We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. Today, we feature a number of short reports we included in our newsletter this week, but have not posted on the Web.

DOES IT SEEM LIKE THERE’RE FEWER PEOPLE ARE AROUND THE JOINT?

Fewer federal prosecutions and lighter drug sentences over the past few years has resulted in a 14% drop in the BOP prison population, according to statistics from the U.S. Courts, the Sentencing Commission and the Federal Bureau of Prisons released last week.

BOP population fell from a peak of 219,300 inmates in 2013 to 188,800 in April 2017. The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking offenses in recent years. As a result, BOP facilities overcrowding has fallen from 37% to 13%.

Because drug crimes account for nearly a third of all federal prosecutions, changes in drug sentences over the past decade have had a substantial impact on BOP numbers.

Administrative Office of U.S. Courts, Policy Shifts Reduce Federal Prison Population (Apr. 25, 2017)

DOJ APPOINTS SCIENTIFIC FOX TO GUARD HENHOUSE

Attorney General Jeffrey Sessions pulled the plug on the National Commission on Forensic Science, a group formed to improve forensic science and expert testimony in criminal cases, early last month.

For years, scientists and defense attorneys have fought an uphill battle to bring scientific rigor to expert testimony and analyses regularly used in courtrooms — such evidence as bite marks, hair, and bullet striations — to convict defendants. The generally accepted “bite mark” science was recently found to be phony, and other methods, including fingerprint analysis, have been criticized as being less rigorous and more subjective than AUSAs, expert witnesses, and popular culture let on.

A 2015 FBI review of 268 trial transcripts in which microscopic hair analysis was used to incriminate a defendant found bureau experts submitted scientifically invalid testimony 95% of the time. No court has banned bite mark evidence despite a consensus among scientists that the discipline is not objective.

Until Sessions disbanded it, the NCFS was the most important group pushing forensics in the direction of science.

A new Justice Department Task Force on Crime Reduction and Public Safety, set up by presidential order three months ago to “support law enforcement” and “restore public safety,” will now oversee forensic science.

Mother Jones, Jeff Sessions wants courts to rely less on science and more on “science” (Apr. 24, 2017)

MATHIS DOESN’T CARE IF YOU LIVE IN YOUR CAR

The 8th Circuit last week ruled that the Arkansas residential burglary statute (Ark. Code Ann. Sec. 5-39-201(a)(1)) does not count as generic burglary, and therefore is not a predicate offense for sentencing under the Armed Career Criminal Act. Arkansas law defines a “residential occupiable structure” to include a vehicle, building, or other structure in which any person lives or is customarily used for overnight accommodations.

The Circuit said that under United States v. Mathis, “vehicle, building or other structure” described means and not elements. The Circuits are split 2-2 so far on the question of whether a vehicle used as living space falls under generic burglary, but the 8th Circuit said “without question, the statute, viewed as a whole, encompasses a broader range of conduct than generic burglary…” Thus, the burglary does not count for ACCA purposes.

United States v. Sims, Case No. 16-1233 (8th Cir. Apr. 27, 2017)

3RD CIRCUIT AGREES IT HAS JURISDICTION TO REVIEW 3582 DENIALS

The 6th Circuit, which held in 2010 that it has no jurisdiction to review a district judge’s refusal to lower the sentence of a prisoner who is eligible for a reduction under 18 USC 3582(c)(2), just got a little lonelier last week, as the 3rd Circuit followed the lead four other circuits in holding it has jurisdiction to review whether a district court’s refusal to reduce an eligible sentence under the statute is substantively reasonable.

Jose Rodriguez qualified for a 2-level reduction of sentence, but his district judge held Jose’s threat to public safety and post-sentencing conduct – due to the “vast drug trafficking conspiracy and a series of violent, armed robberies” in which he had engaged – were reasons to deny any reduction. The government argued the 3rd Circuit had no jurisdiction to review the district court’s decision, but the Circuit held that under 28 USC 1291 and 18 USC 3742, it always had jurisdiction to review the substantive reasonableness of a 3582(c)(2) sentence reduction decision.

Back in 2010, the 6th Circuit held that as long as a district court found the prisoner eligible for a sentence reduction, a court of appeals had no jurisdiction to review the district judge’s decision as to whether the prisoner should get the whole, a part, or none of the reduction. Since the 6th Circuit decision, the 7th, 8th, 9th and 10th Circuits have gone the other way, and last week the 3rd Circuit joined.

