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BROKEN RECORD
We don’t want to seem like a broken record, but the appellate courts keep cranking out the second-and-successive denials, and every one of them seems to contain a different nugget of interest.
William Hunt sought permission from the 11th Circuit to file a second-and-successive 2255 motion under Johnson v. United States, arguing that his sentence under 18 U.S.C. § 924(c) was infirm because the crime in which he was using a handgun – armed bank robbery – is no longer a crime of violence. This seems a stretch to us, but Will only asks permission to make the argument to a district court that his Guidelines were improperly enhanced, so this is probably not the time to punch holes in his case on the merits.
The 11th Circuit denied Will Hunt’s second-and-successive application yesterday, noting that currently circuit precedent held that his claim was meritless. However, the Court noted that while its Matchett decision “determined that the void-for-vagueness doctrine does not apply to advisory Guidelines… we note that the Supreme Court recently granted certiorari in Beckles v. United States… which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.”
Thus, the Circuit denied Will Hunt’s second-and-successive application “without prejudice, with leave to file another application after the Supreme Court’s decision in Beckles.”
Compare this treatment to the peremptory denial ofGary Baptiste last week.
In re Hunt, Case No. 16-14756-J (11th Cir. July 18, 2016)
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HE’S BACK, TOO
A few days ago, we wrote about Gary Baptiste, whom the 11th Circuit said had returned to the well once too often seeking permission to file a second-and-successive 2255 motion. Today, he has a fellow traveler – John Dawkins, who having been convicted of bank robbery, applied to file a second-and-successive 2255 in the 7th Circuit.
John was challenging whether his predicate Illinois burglary conviction was a crime of violence under the Guidelines § 4B1.2(b) “career offender” definition in the wake of Johnson v. United States. The 7th Circuit denied the application last January, holding that the Illinois burglary was a generic burglary of a dwelling, which is enumerated as a crime of violence in the sentencing guidelines.
After the Supreme Court’s June decision in Mathis v. United States, Dawkins applied for leave to file a second-and-successive again, this time arguing that the Illinois burglary was no longer a generic burglary, and – of course – was not otherwise violent under Johnson. Last Friday, the 7th Circuit shot him down again.
Dawkins argued that Mathis provides an independent basis for a second-and-successive authorization, reasoning that any intervening change in the law allows a successive application. The Court held that “this proposition clearly is not true; only new rules of constitutional law, made retroactive by the Supreme Court, can provide a basis for authorization… Mathis did not announce such a rule; it is a case of statutory interpretation. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.”
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SPEAKER RYAN SAYS HOUSE WILL VOTE ON SENTENCE REFORM IN SEPTEMBER
House Speaker Paul Ryan (R-Wisconsin) said last Friday that the House will consider a package of six criminal justice reform bills – including the Sentencing Reform and Corrections Act of 2015 (H.R. 3713) in September.
In an interview on National Public Radio, Ryan promised to give floor time to a package of criminal justice bills advanced by the House Judiciary Committee. The House of Representatives adjourned on Friday until after Labor Day, to give members time to campaign for re-election.
House passage may put pressure on the Senate to vote on S. 2123, its own version of the SRCA. Getting that measure passed is going to be a taller order, given Senate Majority Leader Mitch McConnell’s refusal thus far to commit to bringing the measure up for a vote.
Ironically, Speaker Ryan’s surprise announcement came only a day after Families Against Mandatory Minimums candidly admitted that while “the Sentencing Reform Act (H.R. 3713) and the Sentencing Reform and Corrections Act (S. 2123) made it past the committee review process, they are not at all likely to get voted on or passed this year. There were some good reforms in those bills, but also some bad sentencing changes that would have made things worse. FAMM had been hoping for chances to improve those bills and has been asking Congress to do more. We won’t stop doing that, and we won’t stop working while Congress is away.”
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HOW ARE THE LOWER COURTS TREATING THE BECKLESCERT?
