Federal Supervised Release is not Punishment

The Seventh Circuit on Federal Supervised Release

A few years ago, the Seventh Circuit published an order clearly showing their views on the imposition and purpose of federal supervised release. That circuit is back at it again with an opinion regarding three separate cases, challenging their supervised release conditions.1  Thanks to the Federal Criminal Appeals Blog for the head’s-up on this one.

There are some key points made by this ruling that anybody interested in the nuts-and-bolts of federal supervised release should be aware of. If you are on supervised release, or interested in the subject at all, the entire opinion is a must read.

The Purpose of Supervised Release

To start off with, the Circuit posted a history and usage overview of supervised release. The most interesting part of this section of the order is below:

“The purposes of supervised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism.”2(Citations omitted and footnoted)

The real meat of this point is clarified a little later.

“Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, “since those purposes will have been served to the extent necessary by the term of imprisonment.”3…see also 18 U.S.C. § 3583(c) (directing a court contemplating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised release as “the decompression stage” between prison and full release.”4 (Citations omitted and footnoted))

What this says is simple. The goals of supervised release are not to further punish the defendant, since that is what incarceration is for. The factors courts must consider when contemplating a term of federal supervised release all almost the same as the one’s they consider when imposing prison time. The only difference is that court’s cannot consider the need for supervised release to provide just punishment for the offense.

The Meaning Behind the Purpose

Let us look at this from the perspective of one who wishes to gain early release from federal supervised release. If, 1) the purpose of supervised release is not to inflict more punishment for the underlying crime; and 2) the “decompression state” between prison and full release is accomplished, then there is no reason to keep a defendant on supervision any longer.

The trick is proving that this decompression stage is over. From lots of prior 7th Circuit decisions, we have these factors that mark this decompression and satisfy that requirement. From the first quoted section, these five purposes of supervision are:

  1. Rehabilitation: have you completed all treatment and aftercare?
  2. Deterrence: are you effectively deterred from committing future federal crimes?
  3. Training and Treatment: do you have enough treatment and education to stay clean from crime and to keep stable employment? Stability of home and job is a key indicator to judges that you pose a low risk to commit new crimes. Sometimes it just matters how busy you are. Job? Kids? Wife/Husband? All these keep a person busy, and no idle time means no time to devote to criminal behavior. “Idle hands are the Devils’ playground” and all…
  4. Protection of the public: Again, this lends to treatment, stability, and reduced risk of committing new crimes.
  5. Reduction of recidivism: At this point it gets redundant, but explicit. What is your quantifiable risk to commit new crimes. If you have zero criminal history, this part is easy!

That’s All For Now

So far, we’ve only viewed about 6 pages of this 68-page opinion. However, this is plenty to digest for now. If you’re looking to get early release from federal probation or federal supervised release, consider the purpose of supervision and ask yourself if you’re finished with its intended goals. If so, you could be a prime candidate!

  1. U.S. vs. Kappes, U.S. vs. Crisp, and U.S. vs. Jurgens; Nos. 14-1223, 14-2135, & 14-2482 respectively and decided April 8, 2015. []
  2. United States v. Johnson, 529 U.S. 53, 59-60 (2000); United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014); United States v. Evans, 727 F.3d 730, 733 (7th Cir. 2013) []
  3. S. Rep. No.98-225, at 125; see also Johnson, 529 U.S. 59 (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.”) []
  4. Johnson v. United States, 529 U.S. 694, 709 (2000). []

AG Holder Remarks on Criminal Justice Reform

While United States Attorney General Eric Holder announced six months ago that he would be leaving his office, he is still serving and waiting for his replacement to be confirmed and take control of the US Department of Justice. In the meantime, he has not let up on his belief that criminal justice reform is a very pressing issue forAttn. General Holder Testifies At Senate Judiciary Hearing On Justice Dept Oversight the DOJ.

In a speech to the Bipartisan Summit on Criminal Justice Reform, a long speech, there was a section that should be posted loud, clear, far, and wide. It speaks to the heart of what true criminal justice reform means and some of the reasons why it is necessary. The section is posted below:

“We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.

