Sentencing Reform has Quite a Week for a Corpse – Update for February 3, 2017

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FLIGHT OF THE PHOENIX

phoenix170203Congressman Bob Goodlatte (R-Virginia), chairman of the House Judiciary Committee, said yesterday that his agenda for the 115th Congress includes comprehensive sentencing reform, which was subject of a two year-long bipartisan push in both houses of the 114th Congress before being run down and killed by the 2016 elections.

Speaking to the Federalist Society at the National Press Club, Goodlatte said, “Both Ranking Member Conyers and I remain committed to passing bipartisan criminal justice reform. We must rein in the explosion of federal criminal laws, protect innocent citizens’ property from unlawful seizures, and enact forensics reforms to identify the guilty and quickly exonerate the innocent. We must also reform sentencing laws in a responsible way and improve the prison system and reentry programs to reduce recidivism.”

Goodlatte’s announcement bookends a week that began with House Oversight Committee Chairman Jason Chaffetz (R-Utah) saying that criminal-sentencing reform proponents in Congress are optimistic that Vice President Mike Pence will be an ally, helping them to work with the Trump administration to pass sentence reform legislation.

“I’ve got reason to be hopeful,” Chaffetz told reporters at a morning session of the Seminar Network, a group of libertarian and conservative donors gathered in Palm Springs by Charles and David Koch.

Senator Sessions as AG – Don't expect that you've got anything coming.
      Incoming Attorney General Sessions – no friend of sentencing reform.

Even as Congressional Republicans started sliding sentencing reform onto the front burner, CNN darkly warned that “the future of criminal justice reform hangs in the balance as the nomination of Alabama Sen. Jeff Sessions, President Donald Trump’s pick for attorney general” was approved in a party-line vote by the Senate Judiciary Committee. CNN cited unidentified “activists” who worried that Trump would “halt former President Barack Obama’s reforms, and institute new policies that could worsen conditions.”

We’re not sure what planet CNN has been on, but we’re fairly confident that Obama’s only criminal justice “reform” of note in eight years – unless you include his arbitrary and gimmicky clemency lottery – was passage of the Fair Sentencing Act of 2010. And as for that, Sessions not only voted for the Act, but in fact worked with Sen. Dick Durbin (D-Illinois) in gaining its passage. That Act reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, a change widely seen as benefitting minorities, whom were statistically more likely to be involved with crack than with the standard powder. Obama loved to talk a good game, but his Administration promised much (remember Eric Holder’s grand “working group to examine Federal sentencing and corrections policy” announced with fanfare in 2009, only to disappear in the Washington swamp, never to be heard from again?) but delivered damn little.

None of this is to suggest that Trump or Sessions share enlightened views on sentencing reform. To the contrary: Trump branded many of the federal prisoners receiving clemency as “bad dudes,” a label applied in usual Trumpian fashion with little reflection and no investigation. As a senator, Sessions was one of the early and vociferous opponents of the Sentence Reform and Corrections Act of 2015, contending that it would “release many dangerous criminals back into American streets.”

President Trump says they're coming to a street corner near you .
     President Trump says they’re coming to a street corner near you
.

This might be a plus. With Sessions no longer in the Senate to organize an uber-conservative revolt against sentencing reform, Sen. Tom Cotton (R-Arkansas) will stand virtually alone in trying to derail sentence reform. Sure, Sessions may still be against it, but he’ll have much bigger fish to fry over at 9th and Constitution, running the 113,500 employees at DOJ.

As for Trump, will he be an impediment to bipartisan sentencing reform? Who can predict anything with the famously impulsive President? It is noteworthy, however, to observe that last Tuesday in introducing Judge Neil Gorsuch as his nominee for Justice Antonin Scalia’s seat on the Supreme Court, Trump noted of Judge Gorsuch: “While in law school, he demonstrated a commitment to helping the less fortunate. He worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program.”

Ohio State University law professor Doug Berman, who writes the Sentencing Law and Policy blog, found it “quite notable that… Prez Trump would stress this history.” Could it be that the President would not be as inalterably opposed to federal sentencing reform as some “activists” might fear?

– Thomas L. Root

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So What If I Was Wrong? – Update for February 2, 2017

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MY BAD… BUT YOU’RE STILL SCREWED

Steve Schenian pled guilty to drug trafficking charges. As he approached his sentencing date, Steve – who had done a lot of sampling of his illegal wares – decided to change his ways.

No surprise there. A lot of defendants experience what is colloquially known as a “jailhouse conversion.” Most defendants’ claims that they’ve cleaned up their act lasts until they’re released, if that long. A few don’t even make it to sentencing. And the judges – who have heard it all before – usually don’t buy it.

Steve's jailhouse conversion may have been real, but the government's screwup stole any credit Steve might have otherwise gotten...
      Steve’s jailhouse conversion may have been real, but the government’s screwup stole any credit he might have otherwise gotten…

Steve had convinced his girlfriend to smuggle some drugs to him in jail, but he later told the probation officer writing his Presentence Report that he had given that up, that he wanted to “turn his life around.” Unfortunately for Steve, the government ratted him out: a urine sample collected the evening before sentencing showed that he had one illegal drug in his system.