The decision did not help Jose much. Reviewing the sentence, the Circuit held the district judge’s refusal to give him even as much as a month off on his sentence was substantively reasonable.

United States v. Rodriguez, Case No. 16-3232 (Apr. 28, 2017)

4th CIRCUIT CLEARS WAY FOR INMATE’S RETALIATION LAWSUIT

A major hurdle inmates have to clear in bringing lawsuits for constitutional rights violations is to show that the prison officials they sue do not have qualified immunity. Unless the inmate can show that the officials violated a clearly established constitutional right, the Bivens action or 42 USC 1983 action gets tossed out.

A lot of what you might think is clearly established is not. That’s why the 4th Circuit’s decision last week was a breath of fresh air.

Pat Booker, an inmate in a South Carolina prison, filed a grievance objected to the prison’s tampering with his legal mail, and said he intended to pursue civil and criminal remedies if he found his mail meddled with again. The head of the mailroom wrote a disciplinary report on Booker saying he had threatened her. At Booker’s disciplinary hearing, he was found not guilty because he had made “legal threats” against the employee, not physical threats.

Pat sued under 42 USC 1983, arguing the employee had retaliated against him for his exercising his 1st Amendment rights. The district court dismissed, holding the prison employee was protected by qualified immunity, because a “prison inmate’s free speech right to submit internal grievances” was not clearly established by the U.S. Supreme Court of the United States, the 4th Circuit or the South Carolina Supreme Court.

The Circuit reversed, saying it had long held that prison officials may not retaliate against prisoners for exercising their right to access the courts, and “given the close relationship between an inmate filing a grievance and filing a lawsuit — indeed, the former is generally a prerequisite for the latter — our jurisprudence provided a strong signal that officials may not retaliate against inmates for filing grievances.” Seven other circuits have a recognized in published decisions that inmates possess a right, grounded in the First Amendment’s Petition Clause, to be free from retaliation in response to filing a prison grievance.

“Given the decisions from nearly every court of appeals,” the 4th said, “we are compelled to conclude that Booker’s right to file a prison grievance free from retaliation was clearly established under the First Amendment. Consistent with fundamental constitutional principles and common sense, these courts have had little difficulty concluding that prison officials violate the First Amendment by retaliating against inmates for filing grievances.”

Booker v. South Carolina Department Of Corrections, Case No. 15-7679 (4th Cir. Apr. 28, 2017)

– Thomas L. Root

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

BAIT-AND-SWITCH

For those contesting constitutional infirmities in their convictions, nothing succeeds like facts. Prisoners representing themselves can recite precedent, circuit court bloviations and legal mumbo-jumbo ad nauseum, but none of it advances their cause unless they have facts – beautiful, concrete, sharp-edged, pulsating facts – to support their claims.

Blanche Dubois always depended on the kindness of strangers, but pro se litigants that such dependence is not a strategy (at least not a winning one). Usually, the only tool in a prisoner’s investigative toolbox is the Freedom of Information Act.

There may be no federal statute that suffers a wider chasm between principle and operation. The government loves to call FOIA “the law that keeps citizens in the know about their government.” There is a “presumption of openness” underlying FOIA: agencies The FOIA provides that when processing requests, agencies proclaim that their guiding light is to “withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.”

We don’t need to recite our prior disillusion and disgust with agency management of FOIA requests. You can read here about how “the most transparent Administration in history” sandbagged FOIA for the last 8 years (and if you think the current Administration will do better, join the other three such believers over there in the corner – Santa Claus, the Easter Bunny and the Tooth Fairy).

It’s ironic that last week’s FOIA decision from the D.C. Circuit concerned records that related in part to former House Speaker Tom DeLay, because “delay” was the primary defense played by the Department of Justice.

Thirteen years ago, the FBI opened a public corruption investigation into the activities of then-lobbyist Jack Abramoff. Ultimately, 21 people pled guilty or were convicted of offenses related to an influence-peddling racket. Two of those convicted had been senior aides to former House Majority Leader Tom DeLay. The FBI never indicated whether DeLay himself was a subject of the investigation, but in August 2010, DeLay himself announced DOJ had informed him he would not be charged.

