Tag Archives: ketanji brown jackson

SCOTUS Writes Fed.R.Evid. 704(b) Out of the Books – Update for June 21, 2024

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

DID EXPERTS JUST GET A LOT MORE USEFUL?

expertB240621It is a fundamental principle of common law that witnesses can only testify about what they saw, heard or felt. They are not allowed to expound any deductions based on the facts. That being the case, expert testimony—testimony given by someone with knowledge or experience in a particular field or discipline that renders an opinion based on the facts—ought to be an abomination.

But it’s a necessary abomination. So necessary that experts, once qualified as such by the presiding judge, can give opinions on just about anything, even the ultimate issues in the case (such as “the defendant was negligent,” “calling some a ‘scumbag’ is not defamatory,” or “the substance the defendant possessed was fentanyl”).

But after John Hinckley, the man who shot President Reagan in order to impress actress Jodie Foster, was found not guilty by reason of insanity after a battle of experts arguing that he was or was not nuts, Federal Rule of Evidence 704(b) was adopted to hold that while experts could issue all other ultimate-issue opinions from the stand, “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”

Yesterday, the Supreme Court crafted an end-around to 704(b), a decision that may reverberate to the benefit of criminal defendants as much as it benefitted the government in the case before the Justices.

endrun240621Adriana Diaz was arrested at the United States-Mexico border after the door frames of the car she was driving were found to be packed with illegal drugs hidden in the door frames. At trial, Adriana argued that the car was not hers, that she was driving it as a favor, and that she had no idea of what was under the door panels.

A government expert testified that “most” drug mules knew what they were carrying because drug traffickers do not typically entrust drugs to an unknowing person. The jury, apparently concluding that Adriana was like “most” drug mules, convicted her.

Adriana argued that the government expert had violated 704(b) because he had testified to her mental state. However, in a 6-3 ruling, SCOTUS upheld the expert testimony in a fine case of hair-splitting: “An expert’s conclusion that ‘most people’ in a group have a particular mental state is not an opinion about ‘the defendant’ and thus does not violate Rule 704(b),” Justice Clarence Thomas wrote for the majority.

"100% Expert" Cachet (bleu)Justice Ketanji Brown Jackson, the most experienced Justice on the court in criminal defense work, wrote in a concurring opinion that “the type of mental-state evidence that Rule 704(b) permits can prove essential not only for prosecutors, but for defendants as well.” She could be right, especially where novel defenses–such as diminished capacity arguments (think ‘battered women’ defenses)–are used.

However, in a vigorous dissent, Justice Neil Gorsuch (joined by Justices Sonia Sotomayor and Elana Kagan), complained that the decision let

[t]he government come[] away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand — someone who apparently has the convenient ability to read minds — and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.

Diaz v. United States, Case No. 23-14, 2024 U.S. LEXIS 2709 (June 20, 2024)

Courthouse New Service, SCOTUS won’t restrict expert testimony in drug trafficking case (June 20, 2024)

Sentencing Law and Policy, Supreme Court, by 6-3 vote, rejects claim that mental state expert testimony violated FRE 704(b) (June 20, 2024)

– Thomas L. Root

EQUAL Act But Unequal Reform? – Update for April 21, 2022

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

EQUAL ACT MAY BE ALL WE GET

Congress was recessed all last week and for part of this one, so no legislative progress was made on the EQUAL Act (S.79), the MORE Act (H.R. 3617), or – for that matter – anything else. But nothing can stop politicians from talking, even during vacations.

crack-coke200804The good news is that all of the talk about EQUAL – which makes crack sentences equal to cocaine powder sentences – suggests it has the support for passage. The only question is when Senate Majority Leader Chuck Schumer (D-NY) will bring it up for a vote. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

The bad news is everything else. Politico ran an analysis last week reporting that Sens Richard Durbin (D-IL) and Charles Grassley (R-IA), the top Democrat and Republican on the Senate Judiciary Committee, are still talking about a merger of bills such as the First Step Implementation Act (S.1014), the Smarter Sentencing Act (S.1013), and the COVID-19 Safer Detention Act (S. 312) into a single narrow follow-up bill amending the First Step Act, Durbin and Grassley are calling a Second Step Act. 

