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Will SCOTUS Grant Review to Acquitted Conduct Today? – Update for January 23, 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.

ACQUITTED CONDUCT STILL HANGING FIRE

Three weeks ago, I wrote that the Supreme Court would be deciding whether to finally take the question of whether a district court should be able to factor conduct for which a defendant was acquitted into a sentence, sort of “the jury didn’t think you did it, but I know better” approach to sentencing.

relist230123It turns out that SCOTUS now has five petitions for review before it raising the acquitted conduct issue. The principal case, McClinton v. United States, was “relisted” at the Justices’ Friday, January 6, 2023, conference for the following week’s Friday conference. On January 13, the Justices relisted the issue again for the January 20, 2023, conference. The Court will announce actions taken at the January 20th conference this morning at 9:30 Eastern time.

A “relist” occurs when the justices neither accept nor deny a petition for certiorari, but instead defer it for the next conference.

SCOTUSBlog explains that

it is almost impossible to know exactly what is happening when a particular case is relisted… One justice could be trying to pick up a fourth vote to grant review, one or more justices may want to look more closely at the case, a justice could be writing an opinion about the court’s decision to deny review, or the court could be writing an opinion to summarily reverse… the decision below.

Generally, the Supreme Court does not accept a case for review until it has been “relisted” one or more times.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said last week, “More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court’s decision not to grant review. But relisting is also sometimes a precursor to a later granting of cert. So, as I have said before, I am hopeful, though still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.”

SCOTUSBlog, Acquitted-conduct sentencing and “offended observer” standing (January 19, 2023)

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

Sentencing Law and Policy, US Supreme Court relists latest cases seeking review of acquitted conduct sentencing (January 17, 2023)

– Thomas L. Root

Nine Justices Get Back to Work – Update for September 27, 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 ‘ENDLESS SUMMER’ ENDS

The Supreme Court brings its three-month recess to an end tomorrow, when the Justices will hold the Court’s annual “long conference.”

vacationSCOTUS180924Throughout the year, the Justices meet on a nearly weekly basis to consider pending petitions for certiorari. But that practice ends in late June when the Court breaks for the summer. Then, petitions pile up over the summer.

At the annual “long conference,” held the week before the Court begins its next term, the Justices will typically dispose of about 2,000 pending petitions. A research paper published seven years ago in the Law and Society Review found that the petitions arriving over the summer had a 16% worse chance of being accepted by the Court.

Gregory Garre, Solicitor General during the George W. Bush administration, told The New York Times, “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” Garre said. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

The Court convenes to begin October Term 2022 (the name of the nine-month term ending June 30, 2023) next Monday.

49 Law and Society Review, Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions (August 27, 2015)

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root

Butterfly Wings Don’t Beat For Innocence – Update for July 7, 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.

THE BEIJING BUTTERFLY

butterfly220707When mathematician Edward Lorenz first posited the notion that a butterfly flapping its wings in Beijing today could affect the path of a tornado in Kansas three weeks hence, his fanciful illustration became the interface with chaos theory that the average Joe and Jane could understand. Essentially, the butterfly effect is the sensitive dependence on initial conditions in which a small change in one state of a deterministic nonlinear system can result in large differences in a later state.

When a federal defendant is presented with a plea agreement and told by her lawyer that it’s the best deal she can hope for, the fine print is rarely explained. That includes Section 10(b)(1)(A)(iii) on page 12 which says something like “Defendant waives the right to challenge the conviction or sentence under 18 USC § 3742 or on any collateral attack under 28 USC § 2255 or other section, except in cases of ineffective assistance of counsel.”

pleawaiver220707And why not sign it? The defendant is under plenty of stress as she contemplates agreeing to spending a decade in prison, and a lot of that gibberish in the back of the plea agreement means a lot less to her than her attorney’s blandishments that the judge certainly won’t give her more than 48 months.

In chaos theory parlance, the appeal/collateral attack waiver is a pretty small input. Only later does the output become huge.

The Supreme Court left for vacation in time for the 4th of July. Like a fireworks display, the finale was stellar and stunning: abortion, guns, prayer, and the biggest case of all, a decision that may spell doom for the administrative state. But just like many fireworks finales, after the final glowing detonation fades, one straggler rocket goes airborne, with no light but a surprise reverberating boom.

