The Newest SCOTUS

Supreme Court Nominee Kavanaugh

How This Pick Stacks up on Criminal Justice and Dimaya

2018 Marks the second time the Trump administration will have selected a judge to sit on the United States Supreme Court. The first nomination, Justice Neil Gorsuch, widely considered to be a right-leaning partisan pick, actually sided with the defendant in the much-publicized Dimaya case.

However, now that Judge Brett Kavanaugh has been nominated to replace Justice Kennedy, a new investigation into the track-record of this new nominee has been sparked. Priya Raghavan over at the Brennan Center for Justice (at the New York University School of Law) wrote about just this issue. Here are some highlighted excerpts from her excellent piece (links preserved from original article):

Brett Kavanaugh’s Supreme Court nomination is troubling on many fronts: He appears to want the president to be above the law, he would likely curtail abortion rights, and he’d almost certainly block meaningful gun control. But we know much less about Kavanaugh’s views on criminal justice. How the nominee would shape the Court’s criminal jurisprudence in many ways remains a mystery.

Kavanaugh serves on the Court of Appeals for the D.C. Circuit, which spends much of its time reviewing federal government administrative actions and less time deciding criminal justice matters. As a result, his criminal justice decisions are few, and there are large swaths of the criminal law that Kavanaugh simply hasn’t publicly contemplated.
However, one thing is clear: Based on Kavanaugh’s limited criminal jurisprudence, there is no indication that Kavanaugh falls to the left of Kennedy on any aspect of criminal justice.

Regarding Kavanaugh’s decisions in favor of defendants:

The rare instances when Kavanaugh sides with defendants are equally telling. In U.S. v. Burwell, Kavanaugh dissented from a decision that upheld a 20-year sentence enhancement for a defendant who used a machine gun during a robbery. Kavanaugh argued that there was no proof that the defendant knew the gun he used was a machine gun and that the law should require such proof. But this doesn’t necessarily mean that Kavanaugh was looking out for the little guy. Insisting on such intent requirements – mens rea, in legal terminology – could make it harder for the government to prosecute white-collar criminals, largely benefitting a small segment of affluent defendants.

In Raghavan’s opinion, and that of many criminal justice scholars, Kavanaugh would rather Booker go away and make the guidelines manual mandatory again:

Kavanaugh’s views on sentencing are more difficult to parse. He testified in 2009 that, from a policy perspective, he believed federal sentencing guidelines should be mandatory, rather than advisory, to limit judicial discretion in sentencing. He was concerned that advisory guidelines would allow judges to impose their personal views at sentencing, leading to disparate outcomes. But Kavanaugh has on several occasions disagreed with his colleagues and supported lower court judges who gave harsh, above-guidelines sentences with little to no explanation of their reasons for doing so. In both In re Sealed Case and the recent U.S. v. Brown, where the D.C. Circuit vacated sentences after judges issued harsh, above-guidelines sentences without sufficient explanation, Kavanaugh dissented, calling the majority’s holding in the latter case “confounding.” Kavanaugh’s statements on sentencing leave us wondering: how much discretion does he think judges should have?

The article goes on to ask more open ended questions that are tangentially directed at Kavanaugh, but are more of a suggestion to the Senate panel at Kavanaugh’s confirmation hearings.

The Difficulty on Bringing State Cases into Federal Habeas Proceedings

Federal Habeas Filings Under §2254

Filing a habeas petition is difficult and very time consuming. Filing an effective habeas petition is even harder. This is in reference to federal inmates filing for 28 U.S.C. §2255 habeas relief in federal court. A majority of these filings fail even before they get a hearing, never getting their day in court.

However, there is an avenue in this area of appeals that allows state inmates with state-level convictions to appeal their convictions on federal-constitutional grounds in federal court. This process and the law behind it comes from the section prior to the one that gives federal inmates this option.

This is Title 28 U.S.C. §2254.

Our most recent client who wanted to file for this type of appeal was the father of a young man in the Midwest United States who was wrongfully convicted of homicide. A case of mistaken identity that resulted in a sentence of life without the possibility of parole. This young man’s life is effectively over, all because an overzealous detective didn’t want to change his “hunch” from day 2 of investigating a murder.

