Tag Archives: supreme court

Lies, Damn Lies and Statistics… Update for March 10, 2017

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

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ROACH MOTEL

Besides the obvious fact that society abhors sex crimes against children – including the possession of kiddie porn – one of the rationales for handing out Draconian sentences to defendants convicted of such offenses is that they pose such a danger to the public if they’re roaming free.

Everyone knows that’s true. After all, the Supreme Court itself has recognized that an “frightening and high” percentage of untreated child porn offenders “re-offend” – which is sociologist-speak for “commits the same crime again” – after release. The statistic everyone loves to cite is 80%.

roach170310Except it now appears that the statistic is wrong. But like roaches at the Roach Motel, the “alternate fact” has checked into federal jurisprudence, and it shows no sign of checking out.

A New York Times article published last Monday took the State of North Carolina to task for an argument its attorney made during the Supreme Court oral argument the week before in Packingham v. North Carolina. “This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” attorney Robert C. Montgomery told the court during his defense of a state law that bars sex offenders from using social media services.

Attorney Montgomery was literally correct. The Supreme Court observed in a 2003 decision, Smith v. Doe, that the risk that sex offenders will commit new crimes is “frightening and high.” The Times said the holding, in a decision affirming Alaska’s sex offender registration law, has been “exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.”

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited McKune v. Lile, a decision from the year before, which noted that “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” That decision cited a 1988 Justice Department study entitled A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender, which was a collection of studies by experts in the field. Ironically, most of the recidivism rates cited in the Guide showed slight recidivism rates for sex offenders. One source, however, claimed an 80% re-offense rate, a number that the Guide itself cautioned might be an outlier.

80pct170310That source was a 1988 article published in the popular trade magazine Psychology Today. The Psychology Today piece simply asserted that “most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This statistic was not supported by any empirical evidence. In a recent Boston College Law Review article, Dr. Melissa Hamilton (who is both a criminologist and a lawyer) writes, “The Psychology Today authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training. Evidently, the authors’ “statistic” was simply based on personal observations from their local treatment program.”

Hamilton argues that

In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending. Unfortunately, the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.

That may soon change. Pending before the Supreme Court is a petition for writ of certiorari in Doe v. Snyder, the 6th Circuit’s maverick decision to reject the “frightening and high” recidivism canard, in holding that Michigan’s civil sex offender law is unconstitutional. Hamilton argues that “Snyder’s engagement with scientific evidence has the potential to change the jurisprudence surrounding sex offender laws.”

reoffend130310With the Doe v. Snyder certiorari issue to be decided in the next few weeks, the argument against the 80% figure gain traction yesterday with a U.S. Sentencing Commission release of The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders. The study, which is third in a USSC series on the topic, reported that persons convicted of child pornography had a recidivism rate of 37.6%, lower than any other category of offense except economic crimes (which, at 35.9%, was almost indistinguishable). Violent crime offenders, by contrast, reoffended at a 64.1% rate, and drug traffickers at a 50.0% rate.

lies170310Benjamin Disraeli (or Mark Twain, no one’s really sure) famously said, “There are three kinds of lies: lies, damned lies, and statistics.” He has a “frightening and high” 80% chance of being right.

New York Times, Did the Supreme Court Base a Ruling on a Myth? (Mar. 6, 2017)

Hamilton, Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 58:E.Supp Boston College Law Review, (2017)

U.S. Sentencing Commission, The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders (Mar. 9, 2017)

– Thomas L. Root

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Recuse Me – Update For March 9, 2017

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

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THE JUDGE IN THE TOWN’S GOT BLOODSTAINS ON HIS HANDS…

We confess to a lack of creativity. This is the second time in less than a month that we’ve pinned our theme to lyrics from Vicki Lawrence’s 1973 hit, The Night the Lights Went Out in Georgia. What compounds our intellectual felons is that the judge in today’s report had hands stained green, not red.

The big Supreme Court news Monday was the unsurprising (to us, at least) Pena-Rodriguez v. Colorado decision, in which the Court held that the sanctity of the jury room could be invaded where a juror showed racial bias. The decision of importance to our readers, Beckles v. United States, ran a distant second in the news. And the case we’re looking at today, a summary disposition in Rippo v. Baker, was almost completely ignored.

bribeB160627Mike Rippo is a Nevada death-row inmate who alleged that the judge in his state trial was biased. Mike was tried for two murders in 1992. Shortly after his trial started, newspaper stories revealed the judge, Gerard Bongiovanni, was under investigation by a federal grand jury for allegedly taking bribes. Mike moved for the judge’s recusal as a matter of due process, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. Mike argued the judge had a motive to favor the prosecution in his case, in order to curry favor.

