We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
3RD CIRCUIT SHUTS DOWN SOME GOVERNMENT FOIA GAMESMANSHIP
Anyone who has ever sought government records under the Freedom of Information Act knows how maddening the experience can be. Government agencies take much longer than the law allows because they’re so busy (which is like saying it is all right to steal bread from the store because you’re so hungry). Then, they ask you to rewrite your request to make it more specific. If you don’t, your FOIA request gets dismissed. If you do, the agency has you narrow it until it releases nothing. And if you do get any of the records you request, pages are omitted and lines blacked out with only vague references to FOIAexemptions.
Inmate Jim Beiar took on the DOJ over its employment of the usual roadblocks to granting his FOIA request. Last week the 3rd Circuit gave him some relief.
When Jim requested all records that mentioned his name, the DOJ told him to provide a more specific description. When Jim did not do so, the DOJ closed the file on his request because he failed to identify the Criminal Division section he believed would have or maintain responsive records. On Jim’s FBI FOIA request, he sued after the Bureau failed to respond. After he sued, the FBI produced some 1,100+ pages, some of which were blanked out entirely and others of which had large sections excised. The district court dismissed Jim’s claim as moot because the FBI had produced documents to him.
DOJ claimed Jim had not exhausted his FOIA rights because he did not tell the agency which section or subagency might have his records. The 3rd Circuit rejected the government’s position, saying Jim had asked for records mentioning his name, and that was specific enough. “It would be counterintuitive in the extreme,” the Court said, “to require such an individual to have sufficient knowledge of an agency’s organizational units to be able to identify the specific units of an agency that might contain the records sought.”
The Circuit also reversed the district court’s dismissal of the FBI suit, agreeing with Jim that a FOIA claim is not moot where there remain unresolved issues about the adequacy of an agency’s production. The burden of proving that an agency’s refusal to produce records rests with the agency. Where an agency has released documents, but issues about the adequacy of the release are unresolved, a district court cannot dismiss an action as moot.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
A LITTLE BIT OF NOTHING FOR THE LADIES
Sure, they’re all inmates. But only the most callous observer would suggest that forcing female inmates to undergo strip searches in front of male Bureau of Prisons personnel is all right, because, after all, “if you can’t do the time, don’t do the crime…” and all that claptrap. It turns out that a critical shortage of BOP correctional officers is having a disparate effect on the 10,567 female inmates held in the system, the Dept. of Justice Inspector General reported last Thursday. “The lack of sufficient staff is most noticeable at larger female institutions,” the OIG Report said.
As of September 2016, female inmates represented 7% of the BOP sentenced inmate population of 146,084. The OIG review was sparked in part by Congress and public interest groups raising concerns with DOJ about deficiencies in BOP’s current management of female inmates.
Although BOP policy requires that female prisoners can only be searched by female correctional officers, the BOP is unable to ensure a female officer is available at each post where such searches are required, the report says. The report also concluded that 90% of the female inmate population would benefit from trauma treatment, but staffing shortages make it nearly impossible to provide eligible inmates with the care they need, according to the report.
In a response attached to the report, Hugh Hurwitz, acting BOP director, said he agrees with the IG’s recommendations and vowed to improve both staffing and training. How he is going to pull that off in light of the BOP’s budget reductions ought to be a neat trick.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DC CIRCUIT HAMMERS DOJ OVER FREEDOM OF INFORMATION ACT ARROGANCE
Who hasn’t had this happen? You file a Freedom of Information Act request seeking documents showing prosecutorial misconduct, only to wait many months for a two-page letter claiming that all of the requested material is exempt law-enforcement stuff. And it’s hard to appeal, because you cannot tell what records were not included, so you cannot argue that the withheld records were non-exempt.
That happened to Greg Bartko. After he was convicted in a case “beset by prosecutorial misfeasance,” as the DC Circuit put it, he filed multiple Freedom of Information Act requests with the Dept. of Justice Office of Professional Responsibility and other relevant agencies trying to get records of other times the Assistant U.S. Attorney assigned to his case had cut corners. OPR categorically refused to acknowledge the existence of, let alone disclose any, potentially relevant documents outside of Greg’s own case. And even with respect to Greg’s case, OPR held back a lot of material, asserting a sweeping exemption for law enforcement records under FOIAExemption 7(C) and providing a “Glomar” response that it could neither confirm or deny the records existed, because that would implicate law enforcement activities.
Last week, the DC Circuit slammed OPR’s reckless use of Exemption 7(C) and its arrogant “Glomar” claim (which exists to enable agencies to dodge making admissions about records for national security reasons). To qualify as law-enforcement records, the Circuit said, “the documents must arise out of investigations which focus directly on specifically alleged illegal acts which could, if proved, result in civil or criminal sanctions. Records documenting only government surveillance or oversight of the performance of duties of its employees do not qualify.
