentencing has been a fixture of federal sentencing since 1988). As Berman put it, “How the USSC (or Congress) might choose to regulate sentencing law and process would not and could not resolve the array of constitutional concerns that the Supreme Court was asked to consider in McClinton. Indeed, the USSC and Congress cannot even know the full reach and limits of their powers to set forth rules concerning acquitted-conduct sentencing with constitutional matters unresolved.”

Besides, the USSC and Congress can only speak to acquitted conduct sentencing at federal sentencing, even though over 90% of sentences are handed down by state courts.

wrong160620Berman cites another problem with the Supreme Court’s punt on acquitted conduct sentencing. Justice Sotomayor’s dissent says that “the Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted conduct sentencing in the coming year.” The Kavanaugh, Gorsuch and Barrett statement says, “The Sentencing Commission is currently considering the issue.”

Neither is correct.

Berman suspects that Sotomayor’s dissent and Kavanaugh’s statement were written months ago, before the Sentencing Commission – which proposed an acquitted conduct sentencing amendment in January – withdrew its acquitted conduct sentencing proposal for further study on April 5th. What’s more, when the Commission released its proposed 2024 amendment cycle priorities last month, acquitted conduct sentencing was conspicuously absent.

“It no longer seems to be accurate to state that the Commission ‘has announced that it will resolve questions around acquitted-conduct sentencing in the coming year’” or that it is currently considering the issue, Berman wrote last week.

The Supremes seem to expect the USSC to assume the burden. The USSC, which is ill-equipped to do so, expects SCOTUS to do its job. Expect nothing from either body on acquitted conduct sentencing: you won’t be disappointed.

Sentencing Law and Policy, Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address (July 4, 2023)

Sentencing Law and Policy, Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? (July 5, 2023)

– Thomas L. Root

Summer of Our Discontent – Update for July 10, 2023

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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.

JONES TSUNAMI ROLLING OVER PENDING CASES

The two-week-old Jones v. Hendrix decision is claiming its first victims.

innocent210504You recall that in Jones, the Supreme Court held that if a federal prisoner has previously filed a § 2255 motion – even one addressing a completely unrelated issue – he or she cannot file a second post-conviction challenge arguing that, under a new Supreme Court decision that changes a statutory interpretation, even if the change means that the prisoner was not guilty of a crime.

In other words, as attorney Adam Unikowsky blogged last week, “Even if the federal prisoner is indisputably innocent, the prisoner must serve his full sentence.”

I know of a number of pending district court 28 USC § 2241 cases that Jones has already torpedoed. Last Friday, the 7th Circuit added to the carnage.

DeAngelo Sanders had argued in a 28 USC § 2241 habeas petition that he did not have the required three prior drug or violent convictions for a mandatory minimum 15-year sentence under the Armed Career Criminal Act. His filing came well after his § 2255 post-conviction motion had been denied, and only because the Circuit had just ruled that a conviction for Illinois residential burglary cannot be used to enhance an ACCA sentence.

The Circuit was in the middle of considering whether DeAngelo could rely on the 28 USC § 2255(e) saving clause to raise his actual-innocence-of-ACCA-sentence when the Supreme Court handed down Jones. Last Friday, the 7th denied DeAngelo’s case.

The Supreme Court’s Jones decision ruled that “Section 2255(h) specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences,” the Circuit said. “The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.”

courthouseclosed170605The same thing happened to Carlous Horton’s habeas petition, which argued that his mandatory life sentence for drug distribution, based on three prior drug trafficking convictions, should be vacated. “The government conceded that two of Carlous’s prior drug convictions are not proper § 841 predicates under Mathis,” the 7th said last Friday, “and a third – the 1995 Illinois cocaine conviction mentioned above – also could not be counted as a predicate under a recent Circuit decision in United States v. Ruth. But the government opposed relief, arguing that although Carlous’s habeas petition was premised on new statutory interpretation developments, he had not been previously precluded by Eighth Circuit precedent from making” the same arguments.

Last Friday, the Circuit dismissed Carlous’s case, holding that Jones kicked the legs from under his claim as well.

Adam Unikowsky concedes that the Jones majority opinion, written by Justice Thomas, “is well-written and persuasive. He puts forward a powerful argument that under the plain text of the applicable federal statutes, federal prisoners are forbidden from bringing this type of challenge. Justice Jackson’s dissent is also well-written and persuasive. She puts forward a powerful argument that the majority’s interpretation conflicts with congressional intent and would lead to unfair consequences. In the end, Jones presents a tough, close issue.”

