We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BELOW-GUIDELINES SUPERVISED RELEASE VIOLATION SENTENCE IS STILL UNREASONABLE
After a federal inmate serves a prison sentence, he or she begins a period known as supervised release. SR is a fancy term for “parole,” except that unlike traditional parole, it doesn’t reduce a sentence. Instead, by law, SR is tacked on to every sentence, even life sentences (which end only with a pine box).
While on supervised release, an offender is under the thumb of a U.S. Probation Service officer, who has great latitude to either leave the offender largely alone or impose oppression that makes Kim Jong Un look like Good King Wencelaus. While the object of SR is to assist the offender in his or her reintegration into society, one supervising probation officer candidly told us a few years that his district violates a third of all offenders under their supervision.
Upon violation, an offender may be continued on supervision, have supervision extended, or sent back to prison. Because the standard of proof for a supervision violation is much lower than the “reasonable doubt” standard of criminal law and the evidentiary standards are loosey-goosey by comparison to a criminal trial, SR is a Sword of Damocles for ex-offenders trying to get back on their feet.
Of course, there are those offenders – like Ernie Adams, a 71-year old who has been addicted to opiates for 40 years – who just cannot conform. Ernie was on supervised release after serving a drug conspiracy sentence. Unsurprisingly for his addiction history, he failed drug tests three times in as many weeks, and got violated.
What do you expect of an addicted person? It’s a disease. You might as well demand that a person with bronchitis not cough.
Nevertheless, continued drug use is forbidden by the conditions governing supervised release, and Ernie’s supervised release was revoked. Ernie’s Guidelines range for his SR violation was 21-27 months. At sentencing, the judge talked extensively about Ernie’s substance-abuse problems and rehab failures. The government argued at sentencing that long-term heroin addicts like Ernie needed 18 months for their brain chemistry to “reset” in order for future treatment to be effective. The court nodded in sage agreement to this scientific stat, but cut Ernie a break by sentencing him to 18 months, three months below the bottom of the Guidelines range.
You’d think Ernie would figure he’d dodged the bullet, but you’d be wrong. Ernie appealed, arguing the sentence was procedurally and substantively unreasonable. Last week, the 6th Circuit agreed.
It turns out that the government’s talk about the 18-month brain “reset” was fake science. The government countered, however, that while what it told the court was as phony as phrenology, that did not matter, because Ernie had no right to the government telling the court the truth. Actually, the government’s argument was a little more nuanced than that, contending that a defendant does not have a due-process right “to be sentenced based on accurate information… beyond the facts of the defendant’s own actions and criminal record.”
The government’s argument was as fake as its “science.” The 6th Circuit said “the due-process right to be sentenced based on accurate information is not limited to information solely about the defendant’s actions and criminal history.” Instead, if the bad science embraced by the sentencing court was an “important factor” in calculating Ernie’s sentence, Ernie’s rights were violated.
The Circuit held that the government’s 18-month brain “reset” was “an unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of scientific research.” And it was persuasive: the district court told Ernie it had chosen the sentence length “because you need that long to reset and maybe get another, maybe get another chance at remaining clean and sober.” The Circuit concluded “the district court, therefore, violated Adams’s due-process right when it incorporated this unreliable information in its sentencing decision, and thus this sentence is procedurally unreasonable.”
The 6th Circuit said that while it presumes that a sentence below or within the sentencing range is substantively reasonable, that’s not invariable. Here, Ernie argued that the district court imposed a substantively unreasonable sentence because it to impose a sentence of imprisonment and extended the length of the sentence in order to rehabilitate him. The Circuit noted that the Supreme Court has held that extending a sentence in order to rehabilitate is prohibited, and concluded that the sentence – even though it was below-guidelines – was substantively unreasonable.
United States v. Adams, Case No. 16-2786 (6th Cir., Oct. 11, 2017)
– Thomas L. Root
Last week, the 2nd Circuit grudgingly upheld Sawyer’s new sentence. The Court wrote that Sawyer’s second appeal “continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses… In 2010 – the most recent year for which data is available – the average sentence for production of child pornography was 267.1 months, or approximately 22 years. The sentence is barbaric without being all that unusual.”