The Circuit held that an agency must establish a rational nexus between the investigation and one of the agency’s law enforcement duties, and a connection between an individual or incident and a violation of federal law. OPR does not do law enforcement, but instead internal DOJ discipline. Plus, one of OPR’s primary responsibilities is not to generate reports, but rather just to obtain reports from others that arise as a result of internal agency monitoring and review allegations of non-law violations by DOJ attorneys for internal disciplinary purposes. Thus, the Court said, OPR bears the burden of showing on a case-by-case basis that requested records were actually compiled for law-enforcement, rather than employment-supervision purposes.
In defense of its Glomar response, OPR offered only a bare-bones declaration that the records Greg requested consist of complaints or allegations of misconduct which, if they exist at all, would have been compiled as part of OPR’s investigations of DOJ attorneys “who are alleged to have committed specific acts of professional misconduct which, if proved, could result in civil or criminal penalties.” The Court said that “is not even in the ballpark.” OPR “cannot rely on a bare assertion to justify invocation of an exemption from disclosure.” A “near-verbatim recitation of the statutory standard is inadequate” to justify the use of an exemption.
Greg’s FOIA request was broadly worded to include a wide variety of actual or alleged violations by the AUSA of the U.S. Attorney’s Manual, the North Carolina Code of Professional Conduct, and other ethical and legal obligations. While violations of some of those standards could conceivably result in civil or criminal sanctions, the Court said, many of them would not and would bear only on internal disciplinary matters.
Bartko v. DOJ, Case No. 16-5333 (D.C.Cir., Aug. 3, 2018)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE HARVEST IS GREAT, BUT THE LABORERS ARE FEW AT BOP, DOJ
USA Todayreported last week that hundreds of secretaries, teachers, counselors, cooks and medical staffers were tapped last year to fill CO posts across the BOP because of acute officer shortages and overtime limits. The assignments, known as “augmentation,” were made despite warnings that the assignments placed unprepared employees at risk.
As recently as last July, a House committee told the agency to “curtail its over-reliance” on augmentation, once reserved only for emergency operations. Instead, the practice has become common at some institutions where even s plumbers, electrical workers, budget analysts and commissary staffers have been patrolling prison yards and filling officer vacancies in maximum-security units. “While BOP reports that there is a higher incidences of serious assaults by inmates on staff at high and medium security institutions than at the lower security facilities, to meet staffing needs the BOP still routinely uses a process called augmentation whereby a non-custody employee is assigned custody responsibilities,” the Senate Appropriations Committee reported last summer.
The BOP told USA Today that all employees are regarded as “correctional workers first.”
Worker shortages abound, and not just at BOP. The Washington Postreported last week that the sudden departure of the Justice Dept’s No. 3 official is adding to the turmoil at an agency already lacking permanent leaders for important divisions.
Associate Attorney General Rachel Brand resigned, reportedly because she did not want to be sucked into the Robert Mueller Russia investigation, to take a position in Walmart’s legal department. Meanwhile, Attorney General Jefferson Beauregard Sessions III is blaming a single Republican senator, Cory Gardner of Colorado, for blocking confirmations of key figures, including the head of DOJ’s criminal divisions, over Session’s memo lifting Obama-era protections for states that have legalized marijuana.
Twelve U.S. Attorney picks still await confirmation, and 36 more have yet to be nominated. That’s a problem for DOJ, because, as an ex-official put it, “if someone is perceived as temporary and doesn’t have the full legitimacy that comes with Senate confirmation, they are less able to successfully advocate the interests and positions of their agency to the rest of the government.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
Today, we offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…
US ATTORNEYS TO FOCUS ON VIOLENT CRIME, WHICH INCLUDES DRUG TRAFFICKING
There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”
Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”
Attorney General Jeffrey Sessions
In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.
Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.
Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.
The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).
Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:
• the number of cases ending with guilty pleas remained steady at 97%
• 14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.
• two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.
• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).
• in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.
Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.
But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.
Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.
Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”
When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ETHICS CRISIS AT JUSTICE DEPARTMENT?
We 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.
Last 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.
Anyone who has ever sought government records under the Freedom of Information Act knows how maddening the experience can be. Government agencies take much longer than the law allows because they’re so busy (which is like saying it is all right to steal bread from the store because you’re so hungry). Then, they ask you to rewrite your request to make it more specific. If you don’t, your FOIA request gets dismissed. If you do, the agency has you narrow it until it releases nothing. And if you do get any of the records you request, pages are omitted and lines blacked out with only vague references to FOIA exemptions.
DOJ claimed Jim had not exhausted his FOIA rights because he did not tell the agency which section or subagency might have his records. The 3rd Circuit rejected the government’s position, saying Jim had asked for records mentioning his name, and that was specific enough. “It would be counterintuitive in the extreme,” the Court said, “to require such an individual to have sufficient knowledge of an agency’s organizational units to be able to identify the specific units of an agency that might contain the records sought.”