Rather than focus on Jones’s merits, Unikowsky argues for a statutory fix that would allow prisoners to file successive Section 2255 petitions when new Supreme Court decisions establish their innocence. “This is not a tough, close issue,” he writes. “It is an obviously correct position that should prevail by unanimous voice votes in the House and Senate.”

congress151220Writing in Law 360, Northeastern University law professor Daniel Medwed agreed. “Perhaps Congress could add a third route, and even tailor it narrowly to gain bipartisan support,” Medwed wrote. “Specifically, Congress could change the law to permit a successive or second habeas filing when the Supreme Court has recognized a new statutory principle that is made retroactive and that could be relied on by those in custody to claim legal innocence. This would address Justice Jackson’s core concern about ‘slamming the courtroom doors to a possibly innocent person,’ while simultaneously avoiding any reference to the saving clause, let alone making that provision the ‘license for unbounded error correction’ that Justice Thomas feared.”

Sanders v. Joseph, Case No. 19-2504, 2023 U.S. App. LEXIS 17176 (7th Cir. July 7, 2023)

Horton v. Lovett, Case No. 21-1004, 2023 U.S. App. LEXIS 17177 (7th Cir. July 7, 2023)

Adam’s Legal Newsletter, Imprisoning innocent people is bad (July 2, 2023)

Law360, Justices’ Habeas Ruling Further Saps Writ Of Its Strength (July 7, 2023)

– Thomas L. Root

Bruen Claims Another Victim (Albeit Reluctantly) – Update for July 6, 2023

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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.

DISTRICT COURT SAYS § 922(g)(1) UNCONSTITUTIONAL

Deep in the Old South, federal judge Carreeves230706lton W. Reeves holds court. He is black, the first in his family to attend college, an Obama appointee with a resume of work for the ACLU. He wrote the district court decision that was ultimately reversed by the Supreme Court in Dobbs v Jackson Women’s Health Organization (the decision that struck down Roe v. Wade), and he has repeatedly blocked Mississippi laws widely considered to be discriminatory to LGBT persons.

In short, he’s a guy conventional wisdom figures to be in line with all that President Biden and the progressive wing of the Democratic Party hold dear, so much so that Biden last year made him the new chairman of the Sentencing Commission.

So you would expect Judge Reeves to be all in on gun control in general and the value of laws prohibiting felons from possessing guns in particular. You would be wrong.

Last week, Judge Reeves ruled in a 75-page opinion that the felon-in-possession statute violates the 2nd Amendment.

The government was prosecuting Jessie Bullock, who as a 31-year-old hothead had gotten into a fatal bar fight. He did time for manslaughter. Now, the 59-year-old Jessie was caught in possession of a .22 level-action rifle and a .22 revolver, hardly the stuff of gang wars or bank robberies. No matter. The government charged him with being a felon in possession.

daveanddad230706Jessie’s public defender moved to dismiss the charge as unconstitutional in the wake of last year’s Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc v. Bruen.

Judge Reeves, who wanted the parties to agree that an expert historian be appointed to give a report on the history of laws prohibiting felons from having guns, lamented the lack of historical evidence supporting the cases the government cited in support of its position. “It is unsurprising that the government relies on jurisprudence filled with such methodological flaws,” he observed tartly, because “[t]he same errors define the Supreme Court’s own Second Amendment jurisprudence…”

Relying on the 3rd Circuit’s en banc Range decision of three weeks ago, Judge Reeves held that “the government[] does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.

historyvictors230706Although he ruled against the government, Judge Reeves criticized the judicial philosophy of “originalism,” underlying Bruen that holds that the Constitution should be interpreted as it was understood when it was written. For much of American history, he said, interpretation of the Constitution has changed to incorporate modern values, citing the 2015 Obergefell ruling legalizing same-sex marriage.

“The next generation will have its own conceptions of liberty,” the Judge wrote. “It will interpret the principles of the Constitution, enduring as they are, differently than this generation has interpreted them. Change is unstoppable.”

United States v. Bullock, Case No 3:18-CR-165, 2023 U.S. Dist. LEXIS 112397 (S.D.Miss., June 28, 2023)

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 S.Ct. 2111, 213 Led 2d 387 (2022)

Reuters, Mississippi judge, dismissing gun charge, assails Supreme Court gun ruling (June 29, 2023)

– Thomas L. Root

Supreme Court Piddles and Twiddles on Acquitted Conduct – Update for July 5, 2023

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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.