A D.C. advocacy outfit named Citizens for Responsibility and Ethics in Washington – which is a nonpartisan do-gooder group or a left-wing attack dog in mufti (choose whatever floats your political boat) – filed an FOIA request in 2010 to get records about DeLay’s involvement in the investigation. DOJ managed to stretch the request into a lawsuit – including as 2014 trip to the Court of Appeals – without ever providing much of substance.

Initially, DOJ refused to provide any requested documents because they “involved third parties, they were generally exempt from disclosure and could not be released absent express authorization from each third party, proof of the third party’s death or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. CREW sued, and DOJ argued that all responsive documents were categorically exempt under FOIA Exemptions 3, 6, 7(A), 7(C), 7(D) and 7(E).

The District Court agreed. But on appeal, the D.C. Circuit reversed, holding that DOJ had “not met its burden to justify categorical withholding under Exemption 7(A) or 7(C)” and had not “provided sufficient detail at this stage for a court to determine whether a portion of the requested records may be withheld under Exemption 3, 7(D) or 7(E).”

DOJ’s job on remand was to “make a more particularized showing as to what documents or portions thereof are exempt.” The FBI found of 328 pages of responsive material, 124 pages of which were released to CREW, although with redactions. The FBI withheld in full the remaining 204 pages. To justify its redactions and withholding, the FBI invoked FOIA Exemptions 3, 5, 6, 7(C), 7(D) and 7(E). Again, the District Court said, “good enough,” and threw out the CREW suit.

CREW appealed, arguing that the agency could not trot out a new Exemption 5 argument it had not used before, and that it cannot simply redact all the names in the documents other than DeLay and Abramoff on the basis of privacy.

The D.C. Circuit agreed. First, the Court said, in FOIA cases the government generally “must assert all exemptions at the same time, in the original district court proceedings.” There are only two exceptions, first when “pure human error” resulted in not raising the correct exemption earlier, and second “where a substantial change in the factual context of the case or an interim development in the applicable law forces the government to invoke an exemption after the original district court proceedings have concluded.”

DOJ did not claim either exception applied, but instead just said that because it raised Exemption 5 – which covers “inter-agency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency” – in connection with another document, it was not engaged in “gamesmanship.” The Court said that did not matter: “The timeliness rule is concerned not just with efficiency in a given case, but also with efficiency in the long run, and it disserves this broader goal to permit untimely defenses, even after they have been argued, to prevail… [The] timeliness rule does not require a finding of bad faith or intentional gamesmanship.”

FOIA Exemption 6 encompasses “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Exemption 7(C) protects “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information… could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

DOJ argued that revealing the names of others, some of whom were not indicted and some of whom were just witnesses and interviewees, would constitute an unwarranted invasion of privacy. CREW argued that some of the names of witnesses and subjects had already been made public in press releases and court documents, and that their privacy interests were lessened.

This kerfluffle illustrates the problem with FOIA litigation. It is hard for a requester to argue that information it has been denied should not be exempt, because without knowing what the information is, how can one argue whether it does or does not fit an exemption? The agencies love to make blanket arguments – all redacted names should be private, for example – and they often win cases on summary judgment with such claims.

Not today. The Circuit ruled that there are just too many moving parts to an Exemption 7(C) argument for summary judgment:

Because the myriad of considerations involved in the Exemption 7(C) balance defy rigid compartmentalization, per se rules of nondisclosure based upon the type of document requested, the type of individual involved, or the type of activity inquired into, are generally disfavored. The privacy interests of individuals who have not been convicted in connection with this investigation – and even more so those who have not been publicly linked with the investigation whatsoever – differ greatly from those of individuals who were convicted or pled guilty for their roles. Connecting the names of individuals to information contained in the documents at issue could add much, or not at all, to the public’s understanding of how the Government carried out its investigation and decision not to prosecute DeLay. There is little we can conclude in the abstract. This area is simply not well suited to categorical determinations.

CREW thus lives to fight another day. On remand to the District Court, DOJ must show the withholding of information under Exemptions 6 and 7(C) are based on “a particularized weighing of the public and privacy interests that would be implicated by the disclosure sought by CREW… The Government must account for the privacy interests at stake, recognizing that previous disclosures or admissions may have diminished those interests.

Citizens For Responsibility And Ethics In Washington v. United States Department of Justice, Case No. 16-5138 (D.C. Cir., Apr. 21, 2017)

– Thomas L. Root