The DA falsely denied that his office was part of the bribery probe, and the judge himself said he did not know about any state law enforcement involvement in the fed’s investigation. The trial went on, and Mike was convicted. But after the trial ended, the judge was indicted by a federal grand jury for bribery unrelated to Mike’s case.

vegas170309In a later state post-conviction proceeding, Mike advanced his bias claim again, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the bribery investigation. The state court denied the motion, and the Nevada Supreme Court affirmed. It reasoned that Mike was not entitled to discovery or an evidentiary hearing because his allegations “did not support the assertion that the trial judge was actually biased in this case.”

The U.S. Supreme Court dithered over Mike’s petition for certiorari, re-listing it for conference five times. Finally, last Monday the Court summarily reversed the Nevada courts and sent the case back.

The Nevada courts’ error, last Monday’s short opinion said, was in applying the wrong legal standard. The due process clause “may sometimes demand recusal even when a judge has no actual bias,” the Court ruled. “Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.”

 The Rippo decision may save some people from writing pleadings on the sides of their cars…
The Rippo decision may save some people from writing pleadings on the sides of their cars…

The test is not “whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” To make out a bias complaint, a litigant need not “show as a matter of course that a judge was actually biased in the litigant’s case.” Such a standard would be nearly impossible to meet. Instead, it is enough if “the circumstances alleged” are such that “the risk of bias” is too high to be constitutionally tolerable.

And how high is too high? We’ll have to wait for further opinions to resolve that.

Rippo v. Baker, Case No. 16-6316 (March 6, 2017) per curiam

– Thomas L. Root

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Does the Beckles Cloud Have a Silver Lining? – Update for March 7, 2017

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

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SUPREME COURT FURTHER MUDDLES GUIDELINES

In a decision long awaited by federal inmates, the Supreme Court yesterday held that unlike criminal statutes, the federal sentencing guidelines can never be void for vagueness. But in so ruling, the Court may have weakened the guidelines rather than strengthened them.

silverlining170307The history: In 2015, the Supreme Court ruled in Johnson v. United States that a part of the definition of “crime of violence” found in the Armed Career Criminal Act – the “residual clause” that swept up offenses with a significant chance that someone might get hurt as being violent – was unconstitutionally vague. That ruling made sense: crimes such as drunk driving and not stopping for the police were being called “violent,” and on the strength of such dubious definitions, the law was making 51-month sentences into 15-year bits.

Unfortunately, the definition of “crime of violence” (along with the “residual clause”) was not just an ACCA provision. Instead, the same definition had metastasized throughout the criminal code and guidelines. Under the legal principle that quid est ius gander anserem condimentum (“what’s sauce for the goose is sauce for the gander”), inmates whose sentences had been shot into low-earth orbit by the guidelines’ “career offender” provision immediately began arguing that their sentences were based on an unconstitutionally vague “residual clause” as well.

sauce170307The United States Sentencing Commission lent some support to the argument. After Johnson, the Commission changed the guidelines’ “crime of violence” definition to comport with Johnson. But a few courts of appeal held that guidelines are different from statutes, and could never be void for vagueness.

Yesterday’s Decision: Beckles v. United States was such a case. Travis Beckles had been sentenced to double prison time for possessing a sawed-off shotgun under the “career offender” guideline. If the ACCA “crime of violence” definition was unintelligible, Travis argued, so was the guidelines definition that matched it word for word.

Yesterday, the Supreme Court disagreed. Because guidelines are merely advisory and judges hold the final authority on sentences, the Court held, defendants cannot successfully argue that a sentencing guideline is so vaguely worded as to violate the constitutional right to due process. Laws that “fix” the sentencing range can be challenged in ways that “advisory guidelines” simply cannot.

The Fallout: Beckles hobbles what has up to now been a well-honed defense tool, while exposing contradictions between the guidelines in theory and in practice in a way that almost guarantees further litigation.

Not if it's in the guidelines...
Not if it’s in the guidelines…

One former federal prosecutor notes, “Saying those guidelines can’t be challenged for vagueness takes away a tool for review and puts the onus on the Sentencing Commission to keep going back and looking at how they are being applied.”

Up to 2005, judges had been required by law to apply the Guidelines in sentencing. But in United States v. Booker, the Supreme Court decided mandatory guidelines the Sentencing Reform Act of 1984 created were unconstitutional. Instead of throwing the whole law out, the court decided the guidelines should be considered advisory.

