Tag Archives: 1st Amendment

The Short Rocket – Update for April 12, 2024

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rocket-312767We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, some short odds to end the week…

Gun Cases Still Being Decided While Rahimi Await SCOTUS Decision: Holding that the government had not satisfied its burden to justify that 18 USC § 922(g)(1)’s prohibition on all felons possessing guns is “consistent with the Nation’s historical tradition of firearm regulation,” an Eastern District of Michigan US District Court judge threw out a § 922(g) indictment against Ron Williams in late February.

Meanwhile, a Northern District of Illinois court has dismissed a § 922(g)(5) case against Heriberto Carbajal-Flores for possessing a gun while illegally or unlawfully being in the United States. Heriberto had had two prior motions denied, but the court reversed itself based on the 3rd Circuit’s Range v. AG and 7th Circuit’s Atkinson v. Garland decisions.

The government has appealed both cases.

United States v. Williams, Case No. 23-cr-20201, 2024 U.S. Dist. LEXIS 30849 (ED Mich., Feb 22, 2024)

United States v. Carbajal-Flores, Case No. 20-cr-00613, 2024U.S. Dist. LEXIS 40974 (N.D.Ill. Mar 8, 2024)

BOP Proposed Social Media Ban Draws Fire: Two civil rights groups blasted the BOP last week for a proposed crackdown on imprisoned peoples’ access to social media—including a possible ban on accounts run by family on the outside. The ACLU and Knight First Amendment Institute at Columbia University said the proposed procedures would violate the Constitution.

socialmedia240412Inmates’ rights advocacy groups say that the rule would restrict the 1st Amendment rights of not only prisoners but also people not in BOP custody. Ebony Underwood, whose nonprofit We Got Us Now works with the children of incarcerated parents, called the social media proposal “archaic and so inhumane.”

Knight wrote in reply comments:

For the nearly 2 million people who are incarcerated in U.S. jails and prisons, maintaining connection with loved ones and communities is associated with better physical and mental health outcomes, reduced recidivism, and successful reentry into society. Social media is increasingly becoming an important part of that connection. As one formerly incarcerated journalist recently recounted, using social media through his wife allowed him to pursue a writing career, stay in touch with his community, and give him hope of reintegration upon release.

The public comment period closed on April 1. The federal register website shows that the proposed rule received 219 comments, though only 22 have been posted online.

The Appeal, Civil Rights Groups Decry Proposed Federal Prison Social Media Crackdown (April 4, 2024)

Techspot, US prison system proposes total social media ban for inmates, sparking First Amendment concerns (April 2, 2024)

Knight 1st Amendment Institute, Comment re: BOP social media rules (April 1, 2024)

BOP Dumps ACA: After being blasted by the DOJ Inspector General last November for its conflict-riddled relationship with the American Correctional Association, the BOP last week announced that it would not renew its $2.75 million contract with the accreditation organization.

ACAaward240307The ACA, which accredits prisons, first started accrediting BOP facilities in 1980. However, the Bureau said on Monday it has decided to part ways. However, a report issued by the Dept of Justice Inspector General found that instead of providing an independent evaluation of BOP facilities, the ACA “instead relied on the prisons’ own internal reports during reaccreditation reviews.” In other words, as the DOJ put it, “it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

In an announcement last week, the BOP said it “has decided to explore other options to ensure continued improvement and innovation in correctional standards for the well-being of adults in custody and the FBOP’s workforce. The FBOP remains committed to a rigorous assessment of its policies and practices involving all levels of leadership to inform continuous organizational improvement.”

Law360, BOP Drops Accreditation Org After IG, Sens. Raise Concerns (April 1, 2024)

DOJ Office of Inspector General, Audit of the Federal Bureau of Prisons’ Contract Awarded to the American Correctional Association (Nov 2023)

– Thomas L. Root

Sex Offender Reporting Requirement Held Unconstitutional – Update for September 21, 2023

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

DISTRICT COURT HOLDS SEX OFFENDER INTERNET REPORTING LAW UNCONSTITUTIONAL

pornC160829In the pantheon of criminal offenses, none feels seamier or more disgusting than sex offenses. The label covers crimes from groping to rape to possessing child porn, with the offenders routinely not just given long prison sentences but subjected to limitations during and after prison that drug offenders, fraudsters and robbers never experience.