By now, everyone is aware that before it left for summer vacation, the Supreme Court granted certiorari to Beckles v. United States. This means by the end of the year or early in 2017, the justices will decide whether Johnson v. United States applies to “career offender” sentences under the Sentencing Guidelines (a decision which probably will also dictate whether Johnson applies to the many other references in statute and the Guidelines to “crimes of violence.”
A reader recently asked us what courts were doing with pending 2255 motions that argued Johnson should apply to “career offenders” and people with 924(c) gun convictions based on crimes of violence. Last Thursday, the Court of Appeals for the 2nd Circuit gave us a hint.
Michael Blow pleaded guilty to one count of conspiring to distribute 5 grams or more of cocaine base. The district court sentenced him to as a career offender under the Sentencing Guidelines. He recently filed an application with the 2nd Circuit for leave to file a second-and-successive 2255 motion under Johnson, to argue that one of his predicate offenses was no longer a violent crime.
The 2nd Circuit noted the Supreme Court’s recent grant of certiorari in Beckles, and that the 4th Circuit had previously decided that a “career offender” Johnson challenge would support a second-and-successive 2255, in In re Hubbard. The 2nd said that “in sum, there is substantial disagreement among other circuits on the question on which the Supreme Court has granted certiorari in Beckles.” For that reason, the court granted Michael Blow the right to file a second and successive 2255, and said that “because the Supreme Court will likely decide in Beckles whether Johnson applies retroactively to the Guidelines, the district court is instructed to hold Blow’s § 2255 motion in abeyance pending the outcome of Beckles.”
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BEATING YOUR HEAD AGAINST THE WALL
Gary Baptiste is a guy who never gives up. When he wasn’t able to convince the 11th Circuit that he should be allowed to file a Johnsonclaim in a second-and-successive 2255 motion, he turned right around and tried again..
Gary’s problem is that he has an 18 U.S.C. Sec. 924(c) sentence for carrying a firearm during a drug trafficking offense or crime of violence. The Court previously found that the underlying crime – trying to rip off a drug stash house – was a drug trafficking offense. Gary argued it was a really a crime of violence, and that it didn’t count after Johnson v. United States.
The 11th Circuit didn’t buy the argument when he first presented it a month ago, and it didn’t buy it this time, either. But in so doing, the Court made some troubling precedent.
A number of prisoners applied for leave to file second-and-successive 2255 motions addressing Johnson’s application to the Guidelines “career offender” residual clause or the “crime of violence” defined in 18 U.S.C. Sec. 16, or even 924(c). They filed prior to June 26th to meet the 2255(f) procedural deadline, only to have circuits like the 11th hold that Johnson didn’t reach beyond the Armed Career Criminal Act. Now, with Beckles v. United States pending before the Supreme Court, it is reasonably likely that Johnson will be extended to all definitions of “crime of violence,” wherever found in the criminal code or sentencing guidelines.
In Gary’s case, the 11th Circuit observed that 28 U.S.C. Sec. 2244(b)(1) directs that a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” The 11th said that while it was written to apply to state prisoners, the “command of § 2244(b)(1) applies with equal force where a prisoner seeks leave to file a second or successive habeas motion based on a claim we rejected in a previous application seeking such leave.”
The appellate panel held that “Sec. 2244(b)(1)‘s mandate applies to applications for leave to file a second or successive § 2255 motion presenting the same claims we have already rejected on their merits in a previous application… In short, where we have already denied an application for leave to file a second or successive motion under § 2255 on the merits, we are required by statute and our caselaw to reject a subsequent application raising the same claim.”
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IT’LL BE THE DEATH OF ME
In 2011, Logan Gaylord pleaded guilty to a conspiracy to distribute oxycodone. During the drug distribution, Evins – one of Logan’s customers – died of an overdose of oxycodone and cocaine. This was obviously unfortunate for the deceased: it was unfortunately for Logan as well, because 21 U.S.C. § 841(b)(1)(C) provides for a mandatory minimum sentence of 240 months when death results from the unlawfully-distributed drugs. His plea agreement specified that the “death results” enhancement applied because of the customer’s demise.
