US Sentencing Commission Holds Important Public Hearings

February U.S.S.C. Public Hearings

February is set to be a significant month in the world of the United States federal sentencing. The US Sentencing Commission has announced two public hearings regarding big sentencing issues involving federal criminal justice.

The first hearing, announced Wednesday, is all about federal Child Pornography sentencing. A huge public reaction has occurred because many federal Child Porn possessors are getting much larger sentences than the offenders who actually create  that pornography and sexually assault the pictured victims.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing.

The second hearing, also announced Wednesday, regards sentencing in the post-Booker world.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker.

The outcome of these hearing could be effective policies that alter sentences both in the future and retroactively. These decisions are made based on these hearings. Although the hearings themselves are public, the general public is not allowed to comment and testify. Only a handful of invites were sent out for each hearing.

Check back soon for information on the outcomes of these hearings.

In Colorado, Defendants Must do Prosecution’s Job

5th Amendment Under Fire in Fricosu Case

Ramona Fricosu, of Peyton, Colorado is accused of being a part of a mortgage scam. In the course of the investigation against her, search warrants were executed on May 14th of 2010. In that search, the FBI took a Toshiba Satellite M305 laptop.

Then came a problem. Investigators discovered that her laptop’s hard drive was encrypted very very well. Therefore, files that the investigators felt were incriminating1 and vital to the future prosecution were locked away. They concluded it would take a really long time to decrypt the entire drive.

Since this case is being prosecuted in America, all criminal prosecutions are required to be done so with full due process of law2, which includes the right to a speedy trial3. So the decade or more it would take for the prosecution (read: investigative bureau) to decrypt the files would necessarily violate Miss Fricosu’s rights and the charges would not endure.

So what is a judge to do? Option one is to realize that the laws are in place to protect the citizens of the United States against the overpowering force of an unbridled government4. He would therefore throw the case out if the investigation delayed trial longer than a certain period of time. Option two is to order the defendant to decrypt the laptop for investigators.

Last Monday, Judge Robert Blackburn, federal judge for the District of Colorado, chose the second option. In United States v. Fricuso, Judge Blackburn decided that it did not violate the Fricosu’s Fifth Amendment protection against self incrimination to order her to decrypt her laptop hard drive.

Through protests from the defense that this order violates a defendant’s rights, and even an amicus brief from the Electronic Frontier Foundation (EFF) in support of Miss Fricosu, Judge Blackburn decided what could be a dangerous legal precedent on Fifth Amendment rights in the digital age.

From that brief:

“The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity…”

Ruling

Blackburn ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination. (Read the entire 10-page opinion here)

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,”

Fricosu has declined to decrypt a laptop encrypted with Symantec’s PGP Desktop. Defense counsel Phil Dubois, who once represented Phil Zimmermann, PGP’s creator, is now fighting in the federal courts over encryption again.

“I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals … I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”
– Phil Dubois

Fricosu actually may not even be able to decrypt the laptop at all. “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do,” said Dubois.

The U.S. Department of Justice argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passwords. To the U.S. Justice Department, the requested court order represents a simple extension of prosecutors’ long-standing ability to assemble information that could become evidence during a trial. Justice claims that:

“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Much of the discussion on this issue is about what analogy comes closest to this case. Prosecutors argue that PGP passphrases are like a defendant possessing a key to a safe filled with incriminating documents. That defendant can usually be legally compelled to hand over the key.

Case Law

There are no decisions from the United States Supreme Court on this specific topic, but a number of decisions around the country from lower courts informed Blackburn’s decision. Here is a brief look at decisions from Blackburn’s order:

  • United States v. Kirschner – Kirschner was indicted on receiving child pornography. Judge Borman of the Eastern District of Michigan granted the defendant’s Motion to Quash the government’s attempt to compel a password from Kirschner. From that order:

    “In the instant case, even if the government provides Defendant with immunity with regard to the act of producing the password to the grand jury, that does not suffice to protect Defendant’s invocation of his Fifth Amendment privilege in response to questioning that would require him to reveal his password.”

  • United States v. Boucher – Boucher was another child pornography case, this time from the District of Vermont, involving compelling a password from the defendant. In 2007, Magistrate Judge Jerome J. Niedermeier, ruled that such an action would violate Fifth Amendment protections:

    “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

    Later, in an abrupt reversal, U.S. District Judge William Sessions ruled that Boucher did not have a Fifth Amendment right to keep the files encrypted after prosecutors narrowed their request, saying they only wanted Boucher to decrypt the contents of his hard drive before the grand jury, by typing in his password in front of them.

    Boucher appealed to the Second Circuit, and the Appeals Court decided in favor of Boucher5.

