Tapia and Supervised Release

Tapia on Prison Rehabilitation

In a 2011 decision by the U.S. Supreme Court, defendants were no longer allowed to be sentenced to longer terms of imprisonment for the purposes of rehabilitation (discussed in earlier posts here and here).

In a predictable move, prosecutors and some district court judges decided that this rule only applied to original sentences. More to the point, when a defendant violates federal supervised release and gets sentenced to prison for it, Tapia didn’t apply. Last week the Sixth Circuit clarified and, again, sided with the defendant.

In U.S v. Deen (opinion here) the Sixth Circuit a revocation sentence was sent back to district court for violating the Tapia decision. Here is the first paragraph of the opinion that deserves a full read:

In the mid-1880s, Victor Hugo is said to have written, “He who opens a school door, closes a prison.” Our national debate about the relationship between education and crime, both in regard to prevention and rehabilitation, has long raged. A part of it—the part that asks whether rehabilitation is a viable penological goal—has been at the heart of Congress’s shaping of the American prison system. A unanimous Supreme Court recently held that the Sentencing Reform Act does not permit a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia v. United States, 131 S. Ct. 2382, 2393 (2011). Tapia involved a defendant’s initial sentencing. This appeal gives us occasion to consider whether that prohibition applies when a court imposes or lengthens a prison term that follows the revocation of supervised release. We conclude that it does. As a result, we VACATE Defendant Michael Deen’s sentence and REMAND for resentencing.

Kebodeaux and the Supreme Court

Kebodeaux and the Supreme Court

There is a case currently pending review by the United States Supreme Court (SCOTUS) regarding the federal sex offender registry (SORNA). The case is U.S. v. Kebodeaux (12-418). The SCOTUS docket page can be found here, and the 5th Circuit ruling below can be found here.

Here is the short story of Kebodeaux: As a US Air Force Airman, 21-year-old Kebodeaux was convicted in military court of having sex with a 15-year-old girl. He was sentenced to 3 months’ confinement and a bad conduct discharge. After serving this sentence, he moved home to Texas as civilian. He registered as a sex offender and in 2007 he updated his registry information because he moved from San Antonio to El Paso. Later, he moved back and didn’t bother telling anybody about it. Thus began his federal prosecution for failing to register as a sex offender.

After the 5th Circuit Court of Appeals ruled against Kebodeaux, they decided to hear the case as a full panel and reversed, saying what happened to the defendant amounted to, “[U]nending criminal authority over him.”

This blog post is a review of two things. First, it reviews the last decade of sex offender registry laws and lower court decisions since Smith v. Doe, 538 U.S. 84 (2003).

Second, it reviews the Defendant’s legal brief in opposition to Cert review by SCOTUS and why such review may be indicative of larger change to come in the high court’s opinion of sex offender registries. Specifically, the notion that registries are still a “Civil regulatory scheme,” as they were for Smith v. Doe in 2003.

Smith v. Doe, A Decade Later

This case is the last instance of a case where the Supreme Court took a broad look at an individual state’s sex offender registry to determine if the conditions imposed by that registry were punishment or civil and regulatory. This distinction is vitally important to the way both states and the federal government execute their respective registry requirements.

If a registry is punishment, it must be part of a sentence imposed using the full due process of law afforded by the U.S. Constitution which cannot be changed later to be more restrictive. If it is changed this way, it violates the Ex Post Facto Clause of the U.S. Constitution.

On the other hand, if a registry is just civil and regulatory,1 it can be changed at any time to be made more strict without any legal concern. Any new changes can therefore be applied retroactively to everybody these laws target.

The ruling in Smith v. Doe defined Alaska’s sex offender registry as civil (not punishment) and could therefore be applied to anybody with a sex offense, no matter how long ago their crime was. In effect, this gave all states a “Green Light” to make nearly any restriction on sex offenders without concern for its constitutionality. Worse still, these restrictions can be imposed on all former offenders.2

Examples of the effect of Smith v. Doe can be seen all over the country. States like Louisiana have enacted laws prohibiting sex offenders from participating in any holiday that involves constumes. Texas and California have laws that require registration for life, no matter the severity of the underlying offense. States that have tried to align their registries to meet federal minimum standards constantly re-classify sex offenders into higher levels, increasing their terms of registration by years or even decades. The list is much longer, but a growing list of tighter restrictions around the country make sex offender registries ripe for another review of Smith v. Doe.

Shifting Tides

In recent years, there has been a change in how state and federal courts have been viewing registry restrictions. Restrictions on registered sex offenders, as discussed above, have been getting progressively tighter over the last decade. In just the last 2 years, courts have held that restrictions on free speech and warrant-less searches of registrants homes violate both state and federal constitutional protections to all citizens.