In 2014, the Supreme Court ruled in Burrage v. United States that the “death results” enhancement in § 841(b)(1)(C) required that the government show that “but for” the drugs provided by the defendant, death would not have resulted. Six months after Burrage, Logan filed a § 2255 motion, arguing that his attorney was ineffective for failing to object to the sentencing enhancement incorporated in the plea agreement. The district court dismissed the § 2255 motion, holding that the Burrage claim was a non-constitutional claim that could have been raised on direct appeal, and thus had been waived. As well, the district court said that Logan had waived his right to bring a collateral attack in his plea agreement.
On Tuesday, the 7th Circuit reversed the decision and sent the case back for an evidentiary hearing. The Court held that Logan had not waived the § 2255 in the plea agreement, because he was in effect claiming that his lawyer was ineffective in advising him to take the plea deal. Although Logan “did not cite Strickland v. Washington or an analogous case, Gaylord did argue that his guilty plea was ‘uninformed, therefore involuntary’ because his counsel insufficiently investigated his case… Thus, Gaylord was mistakenly led to believe that the oxycodone he distributed was the but-for cause of Evins’s death. This is enough to raise a claim of ineffective assistance of counsel, especially given the lenient standard under which we review pro se filings. And since Gaylord argues that his plea agreement was the product of his counsel’s ineffective assistance, he can overcome the waiver provision in the plea agreement.”
The appeals panel concluded that Logan had “alleged facts sufficient to support his claim of deficient performance. There… was no evidence that the oxycodone he distributed was the but-for cause of death. Rather, the postmortem and forensic pathology reports stated that the cause of death was ‘oxycodone and cocaine intoxication.’ In other words, even without the oxycodone, the cocaine concentration may have been enough to result in Evins’s death. It is unclear from the record whether Gaylord’s counsel was aware of the but-for cause standard… examined the postmortem and forensic pathology reports, and provided Gaylord with the information necessary for a knowing and voluntary guilty plea. Thus, Gaylord may have a viable claim of deficient performance.”
The Court held that without the “death results” sentencing enhancement, Logan Gaylord’s sentencing range would have been 210 to 262 months imprisonment. With the enhancement, he faced 240 months to life. What’s more, Logan “alleged in his § 2255 motion that he made his decision to plead guilty based on incomplete information. He claimed that his counsel did not show him the postmortem and forensic pathology reports or explain the issue of causation, and thus his plea was involuntary and uninformed. Construing this pro se filing liberally, this is enough to establish a reasonable probability that but for counsel’s ineffective assistance, Gaylord would not have pled guilty.”
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STINGRAY SEARCH REQUIRES WARRANT
The DEA was stalking Washington Heights, New York, looking to bust an international drug ring. Agents got a warrant to pull cell site records on Ray Lambis’s smartphone, but the information they got only narrowed their search to a street corner that was home to several apartment buildings.
The agents decided to try for something more accurate, so they brought in a Stingray, a device that spoofed cellphones into thinking it was a cellphone tower and transmitted. So fooled, the phones transmitted identifying information to the Stingray every 7 seconds, letting the DEA home in on the exact location of the phone. The agents were moving fast, so they did not bother with a search warrant. Sure enough, the Stingray led agents to Ray’s dad’s apartment, and he let them search the place.
Yesterday, a Southern District of New York judge threw out the evidence they obtained from the search, holding that a Stingray search requires a search warrant. The DEA argued that Ray Lambis had not expectation of privacy in the pings his phone emanated. But relying on the 2001 Supreme Court decision in Kyllo v. United States, the District Court said “the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the “pings” from Lambis’s cell phone to the nearest cell site were not readily available “to anyone who wanted to look” without the use of a cell-site simulator. The DEA’s use of the cell-site simulator revealed ‘details of the home that would previously have been unknowable without physical intrusion,’ namely, that the target cell phone was located within Lambis’s apartment. Moreover, the cell-site simulator is not a device ‘in general public use.’ In fact, the DEA agent who testified at the hearing had never used one.”