A rudderless young man who robbed a couple of banks and served over a decade in federal prison turned a talent as a “jailhouse lawyer” into a law school degree and admission to the bar. He’s now a celebrated law school professor and was even the subject of a laudatory 60 Minutes story. And he deserves it.

But what if, instead of armed bank robbery, the inmate had downloaded images of naked children engaged in simulated sex.  Just my opinion here, but I suspect the 60 MInutes crew would have stayed home, the State of Washington bar would never have found him to be rehabilitated, and his name would be found on the Internet – along with his address and a warning that he was a sex offender – as a warning to neighbors instead of hagiography. He’d be serving up Slurpees at 7-Eleven instead of training future lawyers at Georgetown.

kporn160124Sex crimes are forever, and the “forever” is untethered to the degree of harm caused to society. Rape and sex abuse are one thing, but as disgusting as I find the idea of looking at (let alone collecting) suggestive images of naked kids, I have trouble with the idea that we can forgive a history of violence but not someone who looked at flickering images on a computer screen.

No crime is as easy to demagogue as is a sex crime. That may be why Congress has found it so easy to rachet up minimum sentences for kiddie porn offenses. The Sentencing Commission has candidly acknowledged that at the direction of Congress, it has amended USSG § 2G2.2 several times, each time recommending harsher penalties. In United States v. Dorvee, the 2nd Circuit noted that the rachet effect persisted despite the Sentencing Commission being

openly opposed [to] these Congressionally directed changes… Speaking broadly, the Commission has also noted that “specific directives to the Commission to amend the guidelines make it difficult to gauge the effectiveness of any particular policy change, or to disentangle the influences of the Commission from those of Congress.”

There’s some evidence that the Congressional view of child porn punishment is at odds with public sentiment. US District Court Judge James Gwin of the Northern District of Ohio, as an experiment, had jurors in his courtroom anonymously note a recommended sentence for people they convicted, He would not look at the recommendations until he had imposed sentence. In one sex offender case, he wrote,

While this case and the jury selected to hear it were unremarkable, the disparity between the punishment that the jury felt [the defendant] should receive and the punishment recommended by the Guidelines was striking. The jurors’ mean recommended sentence was 20 months imprisonment, and the median recommended sentence was 15 months. The Guidelines recommended a sentence between 87 and 108 months. Even the low end of the Guidelines range was almost six times the jurors’ median recommendation.

All of the foregoing gets us to today’s case. Connecticut law requires that after release, convicted sex offenders disclose to police all of their email and social media addresses, as well as other Internet communication identifiers. Jim Cornelio, a released offender, sued in federal court, claiming the disclosure requirement violated his 1st Amendment right to free speech.

sexpornoffender230921Last week, the US District Court for Connecticut agreed. The Court held that by compelling Jim to disclose all of his Internet addresses and identifiers, “the law chills and inhibits his right to speak freely on the Internet and to do so anonymously if he wishes… [Thus], the State must show that the law advances an important government interest that is unrelated to the suppression of free speech. And it must also show that the law does not burden substantially more speech than necessary to further the government’s interest.”

The Judge held that the State “has an important government interest in detecting and deterring sex offenders from using the Internet to engage in crime.” However, although the disclosure law has been in place for over 15 years,

the State cannot point to a single example of when its database of sex offenders’ email addresses and other Internet communication identifiers has helped the police detect or solve any crimes. And the State concedes that it has no evidence that requiring sex offenders to disclose their Internet communication identifiers deters them from using the Internet to commit more crimes. Moreover, even if I assumed that the State was able to show that the disclosure law advances an important government interest, the State nonetheless fails to show that the breadth of the disclosure law does not burden substantially more speech than necessary to further that interest.

Gwin, James, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? 4 Harvard Law and Policy Review 173 (2010)

United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010)
United States Sentencing Commission, The History of the Child Pornography Guidelines (October 2009)

Cornelio v Connecticut, Case No 3:19-cv-1240, 2023 USDist LEXIS 163106 (D.Conn. Sep 14, 2023)

– Thomas L. Root

Supreme Court: OK’s Statute Because It Only Prohibits Some Protected Speech – Update for June 26, 2023

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

SCOTUS NARROWS REACH OF IMMIGRATION STATUTE IN ORDER TO SAVE IT

The Supreme Court ruled last Friday in United States v. Hansen that 8 USC 1324(a)(1)(A)(iv) – which prohibits “encourag[ing] or induc[ing]” illegal immigration – “forbids only the intentional solicitation or facilitation of certain unlawful acts.”