That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.”

The full text of Holder’s speech can be found at the DOJ’s website, and is definitely worth the time it takes to read in full.

Marijuana Legalization, Coram Nobis, and Federal Felonies

Legalized Pot

An interesting question arose for PCR Consultants the other day. With the growing trend the United States these days to legalize pot, what would happen if the federal government actually gave up the Weed branch of its War on Drugs.

Plenty of people believe that locking up citizens in the US for simple Marijuana possession, especially non-violent offenders, is a waste of taxpayer money. Federal felonies can lock up these offenders for decades, given a sufficiently long rap-sheets to justify large sentencing enhancements.

The landscape of Marijuana legalization has changed drastically over the last few years. In 2010, California nearly passed a ballot measure that would have decriminalized normal possession of consumable Cannabis. From SF Weekly writer Chris Roberts:

Buoyed by Oaksterdam University founder Richard Lee’s cash and energy, Proposition 19 — which would have legalized possession of up to an ounce of pot for adults 21 and over, and allowed cultivation of small gardens — lost in November 2010. It garnered a historic 4.6 million votes, or 46.2 percent of ballots cast. Following the loss, Lee declared on election night that legalization was inevitable, and that legalization would return in 2012 “stronger than ever” with a new ballot measure.1

What would happen, then, if pot was legalized? Would non-violent federal felonies for Marijuana crimes be erased, and the offenders relieved of their weed-based criminal record?

Maybe, but then again maybe not.

United States v. Skilling

To explore this issue further, we look at Honest Services Fraud and CEO-turned-convict Jeffrey Skilling. What, you may be wondering, does a high-profile-former-Enron-CEO have to do with weed?

Skilling took his federal felony to the US Supreme Court, who decided that some of what Skilling did was not actually a crime. This was a groundbreaking restriction on the application of Honest Services Fraud, and enough to call into question plenty of felonies that stood upon a broader definition of this type of fraud. In effect, many inmates were incarcerated for what may not be a crime any longer.

One of Illinois’ incarcerated former governors2 seized upon the Skilling decision to try and spring him from federal prison. Crime in the Suites reports on this (unsuccessful) attempt:

The Supreme Court’s June decision in United States v. Skilling doesn’t give former Illinois Gov. George Ryan a “get out of jail free” card, a U.S. district judge has ruled.

Last August, Ryan filed a petition under 28 U.S.C. 2255, which allows a federal prisoner to challenge his conviction and try to have it set aside if it was imposed in violation of law. His lawyers pointed out that Skilling made a substantial change in federal fraud law, rejecting the concept of “honest services” fraud in cases other than “paradigmatic cases of bribes and kickbacks.”

Judge Pallmeyer, in a detailed 59-page opinion, turned aside all of Ryan’s arguments. The “conduct for which [Ryan] was convicted – steering contracts, leases, and other governmental benefits in exchange for private gain – was well-recognized before his conviction as conduct that falls into the ‘solid core’ of honest services fraud,” the judge wrote, noting that this conduct was exactly what the Supreme Court said in Skilling was the “proper target” of the “honest services” law.

Coram Nobis

On the other hand, if what you did falls exactly under Skilling, you have a case. Nicholas Panarella was convicted of exactly the type of crime that the Skilling ruling said was no longer criminal. Matt Mangino reported on that case this way:

U.S. District Judge Mary A. McLaughlin ruled that Nicholas Panarella, Jr., convicted in a political corruption scheme, is entitled to a “writ of error coram nobis” to vacate his conviction based on an honest services wire fraud scheme, according to The Legal Intelligencer.

Judge McLaughlin ruled that Panarella’s conviction is no longer valid in light of the U.S. Supreme Court’s 2010 ruling in Skilling v. Untied States, which significantly narrowed the scope of the honest-services-fraud statute.

“Where a person is convicted and punished for conduct that is not a crime, such circumstances constitute the sort of fundamental error that may warrant coram nobis relief,” McLaughlin wrote.

