As Criminal Laws Proliferate, More Are Ensnared

Mens Rea (Criminal Intent) Not Necessary

The title of this post is taken from a recent article detailing the American way of criminal justice, its ever-expanding number of criminal laws, and its diminishing need for criminal intent. Whereas a vast majority of crimes used to be under state and local laws, the federal criminal machine has slowly expanded its reach.

From the original article:

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don’t necessarily need to show that the defendant had criminal intent.

These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”

A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.

If the professionals who practice federal prosecution and defense cannot count the number of federal criminal laws that exist, how are ordinary American’s supposed to know if their hobby is a crime? If this sound ridiculous, just read the story of Eddie Leroy Anderson of Craigmont, Idaho who was indicted, along with his son, for going arrowhead hunting near their favorite campground.

This trend is frightening to say the least. However, when confronted with this level of over-criminalization, it is no wonder why America incarcerates 743 citizens per 100,000. For comparison’s sake, Canada incarcerates 117, Sweden incarceration 78. Even China, with a population of 1.35 Billion people, has a total incarcerated population of 1.6 million (122 per 100,000) while the U.S. has 2.3 million.

To see total world rankings, visit the International Centre for Prison Studies.

Norway v. American Criminal Justice Statistics

As The Right Bemoans Norway’s Criminal Justice System, It Is One Of The Safest Countries On Earth

This heading is the title of this article from ThinkProgress which takes a close look at the criminal justice statistics of Norway’s criminal justice system. There has been a sharp emotional response to Norway’s statutory maximum prison sentence of 21 years (parole in 14) in regards to the suspect, Anders Breivik, in the recent terrorist attacks.

While these attacks are horrific and unconscionable, the statistics on Norway’s criminal justice system should give American’s pause before criticizing what seems like a much-too-lenient system. Below is an excerpt from that article:

[B]efore Americans rush to judge Norway’s criminal justice system — which relies far less on punitive measures than ours and that has a strong focus on rehabilitation — they should look at the results it produces. Norway is one of the safest countries on earth, boasting some of the world’s lowest crime rates:

Norway Has Some Of The Lowest Murder Rates In The World: In 2009, Norway had .6 intentional homicides per 100,000 people. In the same year, the United States had 5 murders per 100,000 people, meaning that the U.S. proportionally has 8 times as many homicides.

Norway’s Incarceration Rate Is A Fraction Of That Of The United States: 71 out of every 100,000 Norwegian citizens is incarcerated. In the United States, 743 out of every 100,000 citizens was incarcerated in 2009. The U.S. has the world’s highest incarceration rate.

Norway’s Prisoner Recidivism Rate Is Much Lower Than The United States’: The recidivism rate for prisoners in Norway is around 20 percent. Meanwhile, it’s estimated that 67 percent of America’s prisoners are re-arrested and 52 percent are re-incarcerated.

While many Americans may have an understandable emotional reaction to a country that strives to treat even the most heinous of murderers humanely, they should also be aware of the fact that Norway’s criminal justice system appears to have produced a nation that is much safer and imprisons far less of its people than the United States or just about any other country.

Decisions Involving Tapia v United States

Rehabilitative Sentences are Illegal

If you have a loved one who was sentenced to a longer than normal term of imprisonment specifically so he or she could participate in rehabilitative programs within the Bureau of Prisons, that sentence is unlawful and we can help get it reversed! Please read on for important information.

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Tapia and its Fallout

As reported in this earlier article on Supreme Court decisions this session, Tapia v United States was an important sentencing decision that can and will impact sentencing in U.S. District courts from now on. The collateral effects of the decision are now beginning to be felt, and here we’ll see two opposing decisions from two separate circuits involving the Tapia ruling in supervised release revocation decisions.

In Tapia, the Ninth Circuit decision was reversed in a 9-0 decision by the United States Supreme Court. The high court’s opinion was authored by Justice Elana Kagan on June 16, 2011. Justice Sotomayor filed a concurring opinion, which was joined by Justice Alito. This ruling held that:

18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation.

This says that sentences passed down by judges that were lengthened specifically to enable the defendant to participate in rehabilitating programs within the Bureau of Prisons are considered unlawful. The ruling here is not challenged now by lower courts in original sentencing hearings. It is, however, being picked apart within hearings which deal with revocations of supervised release.

The First Circuit, in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011), applied SCOTUS’s ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant’s rehabilitation upon revocation of his supervised release:

Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro’s choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court’s objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.

The Fifth Circuit ruled the opposite way in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011):

The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.

What this all means

To the lower courts, the application of Tapia to sentences handed down during supervised release revocation hearings is open to interpretation. Circuits are split and there is no way to tell which Circuit will go in which direction. This conflict in Circuit decisions will invariably be brought to the Supreme Court for further interpretation. Whether Certiorari will be granted is only up to the high court itself. Before this happens, however, different Circuit courts will continue to treat this issue within their own decisions.

If you want to find out if these rulings can help you or a loved one, please contact us to find out.

Nothing to Hide: The False Tradeoff between Privacy and Security

The title of this article is also the title of this piece by Daniel J. Solove and is available via SSRN. This lengthy argument highlights the argument I made in this post about the tradeoffs between safety and security. His point seems to mirror my own. Here is the abstract:

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the “Nothing-to Hide Argument,” Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments – such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument” – have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

The argument is often made that any infringement on privacy, when measured against a potential unacceptable security risk, is tolerable for the protection of our society as a whole. Further, those that resist infringement on their privacy must be hiding something and shouldn’t have such privacy anyhow. I reject these arguments and recommend a full read of this paper.

Crack Cocaine Reduction Made Retroactive

Huge News for Relief Seekers

The United States Sentencing Commission, in a unanimous vote on June 30, 2011, made retroactive the sentencing guideline in certain Crack Cocaine reduction cases to those already sentenced and serving time for their offenses. The Fair Sentencing Act of 2010 changed the guidelines for federal sentencing in all future “Cocaine Base” cases. However, the applicability of these changes to those serving unfair sentences under the previous law was unclear.

Read more on the change from the NY Times or from the Sentencing Law and Policy blog. Here is an excerpt from the official press release:

Retroactivity of the amendment will become effective on November 1, 2011― the same day that the proposed permanent amendment would take effect ― unless Congress acts to disapprove the amendment. …

Not every federal crack cocaine offender in federal prison will be eligible for a lower sentence as a result of this decision. The Commission estimates, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s vote to give retroactive application to the proposed amendments to the federal sentencing guidelines does not give retroactive effect to the Fair Sentencing Act of 2010. Only Congress can make a statute retroactive. Many crack offenders will still be required under federal law to serve mandatory five- or 10-year sentences because of the amount of crack cocaine involved in their offenses…..

A federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction given by the Commission. The ultimate determination will be made only after consideration of many factors, including the Commission’s instruction to consider whether reducing an offender’s sentence would pose a risk to public safety.

Reduced Sentences

Under this new policy, inmates serving time for these cases are eligible to get an average of 37 months taken off their sentence! These reductions are not automatic, though. A motion must be submitted to the correct U.S. District Court for a judge to review the case before any time is taken off an inmate’s sentence.

An attorney can be used to submit this motion on behalf of an inmate, and a large attorney’s fee will be charged. Let PCR Consultants handle this procedural issue for you at a fraction of the cost and with the same results!

Learn how we work on our About page. Contact us today about this exciting development by phone or send a message through our Contact page. We can then contact you with the answers you are looking for. First consultations are always free!