The broad opinion Justice Clarence Thomas wrote in Beckles built on Booker, differentiates between sentencing provisions in laws like the ACCA and the guidelines, which are subject to district courts’ discretion.

A former associate deputy attorney general who is now a law professor said the Beckles decision is a symptom of the hybrid situation that flowed from Booker: “You live in this weird world where the guidelines are both advisory and highly influential.”

Justice Sonia Sotomayor concurred in Beckles with a scathing rejection of the majority’s reasoning. She argued that while the guidelines may be “advisory” in name, in practice judges often consider them a default, meaning they should get the same treatment as a law under the constitution. Ironically, this is the same argument that helped carry the day in a 2011 decision, Peugh v. United States, which held the guidelines could be subject to an ex post facto analysis.

Sotomayor argued that Booker tweaked the guidelines’s status but left them at the heart of the sentencing consideration — or as the court put it last year in Molina-Martinez v. United States, the “basis” for the sentence. “It follows from the central role that the guidelines play at sentencing,” Sotomayor wrote, “that they should be susceptible to vagueness challenges under the due process clause,” she wrote.

sweetbrown170307Another law professor who filed an amicus brief in Beckles argued yesterday that the majority’s ruling ignores the “messy reality” of federal sentencing. “It reads as though the federal sentencing guidelines are just advice for district court judges that they can take or leave as they want, but that’s just not true,” she said.

An optimistic footnote to Beckles: Justice Kennedy’s short concurring opinion may hint at another option for defendants. He wrote that while the legal tests for constitutional vagueness are ill fitted to the sentencing guidelines, a defendant might still run into a sentence that is “so arbitrary that it implicates constitutional concerns.” Kennedy said, “In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed.”

Most notably, Beckles underscores to district court judges that the guidelines are not just purely advisory, but occupy a place in the law that is considerably less that statute, and perhaps much less than regulation as well. “It sends a signal to district court judges and reinforces the message that is already out there that these guidelines are purely advisory,” one lawyer said.

That may embolden courts to deviate from guidelines to an even greater extent than they have before. Courts have repeatedly held that a within-guidelines sentence is “presumptively reasonable.” If those guidelines can be so vague as to defy fairness – too vague to survive a constitutional analysis were they statutes – how long can such a reasonableness presumption endure?

Beckles v. United States, Case No. 15–8544 (March 6, 2017)

– Thomas L. Root

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No Beckles Today, But Supremes Issue Interesting COA Opinion – Update for February 22, 2017

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

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BECKLES V. UNITED STATES NOT DECIDED YET, BUT SUPREME COURT SPANKS 5TH CIRCUIT IN “BLACKS ARE VIOLENT” CASE

The Supreme Court issued three opinions this morning, one of which was criminal. A decision in Beckles v. United States was not handed down, but given that the three decisions decided today were argued in October, November and early December, we anticipate that Beckles could pop at any time.

scotus161130The interesting case handed down is Buck v. Davis, a Texas death penalty case in which the defense attorney amazingly enough introduced expert testimony that his client was more likely to be violent because he is black. After Buck lost his habeas corpus in state court, and was denied habeas in federal district court and the 5th Circuit Court of Appeals.

What may be of general interest to federal petitioners is the Supreme Court’s spanking of the 5th Circuit for that court’s stingy denial of Buck’s certificate of appealability. The Supreme Court complained that the Circuit “exceeded the limited scope of the COA analysis. The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course. 28 U. S. C. § 2253. At the first stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or… could conclude the issues presented are adequate to deserve encouragement to proceed further’.”

Here, the Supreme Court said, the 5th Circuit “phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue.”

The 5th Circuit is hardly alone in this approach. We think mostly of the 4th Circuit, which has COA petitioners file an “informal brief,” which suggests that the COA is being granted or denied based on an analysis of the entire case rather than the rather low bar of “appealability.”

Branding your own client with a racist stereotype?  Bad lawyering...
           Branding your own client with a racist stereotype? Bad lawyering…

The Supreme Court held that Buck’s lawyer was ineffective and Buck was prejudiced thereby. It sent the case back for resentencing.

The Supreme Court has not yet announced the next date for issuance of opinions, but it generally gives not much more than week’s notice. The argument dates of the three announced today suggests that Beckles is on track for a March issuance.

Buck v. Davis, Case No. 15–8049 (Supreme Court, February 22, 2017)

– Thomas L. Root

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