1stamend160923The 9th Circuit had held that the statute was an unconstitutional abridgment of the 1st Amendment because it criminalized “immigration advocacy and other protected speech.” Justice Barrett’s 7-2 opinion ruled that “[t]hat was error.  Properly interpreted, this provision… does not prohibi[t] a substantial amount of protected speech — let alone enough to justify throwing out the law’s plainly legitimate sweep.”

A “substantial amount” sounds a lot like a new 1st Amendment test.

Justice Jackson, joined by Justice Sotomayor, wrote in a dissent that “the majority departs from ordinary principles of statutory interpretation to reach [its] result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century. It is neither our job nor our prerogative to retrofit federal statutes in a manner patently inconsistent with Congress’s choices…”

ACLU lawyers who supported Hansen’s appeal said they welcomed the court’s action narrowing the scope of the statute. “The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” said Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project. “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”

United States v. Hansen, Case No 22-179, 2023 U.S. LEXIS 2638 (June 23, 2023)

NBC, Supreme Court upholds law against encouraging illegal immigration (June 23, 2023)

Los Angeles Times, ‘Encouraging’ illegal immigration is not protected as free speech, Supreme Court rules (June 23, 2023)

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
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11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
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Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
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DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

Supreme Court Adds Two Criminal Cases to Docket – Update for December 13, 2022

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

SCOTUS GRANTS REVIEW ON TWO CRIMINAL CASES

Last Friday, the Supreme Court agreed to review two federal criminal cases.

In the first case, the Court will consider the constitutionality of 8 U.S.C. § 1324(a)(1), which makes it a crime punishable by up to 10 years in prison to encourage or cause unauthorized immigrants to enter or reside in the United States.

freespeech221213Helaman Hansen was convicted for running a program that promised to help adult unauthorized immigrants become US citizens through adoption. On appeal, the 9th Circuit agreed that the statute violated the 1st Amendment because it is so broad that it would also apply to protected speech – for example, voicing support to a young illegal immigrant (OK, “undocumented” is the politically correct term, but then, if the immigrant were not here illegally, we wouldn’t be writing about this) that she not return to, say, Iceland, but instead fight to qualify for DACA is a federal criminal offense under § 1324(a)(1).

Maybe not the best illustration: stopping hordes of blond-haired blue-eyed people sneaking across our undefended borders is not our problem. Some, like a former President, even liked the idea.

Back to Mr. Hansen: The government appealed the 9th Circuit decision invalidating his conviction. 

Last week the Supreme Court granted review.

In a second case, the high court agreed to take an 18 USC § 924(c) case. Section 924(c) mandates a consecutive sentence of a certain minimum term when a gun is possessed or used in a drug trafficking offense or a violent crime.

carriefgun170807Under 18 USC § 3584(a), a district court may impose either consecutive or concurrent sentences unless a statute requires otherwise. Section 924(c)(1)(D)(ii) of Title 18 requires consecutive sentences but only for sentences imposed “under this subsection.” Efrain Lora was convicted and sentenced under § 924(j), a different subsection that sets punishments where “a person… in the course of a violation of subsection (c), causes the death of a person through the use of a firearm.”

Curiously, § 924(c) includes no requirement that the sentence must be consecutive. This suggests that if an offender is going to use a gun in a violent crime, he should be sure to kill someone (and thus get a possibly better sentence).

Lora argued a district court has the discretion to impose concurrent sentences because § 924(j) creates a separate offense not subject to § 924(c)(1)(D)(ii).

The 2nd Circuit disagreed, holding that the district court was required to impose consecutive sentences because a § 924(j) counts as being “under” § 924(c).

The 3rd, 4th, 8th and 9th Circuits agree with the 2nd Circuit. The 10th and 11th do not. The question the Supreme Court granted review is whether § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed… under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is sentenced under § 924(j).

Both cases will be argued this term and decided by the end of June.

United States v. Hansen, Case No. 22-179 (certiorari granted December 9, 2022)

Lora v. United States, Case No 22-49 (certiorari granted December 9, 2022)

– Thomas L. Root

The Sheriff Was Making It Up – Update for January 28, 2022

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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.