This detective had pinned the crime on this young man, and nothing would dissuade him otherwise. Not a lack of evidence, or even witnesses that heard the confession of the real killer first hand. Add on top of that a drug-addicted witness who was paid a crime-stoppers-type reward before  the trial, who changed his tune from unsure, to a concretely positive identification, and the perfect storm was set for a wrongful conviction.

However, this post is not about this young man or the injustices that resulted in a jury convicting him of murder.

This post is about the process of even getting his case heard before a federal judge. It is immensely difficult, to say the least.

The American Constitution Society

Just this month, in July of 2018, the American Constitution Society (ACS) published a brief entitled “Litigating Fedreal Habeas Corpus Cases: One Equitable Gateway at a Time“. and it gets started this way:

The Supreme Court has described the writ of habeas corpus as “a bulwark against convictions that violate fundamental fairness”1 and as “the judicial method of lifting undue restraints upon personal liberty.”2 Unfortunately, obtaining federal habeas corpus relief has become close to impossible for many prisoners. The vast majority of habeas petitions are post-conviction petitions filed by state prisoners. Congress and the Supreme Court have erected a complicated maze of procedural obstacles that state prisoners must navigate, often without the assistance of counsel, to have their constitutional claims considered in federal court. One wrong procedural step means the prisoner’s claims are thrown out of federal court altogether. In fact, federal judges now dismiss a majority of state prisoners’ habeas claims on procedural grounds.3

The rare state prisoner who successfully manages to run this procedural gauntlet faces a merits review process that has become so deferential to the state that relief remains virtually unattainable. In the extremely rare case where a federal court grants relief, the judgment often comes years after a person has been wrongly imprisoned. At that point, the case has often been forgotten and the state actors responsible for the underlying constitutional violation have often changed jobs. As a result, the federal decision effectively has no deterrent value.

One empirical study revealed that only 0.29% of non-capital state prisoners obtain any form of federal habeas relief.4 That number is troubling in light of evidence that states systematically violate criminal defendants’ constitutional rights5 and data documenting large numbers of wrongful state convictions.6 Many state criminal defendants have no semblance of a fair process to determine their guilt or innocence. They are processed through a system populated by underfunded and overworked criminal defense attorneys who are often structurally ineffective,7 prosecutors whose incentives often are to obtain convictions and appear tough on crime rather than pursue just results,8 and overwhelmed trial court judges who are focused on docket management and often indifferent to the systemic mistreatment of poor people of color. To avoid reckoning with these failures, states often rely on (and even distort) state procedural rules to reject defendants’ constitutional claims.9

The entire brief runs 21 pages long and is well worth the read. Suffice it to say, though, these are very hard to do and do well.

As far as the young man who was convicted of murder? His case is still pending briefs ordered by the government and a report from an impartial magistrate judge before the presiding federal10 judge makes a determination of whether this case is heard, granted, and this young man gets freed from prison.

Judging from past inmates who have tried, however, it is likely that this case will go to an appeal before it gets taken seriously. Maybe even the U.S. Supreme Court.

We will, of course, post any updates in the future.

  1. Engle v. Isaac, 456 U.S. 107, 126 (1982) []
  2. Price v. Johnston, 334 U.S. 266, 269 (1948) []
  3. See NANCY J. KING ET AL., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS 6 (2007), http://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf [hereinafter KING REPORT]. []
  4. See KING REPORT, supra note 3, at 9. []
  5. See, e.g., Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CALIF. L. REV. 1, 16-23 (2010) (documenting systemic violations of defendants’ rights in the states); see also Lynn Adelman, Who Killed Habeas Corpus?, DISSENT MAGAZINE (Winter 2018), https://www.dissentmagazine.org/article/who-killed-habeas-corpus-bill-clinton-aedpa-states-rights (“As a federal judge, I have observed a considerable number of cases where state courts overlooked clear constitutional violations….”). []
  6. See Brandon L. Garrett, Actual Innocence and Wrongful Convictions in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  7. See, e.g., Eve Brensike Primus, Defense Counsel and Public Defense in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  8. See, e.g., John F. Pfaff, Prosecutorial Guidelines in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  9. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002) (examining Missouri’s distortion of two state procedural rules to prevent a defendant from presenting witnesses to support his alibi defense); see also Eve Brensike Primus, Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine, 116 MICH. L. REV. 75 (2017) (documenting how states use procedural rules to avoid constitutional challenges). []
  10. Article III []

An Interesting Case On Supervised Release

We’ve written a lot here about federal supervised release and the conditions that allow for a judge to release our clients early from their term of supervision. One of the places we get our information is from a policy document that guides federal probation departments.