“But both senior senators acknowledge it’s not a glide path forward,” Politico said, “particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.”

Jackson was blasted last month by a few Republican senators for being too soft on sentencing child sex abuse and drug offenders. “One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations,” Sen. Ted Cruz (R-TX), who led the charge against Judge Jackson, told CNN. Any judges looking for future promotions “are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes.”

snake220421[Editor’s note: While it is correct that Cruz has been described by one conservative columnist as being “like a serpent covered in Vaseline” who “treats the American people like two-bit suckers in 10-gallon hats,”  some maintain that there are good snakes in Texas (but Sen. Cruz is not on their list).]

Far from the only effect, the Jackson hearings have also “dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley said in a brief interview. He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”

Meanwhile, Durbin said he’s concerned about a Second Step Act’s prospects for passage, ‘particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime. The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

Durbin and Grassley both think a Second Step Act is needed to implement sentencing changes in the First Step law by making them retroactive, midterms are coming up in a little more than 6 months and “campaign-season politics surrounding criminal justice reform threaten broader GOP support. While some lonely voices are calling for passage of such a bill, with Democrats in control of the White House and both houses of Congress, expect a cacophony of Republicans claims that Democrats are to blame for rising crime rates. That should make sentencing changes that much harder, Politico said.

Senate aides on both sides of the aisle warn that EQUAL could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Even Grassley, who is not a co-sponsor but is unapologetically pro-reform, has outlined concerns about whether EQUAL could garner enough Republican support in the Senate to pass.

cotton190502So the climate for criminal justice reform is getting ugly. Once, only Sen Tom Cotton (R-Ark) (who calls First Step Trump’s biggest mistake) demanded longer sentences. Last week, mainstream Newsweek magazine ran an opinion piece claiming that “America, in the year 2022, does not suffer from an over-incarceration problem. On the contrary, we suffer from an under-incarceration problem.” The column called on Congress to end “the jailbreak of slashed sentences and the broader civilizational suicide of the ‘criminal justice reform’.”

Politico, Criminal justice reform faces political buzzsaw as GOP hones its midterm message (April 14, 2022)

Politico, What’s next for criminal justice reform? (April 14, 2022)

CNN, Ambitious trial judges could be wary after GOP attacks on Judge Jackson’s sentencing record (April 11, 2022)

Wichita Eagle, Former U.S. attorney tells how criminal justice could be more just (April 12, 2022)

EQUAL Act (S.79)

First Step Implementation Act (S.1014)

Smarter Sentencing Act (S.1013)

COVID-19 Safer Detention Act (S. 312)

MORE Act(H.R.3617)

– Thomas L. Root

So Who Ties Ted Cruz’s Shoes? – Update for March 30, 2022

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

THREE TAKEAWAYS FROM THE JUDGE JACKSON HEARING

shoelaces220330Judge Ketanji Brown Jackson endured hours listening to stupidity spoken by power at last week’s Senate Judiciary Committee hearing on her nomination to a Supreme Court seat.

But for federal prisoners, there are three takeaways worth remembering:

First, the Republicans intend to pound on the Democrats in this year’s mid-term elections as being soft on crime.

Senate GOP leaders said in February that they’d scrutinize Jackson’s role as a former public defender, member of the Sentencing Commission, and as a district judge. But with an increase in crime making headlines this year, the Republican strategy ultimately crystallized around painting Jackson as soft on crime.

