Biden Gets a Second Chance – Update for April 11, 2024

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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.

BIDEN’S SECOND CHANCE TO GET SECOND CHANCE MONTH RIGHT

second170119President Biden has again designated April as Second Chance Month, the eighth annual proclamation since Charles Colsen’s Prison Fellowship convinced Congress to recognize April for that purpose in 2017.

Biden used the proclamation as a chance to burnish his Administration’s achievements in promoting second chances for prisoners, including what he called “over 100 concrete actions that my Administration is taking to boost public safety by improving rehabilitation in jails and prisons, helping people rebuild their lives, and reducing unnecessary interactions with the criminal justice system so police officers can focus on fighting crime.”

So far, those “actions” have not included much use of the presidential clemency power. In. The Hill, Rev. Terrence McKinley said that despite Biden’s annual “call to prioritize criminal justice reform and the clemency process in the United States,” he has only exercised his pardon power to grant 13 pardons and 124 commutations, less than one percent of the thousands of pending applications.”

Rev. McKinley, pastor of the Campbell AME Church in Washington, DC, wrote that

A pardon is an act of grace. But such acts of grace should not be so rare…. By exercising his pardon power more robustly, President Biden has the opportunity to paint a stark contrast with his predecessor… [T]here are thousands of people with criminal records whose applications for clemency have been languishing in the federal system—people who are currently in prison serving overly harsh sentences and people who have been released long ago but live with the looming threat of deportation, barriers to employment and housing, and other forms of civil death.

obtaining-clemencyLast April, Biden commuted the sentences of 31 prisoners already on CARES Act home confinement.

Proof of Biden’s commitment to clemency may be reflected in White House response to the DOJ Office of the Pardon Attorney. The OPA recently published its FY 2025 President’s Budget Submission, requesting $12.5 million (a 16% increase) to add to petition processing staff. OPA has 40 employees (including 26 attorneys) now. Its not-especially-ambitious goal is to increase the number of cases on which it makes a recommendation in a year from 30 to 35% and to increase the amount of correspondence answered in one month from 90 to 92%.

There is an undercurrent of unhappiness, even among Biden supporters, over his lukewarm embrace of federal criminal justice reform. Eric Alexander, a formerly incarcerated Black man, who now works for the Campaign for the Fair Sentencing of Youth, was recently asked by a member of the legislature about Biden’s record on criminal justice compared to his predecessor, Donald Trump, who signed the First Step Act into law. Alexander said, “It is my belief that if the last administration was allowed to be in office again, that we wouldn’t be here having this conversation. That administration would have dealt with this…”

promise210805St John University law prof Mark Osler, a clemency expert, said on CNN, “Alexander wasn’t deluded, tricked or unknowledgeable. While Trump promised nothing on criminal justice reform but still did something significant, Biden promised a lot but so far has done nothing of real substance. For those of us who don’t want Trump to be re-elected, this is an uncomfortable truth, but to Biden and his campaign, it should be a call to action.”

White House, A Proclamation on Second Chance Month, 2024 (March 29, 2024)

The Hill, This Easter, I pray for pardons (March 31, 2024)

CNN, Biden’s failures in criminal justice could cost him an election (March 26, 2024)

– Thomas L. Root

‘Here’s How to Dance on This Prisoner’s Head Even More,’ 11th Circuit Helpfully Tells District Court – Update for April 9, 2024

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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.

11TH CIRCUIT’S NOT GOING TO MAKE COMPASSIONATE RELEASE EASY

Quinton Handlon got a life sentence 11 years ago for coercing minors to produce child pornography. In 2021, he filed for compassionate release on the grounds that his father suffered poor health and needed 24/7 care.

angryjudge190822The district court turned him down because caring for a parent was not defined in the old USSG § 1B1.13 as a basis for compassionate release at the time Quinton applied as an extraordinary and compelling reason for an 18 USC § 3582(c)(1) sentence reduction. The § 1B1.13 that became effective on Nov 1, 2023, however, does recognize parent care as an extraordinary and compelling reason.

Nevertheless, last week, the 11th Circuit turned him down.