Examples of this are from Indiana, where the 7th Circuit Court of Appeals struck down a statute banning sex offenders from social networking sites on free speech grounds. See a similar decision out of Louisiana. The Ohio Supreme Court has thrice found that the restrictions from meeting federal minimum requirements for registries are unconstitutional when applied retroactively (here, and here). Laws violating free speech and search and seizure protections were struck down in Nebraska in 2012. In that case, the defendants were actually awarded almost $300,000 in attorney’s fees used to fight their case.

While each of these decision do not strike at the core issues of sex offender registries, they put the writing on the wall that judicial opinions are changing with the stricter provisions of registry laws which have run rampant since Smith v. Doe.

Back to Kebodeaux

By all accounts, the scope of the Kebodeaux case is very small. After losing in the 5th Circuit Court of Appeals, the government applied to SCOTUS for their review. The defense team filed a motion to oppose this review, citing the limited impact its decision would have.

Both sides of this argument agree that the practical effect of a SCOTUS ruling in this case is small:

The Fifth Circuit Court of Appeals decided Kebodeaux on “narrow grounds,” based on Kebodeaux’s “unusual circumstances,” as well as “the specific and limited facts” presented by his case. For that reason, the case will have limited practical effect, as the Government concedes. Accordingly, the questions presented in Kebodeaux’s case are not of sufficient importance to warrant this Court’s review. Nor does the case embody a conflict among the lower courts, or present a matter affecting the interests of the nation. (Internal citations omitted)

The defense brief also points out that their case is of little importance and doesn’t deserve the court’s valuable time:

Because SORNA applies to Kebodeaux by virtue of a federal regulation, the Fifth Circuit’s ruling does not invalidate SORNA’s statutory language. By its terms, SORNA imposes an initial registration requirement on federal offenders who were in custody, or being sentenced at the time of SORNA’s passage. . .These initial registration requirements, which did not apply to Kebodeaux because he satisfied his federal sentence in 1999, remain intact.

The rest of the defense’s arguments against SCOTUS review of this case rest on the fact that there is no conflict between lower courts concerning this issue, and that this case makes a poor vehicle for deciding these issues as the details aren’t as clear-cut as they could be to create a broad ruling to a wide-range of potential defendants down the road.

The Writing on the Wall

So why, then would SCOTUS grant review in this case? There are many reasons for this review, but only two are interesting enough to follow this case more closely.

First, this case could be one more decision from SCOTUS that mirrors other minor decisions like Reynolds v. U.S. (10-6549). More to the point, a decision in this case could be one more chip in the protective wall SCOTUS created to protect state and federal registries by Smith v. Doe. The changing opinions of the judiciary on sex offender issues is reflected by these small decisions.

Second, and more promising, is the chance that SCOTUS may use this case as a vehicle to revisit their own decision in Smith v. Doe. Similar to the circumstances surrounding the case of United States v. Booker, 543 U.S. 220 (2005), the high court can use a case that may not specifically address an issue-head on, but creates a vehicle to decide broader issues and decisions.3

So can, and will, the Supreme Court use the Kebodeaux as a vehicle to make a decision that has broader implications than what this case presents on face-value? Only time will tell. A decision on this case is expected for late June, and this blog will be updated when new information comes to light.

  1. like registering a vehicle with the DMV []
  2. A quick note. Any punishment that isn’t considered Cruel and Unusual under current 8th Amendment standards can be imposed at sentencing. The issue surrounding sex offender registries is not these restrictions can be imposed, but whether or not they can be imposed to offenders convicted before a law’s enactment without triggering ex post facto violations. []
  3. In Booker, enhanced sentencing based on facts found outside of a jury was at issue. However, the effect of this decision also rendered unconstitutional the mandatory nature of the Sentencing Guidelines published by the United States Sentencing Commission []

The Problem(s) With American Criminal Justice

Tyranny and the Prosecutor

Regular readers know that it is our belief that the American criminal Justice system is a bloated, over-powered mess. One author on the subject believes that there are so many laws that the average American commits three felonies each day without even knowing it. There are so many laws and regulations (with criminal penalties), that no normal person could learn them all in order to comply.

Prosecutors in both the state and federal systems wield the power of these laws. A system built like this can lead to criminal prosecutions that are possible because a motivated DA or US Attorney can find some law that has been broken to get their conviction. Some zealous prosecutions have ended with the suicide of a defendant.

To be fair, though, many prosecutors are good men and women that honestly want to promote justice and order. In my last post, I discussed a prosecutor who I believe crossed way over the line.

The power of the Prosecutor

In this lengthy and powerful article, written by Radley Balko over at the Huffington Post, the power of the prosecutor in the American system of criminal justice is explored in detail. Below are some great passages of this article, but the full piece deserves a full read:

We have too many laws.
There have been a number of projects that attempted to count the total number of federal criminal laws. They usually give up. The federal criminal code is just too complex, too convoluted, and too weighted down with duplications, overlapping laws, and other complications to come to a definite number. But by most estimates, there are at least 4,000 separate criminal laws at the federal level, with another 10,000 to 300,000 regulations that can be enforced criminally. Just this year 400 new federal laws took effect, as did 29,000 new state laws. The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.