SCOTUS KICKS ACQUITTED CONDUCT CAN DOWN THE ROAD

It seems appropriate during this Independence Day holiday to recall the musical 1776, especially where the character John Adams complained that the Continental Congress “piddled” and “twiddled” without ever solving anything.

piddle230705The delegates gathered in “foul, fetid, fuming, foggy, filthy Philadelphia” had nothing on the Supreme Court of the United States. After relisting, tabling, untabling and relisting (again and again) over five months, the Court last Friday finally denied review to the 13 pending petitions for certiorari raising the constitutionality of acquitted conduct sentencing.

Led by McClinton v. United States, the cases challenged the constitutionality of acquitted conduct sentencing, loosely defined as giving defendants “additional prison time for crimes that juries found they didn’t commit.”

In late January, the Dept. of Justice got the Supreme Court to place a hold on McClinton, promising SCOTUS that the Guidelines amendments proposed by the Sentencing Commission would fix the acquitted conduct sentencing problem. Then, DOJ showed up at the Sentencing Commission to tell it that it lacked the power to make the acquitted conduct sentencing change. When the Commission rolled out the amendments in April, it deferred action on acquitted conduct sentencing until next year.

The Supreme Court then again took up McClinton but continued to relist the petition from week to week. Relisting the petition rather than granting or denying it suggested that several Justices strongly supported granting certiorari and were trying to swing the minimum four votes needed to qualify the issue for full review.

Relisting cannot last forever. At last week’s “cleanup” conference, held at the end of every term, SCOTUS denied review to McClinton and its related petitions for certiorari. denied190109Uncharacteristically for such matters, the McClinton certiorari denial generated opinions from no fewer than five Justices. Justice Sotomayor warned that “the Court’s denial of certiorari today should not be misinterpreted. The Sentencing Commission… has announced that it will resolve questions around acquitted-conduct sentencing in the coming year. If the Commission does not act expeditiously or chooses not to act, however, this Court may need to take up the constitutional issues presented.”

Justices Kavanaugh, Gorsuch and Barrett, echoed Sotomayor: “The use of acquitted conduct to alter a defendant’s Sentencing Guidelines range raises important questions. But the Sentencing Commission is currently considering the issue. It is appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.”

Justice Alito noted that he concurred with the denial of certiorari, but staked out his position in a 6-page opinion: “[B]ecause my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.”

can230407Ohio State University law professor Doug Berman – who filed an amicus brief supporting McClinton – wrote in his Sentencing Policy and the Law blog that “I am disappointed, but not all that surprised, that the Justices keep being content to kick this ugly-but-challenging acquitted-conduct can down the road.”

McClinton v. United States, Case No 21-1557, 2023 US LEXIS 2796 (June 30, 2023)

Sentencing Law and Policy, In final order list of Term, Supreme Court grants cert on big new Second Amendment case and denies/punts cert on acquitted conduct cases (June 30, 2023)

– Thomas L. Root

There’s Gonna Be A Gun Fight – Update for July 3, 2023

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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.

SUPREMES TO REVIEW RAHIMI

Recall that last February, the 5th Circuit held in United States v. Rahimi that the Supreme Court’s June 2022 New York State Rifle & Pistol Ass’n v. Bruen decision meant that 18 USC § 922(g)(8), “a specific statute that prohibits people subject to a domestic violence restraining order from possessing a gun” violated the 2nd Amendment.

gun160711Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the 2nd Amendment… rendering our prior precedent obsolete.”

Zackey Rahimi was under a domestic protection order for stalking an ex-girlfriend when he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even squeezing off five rounds into the air when Whataburger declined his credit card.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”

The government wasted no time filing a petition asking SCOTUS to grant certiorari, even asking the high court to waive its traditional 14-day period between the filing of a reply brief and deciding whether to grant review. On Friday the last day of the Supreme Court’s term before its four-month break, the Court announced it would review Rahimi.

whataburger230703The petition for certiorari argued that “[g]overnments have long disarmed individuals who pose a threat to the safety of others” and that the law “falls comfortably within that tradition,” and warned that allowing the 5th Circuit’s decision to stand would “threaten[] grave harms for victims of domestic violence.”

Zack urged the high court to deny review, calling the decision a “faithful application of Bruen.” Bruen has only been law for a year, he argued, and the lower courts are “now hard at work applying the new historical framework and re[e]valuating firearm restrictions that were previously upheld” before Bruen. Zack suggested that additional lower courts should interpret federal and state gun laws in light of Bruen before the Supreme Court weighs in.