YOU PUT THE WORDS RIGHT IN MY MOUTH

In October 2018, two Butts County Sheriff’s deputies placed signs in the front yards of all 57 registered sex offenders in the County, warning kids to “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” When one of the people whose house had the posted sign called the Sheriff, he was told it was a crime to remove it.

trickortreatsign220128

The next year, three of the registered sex offenders sued, seeking a court order prohibiting the Sheriff from placing the signs again. The district court denied the injunction.

Last week, the 11th Circuit reversed, concluding that “the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.” The Court noted that First Amendment protection “includes both the right to speak freely and the right to refrain from speaking at all… The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.”

Where First Amendment rights are implicated, the state has to show it has a “compelling interest” in doing so and that the violation is “narrowly tailored” to achieve that end. Everyone agreed that protecting kids from sex abuse is compelling. But the Sheriff tried to swat a fly with a sledgehammer.

Before placing the signs, the Sheriff didn’t consider whether any of the registrants were classified as likely to recidivate. What’s more, he admitted that in the past six years he’d been Sheriff, he had never had an issue with a registrant having unauthorized contact or reoffending with a minor. The Sheriff could not show the Butts County sex offenders “actually pose a danger to trick-or-treating children or that these signs would serve to prevent such danger.”

trick220128Influencing the decision might have been the Sheriff’s explanation that he had placed the signs because Georgia law forbids registered sex offenders from participating in Halloween. After the warning signs were placed, the Sheriff posted a message on the Department’s Facebook page, along with a picture of the sign, in which he said as much. That was more trick than treat: Georgia law says nothing of the such.

“Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence),” the Circuit held, “the signs are not tailored narrowly enough.”

The decision against the Sheriff does not seem to have affected his popularity…

sheriffFB220128

McClendon v. Long, Case No. 21-10092, 2022 U.S. App. LEXIS 1635 (11th Cir., Jan. 19, 2022)

– Thomas L. Root

State Can’t Make You Say “Uncle” – Update for October 30, 2020

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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.

BRANDED

Remember when you were a kid, and the neighborhood bully would knock you down and push your face into the mud or twist your arm or something until you cried “Uncle”? That is what is known as “compelled speech.

Nine states require sex offenders to carry driver’s licenses emblazoned with some variation of the words “SEX OFFENDER” in bright capital letters across the top of the card. It’s like making the former defendant say “Uncle!” for the rest of his life, every time he writes a check, votes or goes to the doctor (all places we regularly have to show our DLs, at least in Ohio).

brand201031In Louisiana, Tazin Hill had had enough crying “Uncle.” He altered his license to hide the sex-offender label, and he was charged with a felony for doing so. Last week, the Louisiana Supreme Court ruled that making sex offenders carry the labeled licenses violated the 1st Amendment by compelling them to say something the government ordered them to say, known as “compelled speech.” In this case, the label “SEX OFFENDER” was what the license holders were compelled to say.

The court held the identification card, branded with the words “sex offender” and the person’s “name, picture, address, and other identifying characteristics… is that “readily associated with him” and must be routinely displayed to others. Thus, “the branded identification card is compelled speech, and it is a content-based regulation of speech that consequently must pass strict scrutiny. While the state certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. A symbol, code, or a letter designation would inform law enforcement that they are dealing with a sex offender and thereby reduce the unnecessary disclosure to others during everyday tasks… As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded identification requirement is unconstitutional.”

A state could as easily require people to carry licenses labeled “convicted felon” or “annoying neighbor” or even “leaves toilet seat up.” The mischief a state government can cause once people are being labeled is vast, making this and other similar decisions applicable to everyone, not just people convicted of sex offenses.

Louisiana v Hill, Case No 20-0323, 2020 LA LEXIS 2512 (LA Sup Ct Oct 20, 2020)

– Thomas L. Root

It’s Who You Know – And Who Likes You – Update for July 29, 2020

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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.

A TALE OF TWO CELEBRITY PRISONERS

I have talked to a number of federal inmates who were approved for home confinement by the Bureau of Prisons, only to be yanked back at the last minute because they had not served quite 50% of their full sentences. At last, there is hope! (Spoiler: I’m just kidding).