In legal gyrations that only the 11th Circuit could love, the Court ruled that it could retroactively apply § 1B1.13 “amendment in this appeal only if it is a ‘clarifying’ amendment, not if it is a ‘substantive’ amendment.” The Circuit ruled that the § 1B1.13 change “altered the text of the guideline itself to allow for compassionate release in a new circumstance,” making it a substantive amendment. The 11th ruled that although Quinton can file a new compassionate release motion, “we cannot give it retroactive effect in this appeal.”

remand240409Of course, the Circuit could just as easily have remanded Quinton’s case to the district court for application of the new § 1B1.13 standard to the factual record. But that would have saved time and paperwork.

The decision is flawed for another more troubling reason. The district court turned Quinton down for lack of an “extraordinary and compelling reason” for compassionate release, not reaching the question of whether grant would be consistent with the 18 USC § 3553(a) sentencing factors and with applicable Sentencing Commission policy. Because all three conditions are necessary for grant of a compassionate release motion, “the absence of even one would foreclose a sentence reduction,” the 11th noted.

Such a decision is hardly uncommon. Only three months ago, the 11th agreed with a district court that a defendant’s “mother’s cancer diagnosis does not fall within the list of family circumstances that justify compassionate release,” footnoting that “[w]e need not reach the issue of whether the court abused its discretion by failing to consider the § 3553(a) factors because the district court’s order was not in error.”

But Quinton’s court was not detained by notions of judicial efficiency and restraint. While conceding that the district court was entitled to focus solely on the lack of an extraordinary and compelling reason, the Circuit was sufficiently offended by Quinton’s offense of conviction that it found it appropriate to lecture the district court on how it ought to decide Quinton’s § 3553 sentencing factors” if his case ever arose again.

pervert160728The Circuit complained that the district court “did not have the opportunity to consider that sex offenders who have sexually abused children are a threat to continue doing so” because of the alleged high recidivism of sex offenders (a myth from 20 years ago that even the DOJ has renounced). Of course the district court did not: Circuit precedent dictated that it need not do so. Nevertheless, the 11th clearly gave the district court marching orders on how to decide this issue if Quinton came back with a new motion.

Whether Quinton is a danger to the community or not is a decision for the district court to make first. The 11th Circuit has in the past been happy to remind litigants that “we are a court of review, and we ordinarily do not decide in the first instance issues not decided below.” Apparently, when the defendant’s past is sufficiently offensive to the appellate panel, no such limitations apply.

United States v. Handlon, Case No. 22-13699, 2024 USAppLEXIS 7915 (11th Cir., April 3, 2024)

Dept of Justice, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14) (May 2019)

United States v. Ivanov-Tolpintsev, Case No. 23-10648, 2024 U.S. App. LEXIS 117  (11th Cir., Jan. 3, 2024)

Griggs v. Kenworth of Montgomery, Inc., 775 F.Appx 608, 613 (11th Cir. 2019)

– Thomas L. Root

BOP Says CARES Act Worked, Suggests Support for New Program – Update for April 8, 2024

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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.

BOP STUDY SHOWS CARES ACT REDUCED RECIDIVISM

caresbear231116You may remember a Senate effort last fall, S.J.Res. 47, to force those still on CARES Act home confinement back to prison. That measure, sponsored by Senator Marsha Blackburn (R-TN) and co-sponsored by 27 other Republicans, was sent to the Senate Judiciary Committee where it is languishing with no hearings and no prospects for being reported out.

Sen. Tom Cotton (R-AR) declared at the time that extending CARES Act home confinement — especially now that federal inmates have been vaccinated or offered the vaccine for COVID-19 — “betrays victims and law-enforcement agencies that trusted the federal government to keep convicted criminals away from the neighborhoods that the offenders once terrorized.”

cotton190502Good ol’ Tom. Every federal prisoner has an inner rapist/drug dealer just waiting to erupt upon release from prison to terrorize women and children.

The Federal Bureau of Prisons issued a study last week showing that “the CARES Act’s provision for early and extended home confinement did not negatively impact recidivism rates. In fact, it may have contributed to a reduction in post-release recidivism, offering a promising direction for justice-involved stakeholders seeking effective strategies to reduce incarceration and its associated costs, while also promoting public safety and successful reintegration into society.”