When imposing sentence the judge did not mention the previous night’s test but did deem it significant that Steve had continued using drugs while in custody. The judge rejected Steve’s sentencing proposal, and went with the government’s recommended 144 months.

The drug test was especially unfortunate for Steve, because – while the results were accurate – the prosecutor was not. He had misinterpreted raw data from the test, which, if read correctly, would show Steve was as clean as Phoebe Snow. Eight days after Steve’s sentencing, the prosecutor sent letters to the court and Steve’s lawyer disclosing the error.

phoebe170202The district court promptly issued an order saying that it “has considered the correction of information conveyed in the [government’s]… letter. The Court remains convinced that the original sentence imposed in this case was sufficient but not greater than necessary to accomplish the purpose of sentencing. None of the facts contained in that letter would lead the Court to alter its decision.”

Steve nevertheless moved for resentencing under Fed.R.Crim.P. 35(a), which lets a district court correct a sentence within 14 days after sentencing, when the original sentence “resulted from arithmetical, technical, or other clear error.” The district court denied his motion.

Earlier this week, the 7th Circuit agreed. It held that if the district judge thought the sentence had been influenced by a false belief that Steve was on drugs the night before sentencing, that belief would have been a “clear error” that would have allowed the judge to fix the problem. The Circuit said “a mistakenly high sentence cannot be called an “arithmetical” or “technical” gaffe, but an error it would be – and if the error was clear only in hindsight, still it would be ‘clear error’.” After all, the appellate court said, the purpose of Rule 35(a) is to let judges “fix errors that otherwise would be bound to produce reversal.”

Steve’s problem, the Circuit said, “is that the district judge did not rely on the false information, so there was no judicial error. The prosecutor made an error, and that error was clear in retrospect (once the lab released its report). But Rule 35(a) does not authorize a judge to revise a sentence because one of the litigants has made a mistake. It authorizes the court to fix sentences affected by its own errors, whether they be arithmetical, technical, or otherwise “clear”. Once a judge has decided that the sentence is unaffected by error, there is no need for a do-over.”

While we would be the last to suggest that district judge cannot be taken at his or her word, it taxes credulity that a district court sentencing a drug-dealing defendant who had professed a “jailhouse conversion” to clean living would not be influenced by finding out the guy standing in front of the judge was stoned. The Circuit complained that “a remand for further proceedings would waste everyone’s time,” but this seems a case where the public’s confidence in the integrity of the criminal process would be served by resentencing in front of a different judge (which is the course followed when the government breaches a plea agreement by providing information at sentencing it promised not to).

Sandbagged at sentencing...
               Sandbagged at sentencing…

The government was wrong in its claim, perhaps negligently or recklessly. But regardless of degree of fault, the defendant was sandbagged by a claim that was not only false, but one he had neither the time nor the resources to address.

United States v. Schenian, Case No. 16-3132 (7th Cir., Jan. 30, 2017)

– Thomas L. Root

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Careless Whisper: 1st Circuit Says Judge and Probation Officer’s Sidebar Without Defense Present is Fine – Update for February 1, 2017

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WHAT’S THE BUZZ?

Dan Bramley was convicted of a drug-trafficking offense. He didn’t have much for an appellate attorney to work with, leading to what the First Circuit called a “rifle-shot appeal.”

advice170201Dan’s complaint was a simple one. Twice during the sentencing, the judge paused for a whispered conversation with the probation officer. Dan and his lawyer have no idea what was said, but of course this was the same probation officer who had written Dan’s presentence report. Dan argued this was an impermissible ex parte communication, and that his sentencing was prejudiced by the Court receiving and presumably relying on information Dan had neither heard nor had a chance to contest.

Last week, the First Circuit rejected Dan’s appeal in a decision we find rather troubling. The Court found such ex parte discussions between the judge and probation officer to be “fundamentally different from its communications with third parties,” because “a probation officer is simply an extension of the court itself” and indeed “functions as an arm of the court.”

The Circuit observed that the probation officer’s duty is to supply the “judge with as much information as possible in order to enable the judge to make an informed decision.” Well, of course, but that was not Dan’s complaint. His complaint was that the “information” was information that he should have been able to contest.

badadvice170201To be sure, the Court of Appeals held that probation officers and sentencing judges do not “have a free pass to discuss everything and anything off the record. To the contrary, factual information relevant to sentencing must be disclosed to the defendant.” But the appeals panel drew a distinction “new facts, on the one hand, and advice, on the other hand.” Facts have to be disclosed; advice does not. “The short of it, the First Circuit said, “is that a sentencing court has the right to confer ex parte with a probation officer to seek advice or analysis — but if the probation officer reveals new facts relevant to the sentencing calculus, those facts cannot be relied upon by the sentencing court unless and until they are disclosed to the parties and subjected to whatever adversarial testing may be appropriate.”

police170201Defendants have already realized that, like the policeman, the probation officer is not their friend. This is especially true of the probation officer who writes the Presentence Report, a document inevitably written from the perspective of the Government and typically chock-a-block with hearsay and gossip, the more lurid and derogatory to the defendant, the better.