At one point, Senator Tom Cotton (R-Ark) blasted Jackson for granting compassionate release to a crack defendant who’d been hammered by a mandatory minimum. Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) both accused Jackson of “a pattern of letting child pornography offenders off the hook for their appalling crimes, both as a judge and as a policymaker,” citing seven cases where, as Hawley put it, “Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors requested.”

bullshit220330It was all crap, of course. Judiciary Committee Chairman Richard Durbin (D-IL) pointed out that ABC News, CNN, and The Washington Post have defended Jackson’s sentencing read as being mainstream. Andrew McCarthy, a former federal prosecutor, writing in the conservative National Review, called Hawley’s claims “meritless to the point of demagoguery… Judge Jackson’s views on this matter are not only mainstream; they are correct in my view. Contrary to Hawley’s suggestion… she appears to have followed the guidelines, at the low end of the sentencing range, as most judges do.”

The “Republicans have rhetorically abandoned those reformist ways and instead have returned to their tough-on-crime roots to attack her credentials for the high court,” the Washington Post said. “Far from the party that followed Grassley, and President Donald Trump, into a new approach to crime, this week’s hearings signal a GOP that is ready to return to the days of Willie Horton.”

For anyone interested in significant criminal justice reform from this Congress, that’s bad news.

Second, Jackson has the credentials and background to be a worthy successor to Justice Breyer, whose seat she is taking. Breyer was one of the Guidelines’ creators, and was the Supreme Court’s dean of criminal sentencing. Jackson has more time as a district court judge (over 8 years) than Justice Sonia Sotomayor (6 years). None of the other seven Justices was served a day on the trial bench.  And no one on the Supreme Court other than Jackson was ever a public defender, although at least two of them are former prosecutors. On top of that, Jackson was a staff attorney for the Sentencing Commission and later one of the five commissioners, the only one at the Supreme Court to have such experience.

She responded to attacks on her below-Guidelines child porn sentences in a way that provides a glimpse into her sentencing philosophy:

pervert160728“Congress has decided what it is that a judge has to do in this and any other case when they sentence,” she said. “That statute doesn’t say look only at the guidelines and stop. That statute doesn’t say impose the highest possible penalty for this sickening and egregious crime… [Instead] the statute says [to] calculate the guidelines but also look at various aspects of this offense and impose a sentence that is ‘sufficient but not greater than necessary to promote the purposes of punishment’.”

Third, the child pornography mandatory minimums and Guidelines ranges – especially in non-contact cases – are absurdly high.

In a 2014 case involving a defendant who was caught with 1,500 child pornography images on his computer, Northern District of Ohio federal Judge James Gwin, asked the jurors what they thought an appropriate sentence would be. They recommended a prison term of 14 months – far shorter than the 5-year mandatory minimum, the 20 years demanded by prosecutors, and the 27 years recommended by the Guidelines. Taking the jurors’ view to heart, Gwin sentenced the defendant to the 5-year mandatory minimum.

Reason magazine reported that Northern District of Iowa federal Judge Mark W. Bennett “likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. ‘Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,’ Bennett told The Marshall Project’s Eli Hager in 2015, ‘every time – even here, in one of the most conservative parts of Iowa… – they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney’.”

Former federal prosecutor McCarthy agreed: “But other than the fact that Congress wanted to look as though it was being tough on porn, there’s no good reason for the mandatory minimum in question — and it’s unjust in many instances.”

Jackson made a similar argument. “As it currently stands, the way that the law is written, the way that Congress has directed the Sentencing Commission, appears to be not consistent with how these crimes are committed, and therefore there is extreme disparity.”

congressbroken220330

Ohio State law professor Doug Berman wrote in his Sentencing Law and Policy blog that he has been “quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations… Critically, in federal child pornography cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful. In the child pornography setting, applicable statutory law is quite messy – e.g., what is the real difference between child pornography “possession” and “receipt”, how should USSC policy statements be considered here – and the applicable guidelines are widely regarded as badly broken. Those legal realities mean federal sentencing takes on extra layers of challenge in child pornography cases… But, if anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following.”

Even Judiciary Committee Chairman Durbin agrees. Last Wednesday, he said Congress was partly to blame for the outdated guidelines. “We have failed in responding to the changing circumstances,” he said, noting that at least 15 years had passed since the body reviewed the child pornography guidelines. “We should be doing our job here.”