  • Accord United States v. Gavegnano, 2009 WL 106370 (4th Cir. Jan. 16, 2009) – Where the “government independently proved that defendant was sole user and possessor of computer, defendant’s revelation of password not subject to suppression”

Conclusion of the Order

Blackburn granted the order in two ways. First, he invoked the All Writs Act6 which “enables the court to issues orders to effectuate an existing search warrant”7.

Second, in a move of legal semantics, Fricosu is not ordered to reveal her password to the government. That has been ruled to violate her Fifth Amendment protections against self-incrimination. Instead, the government only requested that she use her password to decrypt the hard drive in question and then hand the decrypted hard drive over to the government.

Order

THEREFORE, IT IS ORDERED as follows:
1. That the government’s Application Under the All Writs Act Requiring Defendant Fricosu To Assist in the Execution of Previously Issued Search Warrants [#111] filed May 6, 2011, is GRANTED:
2. That Ms. Fricosu’s Motion for Discovery – Seized Hard Drive [#101], filed April 27, 2011, is GRANTED;
3. That on or before February 6, 2012, the government SHALL PROVIDE counsel for defendant, Ramona Camelia Fricosu, with a copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W;
4. That on or before February 21, 2012, defendant, Ramona Camelia Fricosu, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W; and
5. That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution.

  1. Due to a recorded and ill-advised telephone conversation with Fricosu’s ex-husband who was incarcerated []
  2. See the 14th Amendment to the United States Constitution []
  3. See the 6th Amendment to the United States Constitution []
  4. Over-dramatization intended to illustrate reductio ad absurdum []
  5. Although no news was readily found on the Circuit ruling, the lawfirm of James Budreau, attorney for Boucher, says it did. This leaves the question on whether the move itself was quashed, or if the production of the password (not the production of an unencrypted drive, was ultimately decided against. []
  6. 28 U.S.C. §1651 []
  7. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). []

Supreme Court Says “No” to GPS Tracking Without Warrant

United States v. Jones

The United States Supreme Court decided an important case last week concerning Fourth Amendment rights and police GPS tracking without warrant using devices placed on suspected criminal’s vehicles. The Obama administration pressed for a ruling which allowed law enforcement the right to use such tactics without a warrant to aid drug and terrorist investigations.

The Supreme Court, however, disagreed. The ability to use these tactics without a warrant may seem like a good idea in well-intentioned investigations against “bad guys.” However, the ever-increasing technology that pervades society today makes a such a power a very fearful potential abuse of authority.

In the constant battle against “Big Brother”, the decision in United States v. Jones is a big win for privacy rights of United States citizens.

Analysis

An excerpt from the SCOTUS Blog analysis:

Opinion recap: Tight limit on police GPS use
by Lyle Denniston

“Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

“The Court flatly rejected the government’s argument that it was simply not a search, in the constitutional sense, to physically — and secretly — attach a small GPS tracker on the underside of the car used by a man, Antoine Jones, who was a principal target of an investigation into a drug-running operation in Washington, D.C., and its suburbs. The device was installed without a warrant (one had been issued, but it ran out before it was put on the Jeep Cherokee and, in any event, it was limited to Washington, and the device was installed in Maryland). And, once installed (and serviced when the batteries ran down), it remained on the Jeep around the clock for 28 days. The 2,000-page log of where Jones had driven the Jeep was used to convict him of a drug-trafficking conspiracy, leading to a life prison sentence and an order to forfeit $1 million in illegal drug proceeds. One place where the device showed Jones had visited was a “stash house” where $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of crack cocaine turned up.”

 

Marijuana Users and Their Gun Rights

Weed, Guns, and the Second Amendment

This issue has roots in a criminal code which says that it is a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm. 18 U.S.C. §922(g)(3). Translation? A citizen with no criminal record can still have their gun rights stripped

So aside from felons, and certain domestic violence misdemeanor offenders, any individual who the government can prove is a user of marijuana (and there are 17.4 million of them)1 is guilty of a federal firearms felony.

Since its conception, the Second Amendment to the United States Constitution has been consistently restricted. Only recently, in the Supreme Court case District of Columbia v. Heller, did the Second Amendment come out ahead2.

United States v. Carter

The Fourth Circuit Court of Appeals recently reversed a case like this (weed, gun rights, and a federal felony conviction), as reported by this article by the Federal Criminal Appeals Blog. Here is an excerpt from that article:

Like many Americans, Benjamin Carter liked to smoke marijuana. He also lived in a bad neighborhood, and worried about being the victim of crime.

When the government found out about his guns and his marijuana habit, they charged him violating section 922(g)(3).

He challenged whether section 922(g)(3) can lawfully apply to someone like himself. The district court did not accept his challenge to the statute.

He pled guilty and went to the Fourth Circuit. Today, in United States v. Carter, the Fourth Circuit remanded the case, saying that the government has to do more work to show that it can constitutionally prevent potheads from possessing a gun.