The difficult with the blurry line between facts and advice is this: the probation officer’s advice to the judge is based on the officer’s opinion, and that opinion in turn is based on what the officer believes the facts to be. Facts may not be advice, but they certainly inform the advice. The marginal cost of requiring that all communications relating to sentencing be on the record is rather small, especially compared to the judge receiving back-channel and unchallenged “advice” from his or her own probation officer. While the officer is the court’s own employee, he or she is an employee with a crucial role in the sentencing process mandated by rule and statute.

United States v. Bramley, Case No. 15-2446 (1st Cir., Jan. 26, 2017)

– Thomas L. Root

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Mistreated Clemency Hopefuls Happy to See Yates Walk the Plank – Update for January 31, 2017

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OBAMA COMMUTATION PROGRAM HAD FEET OF CLAY

clay170206Those of us who go to bed early awoke today to learn that President Trump – whose frenetic activity of dubious wisdom over the last 10 days included installing Deputy Attorney General Sally Yates as acting head of the Dept. of Justice – had her walked out of the building last night (figuratively speaking) after she refused to enforce his executive order on immigration.

Setting aside questions about that order, which are well beyond the scope of this blog, the firing had to please thousands of federal inmates disappointed at the outcome of a Obama clemency program that seemed much more about burnishing his legacy than it did about systematically addressing over-sentencing. Yates was the public face of the DOJ side of clemency, and last week, the falsehood of her chief claim about that effort became obvious.

One heartbroken daughter of a federal prisoner published her letter to Obama about his failure to act on clemency for her father: I want you to know how disappointed I am… I truly thought you were a good person. I guess I was just as brainwashed as everyone else. At least now I can see the blood on your hands… You’re just as guilty as those who created it in the first place.”

The letter, from the daughter of former Illinois governor Rod Blagojevich, complained that Obama did not act of her father non-drug commutation petition. But it could just as easily have been written by any of the 7,600+ inmates whose clemency petitions were left pending when Obama left office, or the 14,000+ whose petitions were denied for opaque and arbitrary reasons.

A 58% majority of Americans say they approved of Obama’s drug commutations. Only 30% were against it. But for a program that was much more popular than Obama’s release of someone with an espionage conviction 28 years early, the former President badly unperformed.

Set aside for a moment FAMM’s gushing praise over “the quality and record number” of clemency grants issued by Obama. One lawyer close to the process wrote last week that “in granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it. As became clear over the last several months — during which the majority of the clemency decisions were announced — it was often impossible to find any meaningful difference between the petitions that were granted and those that were denied.”

“Petitions only a mother (or a defense attorney) would be confident about might sail through the process within weeks of submission,” he wrote. “A handful of inmates whom we declined as hopeless — a difficult decision, but one we thought the criteria required — later successfully petitioned the administration on their own. Meanwhile, petitions that clearly appeared to meet the criteria, for clients with incredibly compelling stories, languished for months, only to be finally denied last week.”

clemency170206What’s more, everyone recalls Yates’ promise to act on all of the qualified petitions that were pending, and her self-satisfied assurance that it had been done. We’ve heard from dozens of inmates who claimed they were filed by the August 31, 2016, deadline, but heard nothing. Now, a lawyer with the New York University law school Clemency Resource Center has verified that claim, writing that “almost 10% of the petitions CRC submitted before the still remain pending. And while the administration ultimately reviewed several hundred petitions submitted in September, heartbreakingly, many deserving clients whose petitions we rushed to submit that month also never received a decision.”

Reason.com reports that “while some of those commutations were delayed so the inmates could complete drug treatment and other reentry programs prior to being released back into society, clemency lawyers say there was a notable shift in the final months of the program—possibly due to influence from U.S. Attorneys involved in the process—that resulted in commutations where some inmates’ sentences were dropped from life in prison to 30 years… As Obama wrote in a tweet about his last round of commutations: ‘Proud to make this one of my final actions as President. America is a nation of second chances, and 1,715 people deserved that shot’.”

Can someone whose sentence was cut from life to 30 years really be said to have been given a second chance?

Such commutations may have been the result of compromise involving U.S. Attorneys, although no one knows for sure. The inner workings of the White House reviews of petitions were shrouded in secrecy. “We really don’t have much insight into how things get considered on the inside,” attorney and pardon specialist Mark Osler says. “It’s a project with a box over it.”