McLaughlin said there was “no dispute that Panarella was charged solely with the undisclosed self-dealing theory that was invalidated by Skilling”, reported the Intelligencer. As a result, Panarella’s conviction “was predicated solely on conduct that is no longer a crime.”

What it all Means

In one case above, the underlying conduct of former Governor Ryan did not become lawful from the Skilling ruling. In the other, the Writ of Error Coram Nobis was used successfully when the underlying conduct of that person was declared “not illegal”.

So many federal felonies are out there for Marijuana that there is no one-size-fits-all answer to the question posed at the beginning of this article. If Marijuana is de-criminalized at the federal level, a great many federal prisoners could be eligible for having their convictions thrown out

  1. Marijuana Legalization Effort Fails in California, Thanks to Money and the Feds []
  2. and there are two: Ryan and Blagojevich []

Jury Nullification in the Modern Era

One of the the many blogs and news outlets that inform PCR Consultants about what is going on in the world of federal criminal issues is The Federal Criminal Appeals Blog. This is a great source for good news, defendant wins, and circuit case law for whatever might interest a reader who is researching or going pro se in the federal system.1

Jury Nullification

A favorite topic amongst the pro se and community, and this consultant, is the idea of jury nullification. In essence, this is the idea that a jury may acquit a factually guilty defendant if it feels that the statute broken is a bad law or the available sentence(s) goes way overboard. This may be a slight oversimplification, but that’s the essence of the idea.

Take for instance teens that sext each other or document their private behavior.2 These two teens did just that, and were charged as adults for taking lewd pictures of minors (themselves). How can you be charged as an adult for making a decision while also being treated as a child in the same case under the same circumstances?!3

There are weird, strange, and wild stories from all around the country every day that create the same confusion. These rare and outlier cases are why jury nullification has been exercised throughout our nations history. However, this exercise has been eroded more recently because the government and judges just don’t like it. From Doug Linder:

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney’s request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.4

Back to Current Events

The Federal Criminal Appeals Blog has documented to instances over the last quarter that have addressed this issue in modern day federal criminal trials. An excerpt from their May 1, 2013 post entitled “Did The First Circuit Encourage Jury Nullification?” discusses U.S. v. Costello and gets started this way:

We have too many federal criminal laws – more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call – it may or may not be a crime.

For example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was “harboring” an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, “trust us.” “We,” the government continues, “have scarce resources and good judgment. We won’t prosecute anyone except for really bad people.”

Thankfully, Judge Posner wrote the opinion in Costello. Here’s an excerpt, highlighted by that article:

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government’s sweeping definition of “harboring.” But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend’s drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Five days later, another case prompted more discussion on this topic. The case of U.S. v. Courtney, a federal judge in New Mexico delves deep into the issue of jury nullification, agrees its important, then says he won’t allow the jury to be made aware of its possible use. Its a lengthy opinion, but any voracious readers out there are highly encouraged to give it a read.

You Didn’t Read it, Right?

The possibility of jury nullification is not allowed to be presented to federal juries. Because federal juries do not participate in the sentencing of defendants, possible sentences which flow from a guilty verdict cannot be given to them. Judges specifically instruct juries to disregard the possible ramifications of a guilty verdict and decide only on if a statute was broken. This flies in the face of the protections we should have5 against tyrannical laws.

Without the ability to nullify criminal cases by returning a verdict of “Not Guilty” for insane prosecutions (Aaron Swartz, anybody?), the ability of U.S. citizens to keep their government in check gets stripped even more than it already has been.

Is it any wonder why the few rights we have left to defend ourselves against a possible tyranny are defended so vigorously, and are so vigorously being attacked? I’m talking about YOU, second amendment. ((Noah Webster wrote: “Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”

  1. IMPORTANT!: PCR Consultants neither advocates or wishes anybody engage the federal criminal justice system on their own unless that is their wish. References to all legal blogs and ideas are for informational purposes, and we take no responsibility if a litigant/defendant uses the information contained in any references to get themselves pimp-slapped out of a federal courtroom for any such tomfoolery []
  2. Presumably without their parent’s knowledge or consent []
  3. Quick point, its legal in Florida for these teens to engage in these behaviors, but not document them. []
  4. http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html []
  5. in codified and common law []

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 []

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.