The study determined that prisoners with a CARES assignment failed no more or less than comparable persons in home confinement (during the final 6 months/10% of their sentences). The CARES Act and were less likely to recidivate in the year following release from custody (3.7% vs 5.0%) and marginally less likely to be re­arrested for violent offenses (0.9% vs 1.3%). And those with a CARES assignment fail less often than comparable persons after release.

BOP Director Colette Peters said, “This study suggests that reducing incarceration for appropriate people through measures like early and extended home confinement does not compromise public safety and in fact, suggests it may contribute to successful reintegration into society.”

recidivism240408Writing in Forbes, Walter Pavlo said, “The BOP intends to build on the information from this study and others on home confinement. Prisons remain crowded and many inmates are serving longer sentences in expensive institutions than are necessary. Home confinement, which is a major benefit to both inmates and taxpayers, is a big part of the First Step Act. Whether the BOP can fully implement the program to get inmates out of prisons and into the community faster remains a challenge.”

BOP, CARES Act: Analysis of Recidivism (March 29, 2024)

BOP, CARES Act Shows Promise in Reducing Recidivism, Reinforcing the Benefits of Reduced Incarceration (March 29, 2024)

Forbes, Bureau of Prisons Releases Encouraging Study on CARES Act (March 30, 2024)

– Thomas L. Root

The “Hollowayers” Work To Produce Another Hit – Update for April 5, 2024

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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.

‘HOLLOWAY PROJECT’ BATTLES DOJ ON COMPASSIONATE RELEASE

honeymooner240405Longer ago than I care to recall (I was not yet in kindergarten), Jackie Gleason rocketed to fame as one of the creators and star of “The Honeymooners.” Now, about seven decades later, John Gleeson is the star of his own production – no comedy here – leading what may soon bear a dramatic fight to peel away what he calls the injustice of “stacked” mandatory federal prison sentences.

I was saddened to see Judge Gleeson give up his lifetime appointment on the federal bench eight years ago for white-shoe Wall Street law firm Debevoise & Plimpton. I could hardly blame him: D&P reportedly started him at well above minimum wage (even California minimum wage). But I selfishly wanted him to stay on as an Eastern District of New York judge for no other reason than his cerebral and compassionate approach to federal sentencing. I figured that Debevoise probably didn’t do a lot of court-appointed federal defense work, and we thus had probably seen the last of Judge Gleeson’s fresh and intelligent approach to sentencing.

What did I know? Eight years later, Judge Gleeson not only sits on the U.S. Sentencing Commission, he’s leading a D&P Initiative that could soon face off with the Department of Justice at the Supreme Court.

gleesonB160314Bloomberg Law reports that Judge Gleeson is the driving force behind “The Holloway Project,” a pro bono program that represents prisoners convicted of multiple 18 USC § 924(c) offenses prior to the passage of the First Step Act. The Project’s goal is to reduce the sentences for clients they believe have been rehabilitated after decades in prison.

The project is named for Francois Holloway, who Gleeson himself sentenced to 57 years in a robbery/gun case but later reduced by convincing the U.S. Attorney for EDNY at the time, Loretta Lynch, not to get in the way.

(Parenthetically, the Holloway resentencing spawned a cottage industry of low-brow post-conviction consultants who were hawking “Holloway motions” to prisoners. I heard from a lot of people asking how to file Holloway motions, only to be disappointed when I told them that all they had to do was get the U.S. Attorney and their judge to agree that they should be let out. The universal response: “The prosecutor will never agree to that!”   No kidding. It was hardly Judge Gleeson’s fault that bottom-feeders tried to bilk inmate families on the basis of the Judge’s extraordinary effort on Francois’s behalf, but the Holloway case  was a true Black Swan.)

blackswan170206Back to today: As a Sentencing Commission member, Judge Gleeson championed the adoption of USSG § 1B1.13(b)(6), a subsection of the new Guidelines policy statement on sentence reduction motions (commonly if inaccurately called “compassionate release” motions). which defines overly long sentences where the law has changed as an extraordinary and compelling basis for an 18 USC § 3582(c)(1) sentence reduction. Subsection (b)(6) defines when a nonretroactive change in the law that would reduce a current sentence dramatically if it were retroactive could constitute an “extraordinary and compelling” reason for a sentence reduction under 18 USC § 3582(c)(1)(A).