Last Thursday, the Court released its final list of certiorari grants and denials for the term, announcing the one or two cases it will add to next term’s docket while denying a long list of petitions. One of the denials was a guy named Zenon Grzegorczyk (pronounced just the way it sounds). Zenon, a good father, wanted to murder six people whom he blamed for his divorce and for the loss of custody of his child. He hired and paid hitmen to pull it off.

hitman220707Problem was that Zenon, not being an avid news consumer, was unaware that all hitmen available for hire are undercover law enforcement officers, moonlighting for some pocket money. Thus it was in this case. Zenon was promptly charged with murder for hire (18 USC § 1958) and an 18 USC § 924(c) count for using a firearm during and in relation to a crime of violence.

Zenon signed a plea agreement in which, among other things, he waived any right to challenge his murder-for-hire and firearms convictions. He was sentenced to about 18 years.

A couple of years later, after the Supreme Court decided in Johnson v. United States and Sessions v. Dimaya that crimes of violence had to be accompanied by use or threat of force, Zenon filed a § 2255 motion challenging the firearms conviction. Because of his plea agreement, the District Court denied the motion, and the 7th Circuit affirmed. Zenon filed a petition for certiorari seeking Supreme Court review.

Meanwhile, the Supreme Court ruled in United States v. Davis that a conspiracy to commit a violent crime was not itself a violent offense that could support an 18 USC § 924(c) conviction. The government flipped its position, asking the Supreme Court to vacate the 7th Circuit’s judgment because Davis made Zenon actually innocent of the 18 USC § 924(c) conviction. The mechanism is called a “GVR,” because the Supremes grant the petition for certiorari, vacate the lower court’s decision, and remand the case for further consideration, all in one order.

judgeB160229The Supreme Court refused, denying the petition last week. Justice Kavanaugh wrote in a concurrence to the denial that “[b]ecause the 7th Circuit correctly concluded that the defendant’s unconditional guilty plea precluded any argument based on the new caselaw, this Court has no appropriate legal basis to vacate the Seventh Circuit’s judgment.”

What is notable was the spirited dissent written by Justice Sotomayor. She argued that Zenon’s case

falls comfortably within this Court’s longstanding GVR practice… The Solicitor General’s considered concession that 18 USC § 1958(a) is not a “crime of violence” under the elements clause of § 924(c)(3)(A) is an intervening development that has triggered the Government’s agreement to forgo assertion of the procedural bar that proved decisive below. Consequently, there is surely a reasonable probability of a different result on remand: With the Government waiving the procedural bar, Grzegorczyk’s § 924(c) conviction and 5-year sentence should be vacated, and his § 1958(a) sentence reduced by at least 2 years and 7 months. Moreover, given the stakes for Grzegorczyk, as well as the Government’s express consent, this is a case where the marginal cost to judicial efficiency and finality from a remand should yield to solicitude for Grzegorczyk’s rights. “Further proceedings” are therefore “just under the circumstances,” 28 USC § 2106, and the Court should issue a GVR order.

“By denying certiorari rather than issuing a GVR order,” Justice Sotomayor fumed, “the Court allocates the full cost of the Government’s error to Grzegorczyk, who faces over 7½ extra years of incarceration as a result.”

innocent210504What this means, of course, is that actual innocence of a count of conviction will always yield to an oppressive appeal waiver signed in haste by a defendant who is understandably focused on the larger issues in her plea agreement rather than flitting butterfly of a provision, whose wingbeats seem inconsequential at the time but may later spawn a tornado of injustice.

In his concurrence, Kavanaugh suggested that if the government really felt that Zenon was entitled to relief from the five -year 924(c) sentence, “the Attorney General may recommend a pardon or commutation to the President, and the President may pardon the defendant or commute the sentence.”

Like that’s gonna happen…

Grzegorczyk v. United States, Case No. 21-5967, 2022 U.S. LEXIS 3273 (June 30, 2022)

– Thomas L. Root

Concepcion’s Concept: Discretion on Resentencing is Presumed – Update for June 29, 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.

DOES CONCEPCION HOLD LESSONS FOR COMPASSIONATE RELEASE?

The Supreme Court ruled on the final two criminal cases of the term on Monday (although there are six more October Term 2021 cases yet to be decided before the end of the week).

crack-coke200804Back in 2009, Carlos Concepcion pled guilty to distributing at least five grams of crack cocaine, and was sentenced to 228 months in prison. The following year, Congress passed the Fair Sentencing Act, which brought crack sentences more in line with powder cocaine sentences, down from a 100:1 ratio to an 18:1 ratio.