The Court concluded that “The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”
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THE CASE IS BLACK AND WHITE
It’s not racial bias – it’s empirical. Federal defendants hoping to win on appeal (because, after all, hardly anyone wins in the district court – will do better if the trial judge is black.
According to a Harvard Kennedy School of Government study, black federal judges are “significantly more likely” to be overruled than white judges. Researcher Maya Sen studied 1,000 judges appointed by presidents ranging from Lyndon Johnson to Barack Obama, and found that over the period 2000 through 2012, about 2,800 more black judge-written decisions were reversed on appeal than would have been the case if black and white judges were overruled at the same rate.
NPR reported on the study this morning, with the reporter and host speculating at length that the difference was probably due to the trial judges’ ideology being more liberal than the mainstream.
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LIVE THE LIFE
This is perhaps the gun that got Pacho in trouble …
Neftalí Alvarez-Núñez, better known in the music world as “Pacho,” portrayed the gangsta life as it’s lived in San Juan and Miami. As Pacho y Cirilo, he and his partner were a YouTube with hits like “Mi Gatita Es Calle” and “La Emenencia Un Beso.” (It’s pretty good stuff, available on iTunes and through Amazon, too).
But life started imitating art, and Neftalí was caught discarding a gun as he left a San Juan nightclub. And not just any gun. This one was apparently the same piece that starred in “Mi Gatita Es Calle,” a Glock with an extended magazine that had been tweaked to fire in full-auto mode.
Neftalí had no criminal history, but he was addicted to Percocet, and so the obliging United States Attorney charged him as a drug-abuser-in-possession of a firearm (a subparagraph under 18 U.S.C. § 922, much less known that its big brother, felon-in-possession) and possession of a machingun. Neftalí’s Guideline sentencing range was only 24-30 months.
The Presentence Report, however, veered into music criticism, and the Probation Officer was no music lover. The PSR proposed an above-Guideline sentence because Pacho y Cirilo’s songs “promote violence, drugs and the use of weapons and violence, as . . . can be seen through their videos which are readily available on the internet.” The Report included translations of two songs performed by Pacho y Cirilo. “Dicen Que Vienen Por Mi” and “Como Grita El Palo.”
The Judge was not much for that genre, either. Deciding that the lyrics reflected Neftalí’s disdain for the law, love of guns and glorification of the drug culture, the District Court gave Neftalí 96 months, more than three times the top end of his Guidelines.
Last Friday, the 1st Circuit reversed the sentence. While it is true, the Court said, “that the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment,” at the same time, “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.” Conduct protected by the First Amendment may be considered in imposing sentence only to the extent that it is relevant to the issues in a sentencing proceeding.
Pancho y Cirilo in happier days.
The Government argued that Pacho’s rather graphic lyrics reflected his beliefs, and thus was relevant to the sentencing issues. The District Court agreed, arguing that Neftalí’ “is an individual who makes a life . . . not only carrying this kind of firearm, but also preaching . . . the benefits of having this kind of firearm, the use you can give to them, expressing how you kill people, expressing how you don’t care about human life.”
The 1st Circuit rejected the District Court’s analysis. The appeals panel said that “implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant’s motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer’s personal views. That an actress plays Lady Macbeth, or a folk singer croons “Down in the Willow Garden,” or an artist paints “Judith Beheading Holofernes,” does not, without more, provide any objective evidence of the performer’s motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor.”
The Court of Appeals said, “In the absence of such extrinsic evidence, the mere fact that a defendant’s crime happens to resemble some feature of his prior artistic expression cannot, by itself, establish the relevance of that expression to sentencing.”
Appellate Courts Continue To Argue For Expansion Of Johnson
BOP Not Running Pell Mell to Pell Pilot Project
How Long Is Long Enough?
Critics Urge Grand Obama Clemency Gesture
What Did He Know And When Did He Know It?