Bloomberg Law, Crime Focus at Jackson Hearing Most Intense Since Marshall (March 23, 2022)

Sentencing Law and Policy, In praise of the continued sentencing sensibility of the National Review’s Andrew McCarthy (March 24, 2022)

Washington Post, Republicans, after years of pushing for softer criminal sentences, return to the party’s law-and-order posture in Jackson’s confirmation hearing (March 23, 2022)

Baltimore Sun, Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures (March 25, 2022)

National Review, Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography (March 20, 2022)

Reason, Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’ (March 18, 2022)

Wall Street Journal, Ketanji Brown Jackson Hearings Shine Spotlight on Child Pornography Law (March 25, 2022)

– Thomas L. Root

Once Upon A Week Down In Washington – Update for February 28, 2022

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

THE POLS WERE BUSY LAST WEEK (OR NOT)

jackson220228Rocket Woman: Only 15 years ago, Ketanji Brown Jackson was an assistant public defender in Washington, DC. Six years later, she was a federal judge. Ten months ago, she was confirmed as a judge on the US Court of Appeals for the D.C. Circuit. Last week, her dizzying ride through the judiciary continued as President Joe Biden nominated her to take retiring Justice Stephen Breyer’s spot on the Supreme Court.

Picking Judge Jackson fulfills Biden’s promise to appoint a black woman to the high court. But she’s no token: Harvard Law (editor of the Harvard Law Review), a law clerk for Justice Breyer (whom she will replace), an attorney (and later vice-chair) at the U.S. Sentencing Commission, a public defender with one uncle who was a big-city police chief and another who was doing life on a federal drug charge (until he got clemency from Obama). Jackson would be the only Supreme Court justice with extensive Guidelines experience and the only one who ever did federal criminal defense work

There will be the usual bickering in the Senate leading up to her confirmation, but she’ll get confirmed: Sen. Charles Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee expressed enthusiasm about Judge Jackson’s support for the First Step Act during last spring’s hearing on her appointment to the Court of Appeals (although he didn’t vote to confirm). But three other Republicans did.  All it takes is 51 votes in the Senate: the Democrats will provide 50, and Kamala Harris will break the tie if a Republican does not defect. At least one will.

The appointment is good news for federal inmates. Judge Jackson is reliably liberal, and she knows federal criminal law. As a Sentencing Commission member in 2011, she was passionate about equalizing the sentences for crack and powder. The Wall Street Journal said yesterday, “Supreme Court nominee Ketanji Brown Jackson would, if confirmed, be the first justice in decades to have worked as a lawyer representing poor criminal defendants, a background that could add a new perspective to the high court’s deliberations.”

That makes her the equal (if not superior) to any of the other eight Justices.

More Demands for BOP Accountability: As I noted last week, the drums on Capitol Hill continue to sound for the BOP. Senate Judiciary Committee chairman Sen Richards Durbin (D-Ill), Sen Grassley, and California Sens Dianne Feinstein and Alex Padilla (both D) sent a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco demanding the Justice Department turn over a pile of information about employee misconduct and procedures in place to stem sexual abuse.

Associated Press reported that the letter “is the latest illustration of increasing scrutiny of the scandal-plagued bureau following the AP’s reporting. Last week, the Senate launched a bipartisan working group to focus on the federal prison system, and lawmakers have been introducing legislation to increase oversight of the nation’s 122 federal prisons.”

In a case of bad timing, the letter was sent to the AG the same day James T. Highhouse, the former chaplain at FCI Dublin, pled guilty in San Francisco federal court to five felonies relating to his work at the FCI-Dublin female prison in the Northern District of California. Highhouse admitted he sexually abused a Dublin inmate multiple times and then lied to the FBI about it.

BOPsexharassment191209In a separate report, the AP said “whistleblower” employees of the BOP say high-ranking prison officials are bullying them for exposing wrongdoing and threatening to close FCI Dublin if workers keep reporting abuse, even as members of Congress say they’re being stonewalled in efforts to pry information from what AP calls “the beleaguered bureau.”