But the Fair Sentencing Act was not retroactive, so people sentenced before it was passed – like Carlos – could not benefit from it. Only when the First Step Act (FSA) passed in 2018 were the benefits of the Fair Sentencing Act extended to the Carlos Concepcions of the world.

Under FSA § 404, Carlos was entitled to apply to his sentencing court for resentencing at a lower level. Like most inmates – whose resources are only sufficient to pay for some telephone calls home and a few items in the commissary – Carlos could not afford a lawyer, so he filed pro se.

careeroffender22062Complicating Carlos’s case was the fact that under the advisory Sentencing Guidelines, he was deemed to be a career offender. Career offender status, a label that is easily applied to people who have hardly spent their lives as a criminal, sends a defendant’s minimum sentencing range guideline into low earth orbit. Carlos’s range was no exception. Under the statute, Carlos faced a minimum 5-year sentence, but his advisory sentencing range as a Guidelines career offender started at 17½ years.

The government argued that Carlos’s Guidelines sentencing range did not change despite the fact that the Fair Sentencing Act lowered his minimum sentence to zero, because the career offender guidelines were not based on drug amount or statutory minimum sentences. Carlos responded that he should no longer be considered a career offender because one of his prior convictions was vacated and his prison record showed evidence of rehabilitation through his participation in drug and vocational programs, spiritual growth, and a solid reentry plan.

Carlos’s sentencing judge sided with the government, holding that because Carlos’s sentencing range remained the same, Carlos could not rely on the Fair Sentencing Act for a lower sentence.

Last Monday, the Supreme Court ruled in favor of Carlos. Justice Sonia Sotomayor, writing for a 5-4 majority, said that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”

discretion220629Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Sotomayor said. “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, argues that the Concepcion ruling has an impact well outside the seemingly limited FSA Sec. 404 resentencing. “Specifically,” he wrote, “I think the decision resolves not only the circuit split surrounding crack resentencing cases, but also the circuit split surrounding what factors can serve as the basis for compassionate release after the FIRST STEP Act.

Berman noted:

There is a deep circuit split about whether non-retroactive changes in sentencing law may constitute “extraordinary and compelling reasons” for compassionate release. Ever the textualist, I have argued that non-retroactive changes in sentencing law can provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute ‘extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. But I believe the Third, Sixth, Seventh and Eighth Circuits have all formally held otherwise. And yet, this language from the Supreme Court’s opinion in Concepcion would seem to undercut any court efforts to invent extra-textual limits on sentencing or resentencing considerations:

It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained…

The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….

Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much…. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information.

Berman argues that the Supreme Court’s language about a sentencing judge’s broad discretion “when considering a sentence modification is directly relevant to federal judges’ consideration of so-called compassionate release motions.”

compassion160124There is nothing in 18 USC § 3582(c)(1)(A)(i) (the statute on sentence reductions, generally if inaccurately known as “compassionate releases”) that in any way limits a judge in what he or she may consider in fashioning a lower sentence, or for that matter, in deciding whether to impose a lower sentence at all. That should be game, set and match for the issue of the limits of a court’s discretion on deciding a compassionate release motion.

One interesting twist: the Sentencing Commission will soon be reconstituted, and it seems clear that the new commissioners consider rewriting U.S.S.G. § 1B1.13 – the Guidelines policy statement on compassionate releases – as job one. If a rewritten § 1B1.13 limits a sentencing court’s discretion in granting or denying a compassionate release motion, would such a limitation be one “set forth by Congress in a statute or by the Constitution?” Sentencing Guidelines must be submitted to Congress, but go into effect unless the Senate otherwise directs. And the compassionate release statute requires a sentencing judge to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”

But that’s a question for another time (specifically, after a new § 1B1.13 goes into effect, which probably will not be before November 2023. For now, movants for compassionate release would do well to apply Prof. Berman’s broad interpretation of Concepcion’s holding.