[T]he court of appeals noted that

“the government still bears the burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence. And we conclude that in this case, the record it made is insufficient. Without pointing to any study, empirical data, or legislative findings, it merely argued to the district court that the fit was a matter of common sense.”

This appeal to common sense, the Fourth Circuit determined, was not sufficient.

The court remanded so that the government could develop a record in the district court to justify section 922(g)(3).

One suspects that things won’t be much different on remand, but, at least, the Fourth Circuit is taking the Second Amendment seriously.

  1. According to a 2011 national survey conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) []
  2. “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” District of Columbia v. Heller, 554 U.S. 570 (2008) []

Nearly 4,000 Federal Inmates Have Received Crack Cocaine Sentence Reductions

Status Update: Crack Sentence Reductions

In this new article from The Commercial Appeal, the story of one of the many federal inmates getting their crack cocaine sentences reductions is laid out. According to a spokesman for the federal Bureau of Prisons (BOP), over 3,700 inmates have already had their sentences reduced. An excerpt from the article:

Orreco Lyons received an early Christmas present last month when a federal judge in Tennessee reduced his crack-cocaine trafficking sentence from 71/2 years to just over six years, says the Memphis Commercial Appeal. Lyons, 31, is one of thousands of federal prisoners who are benefiting from a retroactive change in federal sentencing laws that aims to narrow the disparity of punishments for crack-cocaine offenders versus those sentenced for powder cocaine.

Reductions, which can range from a few months to a few years, depend on a number of factors, such as whether an inmate has a prior criminal record, whether other crimes also were committed and whether a weapon was involved. Federal Public Defender Steve Shankman of Memphis is reviewing more than 200 cases. He believes that up to 80 percent “will receive some relief.” With the retroactive change going into effect last Nov. 1, 1,480 inmates were immediately released and 2,256 others had sentence reductions but still had time to serve before being released, said Ed Ross, spokesman for the U.S. Bureau of Prisons.

60% of Estimated Sentences Still Need Reductions

The United States Sentencing Commission, when considering making the reduced sentences retroactive, estimated that over 12,000 inmates were potentially eligible for a sentence reduction.

That means that about 8,000 federal inmates are still waiting to have their sentences reduced. These reductions don’t happen automatically, however. To find out how this process is done, give PCR Consultants a call for a free Crack Cocaine Sentence Reduction Consultation.

Let Us Help You!

Call us at (480) 382-9287 and get a free consultation to find out more information about how we can help reduce or terminate federal probation or supervised release terms.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page. You can learn more about these crack cocaine sentence reductions on our main page on this issue.

Federal Prison Reform and Unusual Allies

Common Sense and Federal Prison Reform

In a piece from Truth-Out entitled “Push to Reform Prison System Brings Unlikely Allies Together”, the unusual and unlikely are no joining forces to push for federal prison reform that has been needed for over two decades. (See Sentencing Reform Act of 1984). Excerpts from the Truth-Out article are below:

Over the past 15 years, the US prison population has more than doubled. There are 2.3 million Americans behind bars – that’s one in 100. About half of the people in prison are serving time for nonviolent offenses, including drug possession. More than 60 percent of US prisoners are black or Hispanic, according to the Pew Center on the States.

With just over 4 percent of the world’s population, the US accounts for a quarter of the planet’s prisoners and has more inmates than the leading 35 European countries combined.

Corrections is now the second-fastest growing spending category for states, behind only Medicaid, costing $50 billion annually and accounting for $1 of every $14 discretionary dollars. California spends approximately $50,000 per prisoner per year, far more than the state spends on students.

The push to reform the prison system has brought unlikely allies together. Earlier this year, the National Association for the Advancement of Colored People joined forces with Republican presidential hopeful Newt Gingrich who is part of a new prison reform initiative called Right on Crime.

In September, Inimai Chettiar, policy counsel at the American Civil Liberties Union wrote about speaking alongside members of Right on Crime and the faith-based Prison Fellowship at the American Bar Association’s initiative to “Save States Money, Reform Criminal Justice and Keep the Public Safe.”

“Never before have so many legislators, governors and advocates from all sides of the aisle come together with a single unifying theme on criminal justice: we need to end our addiction to incarceration,” she writes.

Yet, it’s all too rare to hear about their efforts.

Tim Cavanaugh, managing editor of Reason.com, the web site for the libertarian Reason Magazine, says prison reform should be a major issue for conservatives, yet more often than not, it’s falsely framed as a liberal issue. He notes that Mario Cuomo, the “great liberal governor of New York,” was the pioneer of the three-strikes-and-you’re-out law, and California, the most liberal state in the country, passed a three-strikes law in 1994.