Supreme Court Grants Cert. to FSA Pipeline Issue

Hill v. United States (11-5721)

Fair Sentencing Act and Crack Cocaine cases before and after its implementation are going to get their day in the Supreme Court!

Great news today from the United States Supreme Court. With a split in Circuit Court decisions regarding application of Crack Cocaine Sentencing Guideline reductions from the Fair Sentencing Act of 2010 (FSA), the Supreme Court has decided to hear arguments and resolve this issue once and for all.

In Hill v. United States, the defendant asserts that the reductions in Crack Cocaine sentences which arose from the passage of FSA applies to all defendants sentenced after the date of enactment of the new law: August 3, 2010.

Since the name “Fair Sentencing Act” implies that prior sentencing rules were unfair, its only logical to think that courts would apply the new guidelines to all defendants sentenced after its enactment, right? Wrong.

Although the First, Third, and Eleventh Circuits have agreed with this conclusion, the 7th Circuit has decided to apply the new reductions only to defendants who committed their crimes after August 3, 2010. All defendants already awaiting sentencing after that day were still sentenced under the older, harsher rules.

FSA Pipeline Cases Defined

These cases are called “Pipeline” cases. FSA pipeline cases are where defendants committed and charged with their offenses before the enactment of FSA, but had yet to be sentenced. Many believed they would get a more fair sentence immediately following the bill’s enactment date, and many received no such relief.

What Does This Mean?

The Supreme Court must now decide if the application of the newer, fairer law should have been applied to all pending sentences as of August 3, 2010. If it decides that this is the case, the decision is a huge victory for a lot of defendants with FSA pipeline cases.

Even if the Supreme Court decides that many defendants were sentenced under the old law unfairly, there is still work to be done. Each defendant must petition their sentencing court to reduce their sentence in the same way that the current USSC policy allows for. The biggest change that could come from this decision is the application of lengthy mandatory minimum sentences that could then be removed.

Keep checking in for the latest on the Hill case!

Writing to Your Sentencing Judge

Does a Letter Before Sentencing Help?

In many cases, a defense attorney will encourage his or her client to write their judge before sentencing to humanize a defendant. Judges receive many of these such letters. So many, in fact, that they can lose their potency with the Court.

Every defendant is a person. They are somebody’s son or daughter. They have families, friends, and often children of their own. Putting a vulnerable, human face to the name a sentencing judge sees is a good thing. Normally.

When do These Letters Hurt?

However, take for instance a convicted drug lord who is purported to have been responsible for the murders of hundreds of people. He wrote such a letter to his judge pleading for mercy. As detailed in a recent article in the New York Times titled, “In 7-page Note, Drug Lord Asks a Judge for Leniency“.

Here is an excerpt from that article:

“Good day to you, sir,” the letter to the judge began. “I am humbly asking if you could be lenient on me.”

Judges receive letters all the time from defendants who are about to be sentenced, but this letter, seven pages long and neatly handprinted, came from no ordinary prisoner.

The writer was Christopher M. Coke, described by United States prosecutors as one of Jamaica’s most brutal drug lords. He led a trafficking ring from an armed stronghold in Kingston, moving guns and drugs between Jamaica and the United States, prosecutors said, and his soldiers patrolled the streets and guarded stash houses. He ordered murders, shootings and beatings, and, when one man stole drugs, the prosecutors said, Mr. Coke killed him with a chain saw.

Last year, Mr. Coke was arrested and sent to Manhattan, where he has since pleaded guilty to conspiracy charges. He could receive a 23-year sentence.

And it was in that context that Mr. Coke, 42, took it upon himself to send a polite letter to the judge, Robert P. Patterson Jr. of Federal District Court.

Addressing him as “Justice Patterson,” Mr. Coke said he accepted responsibility for his actions, although he did not apologize in the letter. And he asked that the judge use his “discretion” to sentence him “below the guideline range.”