Finally, it appears that everyone is striking the tent. Cynthia Roseberry, executive director of the Clemency Project, confirmed to us last week that the project was disbanding, but encouraged inmates to remain positive. And sometime last week, without any fanfare at all, Robert A. Zauzmer, the former Philadelphia AUSA who took over the Office of Pardon Attorney last winter, disappeared from the OPA website. The current head of the office is Lawrence Kupers, identified as “Deputy Pardon Attorney.” Kupers has been with the Office since 2014.

Goodbye, Sally. We baked you a cake...
                                                            Goodbye, Sally. We baked you a cake…

Now, Sally herself rides into the sunset, which undoubtedly includes a seven-figure partnership at a white-shoe law firm. Sally, may the doors of Main Justice not whack you in the keister on the way out.

Chicago Sun-Times, Blagojevich daughter: ‘Spineless’ Obama has ‘broken my heart’ (Jan. 26, 2017)

Huffington Post, Americans Support Obama’s Clemency Toward Drug Offenders, But Not Toward Chelsea Manning (Jan. 23, 2017)

The Hill, What Obama’s commutations mean (Jan. 24, 2017)

The Marshall Project, Inside the Clemency Lottery (Jan. 26, 2017)

Reason.com, This Inmate Received Clemency from Obama. He Still Might Die in Prison (Jan. 26, 2017)

– Thomas L. Root

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Pants on Fire: DOJ Lawyers Excoriated Again by Texas Judge – Update for Monday, January 30, 2017

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ETHICS CRISIS AT JUSTICE DEPARTMENT?

liar151213We reported in our May 23, 2016, newsletter that Southern District of Texas Judge Andrew S. Hanen had blasted government lawyers, whom he found had repeatedly misled the court and plaintiffs with the lie that the Feds had not started the immigration processing that the states were trying to stop, when in fact they had. It was a lie, too. The Judge said as much, and ordered the Attorney General to provide ethics training to DOJ lawyers.

Hanen160523Last week, the Judge relieved DOJ of the sanctions, but did so in an order that ripped the agency for its ethical lapses and its institutional arrogance in not coming forward with evidence to ameliorate the issue, even after the court begged it to do so.

Noting that DOJ’s Office of Professional Responsibility had found 132 different ethical violations by DOJ lawyers in just four years, the judge said

These numbers, while shockingly high even when viewed in insolation, disguise the sheer gravity of the infractions. Misrepresentations to the court or opposing counsel accounted for over 20% of the total sustained allegations between fiscal years 2012 and 2015. Justice Department attorneys are afforded immense power in our federal system, and rightly or wrongly, trial judges have grown accustomed to taking many of their representations on faith. Justice Department attorneys may rightfully be prideful of their individual “win-loss” records, but their satisfactory performance as the legal representatives of this country is not simply contingent on securing a successful outcome. Their goal should be, quite simply, to achieve a just result. Whether this entails turning over Brady material that may damage the prosecution’s case, or promptly revising and explaining a misrepresentation in the face of professional and personal pressure, attorneys representing the United States must safeguard the legitimacy of the authority given to them by the people through honest and forthcoming representation. The ethical choices of each Justice Department attorney, entrusted with the coercive hand of the federal government, play an important role in determining whether this nation is one that is ruled by law or ruled by something or someone more corruptible. Even if one sets aside the now five misrepresentations made to this Court, the fact that the Justice Department has made so many other different misrepresentations to other courts or opposing counsel within the above-described period should be viewed as an affront to one of the most historically respected legal institutions in the country.

State of Texas v. United States, Case No. B-14-254 (S.D. Texas, Jan. 19, 2017)

– Thomas L. Root

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7th Circuit Levels the Field for Inmate Medical Claims – Update for January 27, 2017

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YOU’VE GOT NOTHING COMING

nothing170127Lousy healthcare ranks just behind lousy food as an inmate complaint, but when the effects of substandard medical attention are considered, it is perhaps the most significant beef inmates have. We have worked with inmates who were blinded, paralyzed and stricken with terminal cancer because of incompetent or indifferent medical attention in prison.

The Federal Tort Claims Act permits inmates to sue for medical malpractice, with the law applied being the law in which the prison is located. Of course, a federal inmate has no access to state law, no right to an appointed attorney, and no right to the assistance of medical experts. The prison healthcare people, on the other hand, are represented by the civil desk of the United States Attorney’s Office, a “law firm” staffed by some pretty skilled attorneys backed by a client with an unlimited budget and a disinclination to settle. It’s little wonder that even the most patent case of medical malpractice in the federal prison system rarely goes the inmates’ way.

That’s why we were so surprised and pleased this week to see the 7th Circuit come down resoundingly on the side of an Indiana state prison inmate who had been beaten down by the system. First, prison healthcare let an ingrown toenail result in a lifetime of migraine headaches and soft foods (itself an amazing and appalling medical result). Then, the pro se inmate suffered nine years of being buffeted by the legal system.