ICYMI, in the Coronavirus Aid, Relief, and Economic Security Act – signed into law by President Trump on March 27, 2020 – Congress authorized the BOP to send inmates to home confinement at any time (not just in the last 10%/6 months of their sentences under 18 USC § 3624(c)) during a declared national emergency. That would include the current pandemic.

unabomber200730Congress specified no standards for selecting who should be sent to home confinement. Hypothetically, Ted Kaczynski could be sent home to stay inside for the rest of his natural life. But the Attorney General did establish some standards, such as the inmate has to qualify for low or minimum security (sorry, Ted), have good conduct, be nonviolent, and suffer from one or more CDC-identified risk factors for COVID-19.

Then, unwilling to leave the Attorney General’s standards alone, the BOP decided on its own that if the inmate had not served 50% of his or her total sentence (not just the sentence adjusted for good conduct, but the whole thing), he or she would not qualify to be sent home. One exception was if the inmate served 25% and had fewer than 18 months to go. Another exception was… well, let’s get to that.

Last week we saw another example of the BOP’s practice of treating high-profile prisoners different from everyone else.

In May, Paul Manafort was sent to home confinement after serving 27% of his sentence, with 53 months left to go. The BOP explained that while its standards required that inmates serve 50% of their total sentences, it had the “discretion” to make exceptions, which it did in Paul Manafort’s case (even though there was no COVID-19 at Manafort’s prison).

Put another notch in the BOP’s “discretion” belt. Last week, former Philadelphia-area U.S. Representative Shaka Fattah, sentenced to 10 years starting Jan 25, 2017, was released to home confinement from USP Canaan camp. As of last night, USP Canaan reported a single COVID-19 case, and has had only four others since March. The ex-Congressman has served 42 months, and has 60 months left until his good-time release.

cohen200730Compare this treatment to disfavored high-profile prisoners. Back in New York City, former Trump attorney Michael Cohen (who will not be furloughed to have Thanksgiving Dinner with the President) was yanked out of home confinement and sent back to FCI Otisville on July 9. The BOP said it was because he was trying to negotiate all of his home confinement conditions and was being difficult. Cohen and his lawyer said it was because the BOP was trying to make him agree to not talk to the media or write his tell-all book about President Trump, due out just before the election.

Last week, the ACLU filed a habeas corpus on behalf of Cohen, arguing he should be returned to home confinement because the BOP was violating his 1st Amendment rights. The government filed a detailed opposition that explained no one even knew Cohen was writing a book, and he was asked to sign a list of home confinement conditions that the probation officer, a newbie on the job, had gotten from a friend who had used it for other high-profile inmates sent to home confinement.

Last Thursday, a judge granted habeas corpus, and ordered Cohen returned to home confinement. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release,” he said, “I have never seen such a clause… Why would the Probation Officer ask for something like this unless there was a purpose to it, unless there was a retaliatory purpose saying, ‘You toe the line about giving up your First Amendment rights or we will send you to jail,’” the judge asked.

The irony here is that both sides were right. There is no doubt that the 1st Amendment limitations the Probation Office sought to ram down Cohen’s throat were gross constitutional violations. Federal inmates in prison are entitled to write books (and can even sell them). Indeed, I have read a few inmate-written books, most of which were self-published and execrable.

book200730Likewise, I have no doubt that the Probation official who prepared the Cohen manuscript had no idea he was writing a book, nor did he imagine that he was creating a constitutional firestorm. Some of the grossest unconstitutional limitations on freedom I have ever seen appeared in terms of supervised release as interpreted by probation officers. Imagine living your life prohibited from using any Internet-connected device without prior approval of a Probation Officer. Or from having any contact with anyone who had ever been convicted of a crime (yeah, “crimes” including speeding).  Or accepting a job offer, buying a house or going to Paducah, Kentucky, on an overnight business trip.

Philadelphia Inquirer, Former Philly U.S. Rep. Chaka Fattah came home early from prison. Federal officials won’t say why. (July 26)

The New York Times, Judge Orders Cohen Released, Citing ‘Retaliation’ Over Tell-All Book (July 23)

– Thomas L. Root

Government Promises To Behave – That Settles That! — Update for December 17, 2019

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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.