Concepcion v. United States, Case No 20-1650, 2022 U.S. LEXIS 3070 (June 27, 2022)

ABA Journal, In unusual lineup, SCOTUS rules for pro se prisoner who sought lower sentence under First Step Act (June 27, 2022)

Sentencing Law and Policy, SCOTUS ruling in Concepcion, while addressing crack cases, should also resolve circuit split on compassionate release factors (June 27, 2022)

– Thomas L. Root

Attempted Crime of Violence Does Not Support 18 USC 924(c) – Update for June 22, 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.

TAYLOR-MADE DECISION

The Supreme Court ruled yesterday in a 7-2 decision that an attempt to commit a crime of violence is not in itself a “crime of violence” for purposes of 18 USC § 924(c).

gunknot181009A little review: under 18 USC § 924(c), possessing, using or carrying a gun during and in relation to a crime of violence or drug offense will earn a defendant a mandatory minimum consecutive sentence of at least five years (and much worse if the defendant waves it around or fires it). A “crime of violence” is one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

This fairly straightforward question of what constitutes a crime of violence has spawned a series of Supreme Court decisions since Johnson v. United States in 2015. The last words on the subject were United States v. Davis, a 2019 decision holding that conspiracy to commit a crime of violence was not a “crime of violence” that would support a conviction under 18 USC § 924(c), and last summer’s Borden v. United States (an offense that can be committed recklessly cannot be a “crime of violence,” because a “crime of violence” has to be committed knowingly or intentionally).

The Court has directed that interpretation of whether a statute constitutes a crime of violence is a decision made categorically. The Court’s “categorical approach” determines whether a federal felony may serve as a predicate “crime of violence” within the meaning of the statute if it “has as an element the use, attempted use, or threatened use of physical force.” This definition is commonly known as the “elements” clause.

The question is not how any particular defendant may have committed the crime. Instead, the issue is whether the federal felony that was charged requires the government to prove beyond a reasonable doubt as an element of its case, that the defendant used, attempted to use, or threatened to use force.

knifegunB170404This approach has caused a lot of mischief. The facts underlying yesterday’s decision, Taylor v. United States, were particularly ugly. Justin Taylor, the defendant, went to a drug buy intending to rip off the seller of his drugs. Before he could try to rob the seller, the seller smelled a setup, and a gunfight erupted. Justin was wounded. The drug dealer was killed.

Because Justin never actually robbed the seller – he didn’t have time to do so – he was convicted of an attempted Hobbs Act robbery under 18 USC § 1951 (a robbery that affects interstate commerce) and of an 18 USC § 924(c) offense for using a gun during a crime of violence. Justin argued that while he was guilty of the attempted Hobbs Act robbery, he could not be convicted of a § 924(c) offense because it’s possible to commit an attempted robbery without actually using or threatening to commit a violent act. Under Borden and Davis, Justin argued, merely attempting a crime of violence was not itself a crime of violence.

Yesterday, the Supreme Court agreed.

Justice Gorsuch ruled that an attempted Hobbs Act robbery does not satisfy the “elements clause.” To secure a conviction for attempted Hobbs Act robbery, the government must prove that the defendant intended to complete the offense and completed a “substantial step” toward that end. An intention, the Court said, is just that and no more. And whatever a “substantial step” requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property. This is true even if the facts would allow the government to do so in many cases (as it obviously could have done in Taylor’s case).

maskgun200218The Court cited the Model Penal Code’s explanation of common-law robbery, which Justice Gorsuch called an “analogue” to the Hobbs Act. The MPC notes that “there will be cases, appropriately reached by a charge of attempted robbery, where the actor does not actually harm anyone or even threaten harm.” Likewise, the Supreme Court ruled, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.

Taylor raises interesting questions about “aiding and abetting.” In Rosemond v. United States, the Supreme Court ruled that a defendant can be convicted as an aider and abettor under 18 USC § 2 “without proof that he participated in each and every element of the offense.” Instead, Congress used language in the statute that “comprehends all assistance rendered by words, acts, encouragement, support, or presence… even if that aid relates to only one (or some) of a crime’s phases or elements.”

Taylor’s finding that attempted Hobbs Act robbery cannot support a § 924(c) conviction because a defendant can be convicted of the attempt without proof that he or she used, attempted to use, or threatened to use force, then it stands to reason that if the defendant can be convicted of aiding or abetting a Hobbs Act robbery without proof that he or she used, attempted to use, or threatened to use force, “aiding and abetting” likewise will not support a § 924(c) conviction.