Tom James was in an Indiana prison when he began suffering from an ingrown toenail. He sought medical help for it, but the doctor dithered as prison medical staff are wont to do. Tom got some drugs, and then some more drugs, and finally – after a month – the doc removed the nail.

crazydoc170127The biggest problem with prison medical services, in our experience, is not that the care is substandard. It often is, but that’s not the principal problem. The real difficulty is that the medical staff stalls, equivocates, denies and procrastinates until problems that could have been solved quickly and cheaply turn into existential crises.

That’s what happened here. By the time the nail was pulled, Tom was limping badly because of the pain and taking opioids for pain. The combination of a narcotic stupor and a bad limp resulted in Tom falling on the steps of the housing unit and breaking his jaw. Three times he sought emergency treatment of the jaw, to no avail. About a month later his jaw cracked while he was eating. X-rays revealed a fractured left jaw, but because so much time had passed, surgery could not correct the problem. Tom was put on a diet of soft food for the rest of his life.

medmal170127Tom sued the prison and a number of doctors for malpractice and 8th Amendment violations, claiming that they had been deliberately indifferent to his infected toenail and broken jaw. Years later, he suffers pain and temporomandibular joint dysfunction from the jaw injury.

The district judge eventually dismissed all the defendants except two doctors who had treated Tom (and we use the term “treated” loosely). Tom asked the court for a lawyer, because he was now doing time in Arizona and suffering from daily migraine headaches. He also asked for a medical expert to assist him in his case, and added that he had limited access to legal materials, limited education, and no litigation experience, and that he had tried to obtain a lawyer but had not succeeded.

The district judge was not impressed. He said Tom had “a meaningful opportunity to present his claims, he has demonstrated familiarity with his claims and the ability to present them, because the issues presented by his claims are not complex, and because this does not appear to be a case in which the presence of counsel would make a difference in the outcome.” Tom was not able to obtain his medical records, and prison staff kept taking away boxes of his legal materials during the case. His discovery requests to the defendant doctors gained him nothing.

At summary judgment, the judge found that when Tom went to him, Dr. Eli had provided “timely and appropriate care.” Without his medical records, Tom had no opportunity to show the contrary. The district court threw out the claim.

On Wednesday, the 7th Circuit reversed the dismissal. The Court stated the obvious: without a lawyer and a medical expert, Tom was “totally outclassed by the defense.” The Circuit observed that:

We are mindful that there is no right to an appointed lawyer in civil litigation. We are mindful too that despite lawyers’ ethical obligation to assist those who are too poor to afford counsel, there may be a dearth of lawyers in a district who are willing and able to serve in this sort of case, and 28 USC Sec. 1915 does not authorize a district court to command unwilling lawyers to represent prisoners… When there is a scarcity of willing lawyers, a trial judge can and should exercise discretion to assign those lawyers to cases in which they are most needed. But we have also recognized that lawsuits involving complex medical evidence are particularly challenging for pro se litigants… If a pro se plaintiff in such a case is unable despite his best efforts to obtain a lawyer and a medical expert, and if the case would have a chance of success were the plaintiff represented by counsel the trial judge should endeavor to obtain them for him.

prisonmedicine170127The appellate panel agreed that Tom had filed “well-written submissions,” had “awareness of the facts” and “understanding of the applicable legal standard.” But, the Court said, “none of these supposed ‘assets’ could transform Tom into a medical expert or find him medical evidence to establish that reputable medical professionals would have strongly disagreed with the treatment that he received for his injuries.” A lawyer would have been particularly helpful with discovery in Tom’s case. “Moreover,” the Court said, “the facts on which James bases his suit are straightforward; assisting him with discovery would not have been an onerous task for a lawyer.”

migraine170127Tom might be wrong that, nine years after the fact, his pain is he result of ol’ Doc Hatchet in the prison. He “says he still experiences jaw pain and dysfunction (difficulty eating, sleeping, etc.),” the Court of Appeals said. “That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the injury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment. On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.”

The panel was fairly clearly exasperated that the district court had not bothered to level the playing field. “We close by noting that this suit began in 2009 and will soon be in its eighth year even though it should have been apparent from the start that the plaintiff would need counsel and a medical expert witness in order to get to first base.”

James v. Eli, Case No. 15-3034 (7th Cir., Jan. 27, 2017)

– Thomas L. Root

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Child Victim of Long-Ago Sex Video Can Collect Damages from Current Downloader – Update for January 26, 2017

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CRIME DOESN’T PAY

About 15 years ago or so, some depraved mutt made videos of a little girl being sexually molested. The videos – known in the kiddie porn world as the “Vicky Series”– has been circulating on the Internet ever since.

Crime doesn't pay... even for the victim. Ask McGruff...
     Crime doesn’t pay… even for the victim. Ask McGruff…

The young woman at the center of the Vicky series is now trying to regain her life after years of psychological trauma brought on by knowing that disgusting images of her have been seen, actually drooled over, by thousands, if not millions, of people. The legal side of her effort is to make claim for restitution when people are convicted of child porn offenses and their computers are found with any of the “Vicky” series on the hard drives.