Rough Week For The Country… And For Sentence Reform
APPELLATE COURTS CONTINUE TO ARGUE FOR EXPANSION OF JOHNSON
The 2255 filing deadline may have passed for Johnson v. United States claims, but the case continues to make waves.
Expanding Johnson
Last Thursday, the 6th Circuit joined the 7th and 9th Circuits in holding that the definition of “crime of violence” in 18 U.S.C. § 16 – even as applied in a purely civil deportation proceeding under the Immigration and Nationality Act – is unconstitutionally vague. Although Johnson related only to 18 U.S.C. § 924(e)(2)(B)(ii), the panel said, “the wide-ranging inquiry required by these two statutory phrases are one and the same, and we therefore hold that the immigration code’s residual clause is likewise unconstitutionally vague.”
Meanwhile, an 11th Circuit panel denied Leonard Sapp the right to file a second-and-successive 2255 motion challenging application of the career offender Guidelines to his sentence in light of Johnson. That decision was fully hardly a surprise. “In In re Griffin, the panel said, “we held that our reasoning in Matchett applied with equal force to the residual clause of the career-offender guideline in the context of the mandatory Guidelines. The Supreme Court has recently granted certiorari in Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), which raises the question of whether Johnson applies to the Guidelines. While we respectfully disagree with the holding of Griffin, we are nonetheless bound by that decision.”
What makes the Sapp decision so unusual is that all three judges on the panel joined in a single concurrence to their own majority opinion, explaining that “although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.” The judges proceed to dismember the Griffin decision that Johnson could not apply to a “career offender” sentence – even one under the mandatory, pre-Booker Guidelines – concluding that while the 5th and 8th Circuits have recently denied second-and-successive applications where the claim was that Johnson affected “the residual clause of the advisory career offender guideline, as far as we can tell no other circuit has held that the residual clause of the mandatory career offender guideline is categorically immune from a Johnson challenge.”
These holdings strengthen the case for application of Johnson to the Guidelines “career offender” provision, now before the Supreme Court in Beckles v. United States.
Shuti v. Lynch, Case No. 15-3835 (6th Cir. July 7, 2016)
In re Sapp, Case No. 16-13338-J (11th Cir. July 7, 2016)
BOP NOT RUNNING PELL MELL TO PELL PILOT PROJECT
We reported last week on an Obama administration decision to run a pilot program – the Second Chance Pell – at selected prisons, offering Pell grants to inmates despite a 1994 law prohibiting paying for prisoners to take college courses. It turns out that BOP is a virtual no-show on the Second Chance Pell list.
The U.S. Dept. of Education chose 67 colleges and universities across the country to participate in Second Chance Pell. While state institutions ran pell mell to participate in the Pell program, a list of participating prisons issued by DOE last week included only five out of 122 federal facilities: FCI Gilmer (West Virginia); FCI Milan (Michigan); FCC Beaumont (Texas); FMC Devens (Massachusetts); FCI Raybrook (New York); and FCI Bennettsville (South Carolina).
Lavelle Phillips was caught with a gun and charged as a felon in possession. That’s pretty straightforward. His argument to the 9th Circuit – that the 2nd Amendment did not permit him to be charged – was anything but straightforward. The Court affirmed his conviction, but raised some fascinating questions.
Phillips’ prior conviction was for misprision of felony, the crime of having knowledge that a felony has been committed but concealing it by not reporting it as soon as possible. Phillips argued that misprision was a “passive crime of inaction” that could not constitutionally keep him from possessing a gun.
The Court ruled that the test was whether Congress would have had such a felony in mind when it banned gun possession by convicted felons. The current misprision statute “is functionally identical to its predecessor, enacted by the First Congress as a part of the Crimes Act of 1790 (prior to the ratification of the Second Amendment),” the Court said. “Because actions of the First Congress provide ‘contemporaneous and weighty evidence’ of the Constitution’s meaning, we are hard pressed to conclude that a crime that has always been a federal felony cannot serve as the basis of a felon firearm ban, simply because its actus reus may appear innocuous.”