In doing so, Mr. Coke offered a list of 13 reasons, with some broken into subcategories. For one thing, he said, he had lost his mother recently. “I was told that while she was on her deathbed, she was crying and kept calling my name.”

And his 8-year-old son had been traumatized by his arrest, he said. “I was told that he is constantly asking for his daddy,” Mr. Coke explained, adding “He cries all the times since I am gone.”

The letter goes on to describe all the good things Mr. Coke has done for his community and whines that he’ll be deported after he completes his sentence:

Mr. Coke also complained that because he would be deported after serving his sentence, he would leave the country “without the possibility of ever visiting” his brother or other relatives who he said lived here.

Mr. Coke also described “charitable deeds and social services” that he said he had provided to his community, including efforts for the elderly, the unemployed, parents and a “back-to-school treat” for students that included school bags, books, pens, pencils and uniforms.

How This Hurts Defendants

In his letter, Mr. Coke tells his woeful tale of how his sentence will effect him. However, because of his perceived evil deeds, the next time his sentencing judge receives a similar letter, he may only remember the last time he read one. This could have no effect on his next sentence pronouncement, or it could make his decision even harsher.

Here’s the good news. Many judges want to see remorse and guilt. A well written letter to the sentencing judge taking responsibility for the actions a defendant has already plead guilty to (or been convicted of) can go a long way. Apologies and expressions of remorse go much further than trying to look like the victim. As seen in the letter written above, Mr. Coke never apologies for his actions which lead to his conviction.

This omission could mean the difference between leniency from the court and a harsher sentence. Time will tell in this case, but take heed when writing a letter to a sentencing judge.

Painting yourself as a victim is bad.

Expressing remorse for your sins is good.

New US Sentencing Commission Data Shows Interesting Trends

New US Sentencing Commission Data: 3rd Qtr. 2011

Just released from the US Sentencing Commission is their quarterly report containing a considerable amount of data concerning the October – June months of sentencing in United States courts. Below is a short, and by no means total, breakdown of some of the interesting data points.

Sentences Inside and Outside the Guidelines

  • Only 1.8% of cases went above the guidelines range;
  • 43.9% of all sentences were below guidelines range;1
  • 61% of all below-guidelines sentences were initiated by the prosecuting US Attorneys;2

Now we’ll look at crimes by category:

  • The most cases sentenced were immigration cases: 21,415 or 35.2% of all cases during this time period;
  • Drug offenses, not surprisingly, were the second-most cases: 18,371 or 30.2%;3
  • Fraud (5,351) and Firearms (5,726) charges came in a close 3rd/4th: together accounting for another 18.2%;
  • Together these crime categories make up 83% of all sentenced defendants in the first three quarters of 2011;

Best and Worst

Circuits

Being a defendant in some circuits is better than others. For instance the 1st, 3rd, and 11th Circuits have ruled that the Fair Sentencing Act of 2010 applies to cases that were pending, but not yet sentenced, at the time of the law’s enactment.4 Below is a breakdown of the most favorable and least favorable circuits to federal defendants, by the numbers.

  • A defendant is most likely to get a within-guidelines sentence within the 5th Circuit: 70.7% of all cases within that circuit are within range;
  • A defendant is most likely to get a below-guidelines sentence in the 9th Circuit, followed closely by D.C.: 61.2% and 60.1% of defendants of those circuits, respectively, were given below-guidelines sentences;
  • A defendant is most likely to get an above-guidelines sentence in the 7th Circuit: 2.3% of their cases are above range (that is 28% higher than the national average);

Districts

As with the Circuits above, the District Courts below them have an even wider variance in data. Below are some amusing numbers about US District Courts.

