Notable Federal Sentencing, Crime and Defense News

The last few weeks has held a substantial amount of news concerning federal crime, sentencing, and defense news. Although there is not going to be an in-depth discussion on each topic here today, links are provided to source materials or detailed discussions and analyses.

U.S. Supreme Court

After a long break, the Supreme Court is back in action. Here is an overview of the recent decisions:

Howes v. Fields: The Sixth Circuit held that an inmate who is questions about events outside of prison are ‘in custody’ for Miranda purposes. The Supreme Court reverses the Circuit ruling, stating “The Sixth Circuit’s categorical rule—that imprisonment, questioning in private, and questioning about events in the outside worldcreate a custodial situation for Miranda purposes—is simply wrong.”

Kawashima v. Holder: The Ninth Circuit ruling that aiding and assisting in the preparation of a false tax return is an aggravated felony if the government’s revenue loss is greater than $10,000 is affirmed. “Convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i).”

Wetzel v. Lambert: This case involves AEDPA questions concerning habeas relief for a defendant on death row in Pennsylvania. The Supreme Court, in a per curiam opinion, vacated the Third Circuit, and remanded. Explanation of habeas relief under AEDPA is quoted from the opinion below.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court’s adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, a clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. 2254(d)(1).

United States Sentencing Commission

Last week, the USSC held two important and public hearings regarding sentencing policy in the federal justice system. One focused on broad sentencing options, entitled “Federal Sentencing Options after Booker” (written testimonies). From professor Berman over at Sentencing Law and Policy:

There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considered.

The second hearing addressed the sentencing guidelines concerning child pornography offenses (written testimonies). This area is functioning so poorly that defendants who possess visual depictions of child sexual abuse are often punished more severely than the perpetrators of the sex abuse that is depicted. In some cases, possessors of child pornography are sentenced to longer incarceration terms than rapists and murderers.1

Sentencing and Crime Articles

Here are a few of the many academic and opinion articles published on federal criminal law.

The High Cost of Prisons: Using Scarce Resources Wisely.

“The Gray Box”: An Investigation of Solitary Confinement in U.S. Prisons.

Round-Up

There is a lot of information to take in here, as there is always a lot of discussion about federal criminal practice and policy. Not many changes are made from Congress or even the Sentencing Commission, but the pendulum is swinging away from locking up everybody possible. Talk turns into action, it just seems to take decades to do so (see the obvious problems with the Cocaine v. Crack Cocaine sentence disparity).

Check back often for more on federal cases, sentencing policy, and discussions on how consultants can help you use this information to your advantage!

  1. Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines. Troy Stabenow (2009) at 38. “Child pornography is a pernicious evil. However, the hysteria associated with public events such as the Dateline “To Catch a Predator” series is not a sound basis for sentencing. Since 1991, the punishment for these offenses has been dramatically and irrationally increased, to the point where today rapists, murderers, and molesters receive lesser sentences than would a man who swaps a few, thirty-year old, pictures of child pornography that were produced before the defendant was even born.” []

Federal Pretrial Primer 1: What Prison Consultants Do

This is the first of three articles written for those who may be just entering the federal criminal justice system and the Bureau of Prisons. If you, or somebody you know, is dealing with a federal legal problem, you will undoubtedly encounter a cast of characters, names, and acronyms that are new and probably intimidating. We’ll make this information as understandable as possible while explaining why Prison Consultants can do for you.

The Cast of Characters

Who and what you’ll encounter

When the federal government first sets eyes on a person of interest where they believe a crime has been committed, an investigation will begin from one of many policing agencies (i.e. FBI, ICE, ATF, and many other abbreviated agencies). These agencies will be the first contact you will have with the system and their role tends to be very short. Generally you never see or know about the investigation, and your first indication of their interest in you will be when they make an arrest or formal indictment.

The second character in this sad play is your attorney. If you have a personal attorney, chances are they have tried very few federal criminal cases (federal criminal defense law can very different from state/local defense law) and will refer you to another defense attorney that knows their way around the halls of a federal courthouse. This is your first ally in a system that seems enormous and overpowering.

Third, if you are released on bond, will be a federal Pretrial Services Officer. This is basically a Probation Officer that is assigned to keep you out of any more trouble than you’ve already been accused of until your trial/sentencing hearing.

In very basic terms, these people will comprise the main contacts a new defendant will have when introduced into the world of federal justice. How you choose and interact with these people can make an huge impact on the eventual outcome of a case, and there is no single guidebook to describe exactly how to navigate your way through this confusing and frightening time.

This is why a fourth entity can be the most valuable ally anybody can have during this time: a Federal Prison Consultant.

Every person, and each case, is vastly different. Most people trust their attorney to do all of the thinking for them and pray that they made the correct choice in attorneys. The truth is that a good attorney can make the biggest difference on whether you serve prison time and/or how much time you spend there. The problem is: how do you know that your attorney is doing their job?

How, then, are you supposed to be secure in the defense your attorney is presenting on your behalf? Answer: A Prison Consultant is an entity that does not legally represent you, nor are they bound by the American BAR Association or its bylaws. A consultant can be a seasoned pair of eyes that will help you through this tough time and keep you from making common mistakes during this stage of the game.