Subsection (b)(6) is important to compassionate release for the same reason all of USSG § 1B1.13(b)(6) is important. Section 3582(c)(1)(A) authorizes a judge to grant a sentence reduction when three conditions are met:

•  the reduction must be for “extraordinary and compelling reasons.”

•  the reduction must be consistent with applicable Sentencing Commission policy statements.

•  the reduction must be “consistent” (whatever that means) with the sentencing factors of 18 USC § 3553(a).

When Congress enacted § 3582 as part of the Sentence Reform Act of 1984, it stipulated that rehabilitation alone was not an extraordinary and compelling reason for a sentence reduction. As for what might be, Congress did not say. Instead, it delegated to the Sentencing Commission the authority and duty to define exactly what situations constitute “extraordinary and compelling reasons” under the statute.

Guideline 1B1.13 is the Commission’s response, listing by my count 17 situations that are extraordinary and compelling. Of focus to Judge Gleeson’s team is USSG § 1B1.13(b)(6), which says

Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

Before the new 1B1.13 was adopted last year, some Circuits ruled that judges – who remain free to consider other factors as being “extraordinary and compelling” – could consider changes in the law as a basis for compassionate release. Others flatly refused to approve such bases for compassionate release. When the Circuit split reached the Supreme Court a year ago, the DOJ urged SCOTUS to wait to consider the issue until the USSC adopted its new policy statement as Congress required.

Now that the Commission has adopted new rules, DOJ is arguing in multiple cases that the Commission exceeded its authority by making the change.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said University of Chicago law professor Erica Zunkel.

A February Northern District of Georgia court decision complained the DOJ had “contradicted itself” by arguing that the Commission doesn’t have the power to answer questions it once urged the Commission to answer:

The DOJ has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question? This argument lacks merit.

The issue is currently before other district and appeals courts. Gleeson and others expect it will reach the Supreme Court.

moonalice240405When it does, expect Debevoise to be there. Unfortunately, Judge Gleeson himself will not be: as a member of the Sentencing Commission, he will recuse himself from participating in a case arguing the Commission’s authority.

To the moon, DOJ! To the moon!

Bloomberg Law, Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court (March 21, 2024)

United States v. Allen, Case No. 1:09-cr-320, 2024 U.S.Dist. LEXIS 28049 (NDGa, February 12, 2024)

– Thomas L. Root

A Bedtime Story About the Eighth Amendment – Update for April 4, 2024

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TO SLEEP, PERCHANCE TO DREAM

You think you have it bad…

sleep240404Mike Garrett has been in the Texas prison system for 30 years. For the last ten years, his prison units have afforded him at most 3½ hours of total sleep— and at most 2½ hours of continuous sleep per night. Bedtime is 10:30 pm and wakeup is at 2 am, with a count at 1 am during which inmates must be awake to call out their names.

After his complaints fell on deaf ears, Mike sued, invoking the 8th Amendment’s ban on cruel and unusual punishment. The district court threw out the suit, holding that Mike didn’t prove a substantial risk of serious harm because he didn’t show a cause-and-effect relationship between the sleep deprivation and his health complaints (migraines, seizures, vertigo, a skin condition, edema, hypertension and kidney disease). Second, the district judge said Mike hadn’t established deliberate indifference by prison officials because the schedule was based on a legitimate penological interest.

There’s little doubt that sleep deprivation is hazardous to heart. Last October, Michele Deitch and Alycia Welch with the University of Texas Prison and Jail Innovation Lab gave a presentation to the International Corrections and Prisons Association on the harmful sleeping conditions in prisons, the Texas Observer reports. There, the researchers previewed findings from a forthcoming report entitled, “The Nightmare of Sleep in Prison.” Among their recommendations was an increase in dedicated sleep time. They defined a healthy amount as at least six hours nightly.

sleeptorture240404Last week, the 5th Circuit reversed, holding that to satisfy the objective component of an 8th Amendment claim, “a prisoner need only show a substantial risk of serious harm—not actual harm. Second, the district court held that, because the Dept had “legitimate penological purposes” for implementing the schedule, and because the Department did not engage in conduct designed to intentionally inflict sleep deprivation on inmates, Garrett failed to satisfy the subjective element of his 8th Amendment claim. But the Supreme Court has clarified that a prison’s penological purpose has no bearing on whether an inmate has shown deliberate indifference for purposes of an 8th Amendment claim.”