The case will likely be argued in the fall, with a decision to follow sometime next year, and may well be the signature criminal law case of October Term 2023.

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. Mar. 2, 2023) (amended decision), certiorari granted (Case No. 22-915), June 30, 2023

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 SCt. 2111, 213 Led 2d 387 (2022)

SCOTUSBlog, Justices take up major Second Amendment dispute (June 30, 2023)

– Thomas L. Root

Another Circuit to Enter the Post-Bruen Fray – Update for June 29, 2023

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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.

7TH REMANDS 2ND AMENDMENT GUN POSSESSION CASE IN WAKE OF BRUEN

iloveguns221018Patrick Atkinson was convicted 25 years ago of federal mail fraud. After maintaining an otherwise clean record for a generation, he wanted a gun. But because 18 USC § 922(g)(1) bars gun possession for anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” he could not buy one. He sued seeking to have § 922(g)(1) declared unconstitutional as applied to him.

Relying on 7th Circuit precedent from prior to last summer’s New York State Rifle & Pistol Ass’n v. Bruen decision, the district court dismissed Pat’s case. He appealed.

Last week, the 7th Circuit sent it back for consideration in light of Bruen’s holding.

“Bruen announced a new framework for analyzing restrictions on the possession of firearms,” the Circuit ruled. “The new approach anchors itself exclusively in the 2nd Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms… The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.”

gunpermit230629Two recent decisions have considered the constitutionality of the felon-in-possession statute. On June 8, the 3rd Circuit held the statute unconstitutional in Range v. Attorney General. Six days before that, the 8th Circuit ruled the opposite way in United States v. Jackson.

Atkinson v. Garland, Case No. 22-1557, 2023 U.S. App, LEXIS 15357 (7th Cir., June 20, 2023)

– Thomas L. Root

Getting Closer to Home? – Update for June 27, 2023

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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.

FOUR BOP FACILITIES HAVE ‘MISSIONS’ CHANGED

The Bureau of Prisons is changing the “mission” – that is, converting the populations – of four prison facilities to move the agency closer to the First Step Act’s ideal of housing prisoners within 500 road miles of their homes.

home190109FCI Oxford (Wisconsin), FCI Estill (South Carolina) and FCI Memphis (Tennessee) will convert from male medium-security to male low-security facilities. FCI Estill Satellite Camp will flip from male minimum-security to female minimum-security.

BOP Director Colette Peters told staff in an internal memorandum, “In support of the First Step Act, the BOP has identified locations to undergo mission changes to better afford an opportunity for individuals in our custody to be housed within 500 miles of their release residence.”

The First Step Act provided that the BOP should “place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.” That directive, codified at 18 USC § 3621(b),  has more holes than a Swiss cheese factory.

The provision says that the 500-mile placement is “subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns…”

Any BOP employee who can’t find an exception in that statutory mush that justifies keeping a New Yorker, for instance, at FCI West Coast just isn’t very motivated.

One of President Biden’s first acts in office was to order that private prisons’ contracts not be renewed. “The unintended consequences of a move that had popular support with the public,” Walter Pavlo wrote last week in Forbes, “was that it pushed those prisoners in private prisons into BOP low-security prisons across the country… Prisoners were displaced all over the country and some incoming prisoners had to serve their time far from home where bed space was available. The reclassification of these prisons to low security, have the intended purpose of getting more people closer to home.”

rojas230627

Meanwhile, some BOP staffer’s unions are protesting Director Peters and the BOP’s chronic understaffing problems. A union protest last week near FCI Coleman, ironically enough, was broken up by local law enforcement, but not before the union took issue with the fact that the Director “won’t call inmates ‘inmates,’” said Union Advocate Jose Rojas. “She calls them ‘neighbors.’”

Union members invited onlookers to spin a roulette-style wheel prop that “represented the chance that prison staffers take every day when they have ‘neighbors’ such as the 8,000 inmates at the prison. Those ‘neighbors’ include serial child molester Larry Nassar notorious for years of abusing girl gymnasts, a Somali pirate and many of the nation’s most-hardened criminals,” The Villages-News reported.

“They don’t realize how dangerous it is. We might start seeing some ugly stuff,” Rojas said.

BOP, Mission Change for FCI Oxford Announced (June 21, 2023)

BOP, Three Locations to Undergo Mission Changes (June 13, 2023)

Forbes, Bureau of Prisons Changes in Works to Comply With First Step Act (June 23, 2023)

The Villages News, Picket permit revoked as prison guards try to issue warning in The Villages (June 22, 2023)

– Thomas L. Root