In separate dissents, Justice Clarence Thomas and Justice Samuel Alito argued that the lower court should have been reversed. Justice Thomas said the court’s holding “exemplifies just how this Court’s ‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’”

violence180508Indeed, a layperson would find it baffling that Justin could shoot his target to death without the government being able to prove he used a gun in a crime of violence. But Justice Thomas’s ire is misplaced. One should not blame the sword for the hand that wields it. Congress wrote the statute. It can surely change it if it is not satisfied with how the Court says its plain terms require its application.

United States v. Taylor, Case No. 20-1459 2022 U.S. LEXIS 3017 (June 21, 2022).

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 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.

BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

Supreme Court Bloodies Bivens – Update for June 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.

BIVENS IS BARELY ALIVE AFTER SUPREME COURT MAULING

Rejecting 4th Amendment excessive force and 1st Amendment retaliation damages claims against a Border Patrol agent, the Supreme Court last week brought the venerable Bivens claim to the brink of extinction.

policeraid170824Federal law (42 USC § 1983) permits private citizens to sue state and local officials for violation of constitutional rights. But Section 1983 does not apply to federal officials and employees, and Congress has never passed a law similar to Section 1983 authorizing such actions against the feds.

However, back in 1971, the Supreme Court held that the right to file such an action should be presumed from the constitution, letting a 4th Amendment unlawful search and seizure claim go forward under “general principles of federal jurisdiction” in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

Since Bivens, SCOTUS has been trying to limit the holding, in fact turning down every Bivens claim since 1980. Last week, the Court adopted a test that just about assures that Bivens will not be usable for any claim other than unlawful search and seizure and 8th Amendment claims.

Last week’s case arose when a Border Patrol agent allegedly entered the driveways at Smuggler’s Inn, a bed-and-breakfast sort of place in Blaine, Washington. The Inn’s backyard property line is the Canadian border, with nothing but some warning signs to stop people from coming and going.  According to the decision, the facility is both Spartan and pricey, appealing only to a clientele that wants to sneak north or sneak south.

Because of that, the Border Patrol has a special love for the place. The Egbert case arose when a Border Patrol agent followed the Inn’s van into the driveway, suspecting the passenger – a man who had just arrived from Turkey – of immigration shenanigans. When the Inn’s owner told the officer to leave, the border cop allegedly roughed him up. When the owner complained about the agent’s conduct, the Border Patrol allegedly began a campaign of harassment.

The Inn’s owner sued under Bivens for alleged 4th Amendment excessive force and 1st Amendment retaliation violations. But last week, the Supreme Court stopped him in his tracks.

smugglersinn220613

“[R]ather than dispense with Bivens altogether,” Justice Clarence Thomas wrote on behalf of the majority, “we have emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Yet, while it kept Bivens alive, the Court make it clear that Bivens remains on thin ice, warning “that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”

Writing for a 5-4 majority, Thomas applied the two-step inquiry established in prior Bivens cases — whether the case involves an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and whether “special factors… counsel hesitation about granting the extension.”

For the “special-factors” analysis, the Court asks broadly whether judicial intrusion into a “given field” is inappropriate. Here, Thomas wrote, the question was whether it was appropriate to imply a Bivens action should apply to Border Patrol agents generally. Because border protection implicates national security, the Court ruled, it was more appropriate to leave the authorization of any remedy to Congress.

The opinion thus reduces the two-step analysis “into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.”

paperwork171019Here, the Court said, it also matters that a citizen has an adequate alternative remedy in the Border Patrol’s internal grievance process. This is despite the fact that that process does not entitle a complainant to participate in the proceeding, is not subject to judicial review, and does not provide a money damages remedy to the complainant. But because Bivens “is concerned solely with deterring the unconstitutional acts of government officers” with the goal of preventing constitutional violations, the Court said, that’s enough.

Bivens cannot be used for 1st Amendment retaliation claims under any circumstances, the Court said. Allowing such “claims imposes costs and burdens on federal officers affecting how they perform their duties; Congress should decide whether the public interest is served by allowing damages and imposing those costs.”

The good news, if there is any, is that the Court acknowledged that a Bivens action still exists “for a federal prisoner’s inadequate-care claim under the 8th Amendment.” But it’s pretty clear for federal prisoners that, except for that “deliberate indifference” claim, Bivens is dead.