Garrett v. Lumpkin, Case No 22-40754, 2024 U.S. App. LEXIS 6934 (5th Cir., March 22, 2024)

ABA Journal, 5th Circuit rules for prisoner allowed to sleep no more than 3.5 hours per night (March 26, 2024)

Texas Observer, Some Texas Prisoners Allowed Only Four Hours Of Sleep A Night, Lawsuit Say (April 2, 2024)

– Thomas L. Root

More Sexual Abuse Fallout in the BOP – Update for April 2, 2024

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STAFF ON INMATE, INMATE ON STAFF…

A former FCI Dublin (California) correctional officer was sentenced to six years last Wednesday after he admitted to sexually abusing more than a half-dozen women at the scandal-plagued facility.

sexualassault211014Nakie Nunley, 48, became the seventh Dublin staff member to be sentenced in recent years, part of what the officers called a “rape club” at the facility that tormented inmates. The defendants have included a warden and chaplain.

An eighth officer has pled guilty to sexual misconduct charges but has not yet been sentenced.

Nunley was convicted of four counts of sexual abuse of a ward and five of abusive sexual contact of five women. He also admitted to lying to federal officials. His sentence comes amid mounting concerns that the initial wave of arrests has done little to reform a toxic culture at the prison that has left inmates in constant fear of retaliation for reporting their guards’ alleged misdeeds.

Meanwhile, a second suit has been filed in Ft. Worth alleging that a former prisoner at FMC Carswell was repeatedly raped by former BOP employee Marerllis Nix. Nix has denied the allegations in the first suit and has not yet responded to the second complaint.

A 2022 investigation by the Ft. Worth Star-Telegram found a pattern of abuse and cover-ups at Carswell that KERA-TV has called “among the worst of any facility across the US.”

“We filed a second lawsuit, just a couple days ago on behalf of Jane Doe, not only just to get compensation for her injuries but, more importantly, to call awareness to this severe problem at the Carswell medical unit in Ft. Worth,” said Randall Kallinen, a Houston-based civil rights attorney.

At the same time, BOP officers in Illinois are pushing Congress to do something about sexual abuse in federal prisons – just not in the way you might think.

attack240402Driven by reports of BOP staff facing indecent exposure by inmates and vulgar and sometimes violent sexual remarks, officers at USP Thomson are calling for adding criminal penalties for such behavior. The union alleged more than 300 incidents in 2022 of inmates exposing themselves or engaging in sexual acts in front of staff at Thomson. Since then, Thomson has been converted to low security, and the number of incidents has fallen to near zero.

A national law is needed “to protect our correctional workers from sexual attacks from inmates at all federal prisons,” said Jon Zumkehr, president of a local American Federation of Government Employees chapter. “Victims of sexual assault crimes experience significant trauma, and these profound and understandable fears may keep victims from coming forward.”

San Jose Mercury News, FCI Dublin officer sentenced to six years in prison after admitting he sexually abused several inmates (March 28, 2024)

NBC, Former correctional officer at women’s prison in California sentenced for sexually abusing inmates (March 28, 2024)

KERA-TV, Sexual abuse a ‘severe problem’ at Fort Worth’s Carswell prison, attorneys for 2 women say (March 11, 2024)

Federal Times, Bureau of Prisons officers seek federal law penalizing sexual threats (March 28, 2024)

– Thomas L. Root

Resentencing the Whole Crack Defendant – Update for April 1, 2024

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PACKAGE STORE

More than a few prisoners seeking sentence reductions under Section 404 of the First Step Act – the provision that made the 2010 Fair Sentencing Act apply retroactively to crack cocaine sentences – were denied reductions because they had other non-crack counts of conviction that weren’t covered by Section 404 and kept the sentences high.

gift211222In the case of Nathaniel Richardson, his sentence was life for crack distribution and a second life term for a 21 USC § 848 continuing criminal enterprise count. The district court found that the crack distribution count was a covered offense and reduced Nate’s life sentence to 360 months. But on the CCE count, the district court relied on 4th Circuit precedent, holding that CCEs were not covered offenses under Section 404 and left the life term intact. That life term was unchanged.

Last week, the 4th Circuit reversed, holding that the district court had the discretion to reduce both covered and noncovered offenses under Section 404 of the First Step Act “if they function as a package.”