  • Where will a defendant get ratted on?
    • Most likely District: Eastern Kentucky with 37.7% of all sentences reduced for US Sentencing Commission §5K1.1 substantial assistance to the government;
    • Least likely District: Nebraska with only 2.3% of cases reduced for §5K1.1 assistance;
  • Where can you get fast track departures?5
    • The 9th Circuit gave the lion’s share with 36.7% of their cases getting these reduction (constituting 81.1% of all cases getting §5K3.1 reductions nationwide) with the Districts of Arizona and Southern California leading the way;
    • The 10th Circuit (by the District Courts of New Mexico and Utah) and 5th Circuit (by the District Courts of Southern Texas), make up nearly all the rest of these reductions (11.9% of all Tenth Circuit cases and 4.3% of all 5th Circuit cases got these reductions make up 18.2% of nationwide §5K3.1 reductions)

Offenses

What are the worst offenses to be charged with?

  • Manslaughter has the highest rate of above-guidelines sentences: 21.2%;
  • Murder comes in a distant second with 14.6% of sentences being above the guidelines range;

What are the “best” offenses to be charged with?

  • Antitrust had the largest percentage of below-guidelines sentences with 80%, but the sample group was only 8 cases;
  • Money Laundering came in second with 65.5% of cases receiving lower-than-guidelines sentences;
  • Third place goes to Child Pornography sentences with 61.7% of sentences going below the guidelines;

Disclaimer

All of the data herein comes from the report from the United States Sentencing Commission as cited and linked at the top of this post. The data interpretations and opinions derived from all of this data are my own and are in no way exhaustively researched with scientific peer review. I hope you enjoyed reading the data fragments I found most entertaining! The following is a data disclaimer from the US Sentencing Commission report itself

According the US Sentencing Commission:

Users of the quarterly releases are cautioned that the quarterly data are preliminary only and subject to change as the Commission collects, analyzes, and reports on additional cases throughout the fiscal year. When data for each new quarter is made available, the Commission will update the previous preliminary quarterly totals in the most recent release until the release of the final fiscal year data in the Commission’s Sourcebook … As a result, quarterly data should not be considered final until publication of the Commission’s Annual Report and Sourcebook

============================================================================================

  1. Interpolated from 1.8% above range plus 54.3% below (56.1% subtracted from 100% []
  2. 26.8% of all sentences were government sponsored, below guidelines sentences where a vast majority were §5K1.1 or §5K3.1 motions []
  3. Trafficking, Communication Facility, Simple Possession []
  4. August 3, 2010 []
  5. §5k3.1 Early Disposition Programs: Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides. []

Norway v. American Criminal Justice Statistics

As The Right Bemoans Norway’s Criminal Justice System, It Is One Of The Safest Countries On Earth

This heading is the title of this article from ThinkProgress which takes a close look at the criminal justice statistics of Norway’s criminal justice system. There has been a sharp emotional response to Norway’s statutory maximum prison sentence of 21 years (parole in 14) in regards to the suspect, Anders Breivik, in the recent terrorist attacks.

While these attacks are horrific and unconscionable, the statistics on Norway’s criminal justice system should give American’s pause before criticizing what seems like a much-too-lenient system. Below is an excerpt from that article:

[B]efore Americans rush to judge Norway’s criminal justice system — which relies far less on punitive measures than ours and that has a strong focus on rehabilitation — they should look at the results it produces. Norway is one of the safest countries on earth, boasting some of the world’s lowest crime rates:

Norway Has Some Of The Lowest Murder Rates In The World: In 2009, Norway had .6 intentional homicides per 100,000 people. In the same year, the United States had 5 murders per 100,000 people, meaning that the U.S. proportionally has 8 times as many homicides.

Norway’s Incarceration Rate Is A Fraction Of That Of The United States: 71 out of every 100,000 Norwegian citizens is incarcerated. In the United States, 743 out of every 100,000 citizens was incarcerated in 2009. The U.S. has the world’s highest incarceration rate.

Norway’s Prisoner Recidivism Rate Is Much Lower Than The United States’: The recidivism rate for prisoners in Norway is around 20 percent. Meanwhile, it’s estimated that 67 percent of America’s prisoners are re-arrested and 52 percent are re-incarcerated.

While many Americans may have an understandable emotional reaction to a country that strives to treat even the most heinous of murderers humanely, they should also be aware of the fact that Norway’s criminal justice system appears to have produced a nation that is much safer and imprisons far less of its people than the United States or just about any other country.