AP reported, “The Bureau of Prisons’ proclivity for silence and secrecy has endured, workers and lawmakers say, even after an Associated Press investigation revealed years of sexual misconduct at the women’s prison — the federal correctional institution in Dublin, California — and detailed a toxic culture that enabled it to continue for years.”

EQUAL Act: Thursday, leading New York civil rights and criminal justice organizations sent a letter to Senate Majority Leader Chuck Schumer (D-NY) pushing him to bring the EQUAL Act (S.79) to a vote within the next month.

crackpowder160606The EQUAL Act will “finally and fully eliminate the racially unjust federal sentencing disparity between crack and powder cocaine offenses, one of the worst vestiges of the failed War on Drugs,” Black Starr reported. In September, EQUAL passed in the House by a 361-66 vote, supported by everyone from the Freedom Caucus on the right to the Progressive Caucus on the left. In the Senate, where the legislation was introduced by Senator Cory Booker (D-NJ), EQUAL currently has seven Republican and five Democrat cosponsors.

Up in Smoke: The Wall Street Journal reported last Tuesday that because of the “tough midterm election and divisions in Congress, the Biden administration is sidestepping the politically sensitive issue of loosening marijuana laws, even as the idea has gained broad public support.

“More than half of U.S. states have legalized cannabis use for some purposes,” the Journal said. “Lawmakers have proposed decriminalizing marijuana… Those promoting changes include a diverse range of political figures… If someone like myself and a progressive like Alexandria Ocasio-Cortez can find some common ground, it begs the question, why hasn’t the president acted?” Rep Dave Joyce (R-Ohio), told the Journal. Joyce, who has worked on decriminalization of pot, said, “The solutions are there. It’s just a matter of political will.”

marijuanahell190918The problem isn’t political will, it’s political ‘won’t’.” Major legislation to decriminalize cannabis is stuck “amid opposition from some Republicans and some moderate Democrats. President Biden hasn’t acted on his own campaign-trail promises to decriminalize marijuana and expunge criminal records of users. The White House said cannabis policy is under study, but declined to comment further.”

The MORE Act of 2021 (H.R. 3617) passed the House in September, but seems dead in the Senate.

More than two in three Americans support legalizing marijuana, according to a 2021 Gallup poll, up from one-half a decade ago. Still, as The Skimm reported last week, “while Americans largely want to legalize weed, it’s not a top priority for them either. Forty-three percent of US adults also reportedly have access to rec weed. So, the urgency to get the federal gov involved may not be very high.” What’s worse, The Skimm said, Biden has remained blunt about marijuana: “He doesn’t believe in legalizing it… Biden said he wants more research on marijuana’s effects before changing his stance. But he has previously supported decriminalizing weed (a hot take for someone who helped spearhead the country’s war on drugs).”

New York Times, Biden Picks Ketanji Brown Jackson for Supreme Court (February 25, 2022)

SCOTUSBlog.com, In historic first, Biden nominates Ketanji Brown Jackson to Supreme Court (February 25, 2022)

Wall Street Journal, Judge Ketanji Brown Jackson Would Bring Rare Criminal-Defense Experience to Supreme Court (February 27, 2022)

Associated Press, Senators push Garland to reform prisons after AP reporting (February 23, 2022)

The Hill, Former federal prisons chaplain pleads guilty to sexually abusing inmate (February 2, 2022)

Associated Press, Whistleblowers say they’re bullied for exposing prison abuse (February 23, 2022)

Black Starr News, Schumer Pressed To Pass Bill Addressing Crack\Cocaine Sentencing Disparity (February 25, 2022)

S.79, EQUAL Act

Wall Street Journal, Push to Relax Marijuana Laws Hits Roadblocks (February 22, 2022)

MORE Act of 2021, H.R. 3617

The Skimm, Breaking Down the Buzz: Why the US Isn’t Puff, Puff, Passing Marijuana Legalization (February 23, 2022)

– Thomas L. Root