The 4th said it has “upheld the use of the sentencing package doctrine in the habeas context, and resentencing under the First Step Act similarly provides district courts with broad discretion to fashion a remedy.” The Circuit ruled that “allowing judges to utilize the sentencing package doctrine is in line with how district judges practically sentence defendants and in accordance with the purpose of the First Step Act… The sentencing package doctrine is applicable here because where one count of a package is remanded, the district judge must be given the discretion to reconfigure the sentencing plan to ensure it remains adequate to satisfy the statutory sentencing factors.

District judges are entrusted with “enormous responsibility,” the 4th said, “and must be given adequate discretion in resentencing, especially in light of the changing landscape of new statutory schemes.”

United States v. Richardson, Case No. 22-6748, 2024 U.S. App. LEXIS 6618 (4th Cir., March 20, 2024)

– Thomas L. Root

‘History Is Bunk’ Where Judicial Factfinding Is Concerned, Erlinger Argument Suggests – Update for March 28, 2024

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SUPREME COURT ERLINGER ARGUMENT MAY LIMIT JUDICIAL FACT-FINDING IN ARMED CAREER CRIMINAL ACT CASES

scotus161130The Supreme Court justices appears to be siding with the defendant and the government on the issue of whether a jury instead of a judge has to find that a defendant is eligible for the Armed Career Criminal Act (18 USC 924(e)) mandatory 15-life sentence.

Under 18 USC 922(g)(1), a person previously convicted of a felony may not possess a gun or ammo. Violators face a sentence of 0 to 15 years. But if the defendant has three prior drug or violent crime convictions, the ACCA raises the minimum sentence to 15 years.

There are catches, including the requirement that the prior offenses have been committed on different occasions. Two years ago, in Wooden v. United States, the justices adopted a standard for determining when crimes are committed during a single occasion. In Wednesday’s argument, the issue was whether the 6th Amendment right to a jury trial in criminal cases means the jury rather than a judge must find the facts that qualify a defendant for an ACCA sentence.

That question is important because the Supreme Court has previously said that any fact that increases a penalty, other than the fact of a prior conviction, must be decided by the trier of fact, typically a jury, and proved beyond a reasonable doubt. Back in 2000, the Court held in Apprendi v. New Jersey that any facts that increased the statutory sentence must be decided by a jury. But there is an exception: in Almendarez-Torres v. United States, the Court held that the fact of a prior conviction may be found by a judge.

Justice Clarence Thomas has waged a lonely battle against Almendarez-Torres since Apprendi, and unsurprisingly asked as his first question after the defense’s opening statement – which urged limits on the Almendarez-Torres prior-conviction exception to Apprendi – “Wouldn’t it be more straightforward to overrule Almendarez-Torres?”

Some background: A judge sentenced Paul Erlinger to the ACCA 15-year minimum sentence based on the convictions for four burglaries committed when the defendant was 18 years old. Paul claimed the four burglaries were not committed on different occasions and thus could be used to sentence him under the law.

Paul argued the judge violated the 6th Amendment by engaging in judicial fact-finding but lost at the trial court and 7th Circuit.

Wednesday’s argument focused both on history and practicality.

The Supreme Court has moved broadly toward testing constitutional questions against historical analogues and traditions when reviewing present-day laws or practices. In the Court’s June 2022 New York State Rifle & Pistol Assn v. Bruen holding, the majority established a new test instructing courts to consider whether a similar law to the challenged one – such as banning felons from possessing guns – was on the books when the 2nd Amendment was enacted in 1791 or when the 14th Amendment was enacted in 1868.

Since then, arguments over the history and tradition behind different constitutional rights have been mainstays in briefs filed with the court.

historybunk240329“When we start talking about history, I get very annoyed, because in every history, there are exceptions,” Justice Sotomayor said during Wednesday’s session. “The question then becomes how many exceptions defeat the general rule.”

In Paul Erlinger’s case, she argued, it did not matter whether four or eight states allowed judges to make enhanced sentencing decisions around the year 1791 because either number did not “defeat the general rule” that defendants are entitled to jury trials.

Justice Brett Kavanaugh, on the other hand, found history relevant. “The text itself of the Constitution does not tell us the answer, just the bare words, correct?” he asked the court-appointed amicus arguing in favor of the ACCA. “So then we usually look to history. We might not like it, but unless we’re just making it up, I don’t know where else we’re going to look.”