Monograph 109

This document, called Monograph 109 which is a guidebook for probation departments. One of the sections in Monograph 109, namely §380.10(b), lays out a list of policy considerations that probation departments must consider for making recommendations for or against requests for early release from federal probation.

We did a review of all 9 of these factors in our post about it here.

The case that presented it’s conclusion this week, however, speaks to the outlier cases that these policy statements address.Factor #3 talks about aggravated offenses, factor #4 talks about a history of violence, and factors #8 & #9 talk about risks to victims and the public at large.

However, later in that same section it states that the existence of outstanding financial obligations per se does not adversely affect early termination eligibility (§§c), and failure to meet criteria listed should not automatically exclude an offender from further consideration (§§d), and there is a presumption in favor of recommending early termination for probationers and supervised releasees who have been supervised for at least 18 months and are not violent, drug, sex offenders, terrorists, present a risk to public or victims, and are free from any moderate or higher violations.

Armed Bank Robbery

The case that presented itself to us this week, with its conclusion, started way back in January of 2018. The case itself began with an armed bank robbery in 2006, and resulted in a 101 month prison sentence. The defendant, our client, reached out to see if he could use our help in applying for early termination of his supervised release.

He was given 5 years of supervised release and had already completed about 3.5 years of that term. He had less than $100k in restitution which stemmed from the money stolen from the bank robbery crime.1

Typically, an answer to a request for early termination is given by a judge within 2 months of the initial request being filed.  A majority of the requests are decided after about 5 weeks.

This case was different. The judge in this case wanted 3-4 separate briefs and a lot of documentations from the defendant/client and the probation officer in charge of his supervision. Usually this is a good sign, as a judge who is going to deny a request like this will deny it quickly. Normally, if it takes a judge longer than 8 weeks to publish an order, the chances of that order being positive for our clients goes up drastically.

However, this wasn’t the case here.

The Decision

The judge denied our client’s request here. The denial was given two separate parts. First, the judge cited the c0-defendants in the case. 18 U.S.C. §3553(a)(6) talks about a judge’s requirement to be fair and even-handed (read: consistent) between similar defendants with similar criminal conduct. In this case the judge decided that if he were to let  this defendant out of his supervision early, he would be compelled to do the same for his co-defendants that committed the same crimes.

While this is understandable, this doesn’t account for the conduct of each defendant after their release from prison, and only considers their criminal conduct. For statutory reasons, this is shaky legal ground because the “seriousness of the original offense”2 is not one of the factors from original sentencing that is allowed to be considered for an early termination request.

The second reason was restitution, and this is a big sticking point for many judges. Because this defendant had outstanding restitution, this judge (and many others) are timid to grant early release from supervision. This is because supervised release allows dire consequences if defendants just stop paying their restitution monthly payments.

You see, while on supervision, if a defendant stops paying he can be sent back to prison as this is a violation of his/her terms of supervision. However, after supervised release is over, outstanding restitution is converted to a civil judgment and has all the force and effect of a debt being in collections.

Basically, they can come after you and garnish your wages, but can’t send you to prison for non-payment of restitution.

Conclusion

It took six months of back-and-forth with the court for this case to come to a resolution. It wasn’t the order our client wanted, but at least it is over and he doesn’t need to wait for the decision with bated breath anymore.

We here at PCR Consultants like to publish and brag about the difficult cases that we are able to get free from supervision. However, we are open and honest with our clients that it doesn’t always go that way. This was one of those cases.

  1. for completeness’ sake, this client pleaded guilty and was a first-time offender with no criminal history points and a Criminal History Category of I []
  2. §3553(a)(2)(A) []