Egbert v. Boule, Case No. 21-147, 596 U.S. —, 2022 U.S. LEXIS 2829 (June 8, 2022)

SCOTUSBlog, Court constricts, even if it does not quite eliminate, damages actions under Bivens (June 8, 2022)

Interrogating Justice, SCOTUS Says Doing Nothing Deters Fourth Amendment Violations (June 9, 2022)

– Thomas L. Root

Supremes Burning Midnight Oil To Finish Term – Update for June 8, 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.

SUPREME COURT FACES HISTORIC BACKLOG IN FINAL MONTH OF TERM

The Supreme Court – waiting until the bitter end to do the largest share of its work in more than 70 years – has scheduled a rare second opinion day for today.

scotus161130At 10 am, the Court will issue one or more opinions. It still has a lot to choose from.

The court is scheduled to hand down 30 more opinions, 48% of its expected total in argued cases, as its 2021-22 term ends in slightly more than three weeks. While most people are awaiting rulings that could hold that abortion is not a constitutional right but carrying a concealed gun is, there are five decisions of particular interest to federal inmates and defendants:

• Concepcion v. United States, Case No. 20-1650. Issue: Whether, when deciding if it should “impose a reduced sentence” under Section 404(b) of the First Step Act (Fair Sentencing Act retroactivity), a district court must – or even may – consider intervening legal and factual developments.

• Ruan v. United States, Case No. 20-1410. Issue: Whether a physician charged with prescribing controlled substances outside the usual course of professional practice may be convicted under 21 USC § 841(a)(1) without regard to whether, in good faith, he or she “reasonably believed” or “subjectively intended” that the prescriptions fall within that course of professional practice.

• United States v. Taylor, Case No. 20-1459: Whether 18 USC § 924(c)’s “crime of violence” definition excludes attempted Hobbs Act robbery (which could end up excluding all attempted crimes of violence from being predicates for § 924(c) offenses).

• Egbert v. Boule, Case No. 21-147: Whether one can sue a federal officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims.

• Kemp v. United States, Case No. 21-5726: Whether F.R.Civ.P. 60(b)(1) authorizes relief based on a district court’s error of law.

scotussplit190627The Supreme Court typically announces opinions on Monday, but as June progresses, more second opinion days like today are likely.

Supreme Court Faces Historic Case Backlog as Fractious Term Comes to an End (June 1)

The New York Times, We preview the five biggest rulings expected from the Supreme Court in the next few weeks (June 8, 2022)

– Thomas L. Root

Supremes Reject ‘The Greater The Harm, The Lesser the Remedy’ § 1983 Standard – Update for April 15, 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.

SUPREMES EXPAND RIGHT TO SUE LOCAL COPS UNDER 42 U.S.C. § 1983

Larry Thompson was charged with resisting arrest when he tried to stop police from entering his apartment in response to a false child abuse complaint. A New York court later dismissed the case on motion of the prosecution “in the interest of justice,” which is code for “no way we can win this dog of a case.”

policestate190603When Larry later sued under 42 U.S.C. § 1983, alleging that the police violated his 4th Amendment right to be free of unreasonable search or seizure), his case was thrown out. Existing New York law held the plaintiff had to show the underlying criminal case had been initiated without probable cause, initiated for a purpose other than bringing the defendant to justice, and terminated in favor of the defendant. A “favorable termination” was one where the plaintiff had been found to be not guilty.

Larry’s problem was that the criminal case against him was so specious that it didn’t make it to trial. He never enjoyed a “favorable termination” because the prosecution gave up before trial.

You can see the problem in this approach: the sketchier the criminal case, the more likely it is that the matter will never make it to trial. That means the greater the outrage visited on a hapless defendant, the less likely he or she will be found “not guilty” after a trial, because the lower the likelihood that there will even be a trial. The “favorable termination” rule thus punishes the people who have been most aggrieved.

champions220415Last week, the Supreme Court greatly expanded a former defendant’s ability to bring a 42 U.S.C. § 1983 claim, holding that “terminated in favor” means only that the “prosecution ended without a conviction” and not “with some affirmative indication of innocence.”

Justice Brett Kavanaugh wrote for a six-justice majority:

The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense. Finally, requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits—among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.

Thompson v. Clark, Case No. 20-659, __ S.Ct. __, 2022 WL 994329, 2022 U.S. LEXIS 1885 (April 4, 2022)

– Thomas L. Root

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

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