The other issue, how a rule requiring juries to make habitual defender determinations would work in practice, was more problematic.

Justice Samuel Alito said the inquiry would be difficult for a jury because it centers on a “multidimensional and nuanced” look at a defendant’s past convictions. But the Dept of Justice attorney, while agreeing that that letting a jury decide would add some burden for prosecutors, “We believe it will be manageable.”

Erlinger’s lawyer noted that most criminal cases result in plea deals, meaning that this will be an issue in only a “handful of cases a year.”

Court-appointed counsel defending the ACCA warned that putting recidivism issues in front of a jury would alert it to the defendant’s past, and “would gravely prejudice defendants.” But Justice Sotomayor said that the criminal defense bar has already sided with Erlinger, suggesting that defense attorneys don’t think it will harm defendants to put the prior convictions in front of the jury.

The inverse of an Anders brief, where the lawyer wants to be found innocent by arguing that his client is guilty.

Chief Justice Roberts suggested the answer to any problem of jury prejudice would be to present the issue about prior crimes only after a jury has convicted a defendant of the current one in a bifurcated trial.

Wednesday’s argument suggested that the question of who must decide the issue of the existence of a prior conviction – the Almendarez-Torres issue – will not be disturbed by the Erlinger decision. Justice Ketanji Brown Jackson said that the “carve out” holds that judges can decide “the fact of a prior conviction. But Erlinger and the government say the rule should be read more narrowly to allow a judge to consider only facts “inherent” to the past convictions rather than conduct related to the offenses, like whether they were part of the same “occurrence.”

“Just move the fact-finding from the judge over to the jury, I don’t think it’s very much to ask,” Erlinger’s lawyer argued.

Justice Jackson wondered if upholding Erlinger’s position meant repeated litigation of crimes for which the defendant has already been convicted. Erlinger’s lawyer replied that that’s already happening: “It’s just whether or not the judge or the jury is going to make the finding.”

Erlinger v. United States, Case No. 23-370 (oral argument March 27, 2024)

Apprendi v. New Jersey, 530 U.S. 466 (2000)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Bloomberg Law, High Court Suggests Robust Jury Right for Longer Sentences (March 27, 2024)

Courthouse News Service, Supreme Court leans toward jury review for career criminal sentences (March 27, 2024)

Law360.com, Sotomayor ‘Annoyed’ By Supreme Court’s Focus On History (March 27, 2024)

– Thomas L. Root

The Phone Just Keeps On Ringing For the BOP – Update for March 26, 2024

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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.

PHONE CALL MAY BE A SCAM… OR NOT

The Bureau of Prisons reissued a press release last week warning prisoners and their families of a phone scam in which callers identify themselves as BOP employees and demand money for halfway house or home confinement placement. The BOP stated that it “will not contact individuals to request personal information or money.”

money170419This scam, of course, would not fool federal inmates. They already know that getting the BOP to place people in halfway house or home confinement for the amount of time they’re entitled to for their FSA credits can’t be solved with mere bribes (which are illegal anyway and would just get prisoners more time).

More concerning is a scam in which callers claim to be US Probation Officers and demand personal information or money for halfway house or home confinement placement or relocation approval. Real USPO officers actually do call families from time to time, but usually just to make a home inspection appointment.

Phonescam240326Lesser-known phone frauds that may affect the BOP: Roll Call reported last week on the 38% haircut BOP took on its facilities budget in new appropriations bill. Last year, the BOP got $290 million repair and maintenance, but only $108 million came through regular appropriations. The other $182 million came through emergency funding.

Due to last summer’s Fiscal Responsibility Act, any call Director Peters gets from Congress promising emergency money this year is probably a scam. The paltry $179 million the BOP got “reflect[s] a thoughtful, serious approach to what can be achieved in a single given year… and then also given the overall environment of the Fiscal Responsibility Act,” Assistant Attorney General Jolene Lauria told Roll Call, trying to put a good spin on a repair budget that falls 96% short of the $3 billion needed to fix decaying infrastructure.

A phone call that would not be a scam: If a BOP warden gets a call from the front gate that a herd of inspectors from the Dept of Justice Office of Inspector General is demanding to be let in for an unannounced inspection, it’s probably the real thing.