The 9th Circuit noted in passing that “there are good reasons to be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession by all felons,” and the opinion suggests that the common law origin of such bans never intended them to be lifetime and permanent. The Court left that issue for another day.
It’s no secret that Obama’s goal of commuting 10,000 federal sentences is on life support. So far, the President has approved 348 commutations, almost all since the clemency initiative was launched in 2014. But nearly 12,000 prisoner petitions remain undecided, despite the fact DOJ estimates that as many as 2,000 of them seem to satisfy Obama’s rather strict criteria.
A sweeping gesture is needed on clemency, some argue…
The lack of staffing, overly restrictive standards and insufficient funding have hampered the clemency effort. Now that Obama is down to six months left in office, criminal justice experts wrote two weeks ago urging him to speed up the process in order to give everyone who qualifies a meaningful chance to be considered.
The New Yorker magazine last week suggested the most obvious solution to both the procedural problems and the limiting clemency criteria would be to consider cases not individually but categorically. Marc Mauer of the Sentencing Project, a retired federal judge Nancy Gertner, and law professor Jonathan Simon recommended that Obama follow that path, like Gerald Ford and Jimmy Carter did in granting amnesty to broad categories of draft resisters after the Vietnam War, of granting clemency to broad groups of inmates.
One such category, the magazine suggested, might be crack-cocaine sentences handed down before the Fair Sentencing Act of 2010. “Through a categorical commutation, Obama could adjust the sentences of all those convicted under the one-hundred-to-one regime to the penalties Congress now deems appropriate. Such a measure would provide immediate relief to some five thousand prisoners.”
In an opinion piece in The New York Times last week, a law professor suggested that Obama ought to use his pardon power to permit illegal immigrants to stay in the country, too.
Alfonso Torres-Chavez’s lawyer was ready to go to the mat for his client at trial, fighting the drug conspiracy charges with the time-honored “you’ve got the wrong guy” defense. The government, however, had lined up snitches, voice analysis experts and documentary evidence to show that they did have the right guy. Alfonso got mauled at trial.
Before trial, the government offered Alfonso a 10-year plea deal. Alfonso says his lawyer told him not to take it, because the government didn’t have enough to convict. Oops.
Alfonso filed a § 2255 motion, arguing his lawyer was ineffective for the bum advice on the plea. The district court threw the motion out without a hearing, finding that counsel’s advice to go to trial was not objectively unreasonable.
Last week, the 7th Circuit reversed, and sent the case back for a hearing. The Court said that “if we assume… that Torres-Chavez’s counsel knew about all the evidence that was presented at trial when the plea offer was made, then his counsel’s performance was deficient. But our analysis does not stop here, since the relevant inquiry is what Torres-Chavez’s counsel knew when the plea offer was rejected, not what he knew at the conclusion of the trial… Here, the record does not show whether at the time of the plea offer, Torres-Chavez’s counsel knew about the informant’s testimony, the linguist’s testimony, the phone-call recordings, or the flight records.”
If the district court were to find that when he advised Alfonso not to take the plea, “counsel knew about all the evidence,” the Court said, “then his performance was unreasonable. But if an evidentiary hearing reveals that he did not know about certain of the government’s evidence, then his assistance may have been constitutionally adequate.”
ROUGH WEEK FOR THE COUNTRY… AND FOR SENTENCE REFORM
Hopes are waning for passage of the Sentencing Reform and Corrections Act of 2015, as the election season kicked into high gear. Still, last week began with some voices – like a Houston Chronicleeditorial – arguing that “we know Congress can get the work done. The House just passed a compromise mental health bill on Wednesday that has a bipartisan counterpart in the Senate. As the clock ticks down, these are the sorts of moves that voters should want to see, and passing criminal justice reform before the buzzer would be a victory for everyone.”