We need to move away from the idea that every act we find immoral, repugnant, or unsavory needs to be criminalized. Every new criminal law gives prosecutors more power. Once we have so many laws that it’s likely we’re all breaking at least one of them, the prosecutor’s job is no longer about enforcing the laws, but about choosing which laws to enforce. It’s then a short slide to the next step: Choosing what people need to be made into criminals, then simply picking the laws necessary to make that happen.

Prosecutors have perverse incentives.

At the state level, prosecutors are reelected, move on to higher office, or win prestigious jobs at high-powered law firms for racking up large numbers of convictions — and for getting high-profile convictions. They’re rarely publicly praised or rewarded for declining to prosecute someone in the interest of justice. I’m sure it happens. But it isn’t the sort of thing even a well-intentioned prosecutor is going to boast about in a press release.

And in conclusion…

Too often, criticism of prosecutorial excesses isn’t framed as this should never happen, but why isn’t this happening to the people I don’t like? Until that changes — until partisans are willing to condemn abuses even by their own, or committed against their political opponents or people they personally find unsavory — the problem is only going to get worse.

I’d suggest all of these factors (and probably a few I haven’t thought of) have increasingly made us a nation ruled not by laws, but by politics (and by aspiring politicians). And once criminality is influenced primarily by politics, we’re all just potential criminals.

Rarely do I see a piece like this which delves so deep into the problems endemic to the system of American criminal justice. I applaud Mr. Balko for this piece and encourage readers to take a longer look.

The Suicide of a Federal Criminal Defendant

Silicon Valley and the DOJ Collide in Tragedy

Below is the story of PACER, Aaron Swartz, and a brilliant life cut far too short.

PACER

For years I’ve been working with, and silently cursing, PACER. This system, which stands for Public Access to Court Electronic Records, is an online system built and maintained by the federal government to give its citizens electronic access to court records.

As it usually goes, the government collects a fee for this services. Recently, although the system was already extremely profitable, they upped the cost per page by 25%1. Adding insult to pocket-book-injury is that this charge wasn’t levied because the old system was updated. We now just pay more for the same antiquated system that’s always been there.

Aaron Swartz

Activist. Programmer. Child Prodigy. Federal Criminal Defendant.

Aaron made a bigger impact on the internet by age 14 than many talented programmers will ever accomplish.2

As a programmer, he was a child prodigy. As an activist, he was fearless. If you’re reading this blog, on this website, chances are you’re probably very familiar with how relentless and intimidating the federal government can be to tangle with. Aaron saw the PACER system (see above) and decided to do something about it.

Instead of paying for the same pages over and over again, he took a piece of code called RECAP and ran with it. In the words of somebody more knowledgeable than me on Aaron, Cory Doctorow wrote:

At one point, he single-handedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any case law they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.

In very basic terms, he took these documents which are in the public domain3 and prevented the federal government from getting paid on them. Hence, he pissed off people that don’t normally get messed with. He faced legal trouble, but came out of it clean.

After this, Aaron was very busy with public interest activism. At one point he decided that some scholarly and important documents4 hosted by JSTOR needed to be liberated from their server. So he planted a laptop in an MIT closet, grabbed a few million articles, and then retrieved the laptop.

Enter the Government

Aaron’s actions were probably nothing new to the folks around MIT and Harvard. However, his actions beforehand didn’t help his reputation with the federal government, and the US Attorney’s office didn’t hold back when bringing charges. As a federal criminal defendant, Aaron was looking at serious jail time, or so he was threatened.

From Tim Cushing of TechDirt:

Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for “computer activity the US government doesn’t like.”

Swartz had accessed MIT’s computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he “stole” several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it’s pretty tough to square his massive downloading with any idea of “theft.

Much more has been written on this case. Read about what others had to say on prosecutor bullying in this case , when the law is worse that then crime, and how his actions turned affected one member of the tech community.

A Sad Ending

Despite 18 months of negotiation and legal posturing, it seemed as those Aaron would spend the rest of his life labeled as a felon. This is a label a lot of readers of this blog share and know the consequences of. To avoid this, a brilliant mind, prodigy, genius, and public activist killed himself.

I never met Aaron, but his work resonated through the word of tech, all the way to this lowly federal criminal consultant writing for this blog. His work making public records actually public and free reached even this far, and that says something profound.

  1. from $0.08 USD per page to $0.10 USD []
  2. Namely, he wrote the specs for RSS feeds that we all use in one form or another these days. []
  3. http://en.wikipedia.org/wiki/Public_domain []
  4. research papers, journal articles, thesis papers, etc. []