Reason’s July issue was dedicated to prison reform with articles focusing on prosecutorial misconduct on death row, the costs involved in leading the world in locking up human beings and how California prison guards became the country’s most powerful union.

Cavanaugh says one solution would be a ten-year moratorium on new laws at the city, state and federal levels. He would also end the so-called war on drugs. “You can get rid of a huge body of cancerous US legal code just by eliminating the war on drugs. Ending the war on drugs would solve these problems,” he says. “We are the revolutionaries. We are the ones who are trying to tear down the castle walls and there are a lot of folks who want to keep it.”

Why the Resistance to Less Incarceration?

The simple answer to the title of this section is: Money. The prison industry makes billions of dollars every year, and the growing trend is in private prisons. The Justice Policy Institute did a major report on the private prison industry which explains its lobbying and influence on justice policies that keep their prisons full (read: profitable).

The report (available here) is called “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies.” Here are the basics:

At a time when many policymakers are looking at criminal and juvenile justice reforms that would safely shrink the size of our prison population, the existence of private prison companies creates a countervailing interest in preserving the current approach to criminal justice and increasing the use of incarceration.

While private prison companies may try to present themselves as just meeting existing demand for prison beds and responding to current market conditions, in fact they have worked hard over the past decade to create markets for their product. As revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.

For-profit private prison companies primarily use three strategies to influence policy: lobbying, direct campaign contributions, and building relationships, networks, and associations.

As policymakers and the public are increasingly coming to understand that incarceration is not only breaking the bank, but it’s also not making us safer, will this shrink the influence of private prison companies? Or will they use their growing financial muscle to consolidate and expand into even more areas of the justice system? Much will depend on the extent that people understand the role for-profit private prison companies have already played in raising incarceration rates and harming people and communities, and take steps to ensure that in the future, community safety and well-being, and not profits, drive our justice policies. One thing is certain: in this political game, the private prison industry will look out for their own interests.

Supreme Court: Bivens Can’t Be Used Against Private Prison Guards

Federal Private Prison Guards Protected

Minneci v. Pollard

So you or a loved one is in federal prison. You also happen to be one of the 10% or so of federal inmates who are housed in a private prison. It may already feel like the Bureau of Prisons (BOP) can do as they please with little to no repercussions.

Now, however, there is more protection for the employees of a private prison than even the BOP enjoys. Say you get thrown into “The Hole”, officially called segregation, for some bad behavior. There you are deprived of medical care or subject to other violations of the United States Constitution’s Eighth Amendment protections against cruel and unusual punishment.

This is a federal prison, and you are the property of the United States Federal Government. That means that violations of the United States Constitution while there should be the purview of the federal courts, right? Wrong.

In this opinion from the Supreme Court, announced on January 10th, 2012, an inmate in private federal prison cannot sue a guard of a private federal prison (see Bivens) for violations of his federally protected right against cruel and unusual punishment. Sound fishy to anybody?

Explanation

Tuesday’s opinion was discussed and explained (better than I ever could) over at the Constitutional Law Prof Blog. The details are below:

The Supreme Court ruled 8-1 today that a prisoner in a privately run federal prison in California cannot sue guards for a violation of his Eighth Amendment rights under Bivens v. Six Unknown Fed. Narcotics Agents. The ruling, authored by Justice Breyer, means that when alternative state causes of action (or other processes) exist, plaintiffs have no Bivens action against private government contractors, even when they are engaged in traditional government services (like guarding a prison).

Justice Breyer applied the two-prong approach in Wilkie v. Robbins (2007). The Court in Wilkie held that Bivens does not extend if (1) there are “alternative, existing” processes that provide adequate protection or (2) there are special factors counseling against a Bivens remedy. Only the first was at issue here.

The ruling, which focuses on the availability and adequacy of state tort law, at least theoretically leaves open the possibility that Bivens might extend in a similar circumstance but when an alternative process is inadequate.

The ruling extends the holding in Correctional Services Corp. v. Malesko (2001), which said that Bivens did not extend to a plaintiff’s case against a privately operated prison (and not a private prison guard). The plaintiff here tried to distinguish Malesko on the ground that Bivens is designed to deter, and while the threat of a Bivens action against a private prison can’t deter individual officers, the threat of a Bivens action against private guard can.

From the Opinion

Delivered by Justice Breyer:

The question is whether we can imply the existence of an Eighth Amendment-based damages action (a Bivens action) against employees of a privately operated federal prison. See generally Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389 (1971) (“[V]iolation of [theFourth Amendment] by a federal agent . . . gives rise to acause of action for damages” against a Federal Government employee). Because we believe that in the circumstances present here state tort law authorizes adequate alternative damages actions—actions that provide both significant deterrence and compensation—we cannot do so. See Wilkie v. Robbins, 551 U. S. 537, 550 (2007) (no Bivens action where “alternative, existing” processes provide adequate protection).