WE’RE THE GOVERNMENT, YOU CAN TRUST US

trust191217In what probably did not shock any inmate reader of this newsletter, the Dept. of Justice inspector general issued a report last week that the FBI’s four applications for Foreign Intelligence Surveillance Act search warrants for Trump foreign policy advisor Carter Page contained 17 significant errors, including one where an FBI lawyer altered a document relied on to extend the search warrant, thus inverting its meaning. The IG found that had the document not been altered, Page’s contacts with the Russians would have been seen in a “much different light,” one that suggested the contacts were proper.

“We concluded that the failures… represent serious performance failures by the supervisory and non-supervisory agents with responsibility over the FISA applications,” the report says. “These failures prevented (the Justice Department) from fully performing its gatekeeper function and deprived the decision makers the opportunity to make fully informed decisions. Although some of the factual misstatements and omissions we found in this review were arguably more significant than others, we believe that all of them taken together resulted in FISA applications that made it appear that the information supporting probable cause was stronger than was actually the case.”

FBI defenders have argued that “the FBI and Justice Department are extraordinarily careful and meticulous in how they present evidence to the FISA court, which is no rubber stamp,” according to NBC News. If that is so, imagine how sloppy and conniving the FBI must be on run-of-the-mill search warrants, which seldom get much scrutiny from the judges who sign them.

laugh191217The FBI says it will institute reforms, an announcement that will make everyone feel better. Meanwhile, you can continue to trust the agency as a thoroughly professional organization of highly-trained professionals dedicated to protecting you and your family, while scrupulously observing the civil rights of the accused.

That’s a lot like the BOP.

Back in 2010, the warden at ADX Florence began banning Prison Legal News as “detrimental to the [facility’s] security, good order or discipline” under 28 CFR 540.71(b). PLN sued under the 1st Amendment, the 5th Amendment and 5 USC § 706(2) of the Administrative Procedure Act. After PLN sued, the warden folded like a cheap suit, distributing the 11 banned publications, revising ADX’s institutional policies, and issuing a declaration from its current warden that the old policy would not be reinstated. PLN didn’t believe it, and asked for a court ruling on its claims.

Based on these actions, the BOP moved for summary judgment, arguing that PLN’s claims were moot or not ripe. PLN filed a cross-motion for partial summary judgment on its constitutional and 706(2) claims. The district court agreed with the BOP that PLN’s claims were moot, and dismissed the case.

Last Friday, the 10th Circuit agreed, holding that the BOP had made “clear the [BOP’s] allegedly wrongful behavior could not reasonably be expected to recur.”

Ipromise191217Of course not. Never happen again.

By the way, in early November, the warden at FCI Herlong banned email newsletters on legal matters, “because the Bureau has determined that such communication is detrimental to the security, good order, or discipline of the facility, or might facilitate criminal activity.”

NBC News, The FBI’s warrant system for spying on Americans is a mess, the IG report shows (Dec.10)

Prison Legal News v. Fed. Bureau of Prisons, 2019 U.S.App. LEXIS 36955 (10th Cir. Dec. 13, 2019)

– Thomas L. Root

Support Your Local Police – Update for March 20, 2019

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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.

THE BIRD IS THE WORD

“Fits of rudeness or lack of gratitude may violate the Golden Rule,” the 6th Circuit observed last week. “But that doesn’t make them illegal or for that matter… grounds for a seizure.”

imageA Taylor, Michigan, cop pulled over Debra Cruise-Gulyas for speeding, but ended up just giving her a ticket for a non-moving violation, saving her both money and points in her license. Deb was unhappy over even the lesser ticket, so she flipped him off as she drove away.

The cop was offended by the one-finger salute, so he chased her down. He changed the ticket to one for a speeding offense.

Deb sued the cop for violating her 4th Amendment rights, and last week the 6th Circuit agreed. Because Debbie Digit “did not break any law that would justify the second stop and at most was exercising her free speech rights,” the Court said,  the cop violated her 4th Amendment right to be free from an unreasonable seizure by stopping her a second time. “Any authority to seize [Debbie] in connection with that infraction ended when the first stop concluded. When someone extends “her middle fingers at officers and walks away, her gesture was crude, not criminal,” and gave the officer no legal basis to order her to stop. “This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

Cruise-Gulyas v Minard, 2019 U.S. App. LEXIS 7369 (6th Cir. Mar. 13, 2019)

– Thomas L. Root