But the week ended with tragedy in Dallas. The Marshall Report observed last Saturday night that “in the world of criminal justice, pushes for change can be diverted or stalled by major news events. In recent days, the shooting of two black men by police — captured on video — mobilized demonstrations across the country, demanding police be held more accountable for violent encounters with black civilians. But the sniper killings of five officers in Dallas seems to have stiffened the opposition to reforms. With legislation to reduce prison terms for some crimes stalled by election-year politics and efforts to repair police-community relations moving slowly, leaders across the political spectrum are watching to see if such efforts can survive this heated moment.”
Even before Dallas, the outlook was not promising for sentence reform. The Senate only has 48 more work days planned in 2016, and the House only has 38 days left. Neither chamber has brought the SRCA to the floor for a vote. A new Congress starts in January, meaning that any bill still pending at the end of the year will disappear, and the process must start over in 2017.
Last week’s shootings in Dallas help feed a national misperception that makes passage of sentence reform very difficult. Last October, 70% of Americans asked told Gallup pollsters that crime is on the increase. Presumptive Republican presidential nominee Donald Trump regularly claims that “crime is rising.” Surges in violence in cities like Chicago are top stories on the news, despite the fact that – as the conservative Weekly Standard pointed out last week – “there’s almost no evidence of either a significant rise in crime or a fundamental change in the largely effective anticrime policies — better policing tactics and increased incarceration — that were adopted starting in the 1980s. Recent efforts at criminal-justice reform, ranging from the Sentencing Reform and Corrections Actpending in Congress to changes in local police practices, couldn’t have plausibly affected national crime rates. On the whole, there’s little reason to panic about rising crime or to think that modest reforms under consideration will do harm.” But it matters little what the facts show. What matters is what the public – and members of Congress – believe the facts to be.
Amy Povah, who served a decade for a federal drug offense and now runs a nonprofit foundation that educates the public about sentencing and conspiracy law reform, argued in Politico last week that “it is critical that the Sentencing Reform and Corrections Act currently pending in the Senate and the Sentencing Reform Act in the House of Representatives pass and be signed into law so that thousands of incarcerated people will also be able to benefit from having a second chance at life. It is also critical that Sen. Tom Cotton [R-Arkansas] rethink his position on criminal justice reform and base his views on facts, not myths.” It’s hard to get people to calmly reflect on their misconceptions when cable news is shrieking about the latest crisis.
The other criminal justice news last week, the FBI’s pass on Hillary Clinton, led to some wry commentary in the libertarian publication Reason. A sticking point in sentence reform was the conservative push to add mens rea reform to federal law, a change many Democrats oppose. A Reason editor suggested that Hillary’s supporters now “should have a new appreciation for the legal concept of mens rea — literally, ‘defendant’s mind’ — because it looks like it will save her from federal prosecution for her use of a personal email server as secretary of state.” In recommending that DOJ not charge Clinton, FBI Director James Comey “distinguished her ‘extremely careless’ handling of ‘very sensitive, highly classified information’ from previous cases involving ‘intentional and willful mishandling’.”
The Reason article argued that “innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That’s a serious problem recognized by Democrats as well as Republicans, as demonstrated by the bipartisan support for mens rea reform in the House of Representatives. Yet Senate Democrats dismiss the proposed changes… as ‘corporate protection.’ They blame Republican insistence on mens rea reform for imperiling a criminal justice reform bill that until recently seemed likely to pass this year. It would be a shame if disagreement on this issue prevented Congress from reducing excessively harsh federal sentences. But Senate Democrats’ critique of mens rea reform is seriously misguided, if not downright disingenuous.”
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William Hunt sought permission from the 11th Circuit to file a second-and-successive 2255 motion under Johnson v. United States, arguing that his sentence under 18 U.S.C. § 924(c) was infirm because the crime in which he was using a handgun – armed bank robbery – is no longer a crime of violence. This seems a stretch to us, but Will only asks permission to make the argument to a district court that his Guidelines were improperly enhanced, so this is probably not the time to punch holes in his case on the merits.
