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.” []

Judges speak against the “War on Drugs”

Life without Parole for Selling Drugs

In a Fourth Circuit Court of Appeals concurring opinion, Judge Davis wrote what many judges, including the sentencing judge in the district court below in this case, have expressed about the mandates for sentencing incumbent in the “War on Drugs”.

It is said so well in Judge Davis’ concurring opinion that I will simply get out of his way and post an excerpt below. The entire opinion is a good read if you are interested in federal sentencing policy-insanity.

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond…

[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison….

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure…. Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful … the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.

I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.

A Broken System – No Crime or No Punishment

The System is Broken

What is the purpose of incarceration?

Official definitions and intentions of prison time vary, but the basic principles are these: protecting the public from danger, rehabilitating offenders, and metering would-be
offenders from committing similar crimes in the future.

It seems commonly known that the way the United States government, and the states beneath it, incarcerates people is broken. So much so that the United States Supreme Court has recently ordered California to release a large portion of its incarcerated population. The decision states that California prisons are so overcrowded that basic medical and mental health care cannot be reasonably provided which qualifies as cruel and unusual punishment.

Two Examples in the News

Here are two stories which highlight the most fractured pieces of the Judicial branch of government, arguably the first cog in this engine of mass incarceration.

John Edwards

Former presidential candidate John Edwards was indicted on Friday June 3, 2011 on charges that, basically, he is a Dirtbag. The case against Edwards cites a very liberal interpretation of campaign finance laws from 1971, and a conspiracy charge wholly predicated on the illegal nature of the alleged campaign finance violations.

Edwards is a dirty politician [redundancy intentional], without a doubt. Add to his status as a politician, he is a lying jerk who cheated on his wife while she was losing a battle with terminal cancer. He also had a child with his mistress, which he tried to hide, while his wife was dying. He is not a man of moral integrity. However, he may very well have not broken any laws.

That, however, is a decision for the federal courts to make.

In the negotiations that occurred just before his indictment was handed down by a Grand Jury, a plea agreement was discussed well into the early morning hours. The negotiations evolved from 2 felony guilty pleas without to 3 misdemeanor pleas with possibility of incarceration. Prosecutors wanted a felony on his record jail time. Edwards, who is a trial attorney himself, declined the final offer because it prevented his attorneys from even discussing incarceration alternatives with the judge.

In this case (as in so many others) prosecutorial charging and bargaining choices are driven by prosecutorial interest and power to demand a certain type of sentence.

Ryan LeVin Purchases his Freedom

An Illinois man killed two British businessmen while driving drunk. The Chicago Tribune reported the story as the sentencing piece unfolded. Prison time was pit against financially providing for the two families of the dead businessmen.

Ryan LeVin, 36, will spend 2 years on home confinement in one of his parents’ waterfront condominiums. This, for killing two men with his Porsche 911 Turbo. This seemingly light sentence came to be when the decision had to be made between using LeVin’s substantial financial means to provide for the families of his victims and that of punishing him through incarceration (of which he was facing up to 45 years).

In the end, his checkbook bought his freedom from prison. The decision has caused a lot of ire from the legal profession about the system and freedom being for sale.

Help Yourself at Sentencing

Whatever You’ve Done Can and Will be Used to Help at Sentencing

Sentencing is a difficult time for everybody surrounding a criminal trial. Victims and their families are never happy with a merciful prison term, while convicts always want less time than what they received. This gap will never close.

For those sitting with their lawyer at the defense table, anything that can be used to lessen a possible prison term is used on Sentencing Day. On March 2, 2011 the Supreme Court of the United States reversed a decision by the Eighth Circuit court and enabled more information to be used at sentencing in favor of the defendant.

In Pepper v. United States (No. 09-6822), the Supreme Court said that district courts may consider post-sentencing rehabilitation at a resentencing hearing. Upon hearing this case, the Supreme Court reversed the circuit decision claiming that post-sentencing rehabilitation was not allowed to be considered at a resentencing hearing. In simple terms: although some rehabilitation happened after the original sentencing date, it did not keep those actions from being used on a defendant’s behalf.

There is a more in-depth analysis of the Pepper case and its ramifications, check out the analysis portion at the bottom of this post.

What this Means to You

Everything a defendant does before and after being charged with a crime is looked at by the presiding court. Use this information to your advantage! Voluntarily entering treatment while on pretrial status (if bond is granted) can take years off of a potential sentence. Screwing up while on pretrial can add those same years onto a sentence, so stay diligent!

Analysis

 

After pleading guilty and receiving a sentence containing a very significant downward departure, the United States Attorney appealed, the sentence vacated, and was remanded back to the district court for resentencing. The sentence was again pronounced, appealed by the US Attorney, vacated, and remanded for resentencing. The Eighth Circuit court vacated the sentence of Mr. Pepper on three separate occasions because — despite sentencing guidelines being only advisory — determined that the sentence was reduced too much.

The fourth trip though the courts (referred to by the Supreme Court Slip Opinion as Pepper IV), the district court imposed a 65-month sentence. That sentence was affirmed on Pepper’s appeal by the Circuit Court, and then granted Certiorari

Common sense would dictate that, after the Booker and Gall decisions by the Supreme Court, a district judge’s discretion would exist above appeal so long as that decision was constitutional. However, the Eighth Circuit disagreed with the sentencing below, and held that using post-sentencing rehabilitation as grounds for downward departure at a resentencing was not proper.

This type of disregard for a judge using his own “Judgment” is the reason Gall was granted Certiorari after Booker in the first place. The Supreme Court felt it needed to, once again, make a judge’s judgment legal.

To drive this point home, the high court held the following:

“[C]onsistent with the principle that “the punishment should fit the offender and not merely the crime,” Williams v. New York, 337 U. S. 241, 247, this Court has observed a consistent and uniform policy “under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law,” id., at 246, particularly “the fullest information possible concerning the defendant’s life and characteristics,” id., at 247. That principle is codified at 18 U. S. C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). . .”

So, if the law says that no limitation shall be placed on the information a sentencing court may use at sentencing, why did the Eighth Circuit ignore 18 U.S.C. §3661 on three separate occasions? It seems as though it simply did not like the lack of a stiff sentence for Pepper, regardless if that sentence was given under sound legal judgment. The Supreme Court disagreed, vacated in part, affirmed in part, and remanded.