She is seeking about $1 million to date for counseling, lost wages, extra educational costs and evidence gathering, her lawyer, Carol Hepburn, said. So far, her client has filed for restitution in more than 200 federal criminal cases across the country, and received more than 50 orders for payment — though not much money has come in because many defendants have little means.

One of those proceedings involved Ricky Funke, convicted of possessing over 600 images and videos of child pornography. Among these were 21 videos from the “Vicky series,” depicting her sexual abuse at the age of 10 and 11. Some of the images and videos had been on his computer since 2001.

The young woman known as “Vicky” requested $27,500 in restitution and attorney’s fees. On the government’s recommendation, Funke’s court ordered $3,500 restitution to Vicky.

Funke challenged the award. On Tuesday, the 11th Circuit upheld the relatively modest award to Vicky.

The Mandatory Victims Restitution Act, which Congress beefed up with a special provision – 18 USC 2259 – for sex offenses, provides that restitution is to be awarded for the “full amount of the victim’s losses,” defined as costs incurred by the victim for medical services relating to physical, psychiatric, or psychological care, rehabilitation, lost income, attorneys’ fees, and other losses suffered by the victim as a proximate result of the offense.

Funke argued “costs incurred” did not include future costs, but the Circuit noted that five other courts of appeal had held that future losses are compensable, under Sec. 2259. The 11th said, “Congress chose unambiguously to use unqualified language in prescribing full restitution for victims,” and agreed that Vicky’s future costs could be estimated.

pornA160829Rick raised a more troublesome issue, that of whether his possession of 21 videos proximately caused any damage to Vicky. The Circuit held, however, that “where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court… should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”

Figuring the amount of loss in such a case is more of an art than a science. The Circuit held that a district court should consider the number of past defendants who had contributed to the victim’s general losses, a reasonable prediction of the number of future defendants likely to be convicted for crimes contributing to the victim’s general losses, reliable estimates of the broader number of offenders involved (most of whom will, of course, never be caught or convicted), whether the defendant distributed any of the images; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role.

Here, the district court properly considered Ricky’s “possession of a large number of files involving [Vicky] and his role in distributing files to others over the BitTorrent program.” The appellate panel concluded the district court did not abuse its discretion in awarding Vicky $3,500 in restitution.

United States v. Funke, Case No. 16-1218 (8th Cir., Jan. 24, 2017)

– Thomas L. Root

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No Action on Sentence Reform… and None Likely – Update for January 25, 2017

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YOU’LL GET NOTHING AND LIKE IT

The 115th Congress has been in session for about three weeks now. The incoming Trump Administration has kept it busy, but not on criminal justice reform.


nothing170125A session of Congress is two years long, meaning that the 115th will run until December 2018. Both Houses of Congress are controlled by Republicans, although the Party’s 52-48 hold on the Senate is slight.

Under the law, each Congress starts fresh. That means that all of the bills pending last year – including the Sentencing Reform and Corrections Act – are gone. Congress will be starting over fresh – bills will have to be reintroduced and go through all the normal steps before they can become law. To become law, the measures must be approved by the Judiciary Committee of each chamber, and then passed by the full U.S. House and U.S. Senate, and signed by the president.

So far, there’s been a whole lot of nothing on criminal justice. With over 600 House and 180 Senate bills introduced, none addresses sentencing reform.

But will there be? Sen. Jeff Sessions (R-Alabama), now in line to be Attorney General when the Senate votes on it after Jan. 31, previously called Obama’s commutations an “unprecedented” and “reckless” abuse of executive power. President Trump, before he was inaugurated, complained that the prisoners whose sentences were being commuted were “bad dudes.”

Like Trump, Sessions conflates drug offenders with violent criminals. He argues that “drug trafficking can in no way be considered a ‘non-violent’ crime,” even when it does not involve violence.

What happened in Saginaw, Michigan, earlier this week does nothing to convince Sen. Sessions that he’s over-reacting. Demarlon C. Thomas, a former member of Saginaw’s Sunny Side Gang who had his 19-year prison sentence commuted to 10 years by Obama last fall, was shot to death in what appears to have been an execution. Two rifle-wielding gunmen broke into the halfway house, and while one assailant held 23 halfway house residents at gunpoint, the other sought out Thomas and shot him five times.

callahan160208This kind of graphic shooting, like Wendell Callahan’s murder spree in Columbus a year ago, provide grist for those – like Sessions and Trump – “who reject a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress,” as Reason put it. Although Sessions was a supporter of the Fair Sentencing Act of 2010 – which, ironically enough, was legislative inducement for the sentence reduction that put Wendell Callahan on the street – he opposed last year’s Sentencing Reform and Corrections Act, a bill that would have made the shorter crack sentences that the FSA approved in 2010 retroactive, reduced other drug penalties, tightened the standards for mandatory minimum enhancements for guns and career crime, and broadened the criteria for the “safety valve” that lets some drug offenders escape mandatory minimums.