IG230518Speaking at a National Press Foundation function recently, DOJ Inspector General Michael Horowitz said, “My 500 personnel [are] comprised mostly of auditors and law enforcement agents. We also have evaluators and inspectors. One of the things we’re doing now, by the way, is unannounced inspections of federal prisons, and those are much smaller groups compared to the auditors and the agents.”

Horowitz contrasted innocent mistakes found in some DOJ offices to recent BOP revelations: The problems the IG uncovered in other offices were “usually… one of the lawyers who didn’t quite understand rules, didn’t abide by the rules, played fast and loose with the rules and got in trouble… Wasn’t, you know, generally people stealing, people being bureaucratic. It was, you know, people trying to get things done right. And then on the other hand, go to the Federal Bureau of Prisons, which the current director is the 8th director in my 12 years there, right?”

Horowitz also said, “Whistleblowers are critical to who we are, what we do. We take their complaints seriously, we take retaliation against them particularly seriously. But whistleblowers are very important part of what we do.”

BOP, Phone Scams Impacting Adults in Custody (August 23, 2023, reissued last week)

Fiscal Responsibility Act, HR 3746 (June 3, 2023)

Roll Call, Congress cuts federal prison infrastructure funding (March 20, 2024)

Nationall Press Foundation, ‘The Truth Still Matters’: Justice Department Inspector General Highlights Non-Partisan Work (March 15, 2024)

– Thomas L. Root

“In My Expert Opinion, You’re Guilty” – Update for March 25, 2024

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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 SPLIT ON GOVERNMENT EVIDENTIARY CAT-SKINNING

catskinning240325The Supreme Court last Tuesday appeared divided over a case arguing that letting a DEA agent testify that most drug mules knew they were carrying drugs across the border violated the Federal Rules of Evidence and led to an unfair conviction.

Delilah Diaz was caught at the Mexican border with over $350,000 in meth hidden in the door panels of the car she was driving. She claimed not to know the drugs had been hidden in the car. A DEA agent expert witness testified, however, that drug mule drivers as a class typically know they are transporting drugs.

Federal Rule of Evidence 704 generally states that an expert in a criminal case may not give an opinion on the defendant’s criminal intent, or mens rea. Yolanda argued that the expert’s “class” testimony was a back-door introduction of evidence not allowed by Rule 704.

While some justices appeared to favor the government’s position of allowing such testimony, others appeared to favor reining it in.

expert160905The problem for the justices during arguments Tuesday was where to draw the line on ambiguous evidentiary rules, as evidence prohibited under one rule might be permissible under another. Circuits are split on whether testimony about a class of defendants is the “functional equivalent” of testimony about the defendant being tried for purposes of Rule 704 or whether “class” testimony is permissible evidence of how drug cartels usually operate. “There’s always a way to skin the evidentiary cat,” said Justice Neil Gorsuch, who appeared firmly on the side advocating for a more limited rule.

Justice Clarence Thomas pressed the government, saying that when you testify about the probabilities that someone knows she is carrying drugs, “you are in effect talking about the defendant, that you could only be concerned about the conduct of the defendant.”

Justice Samuel Alito suggested that other evidentiary rules might knock out such evidence, like Rule 703, which allows a court to exclude otherwise permissible evidence if it is more prejudicial to the defendant than helpful to the jury.

game180103Both sides have “line-drawing problems,” Justice Elena Kagan said. Even if the Court ruled for the petitioner, “all the expert has to do is tweak the way he says something and the exact same testimony can come in”, she said. “It just seems at that point a kind of game.”

Gorsuch observed that if the government is allowed to introduce such “class” testimony, a defendant will, too. “What’s going to be good for the goose here is going to be good for the gander,” he suggested.

Diaz v. United States, Case No 23-14 (Supreme Ct, argued March 19, 2024)

Reuters, US Supreme Court appears split over appeal by convicted border drug ‘mule’ (March 19, 2024)

Sentencing Law and Policy, A little interesting coverage of an interesting SCOTUS argument on drug mule case experts (March 20, 2024)

Bloomberg Law, Justices Search for Sweet Spot on Testimony on Criminal Mind (March 19, 2024)
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– Thomas L. Root