So Congress has yet to propose any bipartisan sentencing reform. Given Trump’s pledge to stop the carnage, as well as the untimely demise of the recently commuted Mr. Thomas, expect nothing.

Gov Track (Jan. 22, 2017)

Reason.com, In Sentencing, Tough Is Not Necessarily Smart (Jan. 25, 2017)

The Saginaw News, Ex-gang member ‘executed’ after Obama commutes sentence (Jan. 24, 2017)

– Thomas L. Root

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Brady Violation Costs Cops $18 Million – Update for January 24, 2017

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PAY THE MAN, SHIRLEY

From New York comes an interesting civil action with a happy ending for a couple of guys who did 18 years on a bum murder rap.

franz170124When a 16-year girl was found raped and murdered back in 1984, Nassau County Police were stumped. After a few months, some mutt shot his mouth off, and the police sweated him until he admitted he’d heard some disjointed but lurid details about the crime from John Restivo. John in turn was sweated by the cops, and he pointed the finger at Dennis Halstead without implicating himself. Nassau County detective Joe Volpe – who may as well have been the real-life model for NYPD Blue detective Andy Sipowicz – then subjected John Kogut, a co-worker of John and Dennis, to an overnight interrogation complete with screaming, threats and beatings.

Unsurprisingly, Kogut confessed (who wouldn’t have?). He implicated John and Dennis in the horrific crime in a statement containing lurid details provided largely by the helpful officers. The police then grabbed John Restivo’s van alleged to have been involved in the crime. They found no blood. However, Det. Volpe recovered some hairs later linked to Theresa.

The Kogut confession could not be used in John’s and Dennis’s trial, because Kogut refused to testify. The jury convicted them anyway, and they went away for 35-to-life.

Fast forward 20 years or so. With much better DNA tests available, the semen sample recovered from the deceased was tested again. Not only were John, Dennis and the weak-kneed Kogut ruled out, but as well a total of 82 friends, acquaintances (and the deceased’s boyfriend) were all excluded as well. In fact, no one in the national DNA database matched the sample from the victim.

interrog170124
          It’s unlikely Detective Volpe’s customer satisfaction surveys were very favorable.

All three defendants – John, Dennis and Mr. Kogut – won new trials. The State tried Kogut first, but even his coerced confession wasn’t enough to convict him, with the spectre of an unknown assailant looming in the case. After Kogut was acquitted, the State threw in the towel, and dismissed the case against John and Dennis.

Inmates who fight their cases in post-conviction motions often dream of winning acquittal, and then turning the victory into a big payday because of wrongful conviction. It’s harder than it sounds – statutes that permit recovery usually require that the former prisoner prove his innocence as a condition of payment. Still, Dennis and John were able to collect $2 million from the State of New York, not a lot for 36 combined years of prison.

Then, the two went after Det. Volpe and some other Nassau County police, suing under 42 U.S.C. 1983 and claiming their constitutional rights were violated. They won against the late Detective Volpe, netting an $18 million judgment.

Last week, the 2nd Circuit upheld the judgment.

Det. Volpe was held liable on the strength of two showings. First, a man named French had reported his car was stolen from the roller rink at which the victim worked on the very day of her disappearance. When the car was recovered a week later, investigators found a pair of jeans that matched the distinctive pattern worn by the victim and a piece of nylon rope the man said had been in his back seat when the car was stolen. The police held the jeans and rope, but both disappeared.

Sometimes the defendant really didn't do it...
Sometimes the defendant really didn’t do it…

The victim had been strangled with a rope, and the car – when it was found about a mile from the roller rink – had phony license tags. Yet Det. Volpe, who conceded at the time that the missing car and items in it were exculpatory evidence that should have been given to the defense under Brady v. Maryland, never told the district attorney about it. The Court of Appeals agreed that the detective’s failure to disclose the evidence – which he admitted was exculpatory – was a willful violation of John’s and Dennis’s constitutional rights. At trial, the plaintiffs’ expert on police procedures

testified that, based on the evidence he had, the French lead was clearly exculpatory, and should have been documented and sent to a prosecutor, based on minimally accepted police practices in the 1980s. In particular, he concluded that based on the time and location of the theft, the fact that the car’s license plates were removed, the fact that a rope was in the back seat at the time of the theft and a rope was used as a ligature to strangle Ms. Fusco, and the fact that a pair of women’s or girls’ striped jeans were found in the back seat of the vehicle, with at least one leg turned inside out, this lead was clearly exculpatory.

Fischer testified that under minimally accepted practices, exculpatory evidence does not need to definitively prove innocence in order for it to have to be documented and disclosed, and that the combination of all of these factors meant that the evidence should have been disclosed under minimally accepted police practices.”

The most troublesome piece of evidence for John and Dennis was the victim’s hair found in the van. The evidence on that clinched matters, the appellate panel implied.

Post-mortem root banding.
                       Post-mortem root banding.

It seems that when a body dies, after a period of 16 hours of so, a condition known as post-mortem root banding occurs, a distinctive series of striations around the root of hair. The coroner had taken hair from the victim’s body and stored it in a locker, a locker to which Det. Volpe had unfettered access. It now turns out that the hair Det. Volpe said had come from the van showed PMRB consistent with the hair taken from the corpse. The evidence, however, showed that it would have been impossible for hair with such PMRB to have been left in the van, because the state’s theory of the case was that she was still alive when in the van.

The Court of Appeals agreed that the evidence was easily sufficient for the civil jury to conclude that there was never any of the victim’s hair in the van, and that Det. Volpe had taken some of the autopsy hair and slipped it into a new envelope, claiming it had come from the van.

The 2nd disposed of a host of other arguments, including that $18 million for two innocent men spending 36 years in prison was too much. The judgment in favor of John and Dennis was upheld.

Pay the men, Shirley.

Restivo v. Volpe, Case No. 14-4662-cv (2nd Cir. Jan. 19, 2017)

– Thomas L. Root

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Parsimony is the Takeaway from Obama’s Clemency Initiative – Update for January 23, 2017

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COMMUTATIONS – THE FINAL NUMBERS

The clemency frenzy is over, Obama’s gone, and the final numbers are in. Mostly, they’re as depressing as they are confusing.

First, the depressing: Over his 8 years in office, Obama granted 1,715 commutations while denying 19,357 petitions, for a grant rate of 8.1%. This means he denied 92 of every 100 petitions he saw

226ASP6179944780Second, the confusing: Clemency Project 2014, the volunteer lawyers who screened the clemency petitions for Dept. of Justice, said last Friday that over its two year run, it “completed screening of the more than 36,000 federal prisoners who requested volunteer assistance.” The Clemency Project was entitled to withhold volunteer assistance from people it deemed not qualified – which is said was an “overwhelming majority” of the requests it received – but it was not entitled to deny the applications. Only the White House could do that.

So where did the rest of those applications go? In the final hours of Obama’s presidency, the DOJ Office of Pardon Attorney said it reviewed every drug-related petition filed prior to August 31, 2016. However, there appear to be a lot of clemency petitions that were left stranded last Friday when Obama flew out of town. DOJ said 3,469 drug-related petitions filed after last August remain on file, as well as 4,412 petitions from federal inmates imprisoned for offenses other than drugs.

We have heard from a number of inmates who say their drug-related clemency petitions were filed before the August deadline – even some recommended by the Clemency Project – who have been neither granted nor denied. We have no official verification that this is so, but likewise we have no basis for disbelieving the reports we have received.

Yesterday, one inmate at a federal low-security prison in Texas said, “there are over 40 plus inmates here (along with me) that never heard a thing about our clemency. Most of us submitted it well before September (11 of them back in March) of last year. All of them but me is a drug offender.”

DOJ says, “Consistent with historic practice, these remaining petitions will be processed by the Office of the Pardon Attorney and addressed by future Administrations.”

It is also puzzling that only 66% of the 2,600 petitions recommended by the Clemency Project were granted.

“I think Obama tried to use the existing structure to do something that really hadn’t been done before, and it think the structure just struggled,” said New York University law professor Rachel Barkow, who is on the U.S. Sentencing Commission. “There’s not enough people to deal with it, there was too much bureaucracy and it shouldn’t be in the DOJ. It’s asking too much to ask prosecutors to rethink what they already did.”

The Clemency Project 2014, a cooperative effort of the American Bar Association and National Association of Criminal Defense Lawyers, recruited and trained about 4,000 volunteer lawyers from diverse practice backgrounds.

awesome170123The Obama Administration was full of itself praising its record of 92 denials for every 8 grants. Deputy Attorney General Sally Q. Yates said, “With 1,715 commutations in total, this undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception. By restoring proportionality to unnecessarily long drug sentences, this Administration has made a lasting impact on our criminal justice system.”

Julie Stewart, who chairs Families Against Mandatory Minimums, was more realistic. She praised the clemency grants for the ones who got one, but said, “my heart aches for those who will not make the cut. After over two years of believing they may have a chance for freedom, they now see that door of hope closing. I can’t imagine what the pall in the prisons will feel like on January 20 when President Obama leaves office.”

DOJ Office of Pardon Attorney, Overview Of DOJ’s Clemency Initiative (Jan. 19, 2017)

ProPublica, Obama Picks Up the Pace on Commutations, But Pardon Changes Still in Limbo (Jan. 5, 2017)

Clemency Project 2014, President Obama Caps Final Full Day in Office with 330 More Commutations (Jan. 20, 2017)

DOJ, Deputy Attorney General Sally Q. Yates Statement on the Clemency Initiative (Jan. 19, 2017)

Washington Post, Obama grants final 330 commutations to nonviolent drug offenders (Jan. 20, 2017)

– Thomas